NSWLEAKS (3)

NSW LEAK (3)

Earlier this year on the 1st March 2011 I published NSWLEAK (1) and on the 9th March 2011 I published NSWLEAK (2), and today I will publish NSWLEAK (3).

In NSWLEAKS one, I published finding an inconsistency in the area of Law under which complaints about police are made and investigated by the NSW Ombudsman. I based the inconsistency I found on there being in force at the same time a section of a police Act, indicating under the Ombudsman Act the Ombudsman could investigate the conduct of a complaint made against a police officer.

At the same time a part of the Ombudsman Act, the Schedule and later re-named Schedule 1; contained legislation indicating under the Ombudsman Act; the Ombudsman could not investigate the conduct of a complaint made against a Police officer.

S. 109 of the Australian Constitution “Inconsistency in law” publish an example of an inconsistency is: where one piece of legislation says you can do X and another piece of legislation says you cannot do X.

To day s.156 of the Police Act 1990 says the Ombudsman under the Ombudsman Act can investigate the conduct of a complaint made about a police Officer, and at the same time clause 13 of Schedule 1 confirms the Ombudsman under the Ombudsman Act cannot investigate the conduct of a complaint made about a Police Officer.

In correspondence I received from the Assist Ombudsman, he claimed to have been offered advice affirming, there is no inconsistency that would prevent the Ombudsman from investigating under the Ombudsman Act the conduct of a complaint made about a Police officer.

A copy of this advice I have requested the Assist Ombudsman Mr. Andrews to please provide me with a copy of the advice he claimed to have been offered. It is obvious from the time that has passed Mr. Andrews is not prepared to account to me the name of the author of this advice he claims to have received.

Part of Mr. O ‘ Farrell’s promise to the people of NSW, is he would restore accountability to government and give people a say on issues that affect their lives. It appears Mr. Andrews has not received a memo to put this policy into effect.

In 1983 the parliament amended the Police Regulation (Allegations of Misconduct) Act 1978 (PRAM Act) with the amendment to be made confirmed:

After section 25, insert:-

Investigation under the Ombudsman Act 1974.

25A. (1) where after considering all the material and information
provided for the Ombudsman under this part. The Ombudsman is
not satisfied that a complaint has not been sustained and is not satisfied
that the complaint has been sustained. The Ombudsman may-

(a) make the conduct to which the complaint relates the subject of an
investigation under the Ombudsman Act 1974.

Obviously commonsense confirms there is an inconsistency in this area of NSW Law, and clause 13 would have a serious affect on any investigation under s.25A the Ombudsman in the beginning of 1984 investigated the conduct of a complaint made against a police officer, and still would today affect the results of any investigation the Ombudsman under s.156 of the Police Act 1990 carried out? By first determining such an investigation to be unlawful, and any evidence supporting a complaint of Police misconduct the Ombudsman under the Ombudsman Act, would be determined to be inadmissible.

In reply to these same issues of inconsistency I raised with members of the parliament and were forwarded onto the Ombudsman to respond too. The Ombudsman claimed to each of the members of the parliament the above amendment made to the 1978 Police Regulation (Allegations of Misconduct) Act in 1983, entitled the Ombudsman to use the powers of the Ombudsman Act to investigate the conduct of a Police officer, adding that this power was originally inserted into the 1978 Police Regulation (Allegations of Misconduct) Act in 1983, and currently the same power can be found at section 156 of the Police Act 1990.

Mr. Barbour also claimed: since the enactment of s.25A, clause 13 of the Schedule part of the Ombudsman Act had not effectively limited the Ombudsman’s ability to investigate under the Ombudsman Act complaints made about Police.

In writing to members of the parliament the Ombudsman replied, I have always argued, for the Ombudsman to investigate under the Ombudsman Act 1974the conduct of a Police Officer, clause 13 of the Schedule part of the Ombudsman Act had to be repealed. This the Ombudsman dismissed, was not needed.

Just recently this year I made the NSW Governor aware of my findings, and in 1993 and again in 1998 the Governor was asked to assent into law a section of the Police Act, indicating the Ombudsman under the Ombudsman Act could investigate the conduct of a police officer.

I pointed out to the Governor that on both occasions in 1993 (s.152 of the Police Act) and in 1998 s.156 of the Police Act these two pieces of legislation a Governor in each of those two years assented into law; both pieces of legislation were inconsistent with legislation first assented into law in 1974 (clause 13 of the Schedule part of the Ombudsman Act) and currently in force today in law.

The Governors Chief of Staff informed that he had forwarded the issues I raised to the Attorney General for an advising, and on the 10th May 2011 he informed me of the advice the Attorney General had provided the Governor.

The department advises that there is no legislative inconsistency that would prevent the Ombudsman from exercising the power to investigate under the Ombudsman Act the conduct of a police officer under s.156 of the Police Act 1990.

It is noted however, you seem dissatisfied with the Assist Ombudsman’s explanation on the basis that there is no clear justification has been provided as to how the Police Act “overrides” clause 13 of the Ombudsman Act.

Which brings me to the key to my finding the “smoking gun” a legislative error that was made in 1983, and the key was the Ombudsman (Police Regulation) Amendment Act 1983, I did not know about, and with the exception of the member of the parliament the Ombudsman wrote to in 2002 and referred this member to that Act, the Ombudsman since then has never referred this Act to me or to any other member of the parliament.

To obtain a copy of this Act I applied to the NSW State Library, only to be advised that this act was a package of three amendment bills introduced to the parliament on the 10th November 1983, and at least two of the amendment bills were related.

At a cost to me of $53.00 I applied for copies of all three-amendment bills and they are:

1. The Police Regulation (Allegations of Misconduct) Amendment Bill.

2. The Police Regulation (Further amendment) Bill;

3. The Ombudsman (Police Regulation) Amendment Bill

Amendment bills one and three were related to each other, with bill number two concerning the promotion of police officers.

The explanation notes attached to bill number one became Act No 191, 1983 and the notes confirmed this act was to make further provisions with respect to complaints about the conduct of members of the Police force, and page 12 of this Act shows the following:

After section 25, insert:-

Investigation under the Ombudsman Act 1974.

25A. (1) where after considering all the material and information
provided for the Ombudsman under this part. The Ombudsman is
not satisfied that a complaint has not been sustained and is not satisfied
that the complaint has been sustained. The Ombudsman may-

(b) make the conduct to which the complaint relates the subject of an
investigation under the Ombudsman Act 1974.

Which brings me to the Ombudsman (Police Regulation) Amendment Act No. 193, 1983, and the notes which explained: An act to amend the Ombudsman Act 1974 so as to enable the Ombudsman to investigate under the Ombudsman Act, of conduct the subject of a complaint made under the Police Regulation (Allegations of Misconduct) Act 1978.

These notes confirm: this amendment Act was to amend the Ombudsman Act 1974 by omitting from the Schedule part of the Ombudsman Act clause 13, the legislation that stopped the Ombudsman from investigating under the Ombudsman Act the conduct of a police officer.

Repealing clause 13 from the Schedule would enable the Ombudsman to investigate under the Ombudsman Act the conduct of a complaint made about a police officer under the Police Regulation (Allegations of Misconduct) Act 1978.

To allow such action to be taken the Ombudsman Act provides s.14 (Amendment of Schedule) (1) The Governor may by proclamation publish in the gazette, amend the Schedule so as to add to it or omit from it any class of conduit of a public authority.

. A part of the information the NSW State library provided me with, is a list of the amendments the Ombudsman (Police Regulation) Amendment Act made to the Ombudsman Act 1974, and what this list confirms is the fact there is no evidence of s.14 and the Governor having omitted clause 13 from the Schedule part of the Ombudsman Act 1974

This was a very serious legislative mistake that was made in 1983 and from information in December 1993 disclosed to me by a member of the Ombudsman’s staff, this legislative mistake was not discovered until 1993 ten years later. How do I know this?

In the early part of December 1993, to ease my frustrations and anger with the Office of the Ombudsman’s conduct to not exercise their duty of care, reporting only one and not reporting the Police had failed to investigate every complaint made.

I was shocked to discover the member of the staff over sighting the police investigation of my complaints was just as stressed, angry and frustrated as I was, and concluded the investigation of my complaints “stunk” and feeling they way he was, he informed me that a evidence of a legislative cock up had been found, the results of which, the Ombudsman had no legislative power to investigate under the Ombudsman act complaints made about Police.

On the 8th December 1993 on my arrival back in Brisbane I decided to write to the Minister for Police Mr. T. Pickering and disclosed to the Minister the information the member of the Ombudsman’s staff had disclosed to me. I also sent a copy to the ICAC and to the Ombudsman, which I believe upon learning what had been disclosed to me they had sacked the person responsible.

A few days later I received correspondence dated the 9th December 1993, which had been signed by the Ombudsman to which had been attached a copy of the final report prepared for the then Minister for Police Mr. T. Pickering.

On page three of the final report the Ombudsman had informed the Minister for Police of the results of a re-investigation, which the Ombudsman pursuant to s.16 of the Ombudsman Act 1974 had two of his own investigators investigate a complaint Police had not investigated, which in the attached correspondence the Ombudsman determined the complaint to be sustained.

This finding and recommendations I learned the Ombudsman had included in a revised provisional statement dated the 15th July 1993. According to the information disclosed to me only days earlier the re-investigation the Ombudsman under the Ombudsman Act had two of his own investigators carry out was unlawful.

At the time I knew of no evidence to support what this member of the staff told me, which there had to be truth to what he told me, for shortly after conveying this information to the Minister for Police I learner he had been instantly dismissed, I assumed for having disclosed confidential information to a complainant.

I have included a copy of an email I sent to both the Premier and a copy of to the Ombudsman in which I confirmed having found the error made in 1983 and not found until 1993.

To this day the Premier the Minister responsible for the operation of the Ombudsman and the legislation under which the Ombudsman operates, I have not received a reply from either the Ombudsman or the Premier.

From: Robert Lee
Sent: Wednesday, June 01, 2011 11:45 AM
To: nswombo@ombo.nsw.gov.au
Cc: office@premier.nsw.gov.au
Subject: Ombudsman (Police Regulation) Amendment Act 193. 1983
Mr. B. Barbour
NSW Ombudsman
Mr. B. O ‘ Farrell
Minister responsible for the Office of the Ombudsman.
1. 6. 2011
Mr. Barbour,

Australia post has confirmed as it did with the correspondence and attached information I sent to the Premier by registered post, you have received a copy.

Mr. Barbour, since 2004, you have advised several members of the Parliament that a re-investigation of a complaint I made in 1992, which the Police investigation did not investigate; the Ombudsman in 1993 conducted the re-investigation pursuant to s. 25A of the Police Regulation (Allegations of Misconduct) Act 1978; claiming s.25A entitled the Ombudsman, under the Ombudsman Act, to investigate the subject of a complaint that had been made under the Police Regulation (Allegations of Misconduct) Act 1978.

You continue to claim, the legislation did and does, in relation to complaints about police, provide for the use of investigation powers under the Ombudsman Act 1974.

That this power was originally inserted in the 1978 Police Regulation (Allegations of Misconduct) Act in 1983 at s.25A of that act, and currently it is found at s.156 of the Police Act 1990.

You also claim that since the enactment of s.25A, clause 13 of the Schedule/1 part of the Ombudsman Act has not effectively limited the Ombudsman’s ability to investigate under the Ombudsman Act the subject of a complaint made under the PRAM Act 1978.

From 1974, when the initial Schedule was assented into law, clause 13 from then to the present day, has excluded from investigation under the Ombudsman Act, the conduct of a police officer.

In fact information today published on your own web pages confirms this fact, yet you persist in claiming clause 13 has no affect on any investigation the Ombudsman under the Ombudsman Act investigates the subject of a complaint made under the PRAM Act 1978.

Mr. Barbour, it is not constitutional to have one piece of legislation claiming the Ombudsman under the Ombudsman Act can investigate the conduct of a Police officer and at the same time have another piece of legislation confirming the Ombudsman under the Ombudsman Act cannot investigate the conduct of a police officer.

A question I have asked and I am yet to receive a reply, is how could you or any previous Ombudsman and at the same time comply with both pieces of legislation?

In 1983, two amendment bills were introduced to the parliament; the first was the Police Regulation (Allegations of Misconduct) Amendment Bill, which was drafted to insert s.25A into the PRAM Act 1978, and to provide the Ombudsman with an additional function, one that would enable the Ombudsman to investigate under the Ombudsman Act, the subject of a complaint made under the PRAM Act 1978.

In 1983 there was one piece of legislation that would make invalid any investigation the Ombudsman under s.25A carried out to investigate a complaint made under the PRAM Act, and that legislation was clause 13 of the Schedule part of the Ombudsman Act 1974. Which brings me another amendment bill on the same date the 10th November 1983, which was introduced to the parliament, it was the Ombudsman (Police Regulation) Amendment Bill.

A bill which eventually became the Ombudsman (Police Regulation) Amendment Act 193, 1983, which the notes clearly explain: the purpose of this act, is to amend the Ombudsman Act, so as to enable the investigation (under the Ombudsman Act) of conduct the subject of a complaint made under the PRAM Act 1978.
Mr. Barbour, according to the noted the primary object of this amendment Act, was to omit from the Schedule part of the Ombudsman Act clause 13. This would then allow the Ombudsman to legally investigate under the Ombudsman Act the conduct, the subject of a complaint made under the PRAM Act 1978, and the legislation that provides the means to add to or omit from the Schedule is S.14 of the Ombudsman Act (Amendment to Schedule). Subsection (1) the Governor may, by proclamation publish in the gazette, amend the Schedule so as to add to it or omit from it, any class of conduct of a public authority.

Mr. Barbour as you know from a copy of all the amendments made to the Ombudsman Act I have provided, clause 13 was not omitted from the Schedule part of the Ombudsman Act, and this is the error, which in December 1993 a member of the Ombudsman’s staff disclosed to me, confirming a legislative cock up left the Ombudsman with no power to investigate under the Ombudsman Act conduct the subject of a complaint made under the PRAM Act 1978.

The fact is if in 1983 clause 13 had been omitted from the Schedule, then there would not have been any impediment to the Ombudsman from 1983 to the present day, investigating under the Ombudsman Act, conduct the subject of a complaint made under the PRAM Act 1978, Part 8a the amendment made to the Police Act in 1993 which repealed the PRAM Act 1978, nor Part 8A the amendment in 1998 made to the Police Act 1990.

As a result of a serious error made in 1983 to not repeal clause 13 from the Ombudsman Act, this part of that Act has seriously affected, by making unlawful every investigation/re-investigation, the Ombudsman under s.25A carried out from 1983 to 1993.

In 1993 and aware of the error made in 1983, for very obvious reasons to me, no action was taken to correct the mistake, for s.152 repealed s.25A continued to claim investigation of complaint under the Ombudsman Act not 1974, and one new piece of legislation s.153, confirmed the Ombudsman could before the completion of the Police investigation take over and commence a direct investigation under the Ombudsman Act, and in 1998, s.156, repealed s.153, still claims Investigation of complaint under the Ombudsman Act 1974.

So your claim that the legislation s.25A did in 1983 and still does today provide the Ombudsman with the power under the Ombudsman Act to investigate the conduct of a complaint made under a police act is both false and misleading, and as information you publish on the internet confirms clause 13 today, still excludes the conduct of a police officer from investigation under the Ombudsman Act 1974.

To conclude your advice to members of the parliament, you claimed: Although Mr. Lee has pursued this matter for many years, I regret to advise that none of the matters I have raised would cause me to doubt either the conclusion that I am unable to further assist Mr. Lee or the integrity of the legislative provisions under which this Office continues to function.

I believe my findings Mr. Barbour question not only the integrity of the legislative provisions under which you as the Ombudsman operate, I allege my findings also seriously question your integrity and honesty and you should not hold the position of Ombudsman, which requires the trust of the people of NSW.
Prove to me now that there is no inconsistency and that in 1983, and act that you have never referred me too or to any member of the parliament amended the Ombudsman Act to omit from the Schedule part clause 13.

This fact explains why when I have asked you to prove to me how s.25A entitled this Office to ignore clause 13, you failed to reply.

What I have found confirms the re-investigation the Ombudsman on the 15th July 1993 carried out pursuant to s.16 of the Ombudsman Act was unlawful, and it was this fact, and not the lie I was told, is what which made the evidence given by a witness in 1993 to become inadmissible.

I have also emailed the Premier a copy, for I have given Mr. O ‘ Farrell as not only the Premier, but as the Minister responsible for the Office of the Ombudsman and the legislation under which it operates, to 5pm Friday the 3rd June 2011 to speak with me, to apologise, and to tell me what action he is going to take to remedy the acts of corruption which since 1990 has seriously affected me not only financially but also personally.

Signed

Robert Lee.

When neither the Premier of the Ombudsman replied, I sent the Director General an email hoping that this email would see the Premier respond.

From: Robert Lee
Sent: Friday, June 03, 2011 9:55 AM
To: contact_us@dpc.nsw.gov.au
Subject: Fw: Ombudsman (Police Regulation) Amendment Act 193. 1983 and the failure to repeal clause 13 of the Schedule part of the Ombudsman Act 1974.
Mr. Chris Eccles
Director General

Dear Sir,
I have included a copy of the email I sent the Ombudsman and the Premier, whose ministerial responsibilities includes the Office of the Ombudsman and the legislation under which it operates. Both the Ombudsman and the Premier have received information to prove in 1983, to insert into the Police Regulation (Allegations of Misconduct) Act 1978, (PRAM) legislation (s.25A) to enable the Ombudsman under the Ombudsman Act to investigate, conduct the subject of a complaint made under the 1978 PRAM Act, required an amendment made to the Ombudsman Act 1974, to repeal from the Schedule part of the Ombudsman Act clause 13, which since 1974, this legislation excluded the conduct of a police officer from being investigated under the Ombudsman Act 1974.

At the same time (10th November 1983) to amend the Ombudsman Act, the Ombudsman (Police Regulation) Amendment Bill was introduced to the parliament in order to repeal clause 13, for the notes clearly confirm the purpose of this bill was to do exactly that and I quote: A bill for an act to amend the Ombudsman Act 1974, so as to enable the investigation under that Act of conduct the subject of a complaint made under the PRAM Act 1978, and on the 31st December 1983, both bills became acts.
To amend the Schedule part of the Ombudsman Act, section 14 provides a provision for the Governor, by proclamation publish in the gazette; amend the Schedule so as to add to it, or omit from it, any class of conduct of a public authority.

Mr. Eccles a review of the amendments made by the Ombudsman (Police Regulation) Amendment Act No. 193, 1983, will find a serious error occurred, when no amendment was made in accordance with section 14 (1) of the Ombudsman Act to repeal clause 13 from the Schedule part of this Act.
As a result of this error, since 1983, until the error was discovered in 1993, every investigation the Ombudsman in accordance with s.25A of the PRAM Act carried out, clause 13 still force caused every investigation to be unlawful.

Mr. Eccles what is worse, is the fact in 1993 the mistake was, fro obvious reasons not corrected and knowingly continued, providing a loophole allowing police to use clause 13 to defeat any investigation of a complaint the Ombudsman under re-enacted police legislation carried out.

It was this loophole I allege, which in 1993 the Police Service Solicitor used to defeat the 15th July 1993 re-investigation of a complaint and evidence the Ombudsman obtained pursuant to s.16 of the Ombudsman Act, the service solicitor informed the Ombudsman was inadmissible and for this reason did not support the Ombudsman’s sustained findings and recommendations.

Mr. Eccles, the Premier has until 5pm today to contact me personally and to advise me of what action does he propose to take to remedy, what I have identified is first an error and then an impropriety, both are acts of mal-administration.

I know Mr. O ‘ Farrell was not responsible for the error or the failure in 1993 to correct it. As the Premier his is now in the position to do so. If by 5pm the Premier has not contacted me on 0415886322, I will assume his reasons fro doing so are not in the public interest, but in the interest of those who wee responsible.

Yours faithfully

Robert Lee

Here is further correspondence that has not been replied to and I believe for a good reason. For after the legislative error in 1993 was discovered, a meeting had to have taken place, attended by the Premier and the Ombudsman and probably the Minister for Police and the Attorney General to discuss the error and its consequences for every investigation and Ombudsman from 1983 to 1993 and in accordance with s.25A the Ombudsman carried out under the Ombudsman Act and the fact clause 13 had not been repealed meant every investigation was unlawful and required to be remedied by re-opening and reinvestigating the complaint made.

In 1993 the only decision that was made was to have the PRAM Act 1978 repealed and rewritten and re-enacted to become Part 8 A of the Police Act. With s.152 “Investigation of complaint under the Ombudsman Act” repealing s.25A, and in 1998 s.156 repealed s.152, and continued to claim the Ombudsman under the Ombudsman act could investigate the conduct of a police officer, which in 1998 and today, clause 13 of Schedule 1 continues to be able to be used by police to defeat any Ombudsman investigation of police misconduct.

I believe there is and in October 2000 4 Corners put to air the results of an investigation into the background of just one police officer finding a file of over 4000 pages containing a record of every complaint made over a period of approx 20 years, and every one of the complaints made were dismissed by the Police and by the Ombudsman this fact was not ‘coincidence’ but evidence of there being a way every complaint made about this officer the Ombudsman investigated came to be dismissed.

Could it be the loophole the parliament created, for before 1993 the Premier and the Ombudsman and probably other members knew investigations had been carried out in the belief clause 13 had been repealed, the difference being in 1993 failing to correct the mistake certain members and the Ombudsman knew the results of any investigation under Police legislation the Ombudsman carried out, clause 13 of Schedule 1, could be used by the police to determine the Ombudsman’s investigation unlawful, and any evidence of an indictable nature would be inadmissible.

This is where it is important, for any previous complainant reviewing my submission whose investigation of their complaint by the Ombudsman failed despite the evidence to the contrary I would like that person to email me at rlee@southernphone.com.au.

I will send the Premier a copy of this submission, with a request to show he is honest about restoring accountability and that he will consider the issues I have raised, which have since 1990 affected the quality of my life, and use this forum to reply.

Which I doubt very much he will.

Signed Robert Lee.