Consumer protection a myth in Australia

The concept that Australian citizens have recourse to watchdog agencies to investigate abuses of the law by govenrment and private organizations is a myth.

The existing agencies are basically useless and should either be upgraded or scrapped, as by and large, they are a waste of taxpayer dollars.

The following personal examples illustrate the problems.

Trade Pactices Act a practical joke

In 2010 I was concerned that some aspects of the operation of a rewards program being offered by Jupiters Casino on the Gold Coast in Queensland MAY have been in conflict with the Trade Practices Act ( TPA ).

I had written to the CEO of Tabcorp Holdings Ltd., the then owners of the casino, outlining some of my concerns. The casinos have since been spun off from Tabcorp Holdings Ltd. into the Echo Entertainment Group Ltd.

The response from the company was basically to dismiss my concerns. So on 23rd November 2010 I lodged a request with the Australian Competition and Consumer Commission ( ACCC ) to investigate the matter.

In a response dated 16th December 2010, the ACCC advised " the role of the ACCC is to ensure compliance with the Trade Practices Act 1974 ( TPA ), which is designed to encourage fair trading and discourage anti- competitive conduct through a specific set of competition and consumer protection rules."

"The ACCC cannot pursue all the complaints it receives. While all complaints are carefully considered, the ACCC must exercise its discretion to direct resources to the investigation and resolution of matters that provide the greatest overall benefit for consumers and business.....In this instance the details of your matter have been recorded and will be used to determine whether there is a pattern of behaviour by Tabcorp Holdings or a pattern within the gaming industry that raises broader concerns."

"Provisions of the TPA are mirrored in legislation administered by state and territory fair trading agencies. State and territory fair trading ofices are better placed to respond to the individual aspects and local nature of many complaints. As the conduct has taken place within Queensland, rather than being conduct at a national level ( Tabcorp owned casinos in more than one state !!! ), we consider that the Office of Fair Trading in Queensland ( OFT ) is best placed to assist you with your matter."

This is the normal response that an individual receives from the ACCC when lodging a complaint. The appearance is that politicians, on the other hand, are a different matter.

So the ACCC had wiped its hands of the matter.

On 21st February 2011, following the ACCC advice, I wrote to the Queensland OFT detailing my concerns, and including the evidence I had to support them.

In order for a complaint to be processed, the complainant is FORCED to sign a declaration at the end of the OFT complaint form which reads " I agree that the information provided ( except for demographic data) may, if necessary, be revealed to the trader in correspondence or investigations concerning this matter, OR REFERRED to another authority for their appropriate action should the matter fall outside this Office of Fair Trading jurisdiction. "

Almost one month later, my letter was acknowledged by the OFT on 18th March 2011. In their response they state " Please note conciliation involves contacting both the consumer and trader and, where applicable, gathering information from both parties in an attempt to resolve the dispute and gain a win/win situation. However, it is NOT THE ROLE of the Office of Fair Trading to adjudicate in disputes, give a ruling or judgment, or direct a trader to redress as this is the function of a Court of competent jurisdiction. "

So to this point we have the ACCC refusing to investigate if a breach of the TPA has occurred and referring the matter to the OFT, and the OFT stating that even if a breach has occurred, that they WILL NOT PROSECUTE!

I subsequently received a letter dated 22nd March from OFT stating " I wish to advise that the Office of Gaming Regulation has been specifically established to regulate Casinos and the gaming industry. Your complaint has been referred to Mr .... at the Office of Gaming Regulations in Brisbane for further consideration. The Office of Gaming Regulation will advise you of the outcome of their deliberations."

Now remember that my concerns related to the TPA, NOT the gaming legislation, so it was unclear why it had been sent to the Office of Liquor and Gaming Regulation ( OLGR).

I then received a letter from OLGR dated 12th April 2011 in which the writer states " The Office of Liquor and Gaming Legislation administers the Casino Control Act 1982 and is responsible for the regulation of casino gaming in Queensland. However, player loyalty programs, such as the rewards program conducted by Tabcorp, do not fall within the ambit of the Act. I have thoroughly reviewed your complaint and no breach of legislation is evident. Unfortunately, this office does not have jurisdiction to progress the matter further.....I have forwarded a copy of your complaint to Tabcorp for its direct response to you."

So this government agency ( which I had NOT contacted myself ), without either contacting me or requesting my consent, sent the complaint and VOLUNTEERED the EVIDENCE lodged with another agency DIRECTLY to the company about which the concern was raised!! The OLGR itself was NEVER given that authority by myself, and there is NO INDICATION that release of the information was " NECESSARY."

In response to this INCREDIBLE breach of confidentiality and normal procedure, I then lodged a complaint about the actions of the OLGR with the Queensland Ombudsman on 17th April 2011. Sadly this investigative agency is a COMPLETE WASTE OF TAXPAYER DOLLARS and a hoax perpetrated on the public ( also see next case ).

My complaint to the Ombudsman was acknowledged on 6th May 2011 ( NINETEEN days after the complaint was sent ). In that correspondence they state " Your complaint will be assessed and you will be advised a soon as possible whether we will investigate....Nine out of ten complaints are assessed and/or settled within 60 days."

Accompanying this acknowledgment letter was a pamphlett which states " we try to assess all complaints within SEVEN DAYS of receipt ." At that date, they had already taken EIGHTEEN DAYS simply to acknowledge receipt of the complaint, let alone assess it. And as of 5th October 2011 ( TWENTY-TWO WEEKS AFTER their acknowledgment letter, they still HAVE NOT ADVISED OF THEIR ASSESSMENT, let alone taken any action.

The most concerning aspect of this pamphlet is the following: " if our investigation establishes maladministration ( that is, we consider that an agency has acted unlawfully, unfairly or unreasonably in making a decision, or has simply made the wrong decisions ), we MAY MAKE RECOMMENDATIONS to that agency to rectify the maladministration. Sometimes we also MAKE RECOMMENDATIONS aimed at improving the agency's policies and practices to help the agency avoid making similar poor decisions in the future. It is important to understand that while we can make recommendations, WE CANNOT FORCE an agency to implement them."

So now we have the ACCC who won't investigate, and recommend that the matter be referred to the OFT. The OFT won't investigate ( and don't prosecute EVEN IF they discover some breach of the TPA ), but instead pass it on to the OLGR. The OLGR advise it is out of their jurisdiction, but send the complaint directly to the company involved. The Ombudsman then won't even assess a complaint against the OLGR, but won't take any action against the OLGR even if they determine that the OLGR has acted inappropriately.

There is a parliamentary committee, currently called the Law, Justice and Safety Committee (LJSC ) although the names change, amongst whose duties is to " monitor and review the overall performance by the Ombudsman of the Ombudsman's functions under the Ombudsman Act. " It really is a bit of a joke, and from what I can see all it appears to achieve is another way to spread more money to politicians. What it basically boils down to is that periodically they have a cosy chat with the Ombudsman to see what is happening. It's all very civilized, and essentially the Ombudsman is sent off with a pat on the back. As I have heard NOTHING from the Ombudsman about my complaint, I contacted the LJSC on 25th May 2011 about the matter, but, as usual, they would not become involved stating that " .. it cannot take any action regarding your specific individual complaint."

As a last resort I contacted the Crime and Misconduct Commission ( CMC ) on 8th July 2011, but on 19th July 2011 they advised that they saw no grounds to support action against the OLGR.

So here we have a private company which has been EXEMPTED FROM ANY INVESTIGATIONS RELATING TO THE TPA because NO government agency will accept responsibility. And during the period when the government agencies REFUSED to investigate, the company has split off its casino businesses, meaning any investigation is now HIGHLY UNLIKELY.

Update on 11th October 2011

On 5th October 2011, when I still had not received any response from the Ombudsman, I sent an FOI application requesting a copy of all documents relating to the complaint. In that application, I advised them of this web page for them to view.

I subsequently received a letter from the Ombudsman dated 10th October 2011 ( more than TWENTY TWO WEEKS after they acknowledged my complaint ), which commenced with an apology for the delay in responding. That made me feel so much better!!!!!!

It states " The Rewards program offered by Tabcorp Pty. Ltd. ( THEY COULDN"T EVEN GET THE COMPANY NAME CORRECT ) to casino patrons is a private promotion offered by the company and it is doubtful whether the Trade Practices Legislation is applicable. However, it is open for consumers to commence their own legal action for breaches of that legislation and you should seek your own legal advice in that regards.

As Casinos are regulated under legislation administered by the OLGR I believe it was appropriate that OFT should have referred your complaint to the OLGR. As to whether OFT breached any confidentially ( sic ) by not getting your permission to refer the matter to the OLGR is not a matter for this Office to consider. "

This was a bit strange as I had NOT written to them about Trade Practices or OFT. My complaint to the Ombudsman related to the fact that the OLGR had released full details of my complaint ( including evidence ) to a private company!

The writer then advises that the Information Commissioner is the appropriate body to investigate that matter.

The letter goes onto say " In respect as to whether OFT should have investigated the matter further, as you do not appear to have raised your concerns with senior management from the agency I believe it would be premature to consider the case........In the meantime your file has been closed. "

On 6th October 2011 I also sent an electronic message to the ACCC advising them of this web page. So far they have simply IGNORED the advice.

So there you go. Casinos are exempt from the TPA, and government agencies are free to provide full details of complaints to private organizations!!!!

There was NO mention of my FOI application, nor any acknowledgment of it. Finally assessing and actioning the complaint does NOT cancel an FOI application! It will be interesting to see if they process it ( presumably they will after reading this) !

Update on 14th October 2011

Two days after I posted the above update, the Ombudsman's office sent me a form which is now required for access to information. The relevant legislation is now called the Right to Information Act 2009, and now of course the government wants details about the applicant. And whilst an agency will interact with a member of the public without ever requiring proof of identity, if that same person wants access to the appropriate file, they now have to provide proof of identity, EVEN IF they are still using the same name at the same address and same signature.

And for those members of the public who don't have access to a computer, but want photocopies of the documents, there is a 20 cent charge per page. This discriminates against particularly the elderly and disadvantaged.

Update on 21st December 2011

Following the advice from the Ombudsman, on 24th November 2011 I lodged a complaint with the Information Commissioner about OLGR sending my OFT complaint directly to Tabcorp withourt even contacting myself. I also advised them of this webpage. On 28th November 2011 I received a call from the Commission. In that conversation, and a follow-up letter of 5th December 2011, I was advised that they only provided a mediation service. An accompanying pamphlet advises the possible resolutions to be ( though not limited to ):

an undertaking by the agency to discontinue or not repeat the act or practice that is complained about

that the agency undertake reasonable actions to remedy the act or practice complained about

an apology

changes to agency's systems, processes and/or practices

amendment of affected documents

And if agreement cannot be reached, then the matter MAY be referred to the Queensland Civil and Administrative Tribunal ( QCAT )

My understanding of the available options is that once again no investigatory body will take any action against a government body, and it is up to a complainant to take legal action against them.

Additionally I was advised that the Commission could not investigate a complaint until the agency involved had been advised of the planned complaint, and given an opportunity to respond.

So on advice of both the Ombudsman, and now the Information Commissioner, I recontacted the OFT and OLGR.

Firstly I contacted the OFT on 28th November 2011, and received a reply dated 12th December. The Commissioner for Fair Trading has requested the matter be reviewed, and asked me to contact the manager of the office handling the complaint ( incredibly not the Gold Coast office where the casino is, but a regional office several hundred kilometers north of Brisbane ! ). I phoned the manager on 14th December, and he advised he would be contacting the casino for their comment.

In my letter to OFT, I also expressed my disgust that a complaint is FORCED to sign a declaration on their complaint form which gives them authority to release the full complaint to the trader involved. There is NO way to exclude the agreement ( the form reads " I declare that the information supplied by me is, to the best of my knowledge, true and correct. I agree that the information provided (except for demographic data) may, if necessary, be revealed to the trader in correspondence or investigations concerning this complaint, or referred to another authority for their appropriate action should the matter fall outside this Office of Fair Trading�s jurisdiction. It may also be shared on a confidential basis with other Australian and New Zealand fair trading agencies participating in the Auzshare program.
Signature ...................................................... Date signed. "

In his reply, the Commissioner stated "I can assure you the OFT will not refuse to consider and act on any complaint if a declaration is not signed by the complainant. " Unfortunately there is NO way to sign the complaint and exclude the declaration. It stretches credulity to believe that the Commission would treat seriously any unsigned complaint they received.

And on 30th November 2011 I wrote to OLGR. Whilst I was writing to them, I included a concern about the touch-screen roulette gaming machines in use at the casino. They have what I consider a design flaw in the positioning of the money shute at the top right of the screen. On more than one occasion, I had accidently touched the screen ( and unwittingly made a bet ) with my jacket sleeve when the machine was not accepting my money and I had leaned across it with my left arm to help to insert the notes. I was told by a casino supervisor that he knew of a similar case. Similar machines they have on a different system have the money shute off to the side of the machine, which reduces the problem. I had also mentioned that sometimes the screens were not responsive, which is a problem when the player only has 45 seconds ( it was 30 seconds at the time ) in which to place their bets.

I received a reply dated 12th December containg an apology and stating that the referral was made in good faith.

Howver, incredibly, they made the following comments about the response problems on some machines. " Rapid Roulette machines are included in Jupiters Limited's preventative maintenance program, which requires the machines to be serviced every six ( 6 ) months......For your information, TID 17 ( 1-66 ) was last serviced on 5th May 2011, and TID 223 ( 1-72 ) was last serviced on 9th April 2011. "

What sort of control are they exercising over the casino? In their own words, they are advising that two machines which are required to be serviced and recalibrated every SIX months have not been touched for over SEVEN and EIGHT months!! And they don't see that there could be a problem with these machines!!!

Why shouldn't the public consider that OLGR is simply another joke which doesn't fulfill any public benefit other than skimming money off for the government? It's obvious they aren't about to ruffle the feathers of the goose that lays the golden eggs!

Queensland State Ombudsman a disgrace and waste of time

On 22nd September 1993 my father had a stroke which paralysed his whole left side. This, combined with advanced dementia, resulted in his admission to a nursing home on 28th September. However, he gradually stopped eating or talking, so on 13th October we took him for an outing to try to cheer him a little. Whilst on that outing, at around 1pm, he suffered another stroke, and was taken to hospital by ambulance, arriving there at 2.03pm. We were advised around 2.30pm that he was severly dehydrated, and that tests were being performed to confirm suspected pneumonia. Those tests, time stamped 3pm, confirmed both conditions existed, and were contained within his hospital medical file as one would expect.

My father died in hospital on 17th October 1993. Not only was I with my father on his admission to hospital and at his death, but due to his dementia the doctors had to interact with me as his representative. So my knowledge of what occurred was FIRST HAND.

I felt that my father's condition on admission to hospital, particularly his critical dehydration, warranted an investigation to ascertain if there was any problem associated with the care he received at the nursing-home.

To try to cut a long story short, after investigations at the Commonwealth level, on 7th June 1994 I lodged a complaint with the Queensland Health Rights Commission ( HRC ) as suggested by the Commonwealth Ombudsman.

The HRC not only ignored and breached the legislation controlling it in relation to this complaint ( later acknowledged to the State Ombudsman ), but it conducted what could only be described as a sham investigation. That so-called investigation was not completed until 8th December 1995 ( EIGHTEEN MONTHS later ), and then only after I had the Opposition leader involved. The final report stated that my complaints " ... about dehydration and aspiration pneumonia ( I NEVER stated what kind of pneumonia he had - I never knew ) cannot be sustained ", DESPITE the fact that the hospital files ( of which I had a copy ) CLEARLY indicated in several places that he was both CRITICALLY dehydrated and had pneumonia.

As a result of this insultingly shoddy and tardy " investigation ", I lodged a complaint against the HRC with the Queensland State Ombudsman on 23rd January 1996.

Their investigation of the HRC was just a joke, and was only completed on 28th July 2000 ( FOUR AND A HALF YEARS LATER ), and then only because I got the media involved!

They accepted what the HRC advised them as gospel, without referring the responses to me. Through MANY FOI applications I was able to expose the HRC's deceptive and deliberate efforts to malign myself, which forced the HRC to retract advice it had previously given the Ombudsman. However the HRC nor its officers did not face ANY adverse consequence as a result of their practice, nor to my knowledge were they even reprimanded. It seems a government body can do what it likes as far as the Ombudsman is concerned!

But the Ombudsman was very useless in their own investigation. For example, I exposed a LIE ( and not the only one ) from the HRC to the Ombudsman which I had discovered ( through my FOI applications ), in which the HRC advised the Ombudsman that, following independent medical advice, "... this man was NOT dehydrated on admission to ..Hospital according to pathology results. " Yet even a cursory glance at the biochemistry results below ( among other tests conducted ), time stamped less than an hour after his arrival at hospital, let alone the other doctor's notes confirming his condition, CLEARLY demonstrate this LIE.

" After my exposure, the Ombudsman subsequently stated " I formed an opinion that the Commission's handling of your complaint was unsatisfactory. In my view, the INVESTIGATION WAS INADEQUATE, in particular that it failed to obtain adequate independent medical support for a principal finding that was made in the Commission's Report."...
"The Commission approached a doctor on an informal basis in order to obtain his independent opinion, He was given de-identified information OVER THE TELEPHONE..."
"... the Commissions's independent consultant in this case, changed his opinion once he was given all the relevant medical records."

On 1st March 1999, the Ombudsman requested I supply the names of THREE geriatric specialists so that the HRC could select one to review the case. All he need have done is what I did, and contact the hospital Medical Superintendent, who in response to a query from me replied that " From a review of your father's notes the doctor that saw him in the Emergency Department indicated that clinically he was DEHYDRATED at the time of admission. " However, after I supplied the name of the ONLY geriatric specialist I knew ( who also happened to be the government's own geriatric specialist ), I heard ABSOLUTELY nothing from the Ombudsman until I wrote on 7th June 1999 to ascertain what was happening, to which they responded a month later on 9th July stating that a specialist had " been contacted. " The doctor's report later showed that they only contacted him on 9th July 1999, the SAME day they had written to me stating he had been contacted. They did ABSOLUTELY NOTHING for FOUR MONTHS about contacting him, and obviously only did so following receipt of my letter.

So after misleading and BLATANTLY LYING to both the Health Minister and Ombudsman, NOT A SINGLE ACTION was taken against the HRC or its officers. NOTHING !!!. So why wouldn't bureaucrats lie to investigators? They are QUITE SAFE from any disciplinary actions!

And during this whole drawn-out saga, as a result of MANY continuing FOI applications, I personally uncovered all of the deceptive statements made by the HRC to both the Ombudsman and multiple Health Ministers. And in this area the Ombudsman proved to be not only obstructive, but also breached and played with the FOI legislation, despite the fact that at that time the Ombudsman was ALSO the Information Commissioner, the final arbiter on FOI disputes.

There were three sections of the Freedom of Information legislation in force at the time, that are at the heart of this complaint. They MAY have been altered since that time with subsequent revisions to the Act.

Section 27(1) states that an applicant must be advised " not later than 14 days after the application is received ".

Section 52(6) states with regard to an Internal Review " If an agency or a delegate of the Minister does not decide an application AND notify the applicant of the decision within 14 days after receiving it, the agency or the delegate is taken to have made a decision at the end of the period affirming the original decision."

Section 73(1)(d) states that an application to the Information Commissioner for a review of a rejected internal review can only be made within 60 days " from the day on which WRITTEN notice of the decision is given to the applicant ".

Additionally, the following is an extract from the Ombudsman's letter rejecting my first FOI application, and was written by a Barrister. Identical wording was used in their only other subsequent written rejections. He says " Should you seek a review of this decision you may apply for review of it in writing within 28 days from the date of receipt of this letter. Further appeal then lies to the Information Commissioner, notice of which must be delivered within 60 days upon the date upon which any review decision is communicated to you in WRITING."

So both the Act, and the Ombudsman himself, state that an appeal to the Infomation Commissioner may only be made after an internal review of the original decision has been rejected in writing. Therefore it follows that if they elect NOT to respond to an appeal, then the applicant CANNOT appeal to the IC as there is NO written rejection! Neat hey????

The first thing to note is that NOT ONE of my FOI applications was EVER approved on initial application. Excluding the application for a report which still had not yet been written, they were either rejected, forcing me to appeal, or IGNORED.

The Ombudsman is NOT exempt from FOI releases. However, section 39 provides that " Matter is exempt matter if its disclosure could reasonably be expected to prejudice the conduct of -
(a) an investigation by the parliamentary commissioner...."

In EVERY case, the application was routinely rejected on grounds like " I am satisfied that the disclosure of the subject Health Rights Commission report could reasonably be expected to prejudice the conduct of the Parliamentary Commissioner's investigation ". Yet those applications for which documents were sought were subsequently ALL overturned at review or appeal!

Both the Ombudsman and Health department wasted considerable resources attempting to deprive me of information, or make it difficult/expensive for me to obtain. However, in EVERY case my appeals, either Internal or to the Information Commissioner, were successful, and the information was eventually provided. Both departments displayed an adversorial attitude which was both expensive for them, and time consuming for me.

In one case they rejected the application, but on review, they agreed to release the documents but claimed a fee would be charged on the grounds that " ... as a matter of law the documents do not relate to your " personal affairs " but to your late father's ". Surprising since they had already released documents two years earlier which were more specific to my father, and saw no problem then about them not being my " personal affairs ". Additionally, I had Enduring Power of Attorney for my father whilst he was alive, and was the Executor and Trustee of his estate after his death. In other words, I was the legal proxy for my father, both alive and dead. An appeal against that decision was lodged with the Information Commissioner on 28/09/98, and on 29/10/98 the Information Commissioner upheld my appeal. However the two pages involved were not sent until 16/12/98, almost two months late, and only after I had written a letter of complaint to the Information Commissioner on 29/11/98. Given that my father's name did not appear once in the requested documents, whereas my name did appear, it is not surprising that they lost the appeal! So they had managed to delay releasing TWO pages for over FIVE months by continually stalling, and failing to review my application within the legislated time frame.

Another application lodged on 17/06/97 ( delivery receipt signed on 18/06/97 ) was rejected on 11/07/97. I subsequently appealed on 15/07/97, but did not receive the documents until 27/2/03, almost 6 years later. They did NOT acknowledge within 10 days of receipt as required. More importantly, NO written review decision was ever sent, so I believed, based on the information they provided plus the wording of the Act, that I could not appeal to Information Commissioner. The information was finally released on 27/2/2003, several years AFTER the investigation was closed. Their excuse - " We overlooked that review request." However an FOI application was sent on 8/10/98 requesting the name of the officer who had presumably processed my review application. This request SHOULD have alerted them to the fact that the review had NOT been processed! This application was not acknowledged or processed, so I lodged a review application on 29/11/98. The requested information was never supplied.

These are just some of the highlights of what was a disgraceful excuse for an investigation, which even though my complaints were eventually SUSTAINED, resulted in NOT ONE thing happening to either the HRC or Ombudsman. And a promise by one Health Minister to contact me about the case once the Ombudsman completed their investigation was simply ignored.

What is obvious is that agencies are permitted to say whatever they like to try to discredit complainants without any recourse. One has to wonder what has to happen before some positive action is taken against any agency?

And little has changed with the Ombudsman in subsequent years. Sadly it is the ONLY avenue offered to the public to try to redress bureaucratic incompetence, but it is just a waste of time.

The office of the Ombudsman is simply a BAD JOKE. It should simply be abolished and the politicians should stop pretending that the public has some recourse to bad administration. They won't of course, because smoke and mirrors are their stock in trade.