Friday, September 2, 2016

On the investigative incompetence of the office of the Commonwealth Ombudsman

Mr Colin Neave AM
Commonwealth Ombudsman
GPO Box 442
ACT 2601                                                                                          

30th August 2016

Dear Mr Neave

Following on from my letter of 24th August and in response to Kent Purvis’ letter of 29th August.

Imagine this:

Someone within a Commonwealth government department accuses you of having intimidated, harassed and placed at risk pubic servants with your correspondence.

What do you do? Both your career as Ombudsman and reputation are at stake!

First of all, I am sure, you would ask for copies of the correspondence in which, it is alleged, you have intimidated and placed at risk members of staff in the relevant department.

The main complainant refuses to provide you with evidence but, after several ignored FOI requests, she presents you with copies of all the correspondence you have had with this government department over the previous few years.  Some of it is highlighted in orange.

You ask this public servant, whom you are meeting for the first time, to please point out to you which parts of the highlighted correspondence provide evidence of intimidation. She replies, “I felt intimidated.”

Would you accept that her ‘feeling’ intimidated was an acceptable response to your question? Or would you continue to ask for actual evidence, in the words you have allegedly written, of having intimidated her?

As a result of your ‘intimidation’ of this public servant and others who remain nameless, you are forbidden from communicating in any way with this woman or with anyone else in her department. This is well known amongst your peers within the public service. They have no idea where the truth lies. “Maybe Colin has been intimidating staff! Maybe not. Who knows!? But, you know, where there’s smoke…”

Would you accept this state of affairs and just get on with your professional life, your reputation damaged, or would you continue to ask for evidence that you have been intimidating public servants with your correspondence?

In order for you to acquire evidence of your intimidation you write many letters, make several FOI applications. Your letters are then presented to you as evidence of your harassment of the woman who claims to have been intimidated by you. Your FOI requests are knocked back. You are told that you have already been provided with evidence of your intimidation and that this and any future FOI applications will be ignored.

What do you do? Accept that some of your co-workers believe you must have been intimidating staff; placing them at risk. (“Why else would Colin be banned from communicating with them?”) Would you accept that there remains on file, within a government department, allegations about you that you know to be untrue and which you know will remain on file for the remainder of your professional career; allegations that will damage if not destroy your career?

Or would you continue to advocate on your own behalf, asking for evidence of your having intimidated and placed at risk staff – even though you have been expressly told that you must cease asking for such evidence; that the very asking for it constitutes harassment?

My suspicion, Mr Neave, is that you would not accept such a scenario without complaint. Your reputation is important to you and you do not want to remain on record the false allegation that you have intimidated staff (and placed them at risk, whatever that might mean!) with your correspondence. And, of course, you do not want your career path to be adversely affected by these false allegations.

With this imaginary personal scenario in mind, consider Kent Purvis’ 29th August comment about ‘lies’:

“I note a root cause of your dissatisfaction with Screen Australia is that you believe that ‘lies’ have been placed on file regarding your request for funding for one of your projects. This being the case it is also open for you to seek, using FOI legislation, an alteration of file records so they reflect your interpretation of events.”

Kent knows full well that Graeme Mason, Screen Australia’s CEO, has made it clear that no future FOI requests from myself will be considered. Here, in somewhat abbreviated form (Kent has the full letter on file) is what Graeme has to write about my FOI requests:

“I refer to your recent emails and letters to Screen Australia dated 18 and 23 May 2016, with requests for access to information under the Freedom of Information Act 1982 (FOI Act).

You have asked for us to give you examples of your correspondence prior to 9 May 2012 in which you intimidated and placed at risk members of Screen Australia staff.

This request covers the same information that you requested under the FOI Act on 18 June 2012. Screen Australia provided you with a response at that time, on 18 July 2012, enclosing the relevant information.”

Graeme is referring here to the copies of all the correspondence I had had with Screen Australia in the couple of years prior to May 2012 – some of it highlighted but with no indication which parts constituted intimidation or evidence that I was placing staff at risk. Graeme continues, referring to my ongoing requests for evidence:

“These recent requests for information all relate to matters that have been comprehensively dealt with by Screen Australia and that the information has already been requested and provided to you on other occasions, other than information that is exempt from disclosure.”
My request for evidence of having intimidated anyone has not been “comprehensively dealt with”. If it had been I would not keep asking for the evidence but would have responded to whatever evidence was provided to me. Graeme continues:
“Accordingly Screen Australia will not respond to repeated FOI requests that you may make in the future in relation to the same information.”
So, as Kent knows all too well, any and all FOI requests I make will be ignored by Screen Australia. Worse, my making such requests will be seen, in May 2018, as evidence of my having harassed SA staff. For Kent to suggest that I make further FOI requests is disingenuous to say the least.
Again, Mr Neave, would you accept this state of affairs if it was your reputation, your career that were being adversely affected by allegations that were demonstrably false?

But let’s say, for argument’s sake, that you were provided with the opportunity to place on record (on file) your “interpretation of events”. Would you be happy to have on file a note that says something along the lines of:

”Mr Neave denies having intimidated any members of staff with his correspondence.”

Would that be the end of the matter for you? Or would you keep insisting that you be provided with evidence that you are guilty of having intimidated and placed at risk members of Commonwealth government public servants?

Let’s say, four years down the track, no longer in the role as Ombudsman (a man who allegedly intimidates and places staff at risk cannot be allowed to continue in the job!) still with no evidence provided to you of intimidation, you received from the office of the Ombudsman a letter that contains the following (I am quoting Kent):

 “In my initial evaluation I noted that the Commonwealth Ombudsman has had contact from you in the past regarding the 2010 origin of this complaint, and that you had been informed that no further investigation would be undertaken by this office regarding the specific issue.”

In other words, the office of the Ombudsman, whilst agreeing to investigate your May 2016 ban, will not address the question of whether or not you ever intimidated or placed at risk anyone in the first place! The reason for the ban is not relevant. All that is relevant now is that you have been harassing staff with your repeated requests for evidence.

Your career and reputation now in tatters, would you find acceptable it acceptable that the Ombudsman simply refuses to ask for evidence of your guilt? If the Ombudsman’s office had never, when you made your original complaint, asked for evidence of your guilt, would you accept without question ‘further investigation’ as a description of the Ombudsman’s failure to investigate? Or would you keep on fighting? Insisting that you be provided with evidence?

So now let’s deal with the period between May 2014 and May 2016. What evidence is there of behaviour on my part of the kind that warrants yet another 2 year ban?

I will quote Kent’s words:

-       You have referred to the actions of SA ‘childish, stupid and counter-productive.

-       You have referred to the actions of SA as Mc Carthyism, directly tying the refusal of communication to your criticism of that agency.

-       You have made reference to SA representatives as having lied, or being liars.

Really, Mr Neave! Do you find these reasons for banning me for a further two years acceptable? Would you find such reasons acceptable if it was your reputation? Your career? Being banned again because you have accused your accusers of being childish, stupid and counter-productive, referred to their ban on you as Mc Carthyism?

That Kent believes these are valid reasons to ban a filmmaker for two years beggars belief!

OK, so what about my accusations that certain members of Screen Australia have lied; that they are liars? One dictionary definition of a lie that I think we can agree on is that it is a

“false statement made with deliberate intent to deceive; an intentional untruth; a falsehood.”

So, when I accuse Screen Australia of lying in stating that I have intimidated and placed at risk members of Screen Australia staff the quite legitimate question arises:

“Is James Ricketson lying? Or is Screen Australia lying?”

Given that the alleged intimidation and placing at risk is contained in my correspondence the easiest way of deciding who is lying – me or Screen Australia – is to look at this correspondence. I have been saying this for more than four years:

“Show me the evidence.”

This is the question that the previous Ombudsman refused to ask. It is the question that Kent Purvis refuses to ask. It is the question you refuse to ask, Mr Neave. It is the question you cannot ask because you know the answer, namely that there is no evidence – not one paragraph, one sentence, one word – that I intimidated or placed anyone at risk. For the office of the Ombudsman to admit this now, in late August 2016, would raise the perfectly legitimate question:

Why did the Ombudsman not ask this question back in 2010? In 2102?”

As I have written many times, if I am guilty of having intimidated and placed at risk members of Screen Australia’s staff the banning of me is appropriate. If I am not guilty Screen Australia has lied. And my referring to those who perpetrated these lies as liars is simply a statement of fact and not a reason to ban me further.

A few comments on another of Kent’s verbal sleights of hand regarding the ban on me:

“It is accepted you fundamentally disagree with SA’s decision not to correspond with you, and you consider your contact to be advocacy against SA’s unreasonable actions and therefore not harassment/appropriate in the circumstances. However, it is also the case that SA has, at 2 year intervals, offered a concrete opportunity for you to remove the restriction of contact with SA, this essentially being your cessation of your correspondence.”

Again, Mr Neave, would you find this acceptable? If, instead of being provided with evidence that you had intimidated anyone, you were given one option only to have the ban on you lifted:

Stop asking for evidence.”

Would you find this acceptable? The fact that Kent does find this acceptable raises serious doubts about the competence of your office to deal, in an impartial matter, with complaints that can easily be resolved with reference to evidence that is readily available – in this instance those parts of my correspondence that are, allegedly, intimidating and placing staff at risk.  Kent goes on:

“You have refused this path and chosen to take action that you were explicitly informed would extend the period of refused contact. The information you have forwarded to this office indicates you continue to pursue this course of action post May 2016.”

The message Kent is sending here is:

“If you insist on asking for evidence, if you continue to harass staff at SA for evidence, if you continue to ask the office of the Ombudsman for evidence, having been told not to by Screen Australia, SA’s continued banning of you is to be expected. If you will simply stop asking for evidence, maybe in May 2018, the Screen Australia board will lift its ban.”

Do you support the proposition that Kent is presenting here, Mr Neave? That is continuing to ask for evidence I am complicit in my own banning?

One last quote from Kent Purvis:

“I should also note that you make regular reference to ‘crimes’ that SA believes you have committed and SA’s actions having led to the ‘banning of a filmmaker in a democratic country such as Australia.’ While I appreciate your position, this interpretation is not correct. SA’s decision to refuse communication is one based on policy…It carries no legislative (and therefore criminal) weight., but it is also not unreasonable, given your actions relative to that policy. Likewise, while I accept to consequences of SA’s decision has had a substantial and ongoing impact on your professionally, it is not accurate to say that you have been ‘banned’ from making films in Australia or that you are a ‘banned’ filmmaker.”

Kent here neatly skates over the fact that the significant aspect of the ban on me is not that I cannot communicate with Screen Australia staff  but that I am banned from making any form of application to that body. I could have an Academy Award winning box office blockbuster on my hands and Screen Australia would refuse to read, assess or fund the film in any way. Whilst the petty and vindictive mind-set that refuses to read an application from any filmmaker on the flimsy grounds that Kent has noted above may not of concern to the Ombudsman, Kent’s reference to ‘legislative and criminal weight’ misses the point entirely.

Again, imagine yourself in my situation, Mr Neave. You have been accused not only of intimidation but of ‘placing at risk’ members of staff. You have never been provided with evidence, you have lost your job and are unemployable as a result of the false allegations made about you. You attempts to get answers to your question “Evidence please” are characterized as harassment and you get a letter from the Ombudsman that informs you you have not, strictly speaking, been banned from working for the public service. You are still free, if you so choose, to apply for any job within the public service.

Really, Mr Neave, please try to put yourself in my shoes. If what happened to me happened to you, the circumstances similar, your career as a public servant would be over; your credibility and reputation in tatters. The question is, would you keep fighting or simply give up; take Kent’s advice and hope that by ceasing to ask that justice be done you might be able to work again as a public servant in 2018?

If you do have any evidence that I have intimidated or placed at risk anyone please provide me with it post haste.

In the meantime, I will keep fighting (in the Supreme Court now) for the right to be appraised of the evidence that I intimidated and placed at risk members of Screen Australia’s staff.

best wishes

James Ricketson

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