Sunday, April 30, 2017 2:00pm
This article by Tony Rossi was published on the Law Society of South Australia website and in Points Of Law in the Adelaide Advertiser on the 24th April, 2017
If a day in politics is a long time then ongoing daily concerns in relation to the Oakden Aged Care Facility for more than 2 weeks must seem an eternity. It is indicative, however, of the ongoing concern rightly held by the public in relation to the abuse of the elderly and vulnerable members of our community together with the ongoing lack of identification of those to be held accountable.
Surprisingly, upon return from leave, the Premier announced, without identifying any investigation results, that none of the relevant Ministers, including the current Ms Vlahos, should bear responsibility.
In his recent article, Dean Jaensch referred, politically, to ministerial responsibility to the Parliament and that, ultimately, Governments are accountable to the voter. Are there relevant legal issues?
The Public Sector Act and the Public Sector (Honesty and Accountability) Act provide relevant standards of conduct and disciplinary action which may be taken against public officers.
There has, as yet, been no announcement of detail of any investigation which may be undertaken and, in the circumstances, it would appear that the Government will not initiate an investigation of the actions of the relevant Ministers over the span of some 10 years identified as being the potential period of neglect.
The doctrine of separation of powers means that the courts, in general, do not inquire into matters of Government policy or the allocation of funds which so often determines the quality of service provided.
Court cases involving Ministers are typically confined to an action by an individual against an individual Minister and in clearly defined areas such as defamation.
There is, however, an important exception. The Independent Commissioner Against Corruption Act is broader in its scope than most realise. It empowers the Commissioner to investigate not only corruption and/or misconduct but also conduct which results in substantial mismanagement of public resources or substantial mismanagement in relation to the performance of official functions. This is defined to include incompetence or negligence. Importantly, maladministration in public administration applies to conduct that comprises a failure to act. Public officers are also broadly defined to include not only public officers within the relevant department but also a member or officer of the House of Assembly and a member or officer of the Legislative Council.
The Commissioner has the wide powers of the Ombudsman to obtain relevant information. He is empowered to provide a report to the Legislative Council and the House of Assembly.
The Act contemplates the receipt of a complaint or report for an assessment to be undertaken. There are wide-ranging confidentiality provisions which means that the general public may not know if a complaint has been raised or, if it has, whether it is the subject of an assessment or further investigation, although the Commissioner may choose to make a public statement in relation to a matter under investigation.
If the Commissioner were to investigate, an interesting legal question would be the relevant standard to be applied in determining whether there has been incompetence or negligence.
Tony Rossi PRESIDENT