Case Summaries

Tasmania Prison Service – August 2020

Cell checks prior to a prisoner moving to a new cell

An inmate contacted the Ombudsman and raised concerns about the failure by correctional staff to complete a cell check prior to his moving into a new cell. An additional issue arose when contraband was located in the inmate’s cell within 24 hours of being relocated to the new cell. The inmate is appealing the booking that resulted from the contraband being located in the cell.

Tasmania Prison Service acknowledged that contrary to usual processes the cell check had not been completed in this instance and the accompanying documentation had not been completed by correctional staff. As a result of this complaint, correctional staff supervisors have been reminded of the importance of completing the cell check documentation and it will be added to the staff briefs to remind unit staff of their responsibilities.

O2007-117

Glenorchy City Council – July 2020

Traffic calming measures

A complaint was received about the Glenorchy City Council alleging that it had failed to respond to long-standing issues relating the use of the complainant’s road by illegal trail bike riders. The complaint also raised concerns about Council’s failure to install adequate infrastructure to prevent trail bike riders entering local fire trails.

As part of Council’s response to this complaint arrangements were made for the Council’s Manager Infrastructure, Engineering and Design to meet the complainant on site to discuss the complainant’s concerns and to explain the existing measures that had been enacted. Additional information provided by Council to Ombudsman Tasmania showed that it had already complied with the existing Traffic Calming Devices Policy.

The meeting with the complainant led to additional traffic barriers being installed by Council, which Council hopes will result in trail bike riders having to significantly reduce the speed they are travelling if they wish to access the fire trails.

The complainant provided the Ombudsman with feedback stressing how pleased he was with the outcome and the fact that a Council representative had met with him on site, so the complainant had an opportunity to fully explain and demonstrate his concerns.

O2004-051

Aurora Energy – July 2020

Keeping Authorised Agent details up-to-date

We received two complaints concerning Aurora Energy’s management of authorised agents.

Aurora Energy’s customers can appoint an agent for their account who has permission to discuss the account with Aurora Energy and make decisions such as disconnecting power supply. The agent is linked to the customer’s ‘profile’ with Aurora Energy. This means that a customer can move on multiple occasions, or even disconnect their power and years later connect power at a different address, but the agent remains as they are not linked to a property address but to the customer.

The complaints arose as the complainants’ authorised agents were contacted regarding a debt and a routine enquiry. Both complainants had moved address, one complainant several times due to family violence, so did not realise that the authorised agents were still on their accounts. In one case some personal information was disclosed that caused the complainant to feel unsafe. In both cases, the authorised agents were added over a decade ago.

I reviewed the complaints under the Personal Information Protection Act 2004 and determined that there had not been a breach of a personal information protection principle as the complainants had agreed to have the agents appointed. I formed the view, however, that Aurora Energy’s management of authorised agents was not best practice.

  • Aurora Energy did not check the currency of the authorised agent data in either case after the details were added, even after changes of address. Aurora Energy indicated that the onus was on the customer to update their agent information and referenced part of the script read out to the customers at the time, ‘This authority will remain legally in force until you notify Aurora Energy that it is no longer required.’ I did not consider this to be entirely reasonable. The management of agents was premised on customers understanding how Aurora Energy’s account system operated and the standard script read out at the time agents were appointed was not sufficiently clear to create an adequate understanding.
  • The information provided to the complainants at the time they added authorised agents did not make it clear that the agent attached to the customer’s profile as opposed to the specific property address and so included any future accounts at new property addresses that may be created.
  • The only means to find out if a customer has an authorised agent is to ask an Aurora Energy staff member, there is no information available on online accounts regarding agents.

Aurora Energy conducted an internal review as a result of the complaints it received about the issue. The review has made a number of positive changes, including:

  • removing approximately 15,400 agents (30% of authorised agents) attributed to accounts which did not have a current electricity account. This means the customer will need to reauthorise an agent if they establish a new connection. Aurora Energy indicated this will assist in maintaining currency of data;
  • making the script read out to customers when an agent is appointed clearer. The new script outlines what the authorised agent can do and their ability to have full access to all account and personal details, including past, current and future accounts;
  • adding a new step for the process followed by Aurora Energy staff when a customer moves in or out of an address to audit the currency of the agent;
  • Aurora Energy’s staff will be able to use their discretion to remove an authorised agent from a customer’s account. Aurora Energy outlined its new business process is that if a staff member is speaking with an agent and identifies that there is no longer a relationship between the customer and the agent, the conversation will be politely ended and no customer account information will be disclosed. Aurora Energy said that while consent had previously been provided to discuss the account information with the agent, it recognises that it has an obligation not to disclose information if there are reasonable grounds to suspect the agent is no longer valid; and
  • taking steps to have agent names displayed on future Aurora Energy digital products.

I also asked Aurora Energy what steps it will be taking to publicise this issue so that victims of family violence are aware they may need to remove authorised agents given some people:

  • may not have moved since these changes have been introduced; or
  • may not use Aurora Energy digital products (some of which need to be paid for).

Aurora Energy advised that it is in process of finalising a family violence policy which will be published on its website. It said that this is not currently a mandated policy under the National Energy Retail Rules but Aurora Energy has recognised the benefits of such a document so decided to implement it regardless. The policy will include a section on authorised agents.

Aurora Energy’s proactive response to these complaints will significantly improve the currency of authorised agent data. It should hopefully lessen the chance of personal information being disclosed to people who may no longer have a relationship with Aurora Energy’s customers.

O1909-108 and O1911-020

Department of State Growth - June 2020

Return of Driver Licence following Disqualification

A complainant contacted the Ombudsman after experiencing frustrations with getting her driver’s licence back following a period of disqualification. In particular, the complainant was upset that she had not received a letter from the Department of State Growth, Registration and Licensing Services 60 days before being able to re-apply for her licence. The complainant alleged this delay made getting her licence back more difficult and added to the time she went without a licence.

The Department of State Growth responded to inquiries undertaken by this office and provided information setting out the actions required when a person reapplies for a licence. When a licence is cancelled, the returning driver needs to reapply for it to be reissued. In order for the complainant’s licence to be reissued, she was required to submit to an assessment and approval process, due to the offences that resulted in her having her licence cancelled.

When the complainant contacted Service Tasmania about getting her licence back, she was referred to the Driver Licensing Department (as this was the appropriate area to review a licence application). Driver Licensing wrote to the complainant on the same day and provided information about what was required to complete an assessment for a licence again. Unfortunately, the letter sent from the Department of State Growth was not sent until 3 days before the complainant was eligible to reapply for her licence.

The Department of State Growth, Licensing Services view standard letters that are (usually) sent to returning drivers as a courtesy, not a requirement. The responsibility still rests with the returning driver to confirm what he or she needs to do to get their licence returned at the end of any period of disqualification.

The Department of State Growth acknowledged that it is standard process for drivers returning from a period of disqualification and licence cancellation to receive a letter from the Registrar of Motor Vehicles before the end of the period of disqualification, advising of what is required to have their licence re-issued. In the complainant’s case, this did not occur. This oversight was explained as being due to the offence the complainant had been charged with being a relatively new offence and it had not had a code allocated to it in the Motor Registry System. It was therefore not identified as requiring a letter to be sent out.

As a result of this complaint, this oversight has been identified and a review is being undertaken to make sure that all offence codes are correctly identified by the Motor Registry System.

Ref: O2004-095

Tasmania Prison Service - May 2020

Non-compliant strip search of a young person

I received a complaint from a young person who was strip searched at the Hobart Reception Prison. I made preliminary inquiries and confirmed that the search had not been compliant with the Directors Standing Order (DSO) 1.10 Searching, which sets out the rules for searches, including young people.

A new risk assessment process was introduced in July 2019 to determine whether a young person needs to be strip searched. The young person was considered a low risk so a full personal search, or a strip search, was not required. However, contraband was found at a later stage which required a full personal search to be conducted under the risk assessment process.

The decision to conduct the strip search was therefore in accordance with the requirements of the prison. The search process, however, was not compliant. The DSO requires that a person is only ever half naked when a full personal search needs to occur but this was not followed as the young person was completely naked during the search.

Our inquiries identified that the initial Prison Service review of this incident failed to identify that the half and half process was not followed. As a result of our inquiries the staff involved were counselled, all staff were reminded of the half and half requirements, which apply to all people being strip searched, and the Director of Prisons provided a written apology to the young person.

The Prison Service also conducted an internal review of the strip searching of young people as a result of this and one other complaint I received from another young person. This review resulted in a number of positive improvements being made to processes and procedures to better protect the privacy of young people and ensure that the searching of young people is effectively monitored to confirm the DSO is being followed.

Ref: O1909-161

Hobart City Council – March 2020

Noise Nuisance Investigation

A complaint was received by this office in October 2019 concerning the management of a noise complaint by the Hobart City Council (Council). Of particular concern to the complainant was the ongoing operation of a heat pump installed in a neighbouring property and the noise nuisance this unit produced. The complainant had first raised concerns with Council about the operation of the neighbouring heat pump in approximately May 2019 and Council commenced an investigation at that time.

The initial response from Council to this office’s preliminary inquiries acknowledged further monitoring of the heat pump was required. Council made arrangements for a scientific officer from the Environment Protection Authority (EPA) to install a remote measurement device at the complainant’s property to monitor the noise emitted by the heat pump. Unfortunately, this remote device failed to detect the operation of the heat pump which, given the time of year the monitoring was conducted, was to be expected. Council has indicated that it will organise further testing in winter 2020, when the heat pump is being fully utilised.

In response to the issues raised by the complainant, Council had already arranged for an independent review of its initial investigation. This review highlighted improvements that could be made to Council’s investigation process. In particular, the review confirmed that Council officers have the power:

  • To direct owners of devices emitting noise at a noise level deemed unacceptable to cease operation of the device;
  • Require documentation from the resident of the device demonstrating compliance with best practice installation procedures;
  • Use an Environmental Protection Notice to effectively regulate the correct operation of a device; and
  • Engage specialist noise consultants to take readings of the device if necessary.

Council has confirmed that it is developing a new ‘Compliance and Investigation Procedure Policy’ incorporating the improvements identified by the independent review.

Ref: O1910-052

TasWater – March 2020

Legacy Water Connection Issues

A complaint has been received in relation to ongoing issues being experienced with water connection to the complainant’s property (the Property). The complainant detailed that his water meter was located on the neighbouring property, some 40-50 metres outside the Property. The complainant also advised that in the past 18 months the Property experienced three water leaks, all located between the Property and the water meter.

The complainant acknowledged that TasWater had previously granted a remission in relation to the first leak, however he had been responsible for the costs associated with the subsequent leaks. Due to the water meter being located on the neighbouring property, accessing and repairing the connecting pipes was difficult and costly.

The Ombudsman commenced preliminary inquiries in order to ascertain whether the Property was located on Serviced Land for the purposes of connection and supply of TasWater services.

After receiving this inquiry from the Ombudsman, TasWater commenced working directly with the complainant and owner of the neighbouring property to try and resolve the issues. The final response from TasWater received in February 2020 confirmed that an agreement had been negotiated with the complainant and the neighbouring property that resulted in the complainant’s water meter being relocated at TasWater’s expense and TasWater reimbursing the complainant for water usage charges and plumbing costs associated with the previous water leaks.

Initially, TasWater had taken the view that it was not responsible for infrastructure -past a property’s connection point. As the Property was landlocked and only accessed by a private driveway, TasWater determined the connection point for the Property was shared by both the complainant and owner of the neighbouring property and was located near the roadway.

In addition, TasWater deemed that the complainant’s property was outside the TasWater Water Serviced Land (Serviced Land), meaning it had no legal obligation to provide a water service.

After receiving the inquiry from the Ombudsman, TasWater conducted a further review of the complainant’s title documents and determined that, although there is no explicit legal access to the Property, it was willing to interpret the driveway as being intended to be used for public access. This means that the TasWater connection point for the Property would be the boundary, rather than the legal frontage near the roadway.

Based on the review, TasWater has reported that it has now attended the Property and relocated the water meter to the boundary. TasWater has committed to being responsible for maintaining the infrastructure between the roadway and the complainant’s water meter in the future. This means that any future leaks of this infrastructure will be the responsibility of TasWater to repair. In order to facilitate this, TasWater has obtained permission from the owner of the neighbouring property to access that property for the purposes of maintaining and repairing infrastructure to the complainant’s meter.

In addition, TasWater has recognised that the complainant incurred expenses resolving the issues experienced while TasWater was investigating and reviewing the complaint. As such it has confirmed that the following reimbursements have been made:

  • Water usage charges relating to leaks that occurred between the meter and the Property boundary prior to the meter being relocated; and
  • Plumbing costs incurred completing repairs between the water meter and the Property boundary prior to the meter being relocated.

It is worth noting that TasWater maintains that the complainant’s property is not Serviced Land, rather it sees this as outcome as maintaining a historical service to the property.

Ref: O1907-166

Tasmania Prison Service – February 2020

Reduction in the number of correctional officers observing targeted strip searches

A prisoner complained about being strip searched in the presence of four correctional officers after receiving Suboxone treatment. Suboxone is used as part of a program in the prison to treat opiate addiction. The prisoner found it upsetting to have to be searched in front of so many people, especially given the prisoner was required to bend over and part their buttocks.

Strip searches usually occur in front of no more than two correctional officers. The process can be understandably confronting, especially for people who have been the subject of trauma or abuse. Conversely, strip searches do sometimes uncover items that can impact on the good order and safety of the prison, such as illicit drugs.

We made inquiries with Prison Services and it advised that trafficking of Suboxone often occurs. It said that the new Dedicated Response Team (DRT) within the Prison Service is trying to reduce this trafficking. As a result, there have been more targeted searches of prisoners participating in the Suboxone program.

Prison Services said that the DRT is a first response team so they perform their duties as a team of four. This is for safety reasons. Prison Services, however, recognised the prisoners concerns about not wanting lots of people in the room when they were being strip searched. As a result, it said that where possible only two DRT staff members will be in the room in the future during a strip search. It said if there is a security concern, for example if a prisoner is being aggressive, more staff may be present.

Ref: O2002-025

Department of Communities - January 2020

Eviction of a ward of the state

A 16 year old ward of the state complained that his guardian, the Secretary of the Department of Communities Tasmania, was evicting him from his independent living accommodation.

The young person decided to leave the property but subsequent inquiries by my office uncovered concerning gaps in knowledge and procedures within the Child Safety Service (CSS), the area within the Department of Communities Tasmania managing the tenancy and care of the young person. It became apparent that the tenancy agreement with the young person failed to meet the requirements of the Residential Tenancy Act 1997, CSS was not aware of its obligations or the application of the Act to the eviction process.

CSS apologised to the young person. He had received a warning that Housing Tasmania may be told about his tenancy, which may impact on future tenancies and this was described as not appropriate. It clarified that no information was given to any other housing agencies. I understand CSS is working with the young person to find appropriate accommodation.

The complaint showed that there were issues with CSS managing tenancies, which is not its core function, and the operation of the Homes Act 1935 and the Residential Tenancy Act 1997. As a result of our inquiries the Department of Communities Tasmania has begun scoping the task of addressing the issues raised in the complaint including a review of the Residential Tenancy Act 1997 in partnership with the Department of Justice, which administers the Act.

Ref: O1909-038