Wednesday, July 6, 2016

Will the Ombudsman ask the right questions this time around?

Kent Purvis
Investigation Officer; Operations
Commonwealth Ombudsman

1st July 2016

Dear Kent

Following on from my letter of 14th June.

Within Screen Australia these past few weeks memos will have been placed on file, emails sent and meetings held between Graeme Mason, SA’s legal department, the SA board and others with a vested interest in keeping Ruth Harley's submission to Mr. Ian Govey secret.  “How can we achieve this end?” will have been the question foremost in many minds. What better way to keep Screen Australia’s decision-making modus operandi secret than to ban me from making legitimate FOI requests and making it seem that this is a logical and necessary response to my repeated requests for evidence of my guilt!?

Kafka again! Or is it Monty Python, with a dash of Alice in Wonderland!?

Was the decision to ban me from making FOI requests taken by the SA board? If so, what evidence was presented to the board, by Graeme Mason,  in support of the new ban? Was the ban recommended by SA’s legal department? Or was this Graeme Mason’s ‘Captain’s’ call’ made without reference to the legal department or the board?

In short, wherein lies responsibility for this latest two year ban? Or is this, like so much else that takes place within Screen Australia, a secret which must remain a secret?

Most importantly, is Graeme Mason’s declaration that I cannot make FOI applications a breach of The Freedom of Information Act 1982 (FOI Act)? which “provides a legally enforceable right of access to government documents.”?

If I make an FOI request for evidence of the alleged offences that have led to this most recent two year ban on me and Graeme Mason refuses to accede to my request, as he has stated will be the case, will this be a matter of concern to the Ombudsman?

Will you, on behalf of the Ombudsman, seek evidence from Graeme Mason in support of the latest ban on me? Or will the Ombudsman’s assessment of the need for the ban, its fairness, its legality, be made, as was the case in 2012, without reference to evidence of my guilt?

If Graeme Mason does provide you with evidence in support of this latest ban will you share this with me and give me an opportunity to respond to it?

So many questions! Questions that the Ombudsman has made clear in the past I have no right to ask in expectation of an answer. “We conduct our investigations as we see fit,” would be a fair paraphrasing of the response of your office this past four years. “And we may or may not respond to your letters since, as far as we are concerned, the evidence relating to your guilt has already been investigated,” is another fair summation of the Ombudsman’s modus operandi.

Graeme Mason’s declaration that I am banned from making any further FOI requests speaks for itself of his commitment to the precepts of transparency and accountability.

Please correct me if I am wrong, Kent,  but it has always been my understanding that FOI legislation exists, in large part, as a mechanism to guarantee that bureaucrats are accountable for their actions, their decisions;  to make it difficult  for bureaucrats such as Graeme Mason to play fast and loose with the truth.  My preconceptions about FOI are borne out by what is to be found on the Australian Information Commissioner’s website:

Rights and responsibilities

The Freedom of Information Act 1982 (FOI Act) provides a legally enforceable right of access to government documents.

Why is FOI important?

The Australian Parliament first considered introducing freedom of information (FOI) legislation in the 1970s. In 1979, a Senate committee report outlined three reasons why FOI is important:

1       FOI allows individuals to see what information government holds about them, and to seek correction of that information if they consider it wrong or misleading.

2       FOI enhances the transparency of policy making, administrative decision making and government service delivery.

3       A community that is better informed can participate more effectively in the nation’s democratic processes.

What’s covered by FOI?

The FOI Act promotes government accountability and transparency by providing a legal framework for individuals to request access to government documents. This includes documents containing personal or other information, such as information about policy-making, administrative decision-making and government service delivery. Individuals can also request that ministers or agencies amend or annotate any information held about them.

Surely, for Graeme Mason to ban me from making any future FOI requests is to deny me my legal rights in therms of the Freedom of Information Act 1982; to make a mockery of the FOI legislation; to reveal his contempt for the basic tenets of FOI? Is not Graeme Mason using his right of veto as a tool to silence me; not as a means of arriving at the truth; of being transparent and accountable?

As for the evidence contained in Ruth Harley’s submission to Mr Ian Govey in 2012 the Ombudsman has decided, it seems, that I have no right to be appraised of its contents. This is absurd but to argue further with you that I have such a right would be an exercise in futility. If Louise Vardagena will not provide me with a copy I will instruct my lawyers to obtain a copy of this document through the Supreme Court in whatever way they deem to be necessary. Screen Australia’s legal counsel will no doubt argue in the Supreme Court, at considerable cost to that organization, that I am not entitled to be appraised of the evidence that led to Mr Govey’s approval of the ban on me. I wish him (or her) luck with that!

In the meantime, in relation to this most recent (may 2016) ban, let the evidence against me be laid on the table so that a truly independent person or body (along with my filmmaking colleagues) can decide who the liars are - myself or members of senior management within Screen Australia who use sleight of hand (with approval of the SA board, it seems!) to withhold evidence and yet create the illusion that due process has been followed.

It seems that Graeme Mason will use any and every trick in the book to withhold evidence in support of Screen Australia’s three bans (totaling 6 years) on me. It remains to be seen whether, at this late date, the Ombudsman has the will, the authority, to insist that Screen Australia provide such evidence. The Ombudsman’s website is worth quoting from here:

“We consider and investigate complaints from people who believe they have been treated unfairly or unreasonably by an Australian Government department / agency or prescribed private sector organization…Our aim is to resolve complaints impartially, informally and as quickly as reasonably practicable…we endeavor to resolve disputes through consultation and negotiation, and if necessary, by making formal recommendations to the most senior levels of government.”

You could put the Ombudsman’s lofty ideals into practice, Kent, by making a ‘formal recommendation’ to Senator Mitch Fifield to acknowledge receipt of letters (he never does) and to respond to them. And you could put these same ideals into practice by engaging (as I suggested four years ago) in genuine consultation and negotiation. You could suggest to Fiona Cameron and Graeme Mason that they, along with yourself and myself, sit down and work this dispute through to a logical and fair resolution based on evidence. Let Fiona and Graeme lay their evidence of my guilt on the table – literally and figuratively – and argue their case for the 6 year ban imposed on me. Let me argue my case that Screen Australia has no evidence or that the evidence presented by Graeme and Fiona is flawed. This, surely, is preferable to engaging in the same exercise, at huge expense to all parties, in the Supreme Court. If such a meeting can be arranged I will return to Australia, with a few days notice, to take part in it.

best wishes

James Ricketson

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