When it became law in 1998, the Government Information
(Public Access) Act (or GIPA) was touted as heralding a new dawn of open and accountable
government that would shine a light on the decision-making processes of state government
agencies for ordinary citizens acting in the public interest.
I’m yet to meet an "ordinary citizen" who has engaged with the
GIPA system who would agree that it has gone even close to living up to that
promise.
The Act contains many fine words, not least its fundamental
premise of a legal “presumption in favour of disclosure”… unless - and there’s
the rub - there is an “overriding public interest against disclosure”.
In plain English, this means that a government agency must release information … unless it thinks it would be better for
the public not to.
As outs go, that’s a doozy.
Anyone who has tried to extract information from a
government department that they’d rather you didn’t have will know that most
government officials think that the public is usually better served by government
agencies keeping information to themselves.
Sure, the GIPA means that they have to tick a few boxes to formally
“justify” such a decision, but the Act provides a long list of acceptable
qualifications and exemptions (commercial-in-confidence, legal privilege,
cabinet-in-confidence, individual privacy, to name just a few).
Since the heady days of its introduction, the GIPA system has
become a veritable road train of trucks driven with increasing determination through
these gaping holes by state bureaucrats and in-house lawyers.
And if these information gatekeepers think they might not get
away with applying one of the many available qualifications and exemptions,
they’re ready with a maze of procedural roadblocks that only the most ornery citizen
will have the skill or time to negotiate.
By 2011, the deficiencies of the GIPA system had become sufficiently
obvious to motivate the then aspiring NSW Opposition led by Barry O’Farrell to
promise (in the Coalition’s “NSW 2021 Plan”) reforms that would “improve
government transparency by increasing access to government information”, noting
that “providing people with access to information leads to improved community
decision making and greater trust in public institutions”.
More fine words, but how well has the NSW Coalition government
delivered on this commitment? Is access to government information getting better,
or worse?
Judging by their recent refusal of requests for information,
the NSW government apparently thinks we’re better off not knowing a whole host
of things to do with key local issues.
Even in the face of a formal call for papers by the NSW
Legislative Council late last year, the state government is still refusing to
release key documents associated with its decision to cut the Newcastle rail
line (including the cost-benefit analysis and patronage loss study) and various
documents related to its preferred Hunter St light rail route (including the options
identification and initial feasibility study, the final business case, and
traffic modelling).
Requests for these documents made under the GIPA system have
been similarly refused.
More recently, the government has refused to release documents
related to its proposed joint high rise development with GPT in the Newcastle
CBD.
It’s hardly surprising that locals were concerned about a proposed
Memorandum of Understanding (MOU) between Newcastle Council and the state
government about how they might work together on what is now being called the “Newcastle
Urban Transformation and Transport Program” at a recent Newcastle Council meeting.
While referring to “transparency” and “accountability”, much
of the content of the MOU is about ensuring the confidentiality of information
about the future of public land in the Newcastle CBD, including the now disused
city rail corridor and the east-end high-rise towers site.
The proposed MOU was accepted by the council with minor
changes (none affecting the crucial confidentiality provisions), on the votes
of four Labor and one Liberal councillor (only nine councillors were in
attendance).
Labor’s Nuatali Nelmes and Declan Clausen won their Lord
Mayoral and Ward positions on a platform of open government reform.
The adoption of the MOU was the first significant Newcastle Council
decision to be carried by a combined Labor and Liberal vote since the Ward 3
by-election in February this year, which set the council’s current composition.
Here’s betting that it won’t be the last.
