The Ombudsman has some 'concerns'

Stephen Nowicki

Senior Investigation Officer

Commonwealth Ombudsman

PO Box 7444, St Kilda Road

VIC 8004                                                                                  25th Sept 2012

Dear Stephen

In response to your letter of 20^th Sept. You write:

I have some concerns about Screen Australia’s statement that it will not accept any future funding applications from you.

What does ‘some concerns’ mean in reality and why do you have them?

I will raise those concerns with Screen Australia.

Within what time frame will you raise them? Raising a concern in the real world is meaningless unless it leads to action to address the concern.

No information has been provided to me to indicate that you have made a new application that has not been responded to.

Why on earth would I make a ‘new application’ when Ruth Harley made it abundantly clear in her letter of 10^th May (of which you have a copy) that it will not be accepted?  Ruth writes:

Screen Australia has taken the decision that it will not accept further funding applications from you, or correspond with you about funding applications.

Ruth could not be any clearer in expressing her resolve. She ends her 10^th May letter with:

We do not propose to accept or respond to any applications or correspondence from you. To be clear, any correspondence which you send to us about the decisions notified in this letter will not be read.

Did you actually read Ruth Harley’s letter to me dated 10^th May, Stephen?  Exhibit A of my complaint! If so, how could you possibly write, in your letter of 20^th Sept:

If you make a future application and Screen Australia does not respond to it, you can then make a complaint to our office about that particular application. We can then consider the specific circumstances of that matter in more detail.

‘That particular application’! Stephen I have been banned. It is not a matter of ‘ particular applications’ or ‘specific circumstances’. It is a total ban on anything I might present to Screen Australia. As you are well aware, Ruth Harley, true to her word, has not responded to one of my letters since 10^th May. The same would apply to any application I made. How is it, after more than four months, that you have not been able to read and comprehend a letter, a little over a page long, in which Ruth Harley leaves no doubt that her ban on me is total!?

Are you suggesting, despite the total ban placed on me by the Screen Australia Board, a ban that can only be lifted by the Board, that I make an application anyway? Just to test the waters, perhaps? And then, when my application is knocked back, which it would have to be if the Board’s decision were to be respected, come back to you with a new complaint? So that I can spend another four months waiting as you ‘consider the specific circumstances of that matter in more detail’?  This is akin to making a complaint to the Ombudsman about having one’s driving license cancelled and you suggesting that the complainant drive anyway and deal with the ramifications when they arise! This is absurd. A ban is a ban!

But lets just say I go through with this charade? My application is knocked back. With my new complaint will you actually acquaint yourself with the correspondence relevant to the application? Will you ask questions; acquaint yourself with the facts? I have yet to see evidence that the facts are of any more interest to the office of the Ombudsman, in the course of investigating a complaint,  than they are to Screen Australia!

You seem not to have even a basic understanding of the ramifications of the Screen Australia ban. It is close to impossible to make a film in this country without communicating with Screen Australia in regard to the ‘Producers Offset’. Are you aware of the ‘Producer’s Offset’, its significance, its importance, the indispensible nature of it to filmmakers? Are you aware that Screen Australia’s ban effectively makes it impossible for me to make films in this country? You write:

If you think I have overlooked something or there is any further information I should consider before finalizing my investigation, please contact me on1300 362 072 or by email. If I do not hear from you by 10 October I will finalize your complaint and close your record.

Stephen, like Elisa Harris before you in Dec 2010, you have not conducted an investigation thorough enough to even acquaint yourself with the contents of Ruth Harley’s one and a bit page letter to me of 10^th May. There has been no investigation worthy of the name. There are myriad questions I have asked and which, in your ‘investigation’ you have completely ignored but an answer to one question would be great:

Do you believe, on the basis of the correspondence of mine that you have read, that I have intimidated, harassed and placed at risk members of Screen Australia’s staff?

It is on the basis of these alleged crimes that I have been banned and my career as a filmmaker effectively brought to an end. Could you please identify one paragraph, one sentence, one phrase in any of my correspondence this past three years in which I am guilty of the intimidation of which I have been accused and found guilty by a Board that was presented with no evidence but was happy to take Ruth Harley’s word that such evidence existed! What point is there in making a complaint to the Ombudsman if you, as Senior Investigator, are not going to ask the key questions necessary to acquire evidence of the crime I have been found guilty of. 

On 10^th May Ruth Harley wrote:

We do not consider that our previous assessments of this project (‘Chanti’s World’) were compromised as alleged. I note in this regard that you took your concerns over those assessments to the Commonwealth Ombudsman. An investigation was conducted and a decision made that there was no criticism made that there was no criticism of Screen Australia’s approach with respect to the matters investigated…”

As you know, Stephen, Elisa Harris conducted no investigation at all. She spoke with Fiona Cameron once on the phone but did not ask any questions at all of the four people who were in a position to agree or disagree with me that the first and second assessments had been, to use Ruth Harley’s expression,  ‘compromised’. To this day Claire, Jager, Liz Crosby and Ross Mathews still refuse to provide a simple ‘yes’ or ‘no’ answer to questions relating to ‘compromised’ assessments. Did you, in your ‘investigation’ ask Claire, Jager, Liz Crosby and Ross Mathews for a simple ‘yes’ or ‘no’ answer to the question of whether or not my ‘Chanti’s World’ promo was viewed? No.

Then there is the correspondence that Fiona Cameron claimed I had written in which I expressed my belief that my ‘Chanti’s World’ application had been greenlit. Did Elisa Harris ask to see this correspondence? No. How could she claim to have completed an ‘investigation’ without even requesting to view correspondence that lay at the heart of the dispute? Undeterred by Elisa’s botched ‘investigation’ I continued to request copies of the correspondence. It took me 20 months, two FOI applications and a complaint to the Information Commissioner before the ‘greenlit’ correspondence was released to me. And does it contain any evidence at all that I had believed ‘Chanti’s World’ had been greenlit? No. Clearly, the reason why Screen Australia did not want to release the correspondence was because it did not contain evidence of this particular crime I had allegedly committed. What do you make of this fact? What do you make of the fact that Elisa conducted no investigation at all (check the files, Stephen, for evidence of this) and that I effectively achieved, in 20 months, what the office of the Ombudsman could have done in a five minute phone call.

Please, Stephen, get on the phone today and ask Ruth Harley to produce at the very least one instance in which I have intimidated and placed at risk members of her staff. Just one. If she can’t, my being banned is an inappropriate abuse of power on her part and this should not only be blindingly obvious but also something that you can, in whatever the appropriate bureaucratic language is, express forcefully in writing. This can and should be done today.

Whilst it is clearly a matter of great concern to me that I have been banned on trumped up charges, the bigger issue is this: By not conducting an investigation but creating the illusion of having done so, Elisa Harris effectively gave senior personnel at Screen Australia a green light to behave in whatever way they choose, without regard to the organizations own guidelines, with a total lack of transparency and accountability in the full knowledge that in the case of any future complaint to the Ombudsman by a filmmaker, the verifiable facts would be ignored and no pertinent questions asked. That you have not, after four months, been able to read a letter that is little over a page long and understand its contents is yet further evidence of the ineffectiveness of the office of the Ombudsman.

If I have intimidated or placed Screen Australia staff at risk my being banned is appropriate. If I have not done so, Ruth Harley has lied and, on the basis of her lies, convinced the Screen Australia Board to ban me. Given that the Screen Australia Board seems to have no interest in whether their ban of me is based on facts or lies you can, as the Ombudsman’s office representative, make this call. You have read the correspondence, Stephen. Am I guilty of intimidation or not in your view? Please express your answer in clear language that any lay person can understand and not in equivocating bureaucratese that is open to multiple interpretations. If you cannot do this, please step aside as investigator and hand my complaint on to someone within your office who will deal with it appropriately.

best wishes

James Ricketson