Parliamentary Committees

Statutory Authorities Review Committee: State Courts Administration Council—Sheriff's Office

The Hon. D.W. RIDGWAY (15:52): I move:

That the 73^rd report of the committee, entitled Inquiry into the State Courts Administration Council—Sheriff's Office, be noted.

The Statutory Authorities Review Committee resolved to inquire into the State Courts Administration Council in February 2019—two years ago. The terms of reference for the inquiry focused on the employment practices in the Sheriff's Office and the processes in place to deal with allegations of workplace bullying and harassment. The committee embarked on an extensive inquiry over the course of 20 months, receiving 50 written submissions and hearing from 27 witnesses.

During this time, the committee had some membership changes. As the newly appointed Presiding Member of this committee, I would like to thank the current members of the committee, the Hon. Terry Stephens, the Hon. Justin Hanson, the Hon. Irene Pnevmatikos and the Hon. Frank Pangallo. I also recognise the former members of the committee who contributed to this inquiry, the Hon. Dennis Hood and the Hon. Nicola Centofanti. I am sure that a number of those members will make a contribution to the noting of this report in the coming weeks.

This parliament legislated for the judiciary to have an independent courts administration some 28 years ago, which abolished the former court services department that sat under the Attorney-General's portfolio. In providing the judiciary with independent control over courts administration through a governing statutory authority, the parliament also granted its chief executive officer an equivalent position, known as the State Courts Administrator, with the power to employ staff who are outside the Public Service.

The State Courts Administrator is appointed by the Governor, on recommendation of the State Courts Administration Council, which is comprised of the Chief Justice of the Supreme Court, the Chief Judge of the District Court and the Chief Magistrate. The State Courts Administrator is under the control of the courts council. However, the committee heard that in practice the administrator has the carriage of all day-to-day staffing decisions, including the power to make decisions concerning industrial relations matters.

Considering the significant change that the courts administration bill represented at the time, this parliament, including a report from the Legislative Review Committee, sought accountability from the new independent authority through a number of methods, including annual reporting and ensuring that the State Courts Administration Council members appeared before parliamentary committees.

Concerns raised during the debate on the courts administration bill included that the then Commissioner for Public Employment would not have the responsibility over any of their determinations that the State Courts Administration Council decided to override, with a lack of oversight or review capability on the industrial relations decisions. Therefore, the Courts Administration Authority has the power to manage allegations regarding workplace bullying, harassment and misconduct, including in the Sheriff's Office, in accordance with its own policies and procedures.

Whilst the specifics in relation to a large percentage of the evidence received from current and former Courts Administration Authority employees remain confidential to the committee in this inquiry, the overwhelming evidence received led the committee to find inconsistent practices implemented by the management towards its employees.

In relation to the authority's own policies in this space, only two of the 14 Sheriff's Officers who spoke to the committee knew of the respectful behaviour guideline and intranet information relied upon by the States Courts Administrator for staff to follow in relation to complaints processes. The Chief Justice then told the committee, near the inquiry's completion, that the guideline had in fact been revoked in 2017.

Overall, the committee found that the human resources practices described to the committee, either in supporting formal documentation or received by way of oral evidence in relation to how misconduct complaints are made, handled and investigated, have not been made in accordance with the public sector guidelines and determinations as relied upon as guidance for the Courts Administration Authority industrial relations process.

The committee would like to make it very clear that it was not only the oral evidence received from the Sheriff's Office but also viewing the documents in black and white that demonstrated to this committee that there have been inconsistencies in the way the Courts Administration Authority has dealt with disciplinary matters, including in the handing out of sanctions to its employees.

There is currently no oversight of these employment decisions by any other body, and although the appeal processes are available to staff, it was evident the staff are too scared to appeal the flawed determinations, fearing further repercussions from the management. This included being moved to other locations after being categorised as troublemakers and after making bullying and harassment complaints. Some staff were moved or suspended when a complaint had been made against them prior to an investigation or finding in the matter. In one particular case, a Sheriff's Officer had their employment terminated after the Courts Administration Authority wrongly deemed their complaint was vexatious.

Some employees had their mental health so adversely affected by the treatment they received after bringing a bullying or harassment complaint, or being subjected to questionable disciplinary allegations, they could not risk further trauma to their already badly affected families and relationships. Some were urged by their medical practitioners not to appeal or pursue the Courts Administration Authority decisions, even though they had grounds to appeal the flawed investigation practices and determinations finding them guilty on the balance of probabilities.

The committee questioned how these employees could appeal such misconduct decisions when the word of one of the Sheriff's Officers is taken over another and one found guilty of misconduct is denied access to the evidence relied upon to find them guilty by the original decision-maker. This makes it nearly impossible to appeal the Courts Administration Authority determinations and was reflected in the extremely low number of appeals that have been made.

Others complained about going to the courts to appeal against determinations made by the courts, and some found those in the legal profession reluctant to represent them in such matters, for obvious reasons. The repeated questionable human resources practices outlined in the evidence by this committee, including in the documentation before the committee, included:

Sheriff's Officers being closely monitored on CCTV after making complaints about other employees' workplace behaviour;

performance reviews either not occurring regularly or only once an employee had made a complaint against another employee's conduct;

managers allegedly breaching confidentiality and having multiple complaints against their behaviour ignored;

inconsistent approaches towards recruitment process, including interview panels;

inappropriate refusals of employees' applications;

the lack of employment contracts or employment contracts containing errors;

retraction of correspondence drafted and sent to an employee the subject of allegations, which was found by the investigator to have breached procedural fairness principles;

dictating to external investigators the witnesses to be interviewed and the length of the investigations prior to their formal engagement;

a lack of conciliation of minor matters and instead putting staff through expensive and lengthy investigations into allegations against them;

most alarmingly, deciding upon disciplinary penalties against employees prior to an investigation into allegations being completed;

a lack of communication to employees who had been suspended from the workplace for months on end without knowing the progress of any investigations into allegations made against them, but at the same time being told in writing they were not to speak with anybody about the investigation, thereby denying them the chance to produce evidence from willing colleagues to corroborate their side of the story. Their pleas for other employees to be interviewed to provide relevant evidence on the allegations were ignored on multiple occasions;

Sheriff's Officers have been allowed to act in higher positions for long periods of time, sometimes years on end, without merit selection processes, including the current Sheriff; and

erroneous advice provided to employees from the human resources manager that they are Public Service employees and that they should not make complaints to members of parliament—I reiterate that: should not make complaints to members of parliament.

The committee found the number of Sheriff's Officers who made complaints about bullying and harassment, who then had allegations of misconduct made against them by the Courts Administration Authority unacceptable. This accorded with evidence received from the Sheriff's Officers, who told the committee they lived in fear of retribution if they made a bullying or harassment complaint. Some were even told by their colleagues at the time of recruitment not to make any complaints or they would face the likelihood of becoming targets themselves.

The committee also heard that the current Sheriff had told his employees at the start of the inquiry that they could be cross-examined by this parliamentary committee if they decided to provide it with evidence. Such erroneous advice given to the Sheriff's Officers, who are used to being in adversarial courtrooms every day, was extremely disappointing and of concern to the committee.

Having said that, the committee did hear from numerous current and former employees, including Sheriff's Officers. Some of these employees are now on medication for depression and anxiety disorders, with multiple suffering from serious diagnosed mental health issues. Workers compensation expenditure by the Courts Administration Authority is continuing to increase at over $1 million for the 2018-19 year. Psychological claims costs are also on the rise, with the figures provided in the Budget and Finance Committee showing it reached some $671,000 in the 2018-19 year.

This committee, not unlike all other parliamentary committees, is not tasked with making findings of fact based on evidence given under oath and subject to the rules of evidence as the courts do. Rather, it inquires into authorities meeting the definitions outlined in the Parliamentary Committees Act, and acts in accordance with its functions and the terms of reference of each inquiry.

Parliamentary committees gather the evidence and information presented to them, whether given publicly or in camera, to form recommendations for the executive to improve processes or practices and, in the case of this committee, the way that the statutory authority is functioning. The only difference with this inquiry was that the recommendations regarding the administration of the authority are made to the parliament as a whole, as the Attorney-General has no formal oversight of the administration of the courts.

When the committee considered the magnitude of the material put before it in this inquiry, it saw no other option than to recommend that these Sheriff’s Officers become public servants, subject to proper industrial relations regimes, with decision-making affecting their lives capable of oversight by the Commissioner for Public Sector Employment.

Management making these employment determinations and handing out sanctions have no formal HR qualifications. The committee had documentation showing that managers had handed out sanctions above their level of delegation. These managers also had other important statutory roles to be concentrating on, such as keeping our courts secure and safe. Overall, the committee found that bullying and harassment levels in the Sheriff’s Office have not improved over the past ten years, despite attempts over the years to improve the structure of the Sheriff's Office and introducing online bullying and harassment training.

These new measures seem to have failed in reducing the unprofessional behaviour. The committee was concerned with the evidence it received about the unaccountable attitude displayed by some managers in the Sheriff's Office that is still occurring today. The committee was told that some of these managers have openly expressed their belief to staff that this inquiry would have no impact on their positions.

Having received submissions containing complaints of bullying and harassment behaviour in the Sheriff's Office dating back to 1995, the committee found that the unprofessional culture in the Sheriff's Office has continued to exist over a long period of time. The Courts Administration Authority has been unable to improve the workplace cohesion in the Sheriff's Office, particularly in regional courts. The committee has made seven main recommendations for this parliament to seriously consider, with the committee's only recourse under the current independent courts administration structure to recommend that the parliament, as a whole, legislate for change. These recommendations are as follows.

Recommendation 1 is that all Sheriff's Officers and the Sheriff be afforded public servant status under the jurisdiction of the Public Sector Act 2009, ensuring oversight capability of the Commissioner for Public Sector Employment. The committee also recommends that the Sheriff's Office move to being under the purview of the Department for Correctional Services, given its experience in providing similar training for prison officers and the management of officers in regional locations.

Recommendation 2 is that the committee further recommends that the position of Sheriff no longer be appointed by the State Courts Administrator and in accordance with the Sheriffs Act 1978. Instead, the position of Sheriff should be afforded the full status of a public servant, and report directly to the chief executive officer of a government department, as occurs in other jurisdictions.

Following on from this recommendation, recommendation 3 is that the committee recommends that the position of Sheriff be limited to maintaining security and orderly conduct in all court premises, with all human resources matters concerning Sheriff's Officers being managed by a government department such as Correctional Services to ensure proper decision-making is made in accordance with approved and accountable public sector industrial relations policies.

Recommendation 4 is that the committee recommends that the remaining Courts Administration Authority employees (outside the Sheriff's Office) continue under the purview of the State Courts Administration Council. However, the committee strongly recommends that these employees have the ability for industrial relations-related decisions to be reviewed by the Commissioner for Public Sector Employment.

Recommendation 5 is that the committee also recommends that all future annual reports of the Courts Administration Authority not be bound by the data-based approach of the Premier and Cabinet Circular PC013 in recognition of the authority's unique independent status. The committee sees this measure as improving the transparency and increased visibility in the parliament regarding matters that affect the Courts Administration Authority employees.

Recommendation 6 is that the committee recommends that further expertise be available to the State Courts Administration Council, so it can appoint up to two non-judicial members who have extensive expertise in human resource management, finance and administration. The committee noted the importance placed on this in the Courts Council of Victoria equivalent model, the only other independent courts administration in Australia.

Recommendation 7 is that the committee review this parliament's progress on legislating for the suggested changes within 12 months.

As honourable members can tell from these recommendations, the committee strongly suggests amending the Courts Administration Authority's governance structure to allow for the safety and wellbeing of its employees, including Sheriff's Officers. I take this opportunity to acknowledge all stakeholders who provided written and oral evidence to this inquiry. The committee particularly thanks the current and former Courts Administration Authority employees who appeared before the committee in this inquiry, both in public and on a confidential basis. The information gathered by the committee enabled a comprehensive report to be tabled under the inquiry's terms of reference.

There has been much said about the decision of this parliamentary committee to decline the Chief Justice's request to view the confidential evidence provided to this inquiry. As honourable members can understand, and as pointed out in the committee's report, providing such confidential evidence received from witnesses to the chair of the authority being inquired into by the parliament would go against well-established parliamentary practices and procedures. This includes standing orders requiring this parliament to protect witnesses and would have had the effect of undermining and sabotaging any future parliamentary inquiries, with witnesses being reluctant to provide vital information, fearing this parliament may not protect their confidentiality.

It is worth bearing in mind that these people have had serious adverse mental health conditions diagnosed as a result of their treatment by the Courts Administration Authority, with the committee told of the strain this has had on their families and relationships. For numerous witnesses, it took an enormous amount of courage to provide this committee with their evidence, with multiple witnesses visibly shaken such was the effect their treatment has had on their lives.

I would like to thank the honourable committee members and committee staff for their assistance in this inquiry and their commitment to producing a report with recommendations worthy of the serious issues highlighted by the inquiry.

Debate adjourned on motion of Hon. J.E. Hanson.

At 16:10 the council adjourned until Tuesday 2 March 2021 at 14:15.