Case Summaries

Tasmania Prison Service - June 2025

Review of policies relating to bullying and racial abuse

The office received a complaint from a person in custody about various issues he said he experienced when in prison. The complainant alleged he had experienced racial abuse from other people in custody.

Tasmania Prison Service (TPS)’s policy on bullying requires staff members to actively manage all reports of bullying and harassment. In this case, the complainant reported bullying to at least two correctional officers, and correctional officers had observed the complainant struggling to fit in and not participating in activities. Withdrawn behaviour like this could be interpreted as behavioural indicators of bullying which are referred to in TPS’ policy. Where there are behavioural indicators of bullying, staff members are required to follow certain procedures.

We identified some correctional officers had not followed correct procedures in relation to actively managing reports and signs of bullying. We made suggestions for improvement, including that TPS manages all reports and suspicions of bullying in accordance with its policy, and considers providing training to staff members on the requirements of the policy.

The complainant also alleged correctional officers aggravated the bullying and racial abuse by talking to him about his personal hygiene within earshot of other people in custody. TPS confirmed these conversations occurred in the doorway of his cell and/or whilst his cell was unlocked. We considered bullying and/or racial abuse would have been a reasonably foreseeable consequence of discussing the complainant’s personal hygiene openly. Correctional officers should already have known bullying was occurring, or at least suspected it may have been occurring. This approach was contrary to the spirit of the policy which required staff members to try to eliminate bullying.

We suggested TPS consider the consequences of discussing sensitive matters openly, especially if doing so could lead to or exacerbate bullying.

We identified that the policy did not comment on the requirements of the Anti-Discrimination Act 1998, which prohibits certain conduct (including bullying) based on protected characteristics (including race, age, sexual orientation, gender etc), and imposes additional considerations. The Anti-Discrimination Act 1998 was relevant to TPS’ response to bullying due to its duty of care to ensure the safety of all people in custody.

We suggested TPS consider including information about obligations arising under the Anti-Discrimination Act 1998 in the policy. This may alert staff members of the heightened need to respond to and manage certain conduct falling under the Anti-Discrimination Act 1998, for example, if it involves race.

TPS confirmed our suggestions would be considered further when the relevant policy and training delivery model is next reviewed.

Resolve Case Number: O2501-120

Local Council – February 2025

Penalty and interest on overdue rates

A complaint was raised by an investment property owner (the owner) regarding penalty and interest charges for failing to pay a rates instalment on time.

The complainant alleged they had provided authority for their property manager to receive rates notices (notices) and pay on their behalf. The notices however, had been sent to the investment property address and were not passed on by the tenant. The complainant had raised their concerns with the relevant Council and was advised that the authorisation form had been completed incorrectly. Preliminary inquiries were made with Council to ask for copies of communication Council had with both the owner and property manager about the incorrect authority form, formal complaint and overdue notices.

Council advised it received notification of purchase from the Land Titles Office in 2022, with the preferred method of communication as the investment property address. Council provided copies of how it communicated with the owner about overdue notices, which included postal and SMS reminders. In October 2024, Council advised it had received an email from the owner for their contact details to be updated, with the preferred method of communication being their personal email. The owner was directed to complete Council’s online form to update their details.

Council then received an email from the property manager in November 2024 advising it had authority to act on the owner’s behalf and providing a completed paper authority form. Council responded advising the property manager that all changes to contact information needed to be made through the online form, where they could also provide a copy of their property management contract. The property manager responded that the online form had already been completed by the owner. Council clarified with the property manager that this update did not mention a property manager would be acting on their behalf.

In late November, the owner requested Council waive penalty and interest charges alleging it was Council’s error in not identifying there was an authority, and the notices should have been sent to the property manager. Council advised the owner the interest and penalty charges could not be waived, as there was no error on Council’s part. Council had not received any return mail from the investment property to indicate the owner had not received the notices. Council confirmed that going forward, notices would be emailed to the owner’s personal email address, and that nothing had been received via its online form to provide notices to the property manager.

My office asked Council why it no longer accepted handwritten authority forms. Council advised that it is part of its change of address processes and procedures, and all requests must be submitted through an online portal with appropriate supporting documentation. As of 1 July 2024, Council implemented the sole use of the online portal and no longer accepted change of address forms in written format. The written form the property manager had provided to Council is obsolete and no longer available on Council’s webpage. Council said it can only assume that the property manager had previously downloaded a copy of the change of address form and was using them without the knowledge of Council.

My office was satisfied the decision made by Council not to waive interest and penalty charges was reasonable and open to be made. Section 128 of the Local Government Act 1993 outlines that Council may impose a penalty not exceeding 10% of the unpaid rate or instalment if a payment of rates or instalments are not paid on or before the date they fall due. My office was satisfied that Council had acted in accordance with the relevant legislation, Council had communicated with the owner and the property manager about the requirements to update contact information and had responded to the complaints and concerns. My office was unable to identify any defective administration that would require further investigation, and the complaint was closed under section 21(1)(d) of the Ombudsman Act 1978.

Resolve Case Number: O2412-012

Clarence City Council – January 2025

Council to review barking dog complaints procedures

A complaint was received about Clarence City Council's management of concerns raised about a barking dog.

In this case, Clarence City Council (Council) had determined that the dog’s barking was not occurring to such levels to constitute a nuisance under section 46(3)(b) of the Dog Control Act 2000. During the Ombudsman’s review of this complaint, issues were identified relating to Council’s interpretation of the definition of 'nuisance'.

One issue was that the definition requires both an objective and subjective assessment, and it was not considered that Council properly considered the effects the barking was having on the complainant specifically. This was because Council gave weight to the general sentiment of the neighbourhood about the barking, and we were not satisfied that Council appropriately considered the fact that the complainant was semi-retired, and the barking may affect him more than his working neighbours.

Another issue was that Council gave weight to the fact that the dog’s barking was reactive to the environment (street activity), rather than unprovoked. However, it was not considered that a dog that persistently reacts to activity is any less of a nuisance than a dog that barks unprovoked. Instead, it was considered that reactive barking should still be able to meet the definition of nuisance in some circumstances, if it occurs to certain levels.

If reactive barking is considered to be reasonable, it appeared that regulatory action would only be taken by Council in very limited and extreme circumstances. It was not considered that this position accorded with the apparent purpose of the section - to protect members of the public from nuisance.

It was suggested that Council fully considers the specific effects barking is having on complainants when determining whether the barking is occurring to such levels to constitute nuisance. It was also suggested that Council considers the circumstances in which reactive barking would constitute a nuisance.

Council confirmed that it will be reviewing its nuisance and barking procedures. Council advised that it proposes to develop a 'matrix' approach, which allows for unique factors to be included when considering complaints, including reactive barking.

It was also considered to be very difficult for people to ascertain what level of barking constitutes a nuisance, and referring complainants to the definition does not help people assess whether their complaint would have any prospect of success.

Given that fees for complaints are only refunded if complaints and investigations are found to have substance (and this appeared to rarely occur), it was considered unfair that fees are collected by Council in circumstances where complainants have not had the opportunity to properly inform themselves about whether their complaint is likely to succeed. It was suggested that it would be helpful if guidance about this was available.

Council indicated it will develop clear examples to assist people to better understand the nuisance process and how Council determines what constitutes a nuisance.

It is hoped that this complaint will result in procedural improvements in relation to barking dog complaints and investigations at Council.

Resolve Case Number: O2406-042

Mission Australia Housing Tasmania – December 2024

Anti-social behaviour in community housing

My office received complaints from three tenants of Mission Australia Housing Tasmania (MAHT).

The complaints related to MAHT’s management of the concerns they had raised about one of their neighbours, who they alleged was committing anti-social behaviour, both in their neighbourhood and on their properties.

In these cases, the neighbour had not engaged with MAHT in its attempts to address the issue and the anti-social behaviour was reported to be continuing.

This complaint highlighted the difficulties faced by social housing providers in responding to anti-social behaviour and the need to balance competing priorities, such as the right for tenants to live safely and peacefully against the potential homelessness of people subject to complaints and the desire to avoid simply moving problems elsewhere without addressing underlying issues.

Given the complexity of these factors, MAHT’s preferred approach of working with tenants to avoid eviction, where possible, was considered appropriate.

However, it was also considered necessary to balance this against the impact anti-social behaviour has on neighbours. It was considered that landlords have a duty to enforce the prohibition on nuisance contained in the Residential Tenancies Act 1997 and should take definite action, where attempts to resolve issues have been ineffective.

My office identified that MAHT could have managed the issue more proactively. For example, by trying to ensure that people subject to complaints understand what they need to do to address issues. This included informing them of specific steps required and actively monitoring compliance.

It was also identified that MAHT could have responded more effectively to complaints, especially since some of the issues were reported to have been occurring on properties managed by MAHT.

My office considered that if MAHT focused on what it could do to manage anti-social behaviour under its relevant policies and procedures, rather than why it was precluded from acting, this may help complainants feel confident that their concerns were being properly addressed.

MAHT accepted most of my office’s suggestions and has committed to reviewing its processes.

As a result of these complaints, it is hoped that significant improvements will be made in relation to the way MAHT responds to reports of anti-social behaviour and manages complaints.

Resolve Case Number: O2406-108, O2406-140 & O2406-119

Retirement Benefits Fund Board – November 2024

Commutation of Surviving Spouse Pension

A complaint was received by my office about the Retirement Benefits Fund Board (RBF) in relation to a commutation request submitted on behalf of a surviving spouse, and several customer service issues.

Background

The RBF pension holder died in early 2024 and the complainant made a valid commutation election later in 2024, on behalf of the surviving spouse. The commutation elected to convert the surviving partner benefit such that 30% be paid as a lump sum amount, and the remaining 70% of the pension benefit continue to be paid as a fortnightly pension for the remainder of the surviving spouse’s life.

The complainant made a second commutation election to RBF on behalf of the surviving spouse approximately one month later. At the time the complainant made the second commutation election to the RBF Hobart office it was not identified that a valid commutation election had already been made, and the complainant was not advised that this second commutation election could not be accepted or processed.

Assessment

Customer service

Following the complainant making a formal complaint to RBF in June 2024, an investigation was undertaken in relation to the concerns raised. The complainant was provided with a response on 23 July 2024. This response acknowledged the customer service experienced was not satisfactory. RBF issued an apology to the complainant and advised that feedback and training had been provided to the staff involved with the matter.

After having reviewed the material provided, my office was satisfied that the response provided by RBF to these concerns was appropriate.

Commutation request

Correspondence sent to the complainant in June 2024 from RBF advised that the second commutation request could not be accepted. This was, unfortunately, after the complainant had received (what was later identified as erroneous) advice that the second commutation request would be ‘processed shortly’.

The complainant requested further information from RBF in relation to the relevant 'Governing Rules' referred to in its correspondence, specifically relating to the limitation restricting the surviving partner to one commutation request. RBF provided my office with copies of correspondence sent to the complainant in response to this concern dated 1 and 16 August 2024.

My office was satisfied that the additional details provided in the letter dated 16 August were fulsome and set out why RBF only allows one commutation. My office did provide feedback to RBF that at the time the surviving spouse was advised of the three-month timeframe to make an election to commute the whole or part of the pension to a lump sum, additional information could have been included to assist with this process. This could have included a copy of RBF’s Contributory Scheme Member Booklet or links to the RBF website.

Resolve Case Number: O2410-087

Office of the Valuer-General – October 2024

Complaint about Property Valuation

My office received a complaint about a supplementary valuation of a residential home/property undertaken by the Office of the Valuer-General (OVG).

The supplementary valuation was triggered by the completion of renovations to the complainant’s property. As a result of the supplementary valuation, the annual municipal rates levied by the local government increased significantly.

The complainant raised concerns that the OVG had falsely claimed that the increase in valuation was based on a new flat being added to their property during recent renovations. The complainant asserted that the flat had always been present at the property.

My office undertook preliminary inquiries with the OVG where it was identified that the complainant had submitted a Notice of Objection to the Supplementary Notice of Evaluation through the OVG Valuation Portal in July 2023. The complainant subsequently withdrew this objection on 6 November 2023, prior to the objection being finalised.

Under section 11(1) of the Valuation of Land Act 2001 (VLA 2001) the Valuer-General must make valuations of the land values, capital values and assessed annual values of all lands within each valuation district, including Crown lands that are liable to be rated in accordance with Part 9 of the Local Government Act 1993.

Importantly, section 11(3)(c) of the VLA 2001 provides that:

in the case of land which is occupied in portions by more persons than one, the Valuer-General may separately determine the assessed annual values of those portions if he or she, having regard to the occupation or construction of the land or improvements, or the structural alterations (if any) made in it, is satisfied that the land is capable [emphasis added] of separate occupation.

Under section 21 of the VLA 2001, the Valuer-General may, at any time, make a supplementary valuation of any land, for a number of reasons, including the erection, modification or construction of buildings or other improvements, or if the value of the land has been, in the opinion of the Valuer-General, materially increased since the last municipal valuation was undertaken.

As a result of the supplementary valuation of the complainant’s property, the OVG changed the Valuation Property Classification Code (VPCC) from ‘dwelling’ to ‘dwelling & flat’. This decision was made because the property contained a structure that was:

• Capable of being separately occupied with a separate point of access to the main dwelling;
• Capable of being separately occupied with exclusive possession to the main dwelling;
• Capable of being separately occupied with separate cooking facilities to the main dwelling; and
• Capable of being separately occupied with separate bathroom facilities to the main dwelling.

My office was advised that valuers from the OVG physically inspected the complainant’s property, reviewed the property use and verified that the improvements at the property were capable of separate occupation, which resulted in the classification of R4 ‘house & flat/s’.

The OVG advised that under section 5 of the VLA 2001, the Valuer-General maintains a database and determines the content of the valuation roll (which contains information such as the situation, description and the measurements or area of the land, the land value, the capital value and assessed annual value) in a manner that he sees appropriate to assist in categorising properties. The R4 code ‘house with flat/s’ contained within the VPCC is used as a part of this process.

In summary, the OVG made the determination that the complainant’s property satisfies the R4 code under the VPCC by way of a supplementary valuation. The OVG's position is that the R4 code more accurately reflects the property, as opposed to its code pre-supplementary valuation. Even if a flat is not used as a separate residence, it may be capable of being used as such.

My office was satisfied that the OVG had the authority to undertake the supplementary valuation pursuant to section 21 of the VLA 2001, and that the determination reached by the Valuer-General was open to be made pursuant to section 11(3)(c) of the VLA 2001 following the inspections undertaken by OVG staff.

My office suggested that the OVG consider creating a reference document whereby the specific criteria for a property identified as R4 ‘house & flat/s’ be recorded. This document may assist with similar enquiries requiring an explanation of the R4 code and application of the VPCC.

Resolve Case Number: O2403-072

WorkSafe Tasmania – October 2024

Policy changes following Ombudsman’s review

The complainant contacted my office because he was unhappy with information he had been provided by WorkSafe Tasmania (WorkSafe), and about how WorkSafe had managed his complaints in relation to his workers compensation claim.

When responding to my office’s preliminary inquiries, WorkSafe identified that the complainant’s original complaint had not been actioned by WorkSafe. This occurred due to a gap in the system, where not all workers compensation complaints were recorded and managed in the same system, which, at times, led to inefficiencies.

As a result, WorkSafe changed its internal management of complaints, so that all issues or complaints relating to workers compensation would be recorded and managed in the same system, therefore reducing the likelihood of complaints being overlooked in future.

My office also identified issues with the information available on WorkSafe and WorkCover Board Tasmania’s website relating to complaints. It was also identified that WorkSafe did not have a complaints policy.

WorkSafe committed to reviewing the websites to provide clearer information to members of the public about how to make complaints.

It also committed to developing complaints policies and making them available on the websites within the next 12 months. WorkSafe advised this timeframe was required due to WorkSafe’s role as regulator, and it would need to consider the requirements of various legislation in this process.

Resolve Case Number: O2406-069

University of Tasmania – March 2024

Non-Award Units and Graduate Testamur

A complaint was received from a student at the University of Tasmania (UTAS) concerning the conferral date of a Graduate Certificate.

The complainant asserted that UTAS failed to inform them that they needed to request that their non-award units be added to their award units, which would have made them eligible to graduate at an upcoming graduation ceremony. The complainant asserted that this came about due to poor communicative practices on behalf of UTAS.

The complainant referred the complaint to the Ombudsman after following the internal complaints process with UTAS.

My office undertook preliminary inquiries with UTAS based on the concerns raised by the complainant. In particular, how UTAS communicates issues relating to enrolment and graduation with students, whether UTAS proactively follows up on issues relating to graduation and whether the complainant was advised of any issues with their enrolment prior to graduation.

As a result of these inquiries, UTAS identified by its own admission that there was a gap in communication with the complainant. My office was satisfied on the evidence that UTAS had demonstrated poor communicative practice in respect of its failure to clearly communicate with the complainant.

In its response to my office, UTAS stated that it would include an additional step in its process when reinstating students via a non-award course. It will now provide explicit advice to students informing them that they need to apply for credit.

My office was satisfied that this additional process will ameliorate any similar circumstances arising in the future.

Ref: O2312-091