Getting practical about the public interest: two perspectives

With the Morrison government burning taxpayer-funded advertising dollars faster than you can say “the last days of Pompeii” let’s momentarily turn our eyes to another problem that is, well, in the public interest.

That’s because the University of NSW Canberra and the NSW Ombudsman’s office are holding a seminar next week (April 16) in Sydney called “Getting practical about the public interest”.

It is their second joint symposium on the subject – the first, last May, resulted in a book, edited by Professor Tom Frame, called “Who defines public interest?” It traverses such topics as: the public interest and the common good; the accountability test; public leadership; political parties; public sector priorities; media reporting; and the disciplinary “communities”.

Next week’s seminar, with a cast of luminaries, will move further into the working lives of public servants.

It will tackle some of the most vexed areas that test questions of the public interest:

  • immigration policy;
  • state planning;
  • the new private sector whistleblowing laws;
  • political character;
  • water regulation and enforcement;
  • the case for a public interest advocate; trust in government;
  • …and more.

The organisers have put out two discussion papers.

In one, UNSW’s Tom Frame has addressed the place of universities in Australian national life; whether they and their staff are required to serve the public interest; and why attentiveness to the public interest is an effective operating principle.

He observes, “… there are compelling reasons for universities making advancement of the public interest an organising priority and an operating principle. And yet, reticence about doing so remains, with no Australian university having the phrase ‘the public interest’ featured in their legislative charter.”

READ MORE: How the APS can build trust by adopting institutional integrity

In the other, and at the sharper end of business, NSW Deputy Ombudsman Chris Wheeler tackles the toughest challenges in complaints handling.

He says that as agencies have improved in the way they manage their own complaints, the Ombudsman is receiving fewer straightforward complaints. “This means that we are seeing and becoming involved in the more complex matters, and dealing with people who may present with more challenging behaviours and approaches”.

He outlines a nightmarish but very realistic hypothetical case and says, “While we have guidance for agencies about how they can respond to what we have termed unreasonable conduct by a complainant, in some cases people simply ignore these controls and continue to make contact and complain.

“Alternatively, the person may complain of discrimination and also start to make access to information application under the relevant legislative scheme. This is then followed by appeals to a tribunal about any refusal to provide access.” And so on.

(Wheeler who, by the way, is also an expert on whistleblowing, is far more diplomatic than one former Commonwealth statutory officer who caused quite a stir in Canberra decades ago by describing their most vexatious complainants as “querulous paranoids”.)

Wheeler says one option might be to legislate a Customer Service Act or similar, requiring the government of the day to set priorities for service provision, including a commitment to respond appropriately to all complaints – which is not as easy as it seems. It might include a legal provision to manage a (vexatious) person’s access to complaint handling services.

“This would be an approach where the consideration of the public interest would be essential. Where should limited resources be applied? How should a decision around a complaint management type order be made? Who should make that decision? How long should a restriction apply? These are all important questions and I am not suggesting we yet have the answers.”

He says some NSW legislation already contains provisions that might be useful starting points, including s.110 of the NSW Government Information (Public Access) Act 2009 (Orders to restrain making of unmeritorious access applications) and the Vexatious Proceedings Act 2008, recently amended. Both, he says, are aimed at a very small percentage of people.

However, he also warns that they place restrictions on important rights.

“Being able to make information access applications allows us to look behind government decision-making and hold decision-makers to account. Being able to access justice through the court system is one of the central elements of our democracy, and restricting that access involves a substantial public interest balancing act.”

One approach, he says, might be a tribunal empowered to make an order allowing an agency to apply “management strategies” similar to “civil restraint orders” under the UK’s Civil Procedure Rules.

He suggests various options for the considerations that might be applied, such as where complaints “are so obviously untenable or manifestly groundless as to be utterly hopeless, misguided or misconceived; and/or are clearly delusional, imaginary irrational, absurd or an exercise in futility (based on a ‘reasonable person’ type test).” There could also be limits on the number and type of communications that could be sent to an official.

Then there is a “resources” argument, allowing an agency to say that the complaints had substantially and unreasonably diverted its resources.

This is similar to most freedom of information legislation but (although Wheeler doesn’t say so) that is not necessarily a good thing, given how many agencies hide behind it – and not only in FOI applications but in refusing to answer parliamentary questions on notice.

He does, however, acknowledge such dilemmas, saying, “We are confronted here with a delicate balancing act and it is a perfect example of the pivotal role the public interest serves in reaching a just, fair and reasonable outcome.”

Amen to that.

About the author

The essential resource for effective public sector leaders

Can you afford to miss the next briefing from Mandarin Premium? Sign up today.

Get Premium Today