When the Spencer decision was rendered, we wanted to see if anything changed to address the concerns raised by the Court. We noticed temporary staffing changes at the OSMV, but no change to the general way IRP hearings, and in particular hearings for refusals were being handled and decided.
We made two Freedom of Information requests to try to sort out what was happening. We requested training material, and in particular training material that has been prepared since Spencer was released, and a copy of all Immediate Roadside Prohibition (IRP) review decisions where the allegation was of refusal to blow.
So far the Government has refused to provide the training material. That is now the subject of a complaint we have made to the Privacy Commissioner. You would think that the Government would want to provide such material because it should be transparent that they are taking steps to deal with the decision in Spencer. We have received review decisions that say that the Spencer decision is not binding on their office, which makes no sense to us, so that may explain the reluctance.
Several months after the deadline to disclose the review decisions, we received an email last week attaching a pdf of the decisions. You can find the response cover letter here and the review decisions here. The Government publicly released the material yesterday.
We have read each decision and a number of things jump out right away. Firstly, very few people win on the merits of their case. It seems most cases are successful on technicalities rather than because the person is innocent. We cannot see any change in the decisions since the Spencer case was rendered. And there is a problematic pattern concerning how evidence is handled and decisions are rendered when there is an indication that the ASD is malfunctioning. That will be the subject of another blog post.
Download the decisions and start reading. Keep an eye out for examples of concerns that were identified in Spencer, i.e.:
[T]he evidence was addressed on the basis of a series of arbitrarily imposed tests that the petitioner could not meet. The delegate’s approach simply avoided coming to terms with the information provided by the petitioner by manufacturing a series of perceived deficiencies.
[T]he delegate’s approach throughout betrays reasoning processes fundamentally at odds with basic concepts of fairness and impartiality. The objective appears to have been to rationalize a desired outcome rather than to fairly consider the evidence.
The unfairness inherent in the approach taken by the delegates in both Gilles and here certainly hints at larger questions about whether the delegates are equipped with the degree of training or independence necessary to conduct fair hearings, or to demonstrate that they do so.
You can read the decisions and decide for yourself. Although we are still missing the training material, from what we can see nothing changed at the OSMV in response to the Spencer decision.