Friday, September 28, 2012

A response from the Ombudsman, 28th Sept.




Below is only a part of the office of the Ombudsman's most recent response (28th Sept) to my complaint but it is relevant to my immediate circumstances:

You have asked me to clarify what I mean by stating that I have some concerns about Screen Australia's decision not to respond to any future applications from you, should you lodge a new application with it. It is my view that Screen Australia should reasonably consider any new valid application for funding it receives. This would include a new application from you...

You have stated that in light of the advice provided by Screen Australia you do not consider that there is any point lodging a new application with it. Although I have concerns about Screen Australia's advice rergarding how it will treat future applications from you (which I will be following up with Screen Australia) I am of the view that further investigation is unlikely to achieve anything meaningful for you in the absence of you lodging a new valid application. This is because the existence of a new valid application will provide an opportunity for our office to assess the reasonableness of Screen Australia's actual response. Without an application being on foot, I do not believe that there is any practical remedy further investigation will achieve for you.

One problem with Stephen Nowicki's suggested modus operandi is that even in the preparation of an application I need to talk with members of staff at Screen Australia – which I am not allowed to do because I have allegedly intimidated them and placed them at risk!

On this subject Stephen Nowicki writes:

You have asked for our office to make a determination about whether or not your correspondence has 'intimidated, harassed or placed at risk members of Screen Australia staff'. It is not the purpose of my investigation to make a determination or ruling in the manner that you appear to be seeking. Our office investigates the administrative actions of Australian government agencies, but it is not our role to make a ruling on the occupational, health and safety of the staff of an agency.


12 comments:

  1. Ricketson, what Mr Nowicki writes is twaddle. Check out the Ombudsman's website, under AUSTRALIAN GOVERNMENT AGENCIES AND SERVICES:

    "The Ombudsman can investigate complaints about the actions and decisions of Australian Government agencies to see if they are wrong, unjust, unlawful, discriminatory or just plain unfair."

    Your being banned rests on the proposition that you have intimidated staff in your correspondence. You say that you have not. In order for the Ombudsman to be able to determine if Screen Australia's decision to ban you was "wrong, unjust, unlawful, discriminatory or just plain unfair," the Ombudsman needs to sight the correspondence, read it.

    As I am sure you are away, Mr Nowicki's response (at least the part published here) is reminiscent of scenes from 'Yes, Prime Minister'. Mr Nowicki's declaration that he will 'follow up' with Screen Australia is code for, "I don't intend to take any action here at all.

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    1. Yes, twaddle indeed. Not sure whether to laugh or cry. Whenever I have read, in the newspaper, that the Ombudsman was investigating this or that I have always felt comforted by the idea that there is an independent investigating arm of government that holds the Ruth Harley’s and the Screen Australia Boards accountable. How wrong I was. I have been very naïve in expecting that the Ombudsman would ask the right (indeed any) questions and rely on facts in the course of an ‘investigation’ to make a decision. Nowicki’s concern about my not being allowed to make applications offers a ray of hope – dim though it might be - that the SA Board might reconsider its decision to ban me.

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  2. James, given that the Ombudsman reckons the question of whether or not your correspondence is intimidating is a health and safety issue, check out "Comcare's workplace bullying campaign" online and you may find an interesting avenue to pursue:

    "Comcare wants all working Australians to know how important it is to prevent bullying in the workplace. Health, safety and well being are vital concerns of working people, their families and communities. Workplace bullying is a major concern across the federal jurisdiction."

    What yo'u have been banned for by Screen Australia is essentially 'workplace bullying. Comcare defines bullying as:

    "Repeated behaviour that could reasonably be considered to be humiliating, intimidating, threatening or demeaning to a person, or group of persons, and which therefore creates a risk to health and safety."

    This reads to me like what you've been accused of - especially the 'intimidating' bit.

    Comcare says it will:

    "...ensure bullying complaints are taken seriously and investigated properly as with any other workplace health and safety issue apply procedural fairness* in all of your dealings with those accused or implicated..."

    This is what will be of interest to you - Comcare's definition of 'Procedural fairness:

    (*) Procedural fairness encompasses notions of right of reply to allegations and decision makers acting without bias based on logical proof or evidence.

    You have been accused of bullying and, if Comcare woud run with this, you have a right of reply and a right to be given 'logical proof or evidence' of your intimidating (bullying) correspondence. Might be a better route to go down than the Supreme Court?

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    1. Could only laugh at the idea of getting Comcare involved. Thanks, 'Bully'! If all else fails in terms of getting hold of the offending correspondence perhaps I will go down the Comcare path. This gets weirder and weirder as the weeks and months roll by!

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  3. If things don't work out in the Supreme Court, if the Ombudsman is useless and if you can't get Comcare to run with this maybe you should try the Anti Discrimation Board?

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    1. Yes, I suppose I could try the Anti Discrimination Board! It would be so much easier, however, if there were someone in a position of authority who could simply say to Ruth Harley (and whom she could not ignore), "Release the correspondence in which Ricketson has intimidated your staff and placed them at risk?" The Screen Australia Board won't do so and nor will the Ombudsman or Mr Crean and I am unable to acquire copies of the correspondence through FOI. This is unsurprising given that the correspondence does not exist. What DOES exist is correspondence that has caused 'distress' to members of SA staff - their subjective experience of distress the result, in SA's eyes, of my 'intimidation'. I imagine that today Jonathan Holmes (see below) is feeling more than a little distressed that he has no choice but to apologize now for the error he made on 'Mediawatch'. Has Holmes been 'intimidated' by Andrew Clennel as a result of the distress Holmes is now experiencing? And was Clennel guilty of harassment and intimidation when he continued to pursue Holmes by making a complaint to ACMA even after his complaint was rejected by the ABC? No, of course not. I am doing nothing more than Clennel did in pursuing Harley as I am and as I intend to continue doing. The same applies to my repeated request that someone ask Liz Crosby, Ross Mathews or Claire Jager if it is true that my 'Chant's World' promo was not viewed by anyone at Screen Australia before my application was knocked back. This cockup is the catalyst for this dispute - one that escalated when Fiona Cameron tried to shift the blame for the cockup to me by making reference to correspondence from me that does not exist, as is now readily apparent to anyone who bothered to read it. Sorry to be repeating myself, but...

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  4. Jonathan Holmes has obviously fucked up with a 'Mediawatch' piece, has been pulled p by the Australian Communications and Media Authority and will now have to make a public apology - at which point, I presume, he will keep his job, 'Mediawatch' will continue, the sky will not fall down and life will get back to normal. What a shame that the same cannot happen here. There needs to be some 'Authority' that can do what ACMA has done and adjudicate whether or not Ricketson's correspondence is intimidating. If not the Ombudsman, who or what?

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    1. I imagine that Holmes will deliver his apology with grace and dignity and accept that he has fucked up. Having to eat a little crow will keep him on his toes in future - which is precisely what ACMA is there to do to journalists who might be tempted to play fast and loose with the truth. There is no ACMA to come to the rescue here and this is the problem. My own dispute is petty (to all but myself) but if Harley gets away with her ban, if the Board buries its head in the sand (which it seems to be) it means that Harley can do what she likes, with no reference at all to the precepts of transparency and accountability and with a Damoclean sword hanging over the head of any future critic who has the temerity to ask too many questions and expect answers.

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  5. Also Reluctantly AnonymousSeptember 29, 2012 at 3:53 PM

    I have known James for a few decades and am pretty certain that he would not say that the intimidating correspondence does not exist if it did exist. This is not merely a matter of honesty or integrity but plain commonsense: Why would he, over a period of close to five months, continue to invite Screen Australia to produce correspondence which, if produced, if it exists, would make a liar of him?

    As an experienced producer I am appalled at the number of filmmakers who make anonymous comments not just here on this blog but on other similar blogs. I am appalled at myself for doing so but much as I would like to be a public critic of Screen Australia I cannot afford to do so as I have projects being considered by SA, intend to present more projects for consideration and do not wish to be subjected to the kind of treatment James is, with no avenue of appeal against the judgement that I too have intimidated staff at Screen Australia as a result of distressing staff with my criticisms.

    This is a very dark time for our industry, for Australian film. It will not change until Harley is gone. She has achieved a few good initiatives but she has surrounded herself with mediocre talent – many of whom had amply demonstrated their mediocrity at the AFC and FFC before they became tenured employees of Screen Australia. And then there are the apparatchiks like Fiona Cameron who, smart though she is and probably very good at parts of her job, have no understanding at all of the realities that confront all filmmakers. Add to this mix lawyers like Elizabeth Grinston and it is not surprising that we are, as an industry, punching way below our weight. We have one of the most generously government subsidized film cultures in the world but manage to produce mostly mediocre films. This is not surprising given that so many (though not all) of those making decisions within Screen Australia (and other state funding bodies) are mediocre and worse. This is a structural problem that only a good Chief Executive can address within Screen Australia. If Harley can't produce the intimidating correspondence she has presented to the Board as a reason to ban James, the Board now has the perfect opportunity to ask her to resign.

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    1. Yes, it is a dark time for our industry and yes we do need a new Chief Executive and the sooner this happens the better - a new CE with a commitment to the precepts of transparency and accountability and with zero tolerance for members of his or her staff who play fast and loose with the truth and who knowingly breach Screen Australia guidelines and the Public Service Code of Conduct. Min you, we also need a Minister who pays attention to what goes on within Screen Australia and it seems highly unlikely that we will get one until our Minister is Senator Brandis!

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  6. James, you should check out the 'Occupational Health and Safety', just in case:

    "Part 4--Advice, investigations and inquiries

    Division 2--Investigations
    40 Appointment of investigators

    (3) Comcare or the Commission may, in writing, direct an investigator, whether a member of the staff of Comcare or not, to conduct an investigation concerning the occupational health and safety policies and practices of an Entity, a Commonwealth authority or a non-Commonwealth licensee...."

    I'm presuming that Screen Australia has a designated Health and Safety officer who, one would think, must have been consulted about the risk you pose to SA staff.

    Read on about the Investigator's power:

    "43 Power to require assistance and information:

    (1) An investigator may, to the extent that it is reasonably necessary to do so in connection with the conduct of an investigation, require:

    (a) the principal officer of an Entity or the chief executive officer of a Commonwealth authority or of a non-Commonwealth licensee; or

    (b) any person representing a principal officer or chief executive officer; or

    (c) any owner or occupier of a workplace at which the investigation is being conducted; or

    (d) any employee or contractor;

    to give to the investigator reasonable assistance, to answer any questions put by the investigator, and to give to the investigator any documents requested by the investigator or copies of such documents, in connection with the conduct of the investigation.

    (2) A person must comply with a requirement made of the person under subsection (1). Note: A person who breaches subsection (2) may be subject to
    civil action or a criminal prosecution (see Schedule 2)."

    You'd have to check to see if you are entitled, as the person who is accused of making the Screen Australia workplace unsafe for its staff, to request an investigation but I imagine so. If so, the following is relevant:

    53 Report of investigation

    (1) Where an investigator has conducted an investigation, the investigator must, as soon as is reasonably practicable, prepare a written report relating to the investigation and give the report to the Commission.

    (2) The report must include:

    (a) the investigator's conclusions from conducting the investigation and the reasons for those conclusions;

    and

    (b) any recommendations that the investigator wishes to make arising from the investigation or those conclusions;

    and

    (c) such other matters, if any, as are prescribed.

    (3) As soon as is reasonably practicable after receiving
    the report, the Commission must:

    (a) give a copy of the report, together with any
    written comments that it wishes to make, to the employer; and

    (b) if the employer is the Commonwealth or a Commonwealth authority and the Commission thinks it appropriate to do so--give a copy of the report, together with those comments (if any), to the responsible Minister in relation to the employer."

    A convoluted way of getting hold of the evidence of your having placed Screen Australia staff at risk with your intimidating correspondence but, hey, if nothing else works....

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  7. Thanks, 'Bully'. If my Statement of Claim is dismissed tomorrow by the Supreme Court I'll add this to my list of options of what to do next to acquire copies of my intimidating correspondence.

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