Decision notice dated 31 August 2023
Dear Commonwealth Ombudsman,
On 12 March 2024, in matter NSD 1076/2023 – Eli Turner v Commonwealth Ombudsman, Justice Perry of the Federal Court of Australia issued, by order:
a) a writ of certiorari quashing the decision of a delegate of the Commonwealth Ombudsman dated 31 August 2023; and
b) a writ of mandamus directing the Commonwealth Ombudsman to determine Mr Turner’s application according to law.
(https://comcourts.gov.au/file/Federal/P/...)
Prior to the issuance of the writs, the Commonwealth Ombudsman conceded that the decision dated 31 August 2023 is affected by jurisdictional error because the delegate erred in the exercise of their discretion by concluding that the “Office is limited to considering the reported conduct, rather than the impact of the abuse” and that this error was material.
Under the FOI Act 1982 (Cth), I request access to the decision notice (including the reasons in support of the decision), dated 31 August 2023, which was affected by jurisdictional error.
Yours faithfully,
Robert
OFFICIAL
Our ref: FOI-2024-80046
Dear Robert,
Freedom of Information request – Acknowledgment
I acknowledge receipt of your email dated 30 November 2024 to the Office
of the Commonwealth Ombudsman (the Office), in which you requested access
to documents under the Freedom of Information Act 1982 (FOI Act). Your
request for documents was in the following terms:
“On 12 March 2024, in matter NSD 1076/2023 – Eli Turner v Commonwealth
Ombudsman, Justice Perry of the Federal Court of Australia issued, by
order:
a) a writ of certiorari quashing the decision of a delegate of the
Commonwealth Ombudsman dated 31 August 2023; and
b) a writ of mandamus directing the Commonwealth Ombudsman to determine Mr
Turner’s application according to law.
([1]https://comcourts.gov.au/file/Federal/P/...)
Prior to the issuance of the writs, the Commonwealth Ombudsman conceded
that the decision dated 31 August 2023 is affected by jurisdictional error
because the delegate erred in the exercise of their discretion by
concluding that the “Office is limited to considering the reported
conduct, rather than the impact of the abuse” and that this error was
material.
Under the FOI Act 1982 (Cth), I request access to the decision notice
(including the reasons in support of the decision), dated 31 August 2023,
which was affected by jurisdictional error.”
Third party consultation
We are actively processing your FOI request and as a result of internal
consultations we have identified a document within scope. The document
captured in the scope of your request refers to personal information of a
third party. I have formed the view that this third party may wish to make
exemption contentions in accordance to section 27A of the FOI Act.
As I have determined that a consultation requirement applied, the time to
provide you with a decision on your FOI request has been extended by 30
days pursuant to s15(6) of the FOI Act.
Timeframes
The FOI Act requires us to provide notice of a decision on your request
within 30 days from the date we received a valid FOI request. With the s
27A extension of time, a decision for your request will be provided to you
on or before 29 January 2024. This 30-day period may be extended with your
consent or for other reasons. We will let you know if this happens.
If you have any questions, you may contact me via email at
[2][email address]
Kind regards,
Legal Team
Legal
Defence, Investigations, ACT & Legal Branch
1300 362 072
[3]A black and white logo [4][email address]
Description automatically
generated [5]ombudsman.gov.au
Level 5, 14 Childers St Canberra ACT 2600
The Office of the Commonwealth Ombudsman acknowledges the Traditional
Owners of country throughout Australia and their continuing connection to
land, culture and community. We pay our respects to Elders past and
present.
Artwork by Kevin Bynder, Whadjuk Nyungar Badimia Yamatji Artist.
The Office of the Commonwealth Ombudsman acknowledges the traditional
owners of country throughout Australia and their continuing connection to
land, culture and community. We pay our respects to elders past and
present.
References
Visible links
1. https://comcourts.gov.au/file/Federal/P/...
2. mailto:[email address]
4. mailto:[email address]
5. http://www.ombudsman.gov.au/
OFFICIAL
Dear Robert,
Please find attached the decision letter regarding your Freedom of
Information request (FOI-2024-80046).
If you have any questions, you may contact me via email at
[1][email address]
Kind regards,
Laura
Legal Officer
Defence, Investigations, ACT & Legal Branch
1300 362 072
[2]A black and white logo [3][email address]
Description automatically
generated [4]ombudsman.gov.au
Level 5, 14 Childers St Canberra ACT 2600
The Office of the Commonwealth Ombudsman acknowledges the Traditional
Owners of country throughout Australia and their continuing connection to
land, culture and community. We pay our respects to Elders past and
present.
Artwork by Kevin Bynder, Whadjuk Nyungar Badimia Yamatji Artist.
The Office of the Commonwealth Ombudsman acknowledges the traditional
owners of country throughout Australia and their continuing connection to
land, culture and community. We pay our respects to elders past and
present.
References
Visible links
1. mailto:[email address]
3. mailto:[email address]
4. http://www.ombudsman.gov.au/
Dear Laura Mackenzie,
FOI-2024-80046
I request internal review of your FOI decision by which you refused access to a decision notice, dated 31 August 2023, not to recommend a reparation payment to a defence abuse claimant, Mr Eli Turner.
S 47F
You claim that section 47F applies to the document of the Ombudsman’s delegate (a decision notice not to recommend a reparation payment), dated 31 August 2023.
The person affected by the delegate’s decision is Mr Eli Turner. I know this because this is public information: https://comcourts.gov.au/file/Federal/P/...
Mr Eli Turner joined the Australian Army when he was 21 years of age and was posted to a parachuting unit. After years of service, he was diagnosed with spondylosis. Mr Eli Turner’s service in the ADF is public information: https://www.abc.net.au/news/2020-05-08/w...
The argument that the decision notice should be be given access to wholesale because aspects of the decision notice, not to recommend reparation payments to Mr Eli Turner, contain Mr Turner’s name, or details about his service in the Australian Army, is unjustifiable.
S 47E(d)
You claim that section 47E(d) applies to the document of the Ombudsman’s delegate (a decision notice not to recommend a reparation payment), dated 31 August 2023.
The decision not to recommend a reparation payment, dated 31 August 2023, was the subject of judicial review: https://comcourts.gov.au/file/Federal/P/...
The judicial review application was taken up by NSW Legal Aid, which means it was entirely subsidised by taxpayers.
The Ombudsman expended $40,000 on legal services and advice in relation to NSD1076/2023 – Eli Turner v Commonwealth Ombudsman: https://www.ombudsman.gov.au/__data/asse... - see page 6 of 131 (CON000376).
Despite wasting $40,000 of taxpayer money on legal services, on 12 March 2024, the Commonwealth Ombudsman conceded that the decision not to recommend a reparation payment to Mr Eli Turner is affected by jurisdictional error because the delegate erred in the exercise of their discretion by concluding that the “Office is limited to considering the reported conduct, rather than the impact of the abuse”, and that this error was material: https://comcourts.gov.au/file/Federal/P/...
To claim that section 47E(d) of the FOI Act applies to a document, the predicted effect must bear on the agency’s ‘proper and efficient’ operations, that is, the agency is undertaking its operations in an expected manner. Where disclosure of the documents reveals unlawful activities or inefficiencies, this element of the conditional exemption will not be met and the conditional exemption will not apply. This is for reasons including the irrelevant factors that must not be taken into account in deciding whether access to the document would, on balance, be contrary to the public interest.
Jurisdictional error discloses unlawful activity; that cannot be disputed. The decision notice also discloses the inefficiencies of the Ombudsman’s delegate in as much as the decision notice contains incompetent reasons for an unlawful decision.
Therefore, section 47E(d) has no application to the decision notice not to recommend a reparation payment to Mr Eli Turner.
Public interest
Australia’s veterans have been failed by the Defence Force and those who are tasked with oversight functions. Those failures were on full display in the Royal Commission into Defence and Veteran Suicide:
Evidence of the failures of the Defence Force Ombudsman (one of the hats worn by the Commonwealth Ombudsman) was publicly adverted to. For example, one serving member of the Australia Defence Force gave the following evidence to the Royal Commission (refer to the report of the Royal Commission):
I had not even gotten through Initial Employment Training before I was sexually harassed and nearly assaulted by an Instructor. I was verbally and physically bullied as a young soldier. I was sexually assaulted as a soldier whilst deployed to [redacted]. Throughout my career as a soldier and young officer, I was pressured to do things I didn’t want to do through peer pressure and workplace culture and rituals [and] have been verbally abused and threatened. The sexual harassment and assault have been reported to the Ombudsman and been ‘resolved’ … but it, along with the history of harassment, bullying, abuse and toxic workplace cultures have left me with a feeling of being raped by the organisation and cast aside.
As you can see, much like Mr Eli Turner, this person’s complaints to the Ombudsman were “resolved” (in quotation marks). In other words, the problem was not resolved by the Ombudsman. This member of the Australian Defence Force was failed by the Ombudsman, the official who has an oversight role in the defence abuse remediation scheme.
It is bad enough that our veterans are failed by the ADF. Why should they be forced to relive their trauma through litigation, which is not without its own pressures, because the Ombudsman’s officials (those tasked with oversight of key aspects of defence abuse remediation) fail to lawfully exercise the jurisdiction conferred on the Ombudsman by the Parliament?
Aside from the fact that, for the reasons stated, the conditional exemption under s 47E(d) has no application to the decision notice not to recommend a reparation payment to Mr Eli Turner, and that section 47F has no application to Mr Eli Turner’s personal information so far as that information is known (e.g. his name, his service as a member of the ADF, the fact that he was denied reparation payment for a defence abuse claim), it is in the public interest that the failures of the Ombudsman’s delegate are published so that the public is better able to scrutinise how our veterans are being let down by the very people tasked with supporting them in their darkest hours.
The evidence clearly points to failures on the part of the Commonwealth Ombudsman and his officials to serve our veterans lawfully.
For the reasons noted, your access refusal decision is unjustifiable and will not withstand scrutiny if the law is correctly applied. Please ensure that the reviewing officer is apprised of my reasons for review.
A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/d...
Yours faithfully,
Robert
OFFICIAL
Our ref: FOI-2024-80046
Dear Robert
Freedom of Information – request for Interal Reivew
I acknowledge receipt of your email dated 2 February 2025 to the Office of
the Commonwealth Ombudsman (the Office), in which you requested an
internal review of our office’s Freedom of Information (FOI) determination
dated 28 January 2025. You provided the following basis for the internal
review:
S 47F
You claim that section 47F applies to the document of the Ombudsman’s
delegate (a decision notice not to recommend a reparation payment), dated
31 August 2023.
The person affected by the delegate’s decision is Mr Eli Turner. I know
this because this is public information:
[1]https://comcourts.gov.au/file/Federal/P/...
Mr Eli Turner joined the Australian Army when he was 21 years of age and
was posted to a parachuting unit. After years of service, he was diagnosed
with spondylosis. Mr Eli Turner’s service in the ADF is public
information:
[2]https://www.abc.net.au/news/2020-05-08/w...
The argument that the decision notice should be be given access to
wholesale because aspects of the decision notice, not to recommend
reparation payments to Mr Eli Turner, contain Mr Turner’s name, or details
about his service in the Australian Army, is unjustifiable.
S 47E(d)
You claim that section 47E(d) applies to the document of the Ombudsman’s
delegate (a decision notice not to recommend a reparation payment), dated
31 August 2023.
The decision not to recommend a reparation payment, dated 31 August 2023,
was the subject of judicial review:
[3]https://comcourts.gov.au/file/Federal/P/...
The judicial review application was taken up by NSW Legal Aid, which means
it was entirely subsidised by taxpayers.
The Ombudsman expended $40,000 on legal services and advice in relation to
NSD1076/2023 – Eli Turner v Commonwealth Ombudsman:
[4]https://www.ombudsman.gov.au/__data/asse...
- see page 6 of 131 (CON000376).
Despite wasting $40,000 of taxpayer money on legal services, on 12 March
2024, the Commonwealth Ombudsman conceded that the decision not to
recommend a reparation payment to Mr Eli Turner is affected by
jurisdictional error because the delegate erred in the exercise of their
discretion by concluding that the “Office is limited to considering the
reported conduct, rather than the impact of the abuse”, and that this
error was material:
[5]https://comcourts.gov.au/file/Federal/P/...
To claim that section 47E(d) of the FOI Act applies to a document, the
predicted effect must bear on the agency’s ‘proper and efficient’
operations, that is, the agency is undertaking its operations in an
expected manner. Where disclosure of the documents reveals unlawful
activities or inefficiencies, this element of the conditional exemption
will not be met and the conditional exemption will not apply. This is for
reasons including the irrelevant factors that must not be taken into
account in deciding whether access to the document would, on balance, be
contrary to the public interest.
Jurisdictional error discloses unlawful activity; that cannot be disputed.
The decision notice also discloses the inefficiencies of the Ombudsman’s
delegate in as much as the decision notice contains incompetent reasons
for an unlawful decision.
Therefore, section 47E(d) has no application to the decision notice not to
recommend a reparation payment to Mr Eli Turner.
Public interest
Australia’s veterans have been failed by the Defence Force and those who
are tasked with oversight functions. Those failures were on full display
in the Royal Commission into Defence and Veteran Suicide:
Evidence of the failures of the Defence Force Ombudsman (one of the hats
worn by the Commonwealth Ombudsman) was publicly adverted to. For example,
one serving member of the Australia Defence Force gave the following
evidence to the Royal Commission (refer to the report of the Royal
Commission):
I had not even gotten through Initial Employment Training before I was
sexually harassed and nearly assaulted by an Instructor. I was verbally
and physically bullied as a young soldier. I was sexually assaulted as a
soldier whilst deployed to [redacted]. Throughout my career as a soldier
and young officer, I was pressured to do things I didn’t want to do
through peer pressure and workplace culture and rituals [and] have been
verbally abused and threatened. The sexual harassment and assault have
been reported to the Ombudsman and been ‘resolved’ … but it, along with
the history of harassment, bullying, abuse and toxic workplace cultures
have left me with a feeling of being raped by the organisation and cast
aside.
As you can see, much like Mr Eli Turner, this person’s complaints to the
Ombudsman were “resolved” (in quotation marks). In other words, the
problem was not resolved by the Ombudsman. This member of the Australian
Defence Force was failed by the Ombudsman, the official who has an
oversight role in the defence abuse remediation scheme.
It is bad enough that our veterans are failed by the ADF. Why should they
be forced to relive their trauma through litigation, which is not without
its own pressures, because the Ombudsman’s officials (those tasked with
oversight of key aspects of defence abuse remediation) fail to lawfully
exercise the jurisdiction conferred on the Ombudsman by the Parliament?
Aside from the fact that, for the reasons stated, the conditional
exemption under s 47E(d) has no application to the decision notice not to
recommend a reparation payment to Mr Eli Turner, and that section 47F has
no application to Mr Eli Turner’s personal information so far as that
information is known (e.g. his name, his service as a member of the ADF,
the fact that he was denied reparation payment for a defence abuse claim),
it is in the public interest that the failures of the Ombudsman’s delegate
are published so that the public is better able to scrutinise how our
veterans are being let down by the very people tasked with supporting them
in their darkest hours.
The evidence clearly points to failures on the part of the Commonwealth
Ombudsman and his officials to serve our veterans lawfully.
For the reasons noted, your access refusal decision is unjustifiable and
will not withstand scrutiny if the law is correctly applied. Please ensure
that the reviewing officer is apprised of my reasons for review.
Timeframes
The FOI Act requires us to provide notice of a decision on your request
within 30 days from the date we received a valid request for an internal
review. Therefore, a decision for your request will be provided to you on
or before 4 March 2025.
If you have any questions, you may contact me via email at
[6][email address]
Kind regards,
Alison
Defence, Investigations, ACT Ombudsman, Legal
1300 362 072
[7]A black and white logo [8][email address]
Description automatically
generated [9]ombudsman.gov.au
Level 5, 14 Childers St Canberra ACT 2600
Proud to be working on the lands of the Gadigal people of the Eora
Nation. The Office of the Commonwealth Ombudsman acknowledges the
Traditional Owners of Country throughout Australia and their continuing
connection to land, culture and community. We pay our respects to Elders
past and present.
The Office of the Commonwealth Ombudsman acknowledges the traditional
owners of country throughout Australia and their continuing connection to
land, culture and community. We pay our respects to elders past and
present.
References
Visible links
1. https://comcourts.gov.au/file/Federal/P/...
2. https://www.abc.net.au/news/2020-05-08/w...
3. https://comcourts.gov.au/file/Federal/P/...
4. https://www.ombudsman.gov.au/__data/asse...
5. https://comcourts.gov.au/file/Federal/P/...
6. mailto:[email address]
8. mailto:[email address]
9. http://www.ombudsman.gov.au/
OFFICIAL: Sensitive
Dear Robert
I refer to your request for an internal review dated 2 February 2025.
Please see attached internal review decision and do not hesitate to
contact me if you have any questions.
Yours sincerely
Alison (she/her)
Legal Officer
Defence, Investigations, ACT Ombudsman, Legal
1300 362 072
[1]A black and white logo [2][email address]
Description automatically
generated [3]ombudsman.gov.au
Level 5, 14 Childers St Canberra ACT 2600
Proud to be working on the lands of the Gadigal people of the Eora
Nation. The Office of the Commonwealth Ombudsman acknowledges the
Traditional Owners of Country throughout Australia and their continuing
connection to land, culture and community. We pay our respects to Elders
past and present.
The Office of the Commonwealth Ombudsman acknowledges the traditional
owners of country throughout Australia and their continuing connection to
land, culture and community. We pay our respects to elders past and
present.
References
Visible links
2. mailto:[email address]
3. http://www.ombudsman.gov.au/
Our reference: MR25/00335
By email: [FOI #12420 email]
Receipt of your IC review application
Thank you for your application for Information Commissioner Review (IC
review).
The Office of the Australian Information Commissioner (OAIC) is
considering your application.
If you wish to advise the OAIC of any changes to your circumstances,
including your contact details or if your FOI request has been resolved,
please write to [email address] and quote MR25/00335.
Yours sincerely
Freedom of Information Regulatory Group
Office of the Australian Information Commissioner
Notice:
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