Written by: MICHAEL BACHELARD
October 4, 2009
WHEN the State Government was cobbling together its anti-corruption
framework in 2004, with the ombudsman and the Office of Police Integrity
at its centre, critics were caustic.
''What we need in Victoria is a royal commission, but to head up that
commission we need a caped crusader,'' said then opposition leader Robert Doyle.
''The ombudsman's more at home in a cardigan.''
Fast forward to 2009 and nobody could complain that Ombudsman George
Brouwer is some ineffectual bureaucrat. His recent reports, particularly those
on trauma surgeon Thomas Kossmann and the Brimbank Council, have been
robust to the point of aggression. The complaints are now that Brouwer's
powers are too great; that his investigators are using them too assertively;
that his reports are too tough.
''I thought his behaviour was well over the top,'' says a highly regarded former
hospital administrator, Denis Swift, who was interviewed as part of the
Kossmann investigation and sideswiped by adverse mentions in the report
tabled last October.
''I wasn't allowed legal representation … The discussion at the interview was
nothing like what he wrote in the report - it was a bit like character assassination.''
Mr Swift is not the only one complaining. The Kossmann report and the
Ombudsman's later investigation into medical billing have offended a
significant number of senior doctors and the Australian Medical Association,
which says its members were treated badly and reports contained fundamental
errors.
The Brimbank report has already led to the sacking of ALP factional player
Hakki Suleyman, and it will put a large number of electorate officers in
Victoria out of work. But a former solicitor-general, Ron Beazley, found
many of the Ombudsman's findings were based on hearsay and could not
be substantiated. Others are concerned that the powers of the Ombudsman
are not subject to any form of official review.
''Any oversight body with coercive powers should report to a
standing parliamentary committee,'' says Monash University governance expert
Colleen Lewis. ''Reporting to a parliament as a whole does not give the scrutiny
necessary.'' The Government, however, says that its public accountability
processes are appropriate.
The Ombudsman's powers are extensive - his critics say like a ''star chamber'' -
yet the oversight of them is weaker than in any other state in Australia. Mr
Brouwer and his investigators can compel people to answer questions, without a
lawyer and with no protection against self-incrimination. Investigators can
demand evidence from almost any source - for the Kossmann and Brimbank
reports, they obliged banks and the Immigration Department to produce private
details, raided offices, seized computers and commissioned inquiries from
government agencies. Subjects of interviews are barred from discussing their
interview with anyone, under threat of a six-month jail term. And if they hinder
or obstruct an investigation or fail to answer questions, they face two years
behind bars.
Last year, as the Kossmann investigation was under way, Mr Brouwer convinced
the Government to beef up his powers even more by allowing him to name the
people he was investigating under the Whistleblowers Act. In his final report,
those adversely mentioned were all named, while the whistleblowers
themselves remained anonymous.
These are not uncommon powers - corruption fighters in other states have them
too. But in the past two years Mr Brouwer has been using them more
enthusiastically, perhaps fuelled by the political pressure to be seen to be as
tough as a fully fledged anti-corruption commission.
Colleen Lewis, an associate professor in the school of political and social inquiry
at Monash, has no problem with the powers and thinks Mr Brouwer's recent
reports have been ''excellent''. But she says Victoria's lack of parliamentary
oversight is an ''anomaly'' in national terms.
The Independent Commission Against Corruption in NSW, the Corruption and
Crime Commission in Western Australia, and the Crime and Misconduct
Commission in Queensland are all overseen by an ''inspector'' or a parliamentary
committee, or both. This is not simply window dressing. In NSW earlier this year,
the parliamentary committee rapped the Independent Commission Against
Corruption, saying one search was prompted by ''a rush of blood to the head''.
In Victoria, complaints about Mr Brouwer's reports must go to Mr Brouwer himself.
He shows no sign of questioning himself, nor subjecting himself to questioning by
others - he refused The Sunday Age an interview, saying his reports speak for
themselves.
Any oversight committee would have some ready-made complaints to deal with.
Mr Brouwer's gun investigator is Lachlan McCulloch, a former corruption-busting
policeman. He was the investigator in both the Brimbank and Kossmann cases
and is apparently regarded by Mr Brouwer as his best asset - a ferocious digger
who will use all the powers at his disposal. On both investigations, Mr McCulloch
was accompanied by QCs.
''It's robust, no doubt about it, and people who are loose with the truth will be
pushed, firmly,'' said one source, ''particularly when the investigators have
evidence that clearly demonstrates their dishonesty … that's the nature of the
inquisitorial process.''
Denis Swift was involved in this sort of interview, and is one of many aggrieved
people who have spoken to The Sunday Age. Most wanted to remain off the
record, the warnings of investigators still ringing in their ears. Mr Swift says he
was told before his interview that he had nothing to fear, that the investigation
was not about him. But when he admitted during the interview to being a
supporter of Thomas Kossmann, he says things turned ugly.
''The interview with three staff of the Ombudsman's office went for several
hours, it became very hostile, particularly with the detailed questioning by
the QC [Jeffrey Sher]. And I was maligned in his report,'' he said.
Mr Swift, who had resigned as hospital administrator at The Alfred hospital
several years before the interview, says he had no records to refer to, but was
required by the QC to respond to ''persistent and detailed questioning on
contractual issues … from notes that he continually referred to''. Mr Swift's
requests for a lawyer were denied: ''I was told they would decide if I needed it.''
Professor Jeffrey Rosenfeld, the head of neurosurgery at The Alfred, was also
stung by comments in the Kossmann report that he knew of problems with the
controversial trauma surgeon but ''failed to act'', partly due to ''a misplaced
sense of values''. The report recommended The Alfred review Professor
Rosenfeld's position. The review exonerated him, saying anybody would have
acted in the same way.
Professor Rosenfeld would not speak to The Sunday Age. But supporters say
the Ombudsman's criticisms were ''totally ridiculous''. One described Professor
Rosenfeld as ''the straightest human being on the planet''.
''For Jeffrey Rosenfeld to be held accountable for [Kossmann] who didn't report
to him … I think is extremely unreasonable, particularly from a public officer,''
said The Alfred's head of emergency and trauma, Associate Professor Mark
Fitzgerald.
''They (the Ombudman's office) have got the power to destroy somebody's
reputation and wellbeing, and what recourse have they got?'' said another
Professor Rosenfeld supporter. ''You can't sue, you can't take it to the Supreme
Court and have it out with them. All you can do is write a nasty letter.''
Other doctors say the Ombudsman refused to speak to people, including Dr
Fitzgerald, who had pertinent knowledge but were known as Dr Kossmann
supporters. They allege that the investigation was designed to come up with
a predetermined conclusion.
The Kossmann investigation was prompted by complaints by two senior
whistleblower doctors; 50 people were interviewed, and 12 spoke against Dr
Kossmann. The Ombudsman's final report concluded that Dr Kossmann had
greedily rorted the system of medical billing, perhaps to the point of criminality;
that he'd been dangerously incompetent as a surgeon; and that he'd fabricated
aspects of his professional CV and avoided tax.
These findings carry considerable weight, even if the Ombudsman cannot
himself lay charges. As The Age editorialised at the time, ''Those who
complained about the surgeon's conduct have been vindicated''.
A professional peer review of Dr Kossmann had already been scathing of his
surgical performance, but the Ombudsman ordered seven further investigations -
by insurers TAC and WorkSafe, by the Tax Office, the police, the Royal
Australian College of Surgeons, the Medical Practitioners Board and
Monash University.
One year on, the result of all these investigations is, so far, nothing. TAC and
WorkSafe have referred their findings to the police, who have yet to complete
their investigations - it is widely considered that nothing will come of them.
The only medical complaint against Dr Kossmann was resolved in his favour last
month by the Medical Practitioners Board, and he is still accredited by the college
of surgeons to operate as an orthopedic surgeon.
Monash University cleared him of academic fraud. The ATO has proclaimed no
finding but it is believed to have cleared him. Mr Swift says of the report: ''It
was nasty, but I don't think anyone really took it seriously. Everyone had a
little laugh and moved on.''
The Kossmann case then prompted a second inquiry by the Ombudsman, into
medical billing by surgeons generally. He reported, sensationally, that 27
surgeons might be guilty of fraud, and recommended a further review of billing
by WorkSafe and the TAC. WorkSafe confirmed last week that it had audited 16
surgeons considered ''very high risk'', clawing back just $37,000 in overpayments
- less than $2300 each, on average.
The TAC will not release figures, but sources say they are similarly low. No one
other than Dr Kossmann has been referred to police. On one view, the cost of
the investigation itself has outweighed the money recovered.
The problem for the Ombudsman is that the structure of the medical billing
system does not assist his contention that it was being rorted. The law says
only that TAC and WorkSafe must pay surgeons for their ''reasonable medical
expenses''. The Commonwealth Medicare Benefits Schedule acts only as a
guide, and for a long time the amounts paid to surgeons have been well over
and above that rate, with many variations negotiated. But Mr Brouwer's
findings of fraud were based on the fact that surgeons' billing varied from the
much-ignored schedule.
The Australian Medical Association and the Australian Society of Orthopedic
Surgeons are furious. AMA chief executive Jane Stephens says Mr Brouwer
repeatedly ignored her attempts to explain the system, and then got his
conclusions wrong. ''The system was looked at in a very superficial and incorrect
manner,'' she said. ''They've slandered a whole slab of the profession using the
wrong information.''
Mr Brouwer refuses to debate these issues but calls the AMA's arguments
''unsupportable''. In a recent letter responding to their complaint, he wrote,
''It is not my function, nor is it appropriate for me to debate my findings''.
Brimbank Council was sacked recently for incompetence. The opprobrium
attached to it was partly due to the Ombudsman's report, tabled in May, on
the previous council. Natalie Suleyman, the former mayor of Brimbank, has
complained that she was harassed and intimidated in an interview with Mr
McCulloch.
Her lawyer, George Defteros, has been trying to get hold of the tapes of the
interview to prove it. The Ombudsman will not give it to him, though he's
offered to allow Mr Defteros to listen to them in his office.
Hakki Suleyman, Natalie's father, lost his position as justice of the peace, and
also his job as an electorate officer with Planning Minister Justin Madden. Scores
of other electorate officers will now have to choose between their employment
and their positions as councillors.
Nobody is arguing that Brimbank was either competent or free of skulduggery,
or that the Ombudsman was wrong when he argued that there could be a
conflict when councillors also worked as electoral officers for MPs, but
Government sources say their own legal advice shows the Ombudsman's report
was not sufficiently based on hard evidence to support Mr Suleyman's sacking.
Former state solicitor-general Ron Beazley was asked by the Department of
Justice if the Brimbank report's findings showed Mr Suleyman was not fit and
proper to remain a justice of the peace. Mr Beazley confirmed some
misdemeanours, but slammed the Ombudsman for raising ''a number of
hearsay, generalised allegations … (with) no detail or substance to support
(them)''.
The president of the Legislative Council, Bob Smith, has become ''
concerned about … the Ombudsman's performance'', including the manner
in which the Suleymans were questioned.
But any systematic scrutiny of the Ombudsman's recommendations and
methods are largely absent from the parliamentary debate - mostly his reports
are used for political point-scoring. The Opposition will not push for
parliamentary oversight because it wants wholesale change, including the
creation of an independent commission against corruption.
Colleen Lewis has little sympathy for those damaged by Ombudsman's
reports, saying it's inevitable in a robust system. But she says a permanent
oversight committee would strengthen it.
''A dedicated committee can assist the Ombudsman and the Office of Police
Integrity - it's another set of eyes when they are asking for increased powers
and resources. They shouldn't be seen as a negative.''
A Robin, perhaps, to George Brouwer's caped crusader.
Ways the watchdog can bite
Under the Ombudsman and/or Whistleblower Protection Acts:Evidence can
be taken under oath.
■
■Investigators can enter premises and seize equipment.
■Witnesses can be jailed for up to two years for: threatening or taking
detrimental action against the whistleblower; obstructing, hindering, wilfully
failing to comply with or making a false statement to the Ombudsman or his
investigators.
■Evidence can be obtained ''from any person and in any manner
[the investigator] thinks fit''.
■Privileged and confidential information must be supplied.
■Investigators can decide whether or not a witness can have their lawyer
at an interview.
BUT
■Deliberations of government ministers and parliamentary committees
are not to be disclosed.
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