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- 24 May 2006
Open Government and Freedom of Information
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Page: 263
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [10.03 p.m.]: Two recent court decisions give a glimmer of hope to those who want to see open government in New South Wales. In the New South Wales Court of Appeal in the case of the General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84, Judge Ruth McColl, with the endorsement of her colleagues, ruled that the New South Wales Freedom of Information Act operates on the premise that there is public interest in the public having access to government information. To comply with the ruling, government agencies must disclose "working documents" after their significance wanes with time, and they must prove that "tangible harm" will occur if documents are disclosed, rather than argue theoretic scenarios, as was done in that case. The decision was handed down on 24 April 2006, having begun in 2002. The documents sought related to legal costs in the workers compensation system.
This was at the time of changes to workers compensation legislation in the Parliament. The Government was alleging that the costs of the compensation system were due to legal costs, but the documents that supported the Government's allegation were hard to get. Interestingly, Sir Lawrence Street said at the time that the passing of time lead to a change in his decision to release documents to a crossbench briefing last year with regard to the cross city tunnel documents under Standing Order 52. He had modified his view towards more openness.
Another recent case of importance is McKinnon v Secretary Department of the Treasury. On 3 February 2006 McKinnon applied for special leave to appeal a previous decision not to release Treasury documents. The appeal was later allowed and will be heard by the High Court later this year. Michael McKinnon, who is the Weekend Australian newspaper's freedom of information editor, said that the documents sought related to the income tax bracket creep and the first home owners scheme in the 2002 budget. The transcript of the appeal hearing, referring to the Commonwealth Freedom of Information [FOI] Act, states:
KIRBY J: That signals, does it not, that the scheme of the Act is one which is giving effect to the fundamental and very important governmental purposes of the Act which is to render government accountable? So that suggests that this is quite an important part of the Act in the scheme of protecting legitimate confidences within the working of government, but making that truly exceptional and rendering it accountable to the people through the courts or through Parliament.
MR TRACEY: Yes, your Honour.
KIRBY J: That is what makes this quite an important question.
In an article in the Weekend Australian on 4 May 2006 Chris Merritt, the legal affairs editor, quoted Rick Snell, a senior lecturer in law at the University of Tasmania, who attended my Open Government forum in 2001. Rick Snell said:
The Commonwealth FOI Act was the nation's most antiquated and restrictive. Ten years ago the Law Reform Commission recommended 106 changes. None has been made. But Mr Snell said it was not beyond redemption.
We are at a tipping point. It is unlikely there is going to be legislative change in the near future at the commonwealth level, but a ringing High Court endorsement of the general principles—and taking up McColl's call [for] leaning towards the public interest in release—could well change the way the Government responds to FOI applications.
One of the biggest problems was the way the procedures under the Federal Act could be manipulated to delay disclosure and increase costs in the hope that journalists would lose interest.
This is exactly what happens in New South Wales under our FOI laws. Robert Cianfrano is one constituent who has been challenging the FOI laws for many years now. He has been trying to get information regarding the sale of public assets, in particular the Sydney Markets site at Flemington and the Beacon Hill High School site. The level of obfuscation, delay, buck passing and time wasting of government departments is staggering. Mr Cianfrano must regularly challenge decisions not to release documents through the Administrative Appeals Tribunal. The Government fights these actions all the way, wasting taxpayers' money in hiding documents that should be publicly available as a matter of course.
On 16 November 2004 I asked in this House how much it had cost the Government to stop Mr Cianfrano from getting the information he sought. The answer from the Premier's Department was that it did not pay the Crown Solicitor any fees for the work, but the costs were covered by a "core legal services" arrangement between the two departments. Once again, no answer and more obfuscation! Mr Cianfrano pursued the matter and finally got documents showing the amount the Crown Solicitor had charged other agencies for his FOI requests. From 1 July 2004 to 2 March 2006 the fees were $210,929.28. That is staggering. It is a scandal and an outrage that so much money is being wasted to keep the Government's failings secret.
Journalists are constantly forced to seek information about government projects through FOI. The most recent example involved the Lane Cove tunnel. The Daily Telegraph discovered that the use of 200 metres of road leading to the Falcon Street off-ramp will be tolled at $1.20 when the Lane Cove tunnel opens. We had the same difficulty getting information about road closures relating to the cross city tunnel. That lack of disclosure resulted in a parliamentary inquiry costing more money to find information that should be made public as a matter of course.
The people of New South Wales deserve better. They deserve open government. But as long as the State is ruled by the two major parties, that will not happen. We need a new political system which is open and accountable and which represents the views and wishes of the majority of citizens. My forum on open government can be found by simply typing "Open Government" into Google. The web site is www.nsw.democrats.org.au/OPEN_GOVERNMENT_FORUM.htm.
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