Public sector integrity, transparency become ACT election issues

By Stephen Easton

Thursday August 4, 2016

Canberra’s local opposition and one-member crossbench are both trying to make public sector integrity and freedom of information into election issues ahead of the October 15 ACT election.

This year will be different with the Legislative Assembly growing from 17 to 25 seats, and it seems all bets are off when it comes to the agreement by which a minority Labor government has held power, supported by the Greens, since 2008.

Negotiations between the two over a stronger FOI system, one policy item left in that agreement, have broken down and the opposition has begun an attempt to position itself as the party of accountability.

shane-rattenbury-340x395Shane Rattenbury (pictured), the sole Greens MLA in the assembly following the party’s loss of three seats at the 2012 election, has given up on reaching agreement with the Labor government and begun talks with the Liberals over a new FOI bill he tabled in May.

“It’s not dead yet,” he told The Mandarin this week. “We’re still trying to get the Liberal Party on board.”

He explained the proposed system is mainly modelled on Queensland’s Right to Information framework, with “some tweaks” to “iron glitches out” — based in part on the advice of academics with expertise in the field, who gave feedback on an earlier draft released in October last year.

“It would be the most advanced freedom of information legislation in Australia, if it were to be passed,” said Rattenbury, who is currently the Minister for Education, Corrections, Road Safety and Justice.

“There’s essentially two key elements to the legislation. The first is an open-access scheme, otherwise known as the push model, which basically would require government to publish and disclose various government reports and information.

“And then the other is making the public interest the test for what information should be released, so it starts from a presumption that information should be released, unless there’s public-interest reasons why not to. It moves away from the sort of early model of classification of documents.”

“It would be the most advanced freedom of information legislation in Australia, if it were to be passed.”

The FOI system the Greens call for is more like the federal one, which has failed to live up to the promises of 2010 in the eyes of the FOI advocates who pushed for it, and gone too far in the eyes of most senior bureaucrats. The reality has drifted further from the initial rhetoric under the Coalition, which is clearly less supportive of the Commonwealth FOI regime and the Office of the Australian Information Commissioner than the government that established it.

With this in mind, there is a good chance the Greens proposal is a bridge too far for either of the major parties in the ACT.

“Certainly that has shown to be the case with the Labor Party so far,” said Rattenbury, but he holds out hope of convincing the opposition team, which contacted him on Monday to arrange discussions.

The Greens accepted the government’s position that it could never agree to loosening cabinet confidentiality and amended the bill accordingly, even though Rattenbury still personally maintains the view that plenty of cabinet documents could be released and a suitable public interest test would protect the rest.

The government also felt his proposed open-by-default scheme did not give sufficient protection to legal advice and other confidential communications.

“My view is that … now, having now been a minister and seen this process from the inside, there are plenty of [cabinet documents] that there would be no harm in releasing,” said the Greens minister.

And on the views expressed by a series of senior federal mandarins — that federal FOI laws have gone too far and forced undue circumspection that has harmed the quality of their advice to government — he isn’t convinced and believes it doesn’t have to be that way.

“I have heard those views. I don’t share them. I think if you can change the culture and embrace the community in allowing them to be [a bigger] part of the political discussion, I think you get better outcomes.

“And that is a difficult transition in the short term, but I think in the long term it produces better governance of your jurisdiction.”

New ACT integrity agency looks unlikely

The Greens have also made an integrity agency that combines an independent investigative function with some of the functions of the current Commissioner for Public Administration a key plank of their electoral platform. Neither the government nor the opposition is on board, although new deals could be struck once the make-up of the enlarged 25-member assembly is settled in a few months’ time.

“It’s about having a mechanism that can shine a spotlight into the dark corners and actually look at these areas of concern.”

Today (Thursday, August 4), the government’s Public Sector Management Amendment Bill is on the agenda in the assembly, and Rattenbury has signalled he will vote in favour, allowing it to pass into law. Controversial provisions that would have legally bound public servants to dob in colleagues for bringing shame upon the public service have been watered down after criticism by an assembly committee and the ACT Human Rights Commission.

Chief Minister Andrew Barr insists that bill’s provision for a new independent public sector standards commissioner, among a raft of other measures that include the creation of a Senior Executive Service, will do the same job as an “integrity package” announced by the opposition yesterday as an election promise.

The Liberal policy is essentially to provide more funding for the auditor-general and to establish a “fully independent” public service commissioner, while Barr claims the latter will be accomplished by his amendment bill and Rattenbury calls the opposition’s integrity funding boost “a sham and a farce”.

He is hopeful that after the election, there’ll be another chance to discuss the establishment of a genuine investigative integrity agency, which he believes is necessary to combat the various “rumours and innuendo that go around town” and undermine public confidence in the assembly, the government and the public service.

“What we’ve got in mind there is an agency that would have the powers to conduct investigations into allegations of misconduct, but also undertake preventative work through education and support for agencies and officers to improve their policies and procedures where necessary — so we can get a proactive approach as well as that reactive and investigative side of things.”

“The ACT is unusual in not having an independent investigative body and there are a range of options around.”

Recent examples of such stories might include the revelation that the Liberals receive donations from property developers based in New South Wales — where such payments would be illegal — even though the companies have no business in the territory. Or the suggestion that property developers might get special access to Labor politicians. Without a dedicated independent body formally looking into such allegations, Rattenbury says “trial by media” results.

“It’s come from a few places and there are incidents and rumours around town that people have different perspectives on, and as a single member of the assembly, I don’t have the ability to look into those matters in the detail to form a true judgement on them, and that’s something that we’ve been mindful of for some time.

“And, people approach me individually from time to time and say ‘I’ve got a concern about this’ and again, I don’t think it’s upon individual members of the assembly to make those sort of investigations. It’s about having a mechanism that can shine a spotlight into the dark corners and actually look at these areas of concern.”

Trial by media also comes up in discussions about integrity frameworks in another context — the publicity surrounding the actual investigations of such agencies — but the Greens are not set on any particular model just yet.

“We see some key principles,” said Rattenbury. “The commission must be independent from government. We think it could absorb some of the functions of the public service commissioner and the Commissioner for Standards at the assembly, because there would be some overlap there and so you don’t want to have duplication.”

“Obviously the investigative powers are important, so that the organisation does have the strength to do the job that needs to be done. And the other one is that strong focus on prevention, because we think that is as important and perhaps even more effective than catching up with people afterwards.”

Official investigations would be “an opportunity to both investigate serious allegations, but also for somebody who may have had something said about them to possibly clear their name, if they’re unfounded allegations” in Rattenbury’s view. Investigative journalist Kate McClymont gave examples of this happening in the New South Wales Independent Commission Against Corruption to a Senate committee that recently looked at the proposal for a federal ICAC or similar.

“The ACT is unusual in not having an independent investigative body and there are a range of options around,” said Rattenbury.

“There’s also Tasmania, which is more of a similar sized jurisdiction to ourselves. We’ve certainly had a look at their model since they implemented it.

“So there are different models in different states and territories and we’d certainly be looking at which ones have worked, what the critique of each of those is, and we’re very mindful of our smaller status as a jurisdiction.”

Northern Territory jurist Brian Martin recently recommended the NT more or less outsource its own new public sector integrity agency from South Australia, by legislating for a very similar system and having the SA commissioner make the calls on a part-time basis.

The ACT Greens minister is open to that sort of arrangement, too, perhaps with NSW.

“Yes, that is a potential model,” he said. “And that might be a cost effective way to do it.”

“So we again would not preclude some of those options from this stage; I guess we’ve come at it from the principles of what we believe is needed; the mechanism is something that you can do some work on down the line.”

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