The Premier of NSW

The Hon Gladys Berejiklian

26th July 2018

Dear Premier

What type of State Government and public service do you oversee?

In August 2017 I raised a contractual issue with the Department of Education (DoE) regarding the conduct of five of its high school Principals. I won’t go into too much detail about the matter which involves breach of contract by Principals as this correspondence is not about the contractual issue but rather about the subsequent events and public service ethical standards and code of conduct.

High School Principals, DoE, NSW State Government Ombudsman, ICAC and to a lesser extent the Small Business Commissioner have all demonstrated a lack of adherence to either or both of the State Government ethical standards or their own department code of conduct which is usually derived from the ethical standards.

Bearing in Mind, amongst many other sections, the Ethical Framework includes section 2.4 on Integrity, the following sequence of events have unfolded.

The contractual issue with DoE is a breach of contract by 5 High School Principals and is obvious in its lack of compliance. DoE have never addressed the issue directly and have not ever presented a defence. DoE has the attitude that we say we are not responsible so we must not be. I would point out at this time that one of the five Principals had a different view and told me to go sue the DoE so he clearly knew he was responsible and wanted DoE to deal with it. As there is a heavy element of Ethical Misconduct in this matter and DoE had demonstrated that it would not deal with the matter I proceeded to involve the services of the State Government Ombudsman which seemed to be the most appropriate way of dealing with a matter with this element. The ombudsman refused to deal with the issue on the basis that there was a commercial element to my complaint (the breach of contract). The Ombudsman systematically dismisses all matters that have a commercial element on the basis “it’s not the role of this office to intervene in such matters”. The ACT does not prevent the Ombudsman from intervening and there is no provision for systematically dismissing matters of any nature including commercial matters and in fact this approach was outside the ACT and in effect illegal. I took this up with the Ombudsman and a Deputy Ombudsman wrote to me agreeing with my interpretation of the ACT and that the Ombudsman could in fact deal with the matter but then refused to change the original decision not to intervene on the bases that he did not have the resources to deal with the matter.

The Ombudsman’s apparent illegal conduct seemed like a very serious matter so I referred it to ICAC on the 18th of February 2018. ICAC responded with a receipt of the complaint by an investigations officer. Two weeks passed without any further information from ICAC so I emailed without response which was also the case on a subsequent occasion so I made a phone call and spoke to the original receiving officer who informed me that “we do not respond to emails” and that there “are no time limits on decisions to proceed or not with any matter” he told me he would let me know in due course whatever the decision was (there is none at the time of writing). The problem here is that the ICACs own code of conduct section 2.2 states amongst other things that the ICAC will “make decisions in a fair and timely manner”. I have canvassed this with many people and no-one can find any timely system that has no time limits.

In my efforts to deal with the DoE, Ombudsman and now the ICACs lack interest in resolving my matter I discovered the Small Business Commissioner (SBC) and lodged a complaint. The SBC has been somewhat helpful but less than straight forward about what it can and cannot do. If you are not aware the SBC primary mode of operation is to establish an environment for mediation which was exactly what I wanted. I was led to believe by the SBC that participation was voluntary on behalf of a government agency. The SBC has tried in-vein to get DoE to present a written defence as to why it is not responsible and has certainly not been able to execute any sort of mediation. Due to this lack of progress I had sought the advice of a legal firm on how to proceed only to find out myself that the SBC has the power to “Require” agencies to produce documents and attend mediation. These powers were never volunteered I had to find out and then confront those at SBC attempting to deal with the matter. These powers have to date not been exercised. I am forming the view that the methods used by SBC are unfair which is a tad ironic since fairness by government agencies to small business is one of the primary reasons for the SBCs existence.

The DoE insist that it cannot discuss my matter as “there is legal action”. This is a construct by DoE. There is no legal action. My Solicitor has contacted the DoE legal services Directorate (August 2017) attempting to resolve the matter without legal action. The DoE have simply frustrated any attempt to resolve this matter in a number of ways. Firstly by providing irrelevant and nonsense responses to my legal advisor’s queries Secondly using the non-existent legal action to refuse discussion with me, Thirdly by not co-operating with the SBC and Fourthly by appointing outside council. Appointing outside council is an interesting development in that council have admitted to the SBC they have no instructions to mediate and I have not instigated any court action so why are they appointed if not to further frustrate matters or to distance DoE from its own actions. I will be questioning the spending of funds in this manner with the appropriate offices.

I have written to the Minister for Education Rob Stokes directly and via my local MP. Mr Stokes recently replied to my MP representations stating that “As legal action is currently underway, it would not be appropriate for me to comment any further”. I would have to say that this statement took me by surprise as there is no legal action and Mr Stokes being a solicitor would be well aware of what is required before using the term and yet there is his signature stating there is legal action. In the correspondence back to my MP to Minister Stokes I make the following point;

“This matter has now reached its first anniversary. During this time I have made contact with a number of people within the legal profession seeking advice about various aspects of the matter and have put the Department of Education’s (DoE) position that one legal professional writing to another constitutes legal action and in each case the notion was considered ridiculous. You could imagine that legal professionals write to each other constantly and to consider each occasion the instigation of legal action would be preposterous as it would make matters so difficult as to be impossible. I would add that the Law Societies own Law Access program has no reference to legal action that does not involve a court of law. So to be clear we have not instigated any action in the courts and therefore no legal action is afoot.” 

What I haven’t said to the Minister for Education but I will say here is that the lack of ethical standards demonstrated with this matter has been seen in schools and the DoE dealing with schools and contractors. These issues have been seen when Principals redirect budget top ups for disabled students to other areas of need or DoE dealing with a roofing maintenance contractor underbidding for a contract with DoE knowledge or Principals failing to maintain publicly funded technology so that it becomes useless and avoided.

My Local MP tells me that he discussed, with a Treasury representative, the spending of funds by schools that then broke the very agreement that they paid those funds for therefore receiving no value and was told it was not an issue as there were only five of them!

I have written to The Deputy Premier and Minister for Small Business John Barilaro concerning the inability of the SBC to obtain results and also the actions of the Ombudsman without a response which is well overdue according to the time frames stated on the Ministers contact page. I have written again asking for a response but I have no response to that either.

The Ombudsman and the SBC are at least in part in existence to deal with issues relating to the fairness of government agencies in their dealing with individuals or small business. Clearly in the case of the SBC the government realises that unfairness by government agencies exists to the extent that a commissioner has been established to deal with this unfairness. There seems to be a genuine reluctance by the SBC and Ombudsman to take any serious action when another government agency is the target. Premier why are we paying for these agencies?

People who deal with or contact any government agency for any genuine reason are entitle to believe that any decision made by those agencies on behalf of the government is true, correct, ethical and in keeping with the Governments own Code of Conduct but my experience is this is not necessarily the case. How many wrongful administratively convenient decisions that fall outside ethical standards or those standards that dictate the very existence of that agency have people been subject too?

I made the point earlier that I would not discuss the breach of contract here I will however provide some detail as to the underlying program as you should understand what has been lost.

Firstly I am a teacher (both Public and Private) with commercial experience. The program is a student engagement program designed around a student owned and managed electronic portfolio. Student ownership makes the students part of the system and not subject to it. Students manage and support each other in the pursuit of better outcomes with oversight. Amongst many other elements the program has a Careers Paths element that is designed to attract students to a career via an interest platform by accepting various industry challenges. The challenges are designed to be interesting and to help year 7 to 12 students along a path to a particular category of career choices and perhaps a career while at the same time providing relevance to their school studies promoting better behaviour at school. All of this without changing the nature of school so no DoE cultural changes required. The program was so far in front of any other in terms of its development and structure that I was only one of about 80 people invited to a ”Solvathon” which was a collaboration between DEFAT, MIT and Atlassian and was open by Minister Bishop in July 2017. The Solvathon was designed to solve the problem of better ways to get students the education they needed for their future in various places around the world. This program appears dead as it requires ethical conduct by High School Principals and that has been demonstrably lacking. I see that the government has created Lindfield Learning Village which is a project based school. Where is the equity here? Interest based learning is the right ticket but how will you role this model out to all other students? My program did exactly this and would have cost the government nothing and this is what all of the above has killed off!

So Premier

What type of State Government and public service do you oversee?

Keith Morton

Unit 12/ 311 Hillsborough Road

Warners Bay NSW 2282

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