Whistleblowers Protection Act 2001 - Investigation into allegations of improper conduct by a councillor at the Hume City Council

 

Whistleblowers Protection Act 2001

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

February 2011

Ordered to be printed

Victorian government printer

Session 2010 - 11

P.P. No. 8

 
 

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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 section 103 of the Whistleblowers Protection Act 2001, I present to Parliament the report of an investigation into allegations of improper conduct by a councillor at the Hume City Council.

G E Brouwer

OMBUDSMAN

7 February 2011

letter to the legislative council and the legislative assembly

 

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Contents

Page

 

 

Parties in this report

 

5

 

 

Section 22A of the Whistleblowers Protection Act 2001

 

6

 

 

Executive summary

 

7

 

 

Whether a benefit was received to modify a planning permit

 

7

 

 

Failure of Councillor Atmaca to register interests

 

9

 

 

Councillor Atmaca’s misuse of position and council resources

 

10

 

 

Misuse of resources to mislead the Department of Immigration

 

11

 

 

and Citizenship

 

 

 

 

Background

 

12

 

 

Public interest disclosure

 

12

 

 

Issues examined

 

12

 

 

Investigation methodology

 

12

 

 

Councillor conduct

 

13

 

 

Hume City Council

 

13

 

 

Whether a benefit was received to modify a planning permit

 

14

 

 

The planning permit

 

14

 

 

The meeting between the take-away food company and landlord

 

14

 

 

The arrangement involving the permit conditions

 

15

 

 

Relationships between the parties

 

18

 

 

Conclusions

 

20

 

 

Declaration of personal interests and ignoring a conflict of interest

22

 

 

The business centre

 

22

 

 

Conclusions

 

24

 

 

Councillor Atmaca’s misuse of his position and council resources

26

 

 

Misuse of letterhead

 

26

 

 

Authority to use Hume’s letterhead

 

26

 

 

Alteration of council letterhead

 

28

 

 

Purpose of using Hume’s letterhead

 

28

 

 

Misuse of Hume’s powerpoint presentation

 

29

 

 

Misuse of position to encourage investment in his private company

 

31

 

 

Meetings with private investors at Hume

 

31

 

 

Representing himself as a councillor while overseas seeking

 

32

 

 

private investment

 

 

 

 

Conclusions

 

34

 

 

Misuse of resources to mislead the Department of Immigration

 

36

 

 

and Citizenship

 

 

 

 

Conclusions

 

38

 

 

Recommendations

 

39

 

 

Appendix 1

 

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Appendix 2

 

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Appendix 3

 

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Appendix 4

 

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Parties in this report

Public officers

Councillor Adem Atmaca

The City of Hume Director

The 2011 Mayor

The 2010 Mayor

The 2009 Mayor

The CEO

Private parties

The take-away food company

The take-away food company’s representative

The landlord company

The Director of the landlord company

The Manager of a related company

The business centre

The business centre’s liaison for China

The consultancy group

parties in this report

 

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Section 22A of the Whistleblowers Protection Act 2001

1.Section 22A of the Whistleblowers Protection Act 2001 provides that I may disclose, in a report referred to in section 103 of that Act, particulars likely to lead to the identification of a person against whom a protected disclosure has been made if I determine it is in the public interest to do so and if I set out in the report the reasons why I have reached that determination.

2.The protected disclosure that I received and investigated did not identify or name anypersons.Instead,itallegedthatpublicofficersataparticularlocalcouncilhad engaged in possible illegal conduct with private parties. During the investigation of that disclosure I identified a public officer who I am satisfied has engaged in improper conduct. I consider it is in the public interest to identify that officer. It may be that, as the disclosure did not identify particular persons, I can include in a report to the Parliament the identity of persons without the necessity of a section 22A statement. However, I have taken it that if I identify a person who meets the general description in a disclosure, that the Parliament intended section 22A to require me not to do so without meeting the obligations imposed by that section.

3.Having considered the four matters referred to in section 22A(2), I have determined that it is in the public interest for the report to identify a councillor at the City of Hume by disclosing the following particulars: the name, occupation and personal details of that person. I have made this determination for a number of reasons as follows.

4.I consider that it is in the public interest for the subject of a public interest disclosure to be identified in a report to the Parliament when the report and the disclosure concern allegations of improper conduct by persons holding public offices of certain significance, in this instance, the office of councillor at the City of Hume. This is particularly so when my investigation concludes, as it does here, that the councillor has inappropriately used his office.

5.This public interest is derived from the nature of the public office held. In this instance, the public interest arises from the:

constitutional significance of the office of councillor and of local government, as recognised by Part IIA of the Constitution Act 1975; and

role, duties and obligations of the office of councillor which include the:

o essential role that councillors play in the good governance of local areas, as recognised by section 74A(1A)(b)(ii) of the Constitution Act

o controlandinfluencethatcouncillorsexerciseoverasignificantamount of public spending and infrastructure

o conduct obligations imposed on councillors by Division 1A, Part 4 of the Local Government Act

o obligations that are expected of democratically elected councillors to the people of their municipality, and to the State of Victoria.

6.I do not believe that the public interest identified above can be satisfied by any means other than by identifying the councillor and confidentiality is not appropriate as it is inconsistent with the public interest that is served by the disclosure of the identity of the person concerned.

6section 22a of the whistleblowers protection act 2001

 

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Executive summary

7.Local councillors are elected by the community to make decisions which promote the peace, order and good governance of their municipalities. To do this councillors must make decisions in the interests of the local community and cannot act in their own personal interest.

8.The Local Government Act 1989 (the Act) outlines and regulates the standards of conduct expected of councillors while performing official duties. It states that councillors must:

avoid conflicts between their public duties and personal interests

act honestly and avoid statements that will mislead others

endeavour to ensure that public resources are used solely in the public interest.

9.Section 76D(1) of the Act makes it an offence for a councillor to misuse their position to gain an advantage for themselves (or for any other person)1.

10.To prevent councillors acting, or being perceived to act, in their own interest, the Act requires councillors to declare certain personal interests to the council’s Chief

Executive Officer (CEO) on an annual basis.

11.In April 2010, I received a disclosure that public officers at Hume City Council

(Hume) had engaged in ‘possible illegal conduct’ with private parties. It was alleged that at a private meeting held on 11 March 2010, a private individual said that an officer at Hume had accepted $5,000 to modify the conditions on a planning permit.

It was alleged that at a private meeting held on 11 March 2010, a private individual said that an officer at Hume had accepted $5,000 to modify the conditions on a planning permit.

12.I determined this disclosure to be a public interest disclosure and advised Hume’s CEO, the then Mayor and the whistleblower of my intention to investigate this matter.

Whether a benefit was received to modify a planning permit

13.On 15 February 2010 Hume issued a planning permit to allow a take-away food premises to be constructed at a property on Sydney Road, Campbellfield. The permit contained 41 conditions.

14.On 11 March 2010 a meeting was held between a Director of one of the landlord companies2, his Manager of a related company and a representative of the take- away food company to discuss the conditions placed on this permit.

1Section 76(D) (1) (a).

2The property is owned by two companies, one of which was represented at the meeting and the other which was not.

executive summary

 

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15.I received information that at this meeting the Director of the landlord company asserted that the planning permit should not contain conditions because he had paid $5,000 to a contact at Hume to ‘take care’ of the application.

I received information that the Director of the landlord company asserted that the planning permit should not contain conditions because he had paid $5,000 to a contact at Hume to ‘take care’ of the application.

16.After making this statement, the Director of the landlord company and his Manager began attempting to telephone ‘their contact’ at Hume.

17.I established that:

Councillor Adem Atmaca, the Hume councillor who holds the Council portfolio for planning, was this contact.

The Director of the landlord company spoke with Councillor Atmaca about a particular condition listed on the planning permit.

Councillor Atmaca then approached a Hume City Council Director to complain about the same permit condition.

One hour after a telephone conversation between Councillor Atmaca and the Director of the landlord company, the Director’s Manager sent an email to the take-away food company saying that his Director ‘has made contact with the council contact’, put ‘undue pressure’ on him and instructed him to ‘look after all 41 conditions’.

One week after this email, the Director of the landlord company left a voicemail message with the take-away food company stating that he had spoken to ‘Adem’ [Atmaca] who had obtained the agreement of the Hume City Council Director to ‘remove that clause’.

One month after the meeting, the take-away food company ceased involvement with the landlord company.

The permit conditions were not altered.

18.Both Councillor Atmaca and the Hume City Council Director denied making arrangements to alter the planning permit. The Director of the landlord company said at interview that he had overstated the influence he had within Hume in order to keep the take-away food company’s business.

19.My investigation of the councillor’s bank records did not identify any payment of $5,000 from the Director of the landlord company however both the Director of the landlord company and his Manager advised my officers that Councillor

Atmaca acted as ‘their contact’ within the Hume City Council to ‘prioritise’ their planning applications.

My investigation of the councillor’s bank records did not identify any payment from the Director of the landlord company.

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20.My investigation did not identify any improper relationship between the Hume City Council Director and:

Councillor Atmaca

the Director of the landlord company or

the Director of the landlord company’s subordinate Manager (the Manager).

21.While Councillor Atmaca was initially reticent about disclosing his relationship with the Director of the landlord company, my investigation established that Councillor Atmaca was involved in a private business (a business centre) with him. Documentation sent from Councillor Atmaca to the Director of the landlord company indicated this business was to be conducted at the same location as the intended take-away food premises.

22.CouncillorAtmaca clearly had a conflict of interest between his personal business interest with the Director of the landlord company and his role as a public officer. I consider that Councillor Atmaca ignored this conflict by involving himself in the take-away food company’s permit.

Councillor Atmaca clearly had a conflict of interest.

23.I do not consider that Councillor Atmaca’s evidence to my officers about his relationship with the Director of the landlord company was frank and open. It was only after further questioning that he revealed a business relationship with him.

24.In response to my concerns, Councillor Atmaca said:

There can be no conflict or perceived conflict by treating a friend or acquaintance in an identical fashion to all other people.

25.I consider that Councillor Atmaca has misunderstood the concept of conflict of interest. A person has a conflict of interest when they have a personal or private interest which could affect their role as a public officer; a conflict of interest can exist even if no improper act results from it.

26.I consider that Councillor Atmaca had a conflict of interest between his personal and business associations with the Director of the landlord company and his role as a public officer. He then ignored this conflict by involving himself with the take-away food company’s permit on behalf of the Director of the landlord company.

Failure of Councillor Atmaca to register interests

27.As a councillor, Councillor Atmaca must declare certain personal interests to the CEO of Hume. I established that in 2010 he held an interest with a private business (the business centre) that he did not declare.

executive summary

 

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28.When asked if he had any business interests which had not been declared on his register of interests, Councillor Atmaca said ‘not that I can think of, no’. I do not consider this response was truthful and have concerns that he gave false evidence to my officers under oath.

29.Under the Local Government Act, it is an offence for a councillor not to disclose certain personal interests.

Councillor Atmaca held an interest with a private business that he did not declare. Under the Local Government Act, it is an offence for a councillor not to disclose certain personal interests.

Councillor Atmaca’s misuse of position and council resources

30.Councillor Atmaca used Hume’s official letterhead to invite foreign nationals to

Australiatoinvestinhisprivatebusiness(thebusinesscentre).Hemetthepotential investors while on private business trips to China for the business centre. While in China, Councillor Atmaca also used a Hume branded powerpoint presentation to seek investment in his private business and held business meetings for the business centre with foreign business officials as ‘the Hume City Councillor’.

31.Councillor Atmaca did not have approval to use Hume’s letterhead and did not follow Hume’s protocol in dispatching the invitation letters. Also, one version of the letterhead used by Councillor Atmaca was altered to give the impression that he had official standing to dispatch the material.

32.While CouncillorAtmaca maintains that he used council’s resources to benefit his municipality, I consider that the dominant purpose for which Councillor Atmaca engaged in this activity was to advance his own business interests.

33.Councillor Atmaca also held meetings with potential investors for the business centre at Hume’s office. The meetings were attended by the councillor’s private business colleagues, the Director of the landlord company and the Director’s Manager after a visit to the proposed business centre site.

34.The Local Government Act states that councillors should act honestly and avoid statements or actions that will or are likely to mislead or deceive a person. I consider that Councillor Atmaca misused his position and misused council resources. This was done with the likely intent of misleading the Chinese investors by giving the impression that his private business had the support or backing of Hume when in fact it did not.

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35.I consider Councillor Atmaca has potentially breached section 76D of the Local Government Act which provides that it is an offence for a councillor to misuse their position to gain an advantage for themselves (or for any other person).

I consider that Councillor Atmaca misused his position and misused council resources, and has potentially breached section 76D of the Local Government Act.

Misuse of resources to mislead the Department of Immigration and Citizenship

36.Councillor Atmaca’s invitations to the Chinese nationals were constructed to give an impression that the council had endorsed his actions. The invitations were used to add legitimacy to the purpose for which the Chinese nationals were entering Australia and falsely indicated that Hume was in support of their application. I consider the conduct Councillor Atmaca engaged in was done with the likely intention of misleading the Department of Immigration and Citizenship and the Chinese nationals. It is clear that the council was unaware of Councillor Atmaca’s activities which were carried out to further his own personal interests.

The conduct Councillor Atmaca engaged in was done with the likely intention of misleading the Department of Immigration and Citizenship and the Chinese nationals.

37.Given the seriousness of the matters raised in relation to Councillor Atmaca, I have recommended that the Minister for Local Government consider the matters addressed in this report with particular reference to possible breaches of the Local Government Act. I have also recommended that the Minister consider referring to the Department of Immigration and Citizenship the matters relating to the visa issues identified in this report.

executive summary

 

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Background

Public interest disclosure

38.In April 2010, I received a disclosure that public officers at Hume City Council

(Hume) had engaged in ‘possible illegal conduct’ with private parties.

39.It was alleged that at a private meeting between the Director of a landlord company, his Manager of a related company and a representative of a take-away food company on 11 March 2010, the Director said that they had paid $5,000 to an officer at Hume to have a planning permit’s conditions modified. The permit involved in this allegation was for a food and beverage take-away venue to be developed on Sydney Road, Campbellfield.

40.I determined this disclosure to be a public interest disclosure pursuant to the

Whistleblowers Protection Act and notified Hume’s Mayor, Chief Executive Officer (CEO) and the whistleblower of my intention to investigate this matter.

Issues examined

41.While investigating this disclosure, further issues of concern were drawn to my attention. Consequently, my investigation examined whether Councillor Adem

Atmaca:

1.obtained a benefit to remove conditions from a planning permit

2.declared personal business interests to Hume’s CEO as required by the Local Government Act

3.misused Hume’s resources (the council’s letterhead and a powerpoint presentation) to benefit his personal business interests

4.used his position as a councillor to invite foreign nationals to Australia for the purpose of investing in his private business.

Investigation methodology

42.In investigating this matter, my officers:

interviewed council officers and private individuals

examined bank and telephone records

scrutinised email records and computer hard drives

conducted site visits

consulted with the Department of Immigration and Citizenship

inspected Hume’s planning permit files

investigated the business relationships between various witnesses.

43.In the course of this investigation, 14 formal interviews were conducted. Ten witnesses were interviewed voluntarily and four were summonsed. A number of witnesses were given the opportunity to comment on the evidence and my preliminary conclusions. Their responses are fairly reflected in this report.

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Councillor conduct

44.To protect the integrity of the local government system, a councillor is expected to exercise a high standard of conduct and must act positively to promote public trust in the tier of government said to be closest to the people. Without the public’s trust, local government becomes ineffective and superfluous.

45.The Local Government Act outlines and regulates the standards of conduct expected of councillors while performing official duties. Section 76B of the Act states that a councillor must act with integrity, impartially exercise his or her responsibilities in the interests of the local community and not improperly seek to confer an advantage or disadvantage on any person.

46.In addition, section 76BA of the Act states that a councillor must:

avoid conflicts between their public duties and personal interests

act honestly and avoid statements or actions that will or are likely to mislead others

endeavour to ensure that public resources are used solely in the public interest.

47.It is an offence for a councillor to misuse their position to gain or attempt to gain an advantage for themselves (or for any other person)3 and the Act sets a penalty of 600 penalty units or imprisonment for five years (or both) for doing so.

Hume City Council

48.The municipality of Hume is located approximately 20 kilometres north-west of Melbourne. It includes Broadmeadows, Craigieburn and Campbellfield and encompasses Sydney Road, a major arterial road which is a continuation of the Hume Highway.

49.Hume has a Code of Conduct for Councillors that:

states ‘the community is entitled to expect that … the community’s interests will always be given absolute priority over the private interests of Councillors’

notes the elected Council is committed to making decisions in the best interests of the whole community

requires councillors to declare, in writing, any direct or indirect interests they have to the CEO of Hume.

3 Section 76(D) (1) (a).

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Whether a benefit was received to modify a planning permit

The planning permit

50.The planning permit4 was issued by Hume on 15 February 2010 and allowed, subject to 41 conditions, a take-away food premises to be constructed on Sydney

Road, Campbellfield (the property).

51.The premises proposed for this site was a drive-through coffee store to be operated by a take-away food company which had executed an Offer to Lease the property from its owners on 20 June 2008.

52.Atinterview,arepresentativeofthetake-awayfoodcompanytoldmyofficersthat the take-away food company had been attempting to obtain Hume’s approval to develop the property for a number of years.

53.The representative of the take-away food company stated that he received a copy of the planning permit after it was issued and was dissatisfied with the number of conditionsHumehadattachedtothepermit.Hetoldmyofficersthatheprepared a document identifying which conditions of the permit should be attributed to the property owners and which should be borne by the take-away food company.

54.One of the conditions attached to the permit was for a road adjacent to the property to be constructed and sealed prior to development of the take-away food premises. The representative of the take-away food company considered that this condition was the responsibility of the property owners.

The meeting between the take-away food company and landlord

55.The representative of the take-away food company stated that he arranged a meeting with a Director of the landlord company in order to seek its agreement to his document. This meeting was held on 11 March 2010 between approximately

10.30 am and 11.10 am and attended by him, the Director of the landlord company and that Director’s Manager of a related company (the Manager).

56.The representative of the take-away food company said that during the meeting the Director of the landlord company expressed frustration at the number of conditions on the permit and asserted that the planning permit should not contain conditions because:

they had paid their guy $5,000 to take care of the application.

57.The representative of the take-away food company advised my officers that immediately after the Director of the landlord company made this statement, both the Director of the landlord company and the Manager began attempting to contact a third party, believed to be ‘their guy’ at Hume. He said that after attempting to contact this person ‘at least six times,’ the Director of the landlord company repeated that he had:

paid to have these conditions taken care of and that they shouldn’t even be on there.

4The first page of this permit is included at Appendix 1.

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58.The business telephone records of the Director of the landlord company and the Manager show that on 11 March 2010, between 10.54 am and 11.07 am, the Director made nine attempts and the Manager made one attempt to contact the mobile telephone service of 04XX XXX XX7.

59.This telephone number is used by Hume and allocated to Hume Councillor Adem

Atmaca. At the time of the disclosure to my office, Councillor Atmaca held the

Council portfolios for Economic Development, Environment and Planning.

The arrangement involving the permit conditions

60.An examination of Councillor Atmaca’s telephone records demonstrated that he returned the Director of the landlord company’s telephone calls on 11 March 2010 (the date of the meeting) and that connections were made at 7.29 pm for four seconds and 7.38 pm for 3 minutes and 56 seconds.

61.At interview Councillor Atmaca told my investigators that the Director of the landlord company had approached him in relation to the permit:

He said to me, there was a condition on it [the permit] regarding a road to be built. And he said that ‘we’re already agreeing to the road to be built’.

So, yeah that was it … He said, ‘we’re building the road anyway as a joint venture with council,’ or something. And that was it. I mean he didn’t want anything specific from me.

62.Approximately one and a half hours after Councillor Atmaca returned the

Director of the landlord company’s telephone call, the Manager sent an email to the take-away food company saying:

[The Director of the landlord company] has made contact with the council contact and he has promised to look after it for us. Although previous promises were made before we have put undue pressure on him to have this matter dealt with as [a] priority. We have instructed him to look after all 41 conditions are [sic] not just our own5.

63.The Manager confirmed with my investigators that he had drafted and sent the above email to the take-away food company. He said:

I think that was a bad choice of words. We had spoken to – we had told [the take-away food company] that we’ve got a council contact, which had been Adem Atmaca who was helping – not helping the permit in such a way.

Talking to the person that’s responsible to say, ‘hey, you know you’ve got this pile here. Can you look at this one first?’ You know or something like

– something of that nature. But [in] no way paying Adem to, you know – I don’t know, clear it or whatever, or what have you.

5This email is set out in full at Appendix 2.

whether a benefit was received to modify a planning permit

 

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64.In response to my preliminary concerns, the Manager said:

My comment … confirms that it was a bad choice of words, and what I merely wanted to explain to [the take-away food company] in my email is that we had made contact with our council contact Adem Atmaca and he was helping [his emphasis] ensure that the matter was being looked after by the responsible council member within Hume City Council whom was engaged to look after the permit. You can certainly understand that council is a very busy place and they have an array of permits to issue. I wanted councillor Adem to put this permit to the urgent attention of the responsible officer. I wanted to portray urgency in my email to [the take- away food company] as both myself and [the Director of the landlord company] had a fear that we were going to lose our tenant because the permit application had been going on for quite some time so I added the comments “he promises to look after it for us” and “we have put undue pressure on him” in the hope to convey to [the take-away food company] (our tenant) that a resolution was imminent.

65.Councillor Atmaca also said:

the email by [the Manager] is hearsay to the extent that it relates to me. It has no logical relevance or weight.

the comments by [the Manager] are again hearsay, in circumstances where he does not even purport to have first-hand knowledge of the information relating to me.

66.Councillor Atmaca told my officers that after speaking with the Director of the landlord company, he approached a City of Hume Director. He said:

I went to see the Director and I said to him, you know, ‘this road has already been built. So is that why this is being held up to this stage?’ And he said, ‘no, they’ve got the permit. That road, once it’s built, they can have that’. And I said ‘but they’re already building the road’.

So I said ‘isn’t there anything that you can talk to him about to have a look at this and see when the road’s going to be built?’ And he said ‘I’ll speak to the roads people and we’ll see where it’s at’. So – I mean that was basically the context of the discussion. There was no issue about, you know taking a – taking it out or putting it in or anything like that.

67.The City of Hume Director told my officers that Councillor Atmaca had approached him before a Council meeting to ‘complain’ about certain conditions on the permit. He said:

… I recall being approached by Councillor Atmaca complaining about the fact that a condition had been left in there that the site was not to be operational until the … Road was constructed.

His comments were around the fact that it was a – what would you call it?

It was too stringent a condition on the development. That they would come back and build the road at some point in time. My comment was, ‘that’s not what we do. We put them in there as conditions of permit with Special

Charges because with our experiences people don’t come back and build the roads’.

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68.On 18 March 2010, one week after the meeting, the Director of the landlord company left a voicemail message with the take-away food company which was automatically converted into a text message via the Telstra Corporation Ltd’s ‘Voice2Text’service.Thefollowingmessagewasextractedfromtherepresentative of the take-away food company’s mobile telephone by my investigators:

How are ya? Can you give me a call back? I’ve spoken to Adam [sic] [Atmaca] and he’s got the director agreed [sic] to remove that clause. They reckon the best way to fix all those bullshit items that [are] put on there. [Is] to have a meeting with the planner. So … organise a meeting and then me you and Adam [sic] and the director will come to the meet (long msg call 101).

69.At interview, the City of Hume Director denied arranging to alter the planning permit:

I will have – I will say straight up, I have not had any conditions on this planning permit changed full stop. So, if there is any sort of allusion that [Councillor Atmaca] has put forward that I would change permits that is incorrect full stop.

70.Councillor Atmaca denied telling the Director of the landlord company that he could alter the permit. He said:

When they came to me with the condition of the road, I did say that, ‘the road has to be built and you can get your permit’, right? Because when I went to the officer [the Director] originally, he said to me that, ‘once the road is built they can continue to build’. So, there was no [sic] ever talk of removing a condition. And I mean, like I said, people can say what they want in emails you know. I don’t know anything about it.

71.Councillor Atmaca also said:

The thing is we can’t change the conditions of a permit anyway. So once a permit has been issued, it’s been issued.

72.In response to my draft report, Councillor Atmaca said:

my only involvement with the permit was to make inquiries regarding its nature and conditions. This was my role, given that I held the portfolio for Economic, Development, Environment and Planning …After making these inquiries, I was satisfied that the conditions which were imposed were consistent with council guidelines. I therefore took the matter no further.

73.At interview Councillor Atmaca also denied being offered money or inducements to modify planning permits at Hume. He said:

No. People joke but that’s about it.

No. I mean, no, there’s nothing serious, like it’s just a joke. And people, if they do say anything like that, I’ll say, ‘no, there’s nothing like that’.

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74.The Director of the landlord company said that he was concerned the take-away food company were going to break their contract with the landlord company so he ‘might have manipulated the truth to keep these guys [the take-away food company] happy’ and:

He [the representative of the take-away food company] – he said to me as we were talking, joking around, said ‘so, what are you running around in [with] brown paper bags?’ And I said to him ‘mate, it doesn’t work like that’. And he said to me ‘Oh, I know how youse [sic] Italians operate.

You’re probably getting money and giving it to these guys’. I said to him

‘well, whatever – whatever youse [sic] guys think youse [sic] think’. But we were in jokative [sic] … I have not given any money to [the Director], I haven’t given no money to Adem [Atmaca], I haven’t given no money to nobody. We don’t operate like that.

75.In response to my draft report, the Director of the landlord company said:

I think that they [the take-away food company] have blown up this issue as an excuse to get out of the agreement to lease and try and claim costs from us [the lessors.]

76.My officers examined the bank records of Councillor Atmaca and did not find any record of a $5,000 payment from the Director of the landlord company.

77.One month after the meeting the take-away food company ceased involvement with the landlord company.

78.In response to my draft report, Hume’s Mayor said:

The other important fact to mention here is that at no time did the permit conditions agreed to by Council, change in any way. In other words, whatever influence [the Director of the landlord company] believed he had to alter Council decisions was more in his mind that in reality.

Relationships between the parties

79.To ascertain whether influence was exerted by the Director of the landlord companyortheManagerthroughtheprovisionofbenefits(tangibleorotherwise) to CouncillorAtmaca and/or the Director, my officers examined the relationships between the four parties by reviewing:

The January 2008-March 2010 business telephone records of the Director of the landlord company, the Manager, Councillor Atmaca and the City of Hume Director.

The City of Hume Director and Councillor Atmaca’s council email records.

The City of Hume Director

80.The City of Hume Director’s telephone and email records do not include any record of contact between him and the Director of the landlord company or the Manager.

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81.In the January 2008-March 2010 period, the City of Hume Director contacted Councillor Atmaca’s mobile telephone 212 times and Councillor Atmaca contacted him 281 times. My officer’s analysis of the email records together with their interviews did not identify a relationship between Councillor Atmaca and the Director beyond that of councillor and director.

Councillor Atmaca

82.In the January 2008-March 2010 period Councillor Atmaca called the work mobile telephone service of the Manager nine times and the Manager contacted him 14 times.

83.The Manager described his relationship with Councillor Atmaca as:

He’s our – he’s our contact at the council. Adem [Councillor Atmaca] talk to this person and see where we are at with it, you know. Is it on the bottom of the pile? Bring it up. Make sure she looks at it. That’s it. That’s how I understood what Adem [Councillor Atmaca] is.

84.In response to the Manager’s statement about prioritising permits, Councillor Atmaca said:

… this statement is unsubstantiated and inherently implausible – the permit was already granted: there was nothing to ‘bring up’ from the pile.

85.The Director of the landlord company’s telephone records show that he called Councillor Atmaca’s Hume mobile telephone service 768 times between January 2008 and March 2010: which was almost one telephone call a day in this period. Councillor Atmaca’s telephone records show he attempted to contact the Director of the landlord company 642 times.

86.The Director of the landlord company states he had many contacts at Hume -

‘X’ (surname unknown by him); ‘Y’ (surname unknown by him); ‘Z’ (surname unknown by him) and ‘Adem Atmaca’. Of his relationship with Councillor Atmaca, the Director of the landlord company said:

We’re good friends; we’re going into business together.

87.In response to my draft report, the landlord company’s Director said:

I may have misunderstood the question but want to clarify that Councillor Atmaca and I were discussing [his emphasis] going into business.

88.The Director of the landlord company said that the reason he contacted Councillor Atmaca in relation to the permit was that:

Pretty much probably my motivation was to get Adem [Councillor Atmaca] to organise a meeting with the town planner that was looking after it to see if he could try and … speed it up a little if it’s possible.

89.At interview, my officers asked CouncillorAtmaca to describe the relationship he had with the Director of the landlord company. He stated that he ‘knew him well’ and that they had met ‘through a business associate a while ago’ and:

We were just, ‘hello, hello,’ sort of type relationship. It’s never been anything else … just like you know, friends you might say.

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90.At first, Councillor Atmaca denied having any associations with the Director of the landlord company other than a friendship. When my officers specifically asked him if he had any business associations with the Director of the landlord company he stated:

Well, no. We did have an idea of importing some building products, but that’s it. But it wasn’t – it didn’t go anywhere. So, but besides that, nothing else.

91.Regarding his relationship with the Director of the landlord company, Councillor Atmaca said:

we started as a hello hello relationship and we are now friends, we did have discussions about a business however it did not eventuate. [sic] and there is no independent evidence to suggest that I actually intend to go into business with [the Director of the landlord company].

I never denied a possible business association. I said ‘we had an idea

of importing some building products’. This is true. This did not progress beyond the ‘thought bubble’ stage. Nothing crystalised.

92.When asked if he should involve himself in planning permits on behalf of his friends and private business associates, Councillor Atmaca stated:

Well, the [take-away food company’s] permit, I didn’t get involved in it.

I mean, getting the permit, I wasn’t involved in that. They only came to me after the conditions.

93.In response to my draft report, Councillor Atmaca said:

There can be no conflict or perceived conflict by treating a friend or acquaintance in an identical fashion to all other people. The evidence establishes that I did not get involved in the permit process. After the permit had been issued, [his emphasis] [the Director of the landlord company] came to me inquiring about a condition. After seeking clarification from the officer, [the City of Hume Director] I did not attempt to change the condition. I did not ask for any benefit … If I wanted to assist [the Director of the landlord company] the only tenable way for this to occur was before the permit was issued. There is no suggestion of this.

… the inquiry I made in relation to the planning permit was no different to that I would have made, and have made on countless occasions, for all other residents of Hume. It is not tenable to assert that by treating a friend or colleague equally (not favourably) that I might have acted in a manner which constituted a conflict of interest. My dealings in relation to the planning permit are equivalent to a police officer taking a statement from an aggrieved friend or colleague and then allowing other police to conduct the investigation.

Conclusions

94.I consider that Councillor Atmaca has misunderstood the concept of a conflict of interest.Aconflict of interest does not arise by the conduct engaged in by a public officer, but the nature of the interests held by that officer.

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95.I am satisfied that at the 11 March 2010 meeting, the Director of the landlord company represented to the take-away food company that he could influence

Hume’s planning permits via a contact he had within Hume. I consider that his statements were supported by his Manager’s email and his voicemail to the representative of the take-away food company. I am also satisfied that at the meeting they discussed the topic of payments being made to government officials via ‘brown paper bags’.

96.The Director of the landlord company advised my officers that he deliberately misrepresented the influence he had within Hume to maintain a business arrangement with the take-away food company. He stated that the conversation about the brown paper bags was made in jest. The representative of the take- away food company believed the Director of the landlord company had paid money to a contact at Hume to modify the permit.

97.Both the Director of the landlord company and the Manager attempted to contact Councillor Atmaca during the meeting and Councillor Atmaca later returned the landlord company Director’s call. I am satisfied that the Director of the landlord company and Councillor Atmaca discussed the conditions Hume had placed on the permit.

98.Councillor Atmaca has admitted to then approaching the Hume City Council Director before a Council meeting to discuss the permit conditions. The Hume City Council Director states that Councillor Atmaca ‘complained’ about them and I am satisfied that the Director advised Councillor Atmaca that the permit conditions would not be altered.

99.The Director of the landlord company and Councillor Atmaca both advised my officers that they were friends. Councillor Atmaca first advised my officers he had a ‘hello hello type’ relationship with the Director of the landlord company and gave evidence under oath that he did not have any other relationship with him. Councillor Atmaca later disclosed that he and the Director of the landlord company ‘had the idea’ of going into business together but it did not ‘go anywhere’. The Director of the landlord company told my officers that he and

Councillor Atmaca are ‘going into business together’.

100.While I have not established that any money was paid by the Director of the landlord company to Councillor Atmaca, in my view his willingness to involve himself in a permit concerning his friend/business associate would cause a reasonablepersontohaveabeliefthatCouncillorAtmacahadaconflictofinterest.

101.It is not just the statements and actions of a public officer which promote the public’s trust in government but the perception created by these statements and actions. As such, a councillor must avoid situations which give rise to a perception thataconflictofinterestexists.Theymustalsoremovethemselvesfromsituations that give rise to the potential for conflict.

102.I consider that Councillor Atmaca has not acted in accordance with the standard of conduct required of him as an elected councillor.

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Declaration of personal interests and ignoring a conflict of interest

103.The term ‘personal interest’ is broad and encompasses a wide range of interests.

All public officers have personal interests in some capacity; however situations can exist where the interest must be declared and managed appropriately.

104.Section 81(5) of the Local Government Act requires a councillor to declare certain personal interests to the Chief Executive Officer (CEO) of their council on an annual basis. It creates a penalty of 60 penalty units for a councillor who fails to do so.

105.Consistent with the obligations in the Act, Hume requires councillors to declare personal interests concerning private companies in which they hold an office as a director or otherwise. They must also declare other substantial interests held (whether of a pecuniary nature or not) which they consider might appear to raise a material conflict between their personal interests and public duties as a councillor.

106.In his 2009-10 register of interest documentation6, Councillor Atmaca declared a personal interest with one company, a consulting group. When asked about the consulting group, Councillor Atmaca said:

It’s a consultancy company that I had that never really eventuated. So, yeah, registered. And I was doing some Halal food work with Malaysia. And that’s a company I registered to work with that. But it went very slow.

107.My officers showed Councillor Atmaca his register of interest documentation at interview and asked if he had any other business interests that should be disclosed on the register. He said:

Not that I can think of, no.

The business centre

108.Analysis of Councillor Atmaca’s Hume email account revealed that Councillor Atmaca, the Director of the landlord company and a private business man [the business centre’s liaison for China] were involved in a private company called

‘XYZ Pty Ltd’ (the business centre) at the time of the disclosure to my office.

109.This company was first registered with the Australian Security and Investment

Commission (ASIC) on 2 September 2009 and lists the business centre’s liaison for China and another private individual as company directors.

110.Councillor Atmaca sent a ‘draft business plan’ (the plan) for the business centre via email to the Director of the landlord company on 16 January 2010. The plan identifies that the business centre will conduct business on Sydney Road, Campbellfield (the same location as the proposed take-away food premises).

111.In response to my draft report the Director of the landlord company said:

I want to clarify that the land at … [street number] is a large site and there are multiple tenancies on that site.

6Councillor Atmaca’s 2007-10 register of interest documentation is included at Appendix 3.

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112.The plan also identifies the intended office-bearers of the business centre as:

Mr Adem Atmaca

CEO

 

 

 

 

 

 

 

 

 

 

General manager

General Manager

 

 

General Manager

 

Sales & Marketing

Business Development

 

 

Operations

 

 

 

 

 

 

 

[The business centre’s

 

 

 

 

 

[Director of the

 

 

 

 

liaison for China]

 

 

landlord company]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Engineering and quality

Designer/Product

Administration

Control manager

Development

Manager

113.AtinterviewmyofficersaskedCouncillorAtmacaabouthisrolewiththebusiness centre and he said:

They made me the President … So, in China it’s like you’re – how can

I say? It’s not an active role. It’ s sort of – I don’t know, like a group head or something.

114.My officers asked Councillor Atmaca if his role was similar to the position of a

CEO, he replied:

Not really because it wasn’t a paid job or anything like that.

115.My officers interviewed the business centre’s liaison for China and asked him if

Councillor Atmaca was the ‘President’ of the business centre, he stated:

We [do not] call [him] the President because he’s upset on that. Because he’s upset on that because he said, ‘I’m at the council; I can’t be in the private organisation’.

116.The business centre’s liaison for China described the business centre as being similar to a ‘DFO’ (Direct Factory Outlet) store that would display Chinese building materials for Australian retailers and wholesalers. He advised that he, Councillor Atmaca and the Director of the landlord company travelled to China on a number of occasions to promote the business centre at public seminars and at international investment conferences.

117.Councillor Atmaca advised my officers that he had travelled to China to look at building products to bring to Australia for the business centre. He said that the trips to China were self funded and he did not receive any money for his attendance.

118.The business centre’s liaison for China advised my officers that the principal operators made the following contributions to the business centre:

He (the business centre’s liaison for China) contributed financially

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The Director of the landlord company contributed the property on which the business was to be run

Councillor Atmaca contributed his time and ‘expertise’.

119.The business centre’s liaison for China said that Councillor Atmaca provided advice to the Director of the landlord company and himself about the council’s processes and ‘tried to help us go through the red tape’.

120.My investigators asked Councillor Atmaca if the business centre should have been declared on his register of interests:

Look, I mean it looks like I’ve – we’re filling in another one now because I recently got an email to say that that should be updated

[The business centre] didn’t really go anywhere so that’s why I – I – it must have been just an oversight.

121.In response to my draft report, Councillor Atmaca said that his interest with the business centre was not required to be declared on his register of interests because it was a ‘future interest’. He stated:

There is no requirement [within the Local Government Act] to declare future or possible business enterprises. The company hierarchy … was an example of a possible future company structure – it never eventuated.

I never received any money or salary. I never had any directorship or financial interests in the [business centre]. As mentioned earlier it never eventuated and the idea was abandoned in early 2010.

122.He also stated:

My supposed contribution … is vague and not tangible. I explained to

[the business centre’s liaison for China] and [the Director of the landlord company] about the processes that needed to take place including products conforming to Australian standards and also the red tape involved in the importation of products from overseas. It went no further than that.

123.In response to my preliminary conclusions Hume’s Mayor said:

The general protocol used by Councillors at Hume, in my time at Council, is if unsure, declare the conflict of interest. However the Act I believe is broad, and left to each Councillor’s perception and interpretation.

… the investigation does identify that [the Director of the landlord company] and Councillor Atmaca were in the process of having business interests together and as a consequence it would be expected by Council that such an interest should be disclosed when it was finalised.

Conclusions

124.Section 81(6)(a) of the Local Government Act requires councillors to disclose in the register of interests returns:

The name of any company or other body in which he or she holds any office whether as a director or otherwise.

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125.Councillor Atmaca’s 2010 register of interests return was signed by him on 1 February 2010. This is 16 days after he emailed the business centre’s draft plan which named him as the ‘CEO’ of the business centre to the Director of the landlord company for his consideration.

126.Councillor Atmaca states that he did not ‘hold’ the position of a CEO because the business centre company hierarchy was not finalised at the time he was required to declare his interests to Hume.

127.While the nature of Councillor Atmaca’s interest within the business centre (at the time of his disclosure to Hume) is unclear:

the business centre is a company registered with ASIC

Councillor Atmaca travelled to China to pursue the business of the business centre

Councillor Atmaca proposed to name himself as the CEO of the business centre 16 days before he submitted his register of interests.

128.Councillor Atmaca’s decision not to declare his interest in the business centre because it was not finalised, is inconsistent with his decision to declare the consultancy group which he states ‘never really eventuated’.

129.I am of the view that Councillor Atmaca’s decision not to include his interest in the business centre to the CEO of Hume may well be in breach of the obligations imposed on him as an elected councillor under the Local Government Act.

130.As well as failing to declare his personal interests to Hume’s Chief Executive Officer, Councillor Atmaca clearly had a conflict of interest between his personal business interests with the Director of the landlord company and his role as a public officer. I consider that he ignored this conflict by involving himself in the take-away food company permit. My view is supported by the following:

The draft business plan for the business centre proposed by Councillor Atmaca states that:

o Councillor Atmaca is the CEO of the business centre and the Director of the landlord company is the General Manager of the business centre

o [street number] Sydney Road, Campbellfield is the location for the business centre’s business.

The Director of the landlord company requested Councillor Atmaca to involve himself in a permit for land at [street number] Sydney Road,

Campbellfield for which the Director of the landlord company had a personal business interest.

At the landlord company Director’s request, Councillor Atmaca approached a Director at Hume, prior to a Council meeting, to ‘complain’ about a condition on this permit.

131.I do not consider that the evidence Councillor Atmaca provided to my officers at interview under oath was frank or open. When he was first asked about his business interests, Councillor Atmaca failed to declare to my officers he had involvement with the business centre and he also failed to disclose the extent of his relationship with the Director of the landlord company.

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Councillor Atmaca’s misuse of his position and council resources

Misuse of letterhead

132.During my investigation, my officers identified that Councillor Atmaca’s Hume email account contained copies of invitation letters addressed to Chinese nationals inviting them to come to Australia and discuss ‘available investment opportunities’7.

133.These letters:

are on Hume’s official letterhead

contain the passport number of the addressee

are signed ‘Councillor Atmaca, Responsible for Economic Development, Planning and Environment’.

134.The letters state that Councillor Atmaca believes the invitee’s proposed trip will consist of the following three purposes:

1)Investigating investment opportunities within Melbourne, and doing due diligence for the available opportunities at the business centre in Hume.

2)Discussing the arrangement of the configuration of the display centre.

3)Appropriate product training and human resource selection for the product display at the business centre.

135.In response to my draft report, Councillor Atmaca said:

[This letter] was to my knowledge not sent. It seems to be a draft – there is no passport number listed.

Authority to use Hume’s letterhead

136.My officers interviewed Hume’s CEO to ascertain if Hume had approved the creation and distribution of the invitation letters. The CEO advised my officers that he had no knowledge of the business centre and was unaware that Councillor Atmaca had used Hume’s letterhead to invite Chinese nationals to Australia.

137.Myofficersalsointerviewedthe2009and2010MayorsofHumetoverifyifHume’s elected Council had authorised the creation and distribution of these documents.

138.Both previous Mayors said they were unfamiliar with the business centre and had no knowledge of Councillor Atmaca obtaining approval from Hume’s Council to draft these letters.

139.When my officers asked Councillor Atmaca if he was authorised by Hume to send invitation letters to Chinese nationals on Hume’s letterhead, he said:

Well not really … Well, I saw an opportunity that they may invest in Hume.

And as a [sic] responsible economic development, I thought you know, it was probably appropriate.

7Copies of these letters are included in full at Appendix 4.

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140.He also said, ‘I note that all the letters are to encourage investment into Hume’.

141.Hume’s Councillor Code of Conduct states that:

the Mayor and CEO are ‘the designated persons authorised to speak to the media and others on behalf of the Council … ’

Councillors should not use council ‘resources for personal benefit or for the benefit of any other person or organisation’.

142.In relation to whether councillors are able to use Hume’s letterhead Hume’s CEO said that:

Our general protocol, and it’s not written anywhere it’s not a procedure it’s not in the code of conduct ... that anything that comes from council as signed off with the logo, with the Hume logo must come either from the CEO, as an organisational thing, unless he’s delegated authority to someone, or the Mayor.

143.Councillor Atmaca was asked if anyone from Hume can use letterhead paper and sign letters with the letterhead on them. He said:

No one’s ever told me that you need to get a council resolution to sign a letter. I mean I send letters to residents … And anything I can do that’s going to create employment I will do. And I don’t apologise for it. You know it’s just like if a resident sends me [sic] and says, ‘this park has got this issue’. And I write back to them on letterhead … that’s part of my council duties as well.

144.In response to my draft report, Councillor Atmaca said:

there is no policy about not using letterhead. In my eight years as a councillor no one has ever told me that letterheads cannot be used. Council is aware of me sending hundreds of letters to residents and some to invite Chinese businessmen to Hume for the sole purpose of seeking investment in Hume and creating of jobs [sic]. By not discouraging my use of letter [head], Council has at least tacitly approved of this.

145.In response to my draft report, Hume’s Mayor said:

I as a new Councillor, was not advised of any protocol regarding the use of Hume’s letterhead by Councillors. I have since been advised that protocol does exist, though not formally documented. Council resources, particularly in relation to the use of Council letterhead, should only be used for official Council business. In other words, the Mayor together with the CEO are the official spokespersons of the municipality and they should

be the only people to represent the position of Council through a Council letter, once a decision is made by Council. The CEO can delegate this to officers regarding the general running of the administration of Council in responding to customer enquiries.

There was no Council resolution to invite foreign nationals to Hume City. The Council letterhead should not have been used for this purpose.

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Alteration of council letterhead

146.My officers located two different versions of the invitation letter addressed to separate Chinese nationals. One version contains the general letterhead. The other version, whilst similar to the standard letterhead, includes Councillor Atmaca’s council issued email address and council issued mobile telephone number. I have set out these letterheads below:

147.The 2009 Mayor of Hume advised my officers that the official letterhead does not contain the direct contact detailsofofficers.Whenshownthetwodifferent versions of letterhead used by Councillor Atmaca, the 2009 Mayor suggested it was:

a cut and paste of the council letterhead.

148.When the 2010 Mayor of Hume was shown a version of the letterhead which contained Councillor Atmaca’s direct contact details he said:

Well I’d say that’s his business card. It has his mobile phone number there.

149.In relation to the alteration of formal Hume letterhead, Councillor Atmaca said:

… there is no evidence of a fabrication as I have included my council supplied mobile phone number and my council issued email [address]. There is no policy against adapting letterhead to facilitate contact with the relevant Councillor given the nature of the communication in the letter – many councillors put their direct council contact details on their letters, emails, and council publications.

Purpose of using Hume’s letterhead

150.Councillor Atmaca said he wrote the letters as a councillor on behalf of Hume to encourage people to invest in his municipality:

Well I saw an opportunity that they may invest in Hume. And as a responsible economic development, I thought, you know, it was probably appropriate.

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151.He also said that he travelled to China for private business and met the invitees for private business.

152.The Manager who worked for the landlord company’s Director told my officers that he had prepared and dispatched similar invitation letters under the letterhead of the landlord company. He stated that he was provided the passport numbers and invitee names from the business centre’s liaison for China and that he created the letters on a template provided by a third party he thought was that same liaison.

153.Councillor Atmaca’s email records include an email sent from a staff member of the business centre’s liaison for China to Councillor Atmaca. Attached to this email is a spreadsheet titled ‘Name List – Invitation Letter’ with 21 individuals’ names, dates of birth and passport details. A sample invitation letter was also attached to the email.

154.The business centre’s liaison for China said that Councillor Atmaca emailed the invitation letters to him and that his staff scanned the invitations and sent them to the recipients in China.

Misuse of Hume’s powerpoint presentation

155.Email data between the Director of the landlord company, the business centre’s liaison for China and CouncillorAtmaca includes a powerpoint presentation titled ‘Hume City Council – The place to do business’. The presentation is branded with

Hume’s official logo and had been sent by Councillor Atmaca to the business centre’s liaison for China.

156.This presentation contains 19 slides with titles such as ‘Major Developments’, ‘Melbourne Airport and Logistics’, ‘Employment Statistics’ and ‘Investment’. It also contains pictures of major developments in the region, including developments owned by the Director‘s other companies.

157.The final slide states:

Please visit our website at

www.hume.vic.gov.au

Presented by Adem Atmaca

Councillor

Hume City Council

T. 61 3 9205 2200

E: adema@hume.vic.gov.au

158.The business centre’s liaison for China advised my officers that:

The powerpoint presentation was initially created by Hume and used for a presentation in Malaysia8.

Councillor Atmaca gave him a copy of the presentation and he reviewed and edited it to make it relevant for the business centre.

8My investigation established that the trip to Malaysia was attended by Councillor Atmaca and other council officers and was approved by Hume Council.

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He shortened the presentation and added his own and another private company’s information to the slides. That private company was owned by the landlord company’s Director.

He put a map highlighting where the business centre’s business was to be conducted and created a brochure with the material.

Approximately half the brochure focused on the business centre and half focused on why people should invest in Australia. The liaison said:

I give four pages to Hume council, six pages to [the Director of the landlord company] … It was really good. Because after the talking [presentation] a lot of media – nearly 23 media interviewed us in that Expo.

159.Councillor Atmaca said that the powerpoint presentation belongs to the council and was not created by him. As to his use of this presentation in China he said:

Well, to individuals, yeah, probably. But I can’t remember if I did use this, but I might have … I mean, yeah, I probably did use it. Like I said, it’s a public document. And if you want people to invest in Hume, you need this.

160.In relation to the powerpoint, Councillor Atmaca said:

… I did not modify the PowerPoint presentation. I never altered or added any slides. There is no direct evidence to the contrary. If I did use the slides it was to encourage business people to invest in Hume, which is consistent with my role as a councillor.

I do not recall using a PowerPoint presentation – and specifically the one which has been modified by the [business centre’s] liaison for China.

161.The 2009 Mayor said:

First off he wasn’t authorised, secondly definitely there should have been an officer with him. If he is representing Council, it should have gone through as a Council resolution that he would be able to be involved in a powerpoint presentation to any of the community. But then Council would want to know why. The other thing is that um a senior officer would go and the role of the officer would be probably to do that presentation, not the councillor because it’s it’s about the conduct of council business, which our role is to leave that to the officers.

162.My officers asked the 2010 Mayor if it was appropriate for Councillor Atmaca to encourage investment in Hume while on a private business trip. He said:

Well, without us knowing about it. Probably not … if it brings jobs to

Hume then I’m happy but I think that something like this, should have been put through Council.

163.The 2009 Mayor said that it would not be appropriate to represent oneself as a councillor if overseas on a private business trip. He said:

If he is over there on private business, he can do what he wants to. But he shouldn’t be linking Hume, in my view, to the opportunity that he could get through that visit. We didn’t pay for it. He had no authorisation to go away and seek investment in Hume or do a presentation using the Hume logo.

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164.In response to this, Councillor Atmaca also said:

[The 2009 Mayor’s] statement has no authority. His impressionistic views are not those of Council. There is no policy requiring a council resolution – notably, your investigation did not disclose the existence of such a policy.

165.When asked if he considered his actions proper, Councillor Atmaca stated:

Proper, as in to try and get investment in Hume? Sure, its proper.

166.Councillor Atmaca also said:

I have been involved in bringing considerable investment into Hume.

Misuse of position to encourage investment in his private company

Meetings with private investors at Hume

167.The Director of the landlord company advised my officers that the people invited via the invitation letters travelled to Australia and met with him and Councillor

Atmaca at Hume’s offices.

168.The Manager who worked for the landlord company’s Director said that in late 2009 he attended a meeting with his Director, Chinese guests and Councillor Atmaca in Hume’s boardroom. He said that prior to the meeting at Hume, the Director of the landlord company had taken the Chinese guests to view the location of the proposed business centre at Sydney Road, Campbellfield. He further advised that the business centre was discussed at the Hume meeting.

169.In relation to the business meetings, Councillor Atmaca said:

I never held a meeting at council where private business was mentioned.

There was always an officer present to showcase investment opportunities in Hume.

170.At interview, he also said:

I mean we did go and talk to them but that could be [in relation to] any investment.

171.The 2009 and 2010 Mayors both confirmed with my officers that they had seen

Councillor Atmaca conduct meetings at Hume with Chinese investors while each was Mayor.

172.The 2009 Mayor advised that he saw this occur in mid 2009 when he walked into a conference room ‘by mistake’. He stated Councillor Atmaca introduced him to the group of people, he sat down for ‘three to five minutes’ and was informed that the guests were there to look at opportunities for investing in Hume.

173.The 2010 Mayor said that he had seen Councillor Atmaca meet with Chinese investors at Hume in early to mid 2010. He said that he was not invited to the meeting but that Councillor Atmaca asked him to enter the room so he could meet the guests. The 2010 Mayor said that he posed for a photograph with the visitors and then left the meeting. He stated to my officers that he had never seen a meeting of this nature occur at Hume before.

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174.The Manager who worked for the landlord company’s Director was asked as a meeting attendee, if an impression could have been given at the meeting that Hume’s Council supported the business centre. He said:

To these people, maybe. Probably. Yeah, look, you’re in council, you know. You’ve got a member of the public office … So you know he’s obviously got a lot of contacts. Hence why, you know – I don’t know how [the Director of the landlord company] met Adem [Councillor Atmaca] but you know [the Director of the landlord company] has the intention of going, ‘hey, I can go to Adem [Councillor Atmaca]. Adem [Councillor Atmaca] can help me do this … As a councillor’. Yeah I guess so. Yeah. Well, it would have to be.

Representing himself as a councillor while overseas seeking private investment

175.The Manager who worked for the landlord company’s Director advised my officers that in his experience, government officials will often come to private business meetings in China and that Councillor Atmaca filled that role for the business centre:

He comes over [to China] to show that he’s from the government and also, you know because they like to … just showing that you know that developers like us – or a developer like myself can work in conjunction with the councils. Do you know what I mean? That’s all it is. Just a face …

176.The business centre’s liaison for China said that Councillor Atmaca used his position as a councillor to help the business centre access various government officials:

We got some councillor go and visit with us to give us credibility, and also we use him, to go to Austrade in China. And to get Austrade, a visit, [sic] if a councillor go to Austrade [its] better than we [private individuals] go to Austrade. We go to Austrade we get shit, you know. Make an appointment, and they just say, ‘oh we see you’. And after a couple of incidents, ‘oh, you need to go to that, you need to go to that.’ But its crap; they’re all crap. So he was – [he] went there from the council way [sic], we need that people, and you need [to] issue, the visa …

177.The business centre’s liaison for China also said that in September 2009, Councillor

AtmacanegotiatedonbehalfofthebusinesscentrewithforeignofficialsinChina:

He did very good negotiation in Dongguan … And he [was] talking to the one of the director[s] in Dongguan city. They [are] call[ed] the – like Austrade, you know like Austrade. He talked to them and [he said], you need to get the support. Because he said, our council will support you know. But we are democratic country. We have to get procedure. But it’s better for you Chinese as well …’

178.In response to my draft report, Councillor Atmaca said that he ‘did not negotiate on behalf of the [business centre]’. He said:

In Dongguan we discussed a sister-city relationship. It was resolved to continue to discuss the issue with the city of Dongguan.

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179.An email carbon copied to Councillor Atmaca on 13 September 2009 from a representative of the China International Investment Promotion Platform, China Ministry of Commerce, demonstrates that while Councillor Atmaca was in China for the business centre, he was seen to represent himself as ‘the Hume City Councillor’:

It’s such a pleasure to meet you and hear about your amazing ideas of the exhibition center project. …

We are happy to note that you and your partners, a group of five, will visit us on Monday Sep 14 [2009], 10am in our office. Our prestigious guests include

[Aprivate third party]

[the Director of the landlord company] – the project developer

Cr. Adem Atmaca (the Hume City Councillor)

[the business centre’s liaison for China] and [another private individual].

Councillor Atmaca confirmed this email.

180.In September 2009 Councillor Atmaca, the Director of the landlord company and another private individual registered a booth under the name of the business centre at the China International Fair for Investment and Trade, an international investment conference.

181.Councillor Atmaca also represented himself as a councillor when pursuing other private business interests in China. A photograph obtained in my investigation shows Councillor Atmaca attending what he describes as ‘a meeting regarding private investment, not related to the [business centre]’.

182.I note that the representatives of this private investment include the business centre’s liaison for China, a private individual, the Director of the landlord company and Councillor Atmaca-the principal operators of the business centre. In the photograph the name tag in front of Councillor Atmaca states ‘Adem CRatmaca’. I understand that the CR in this name tag represents the word councillor.

183.In response to this issue Councillor Atmaca said ‘I had no control over the name tag …’.

184.My officers asked the Director of the landlord company if while he was in China

Councillor Atmaca had anything on display which indicated he was a councillor. The Director of the landlord company said:

my picture and Adem’s picture has gone up on a few banners. And my company details have gone up on there and I think even the Hume City Council banners – the name - you know, logo has gone on there.

185.In relation to the use of Hume’s logo, Councillor Atmaca said ‘I do not recall my picture or Hume [sic] logo on any banners’. He also said:

my responsibilities and role as a Councillor are a [sic] not a ‘nine to five’ activity. Being a councillor is an entrenched part of my personhood and it is appropriate and in fact desirable to promote the interests of Hume even when I am engaging in personal activities, if in fact a synergy exists.

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Conclusions

186.The evidence demonstrates that Councillor Atmaca obtained Hume’s official letterhead and used it to invite foreign nationals to Australia to invest in the business centre.

187.Councillor Atmaca did not have approval to use Hume’s letterhead and has not followed Hume’s protocol in dispatching this material. I consider that one version of the letterhead used by Councillor Atmaca was altered to give the impression that he had official standing to dispatch the invitations.

188.I do not accept Councillor Atmaca’s evidence that he used council’s letterhead and dispatched the invitation letters in order to benefit his municipality. While I accept the municipality may have indirectly benefited from foreign investment, I do not consider that this was the dominant purpose for which Councillor Atmaca engaged in this activity. I formed this view on the following:

Councillor Atmaca travelled to China for private business purposes

Councillor Atmaca met the invitation recipients while conducting this private business

Councillor Atmaca obtained the assistance of private individuals associated with the business centre (his private business venture) to draft and dispatch the invitation letters

The business centre’s liaison for China provided Councillor Atmaca with the passport details of the invitees and a sample invitation letter

One version of the invitation letters explicitly refers to the business centre.

189.Councillor Atmaca used a Hume powerpoint presentation to encourage overseas investment in his private business. I consider that he did so to create the impression that his private business was supported by Hume. My view is supported by the following facts, that he:

provided the powerpoint presentation to a private party who modified it to include data relevant to the business centre and create a brochure encouraging foreign investment in the business centre

delivered the presentation on a private trip seeking investment in his private company

did not have approval from Hume to deliver the presentation using the Hume logo

ended the presentation with a slide inviting recipients to visit ‘our’ website and providing the Hume website details.

190.From the evidence available, I am satisfied that Councillor Atmaca misused his position as a Councillor at Hume to encourage investment in his private business. My view is based on the following:

Councillor Atmaca held meetings on council property with foreign investors to encourage investment in his business.

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These meetings were attended by private parties involved in the business centre and occurred after the proposed business centre site was viewed by the private parties and investors.

Councillor Atmaca was described as a councillor on his name card at an international investment conference.

Councillor Atmaca presented himself as ‘the Hume Councillor’ to government officials while overseas seeking investment in his private business.

191.The Local Government Act states that councillors should act honestly and avoid statements or actions that will or are likely to mislead or deceive a person. I consider that Councillor Atmaca both misused his position and council resources and in doing so, has misled the Chinese investors who attended Australia for the purpose of pursuing investment in his company.

192.Councillor Atmaca said:

There is no evidence that in any manner I have misused my position to gain an advantage – in particular, the report does not identify anything that can be classified as an ‘advantage’.

193.I am concerned that Councillor Atmaca may have breached section 76D of the Local Government Act which provides that it is an offence for a councillor to misuse their position to gain an advantage for themselves (or other person). Section 76D(2) of the Local Government Act outlines the misuse of position by a councillor to include:

(d)exercising or performing, or purporting to exercise or perform, a power, duty or function that he or she is not authorised to exercise or perform; or

(e)using public funds or resources in a manner that is improper or unauthorised.

194.In response to my preliminary concerns, Councillor Atmaca said:

… the benefit [to Hume] did not arise indirectly, it was direct and arose from my diligent measures to secure such investment – which was always my dominant purpose in all my dealings which were in an official capacity.

195.In relation to use of council letterhead and powerpoint presentations, the Mayor of Hume, in responding to my preliminary concerns said:

Our Code of Conduct for Councillors is not as descriptive as it could be for the use of letterhead by Councillors. Whilst there has been a protocol in place, there is no finite rule or policy that restricts its use. We will be updating our policy on this matter to make it more definitive.

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Misuse of resources to mislead the Department of Immigration and Citizenship

196.My officers made enquiries with the Department of Immigration and Citizenship (DIAC).MyofficerswereadvisedthataVisa456isavisacommonlyusedbypeople who wished to enter Australia for a short period of time to conduct business.

197.They stated that Visa 456 applicants were required to present evidence to the Australian embassy in support of their intention to enter Australia for business purposes and that invitation letters were a common way to do this.

198.The immigration officials advised that an invitation letter from a council would add legitimacy to a visa application.

199.In relation to the invitation letters, the Director of the landlord company said:

It helps them – because Australia’s a – we’re very protective with our border security, which is great; not just letting anyone in. But also the people from the customs – not customs – … immigration, know that these people are coming out to visit us. So they’ve got business to look at …

200.Councillor Atmaca indicated he was aware the invitation could be used for visa purposes:

When China – when you go to China for business you get an invitation from a company; you need that invitation. And I think they think that that’s the same with Australia … [you need it for] regulations to get a visa if you go over.

201.Councillor Atmaca also said that the letters would not automatically guarantee a visa for visa applicants. He said:

They still have to meet the requirements of getting a visa. That’s not going to get them a visa.

202.The business centre’s liaison for China advised my officers that the Director of the landlord company’s invitation letters were unsuccessful in having visa applications approved and Councillor Atmaca was requested to prepare the invitations on Hume’s letterhead:

It’s really really [sic] bullshit at the Consulate. Always reject it. Reject, reject. Because we’re new business … We invite, and we’ve never had one

successful deal until he write letter [from] the council … and then we got one

We got one people and one group. Without his help we’re really crap.

203.Councillor Atmaca said that he ‘did not have any knowledge of any other letters which were unsuccessful in getting a visa’.

204.The business centre’s liaison for China said that on one occasion, the embassy rejected the visa because they did not consider Councillor Atmaca’s scanned invitation letter was legitimate:

The printing – the printer is not that good. The embassy say that letter is a fake. The one – it’s a fake, a fake, a fake they think …This one from

Adem [Atmaca]. So this is why we said, ‘Adem, you better send a letter by yourself from council email. Not bloody we send out’.

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205.As a result, on 1 October 2009 a private individual representing the business centre emailed Councillor Atmaca asking him to contact a person at AusTrade in Guangzhou and resend the invitation to show that it was legitimate. The business centre’s liaison for China advised that this email (set out below) was sent to Councillor Atmaca who was in Malaysia at the time.

Hi Adem,

has arrived [in] Melbourne today. As soon as she arrived, she got a call from her partner in China that the factory owner and the investor’s

Visa has been rejected by Australia Councilor [sic] General in Guangzhou. He has already booked the ticket and is suppose [sic] to arrive [in] Melbourne by tomorrow. is very frustrated with the news so [are] we. We discussed the situation, we think the next efforts we can do is [sic] we need [to] use the connection of Councilor [sic] of Business at Austrade in Guangzhou. Can you please send a copy of the invitation letter to and [in the] mean time [sic] call him directly to let him know our intention. On the other hand, it is also important to inform Hume City Council who ever normally answer the phone can [sic] give correct answer related to your invitation in case any calls from Australia Councilor [sic] General.

We all know it is very inconvenient time to ask you to attend these matters, but we have no other options, please understand.

Enjoy your trip and take care my friend,

206.In relation to this email, Councillor Atmaca said:

I have no control over emails I receive. In particular, I never acted on this email, and do not even remember it. I only sent invitation letters to invite investors to Hume for the purpose of investing in Hume and thereby creating jobs.

207.He also said:

there is no foundation for the claim that I misled DIAC. Every letter

I sent was accurate in relation to its contents.

208.In response to my preliminary concerns, Councillor Atmaca said:

At a general level, I reject all of the adverse findings made against me and dispute all of the particular adverse factual allegations made against me.

The functions and duties of a councillor are varied and complex and involve making a large number of decisions and resource allocations and often balancing the competing needs of constituents. Moreover, it is impossible to fully negate my role as a councillor in other activities of my life. People come to know me as a councillor and hence there will always necessarily be an overlap between my identity as a councillor and my private life.

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It is important to emphasise that my actions in relation to this matter were no different to those that I would and have done on behalf of all Hume citizens. It is flawed to assert that a conflict of interest can arise as a result of equal (as opposed to preferential) treatment of an individual. People who have friendships with members of local council are not disqualified from the same rights of access and inquiry in relation to council matters as other citizens. Hence there can be no conflict of interest or perceived conflict of interest.

Perfection in the discharge of this role is not possible. Despite this, the community is entitled to insist that councilors [sic] at all times use their best endeavors [sic] to make decisions which are in the best interests of the community. There is no objectively correct path to fulfilling this

expectation, yet there are some approaches that are clearly unsatisfactory.

My time in council is marked by a determined effort to advance the best interests of the Hume [sic]. The positive feedback that I received from the community and near total absence of criticism of my role from the

community and other people that I dealt with during my period on council indicates that I succeeded in this aim.

Conclusions

209.I am satisfied that Councillor Atmaca invited foreign nationals to Australia for the purpose of investing in a business in which he had a private interest. I am also satisfied he has used documents which purport to have been endorsed by Hume to do so. My view is based on the following:

The documents are presented on what purports to be council letterhead

The content of the letters refers to the council on numerous occasions

Councillor Atmaca has used a signature block which gives the appearance of his being ‘responsible for economic development’ at Hume.

210.These documents were provided to the Department of Immigration and Citizenship in support of visa applications as other private invitation letters had been unsuccessful in obtaining visas for overseas visitors to enter Australia.

211.Councillor Atmaca was aware of the purpose for which the invitation letters would be used.

212.I consider that the likely intention of sending these letters was to mislead the Department of Immigration and Citizenship in their assessment of Australian visa applications.

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Recommendations

I recommend that the Minister for Local Government consider the matters addressed in this report in relation to Councillor Atmaca’s conduct with particular reference to possible breaches of the Local Government Act. I also recommend that the Minister consider referring to the Department of Immigration and Citizenship the matters relating to the visa issues identified in this report.

G E Brouwer

OMBUDSMAN

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Appendix 1

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Appendix 2

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Appendix 3

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Appendix 3 – continued

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Appendix 4

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Appendix 4 – continued

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Ombudsman’s Reports 2004-10

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