NCAT hears Ian Robertson v OLG

 nothing to see here move al

On 9 June Senior Member Deborah Dinnen heard additional argument from the parties in support of submissions in writing already filed. The appeal filed by depa, is a response to a blanket rejection by OLG for access to documents relevant to the decision made by former OLG chief executive Tim Hurst on 5 February 2021 over a Code of Conduct breach by a Councillor at Wagga Wagga.

In particular, depa had pursued documents that may reveal how Tim Hurst’s order at paragraph 20 recorded that “this conduct occurred in a single episode, in the absence of any prior offending or post event conduct in the past two years and a lack of previous incidents of misconduct”, on the part of the Councillor, which is demonstrably untrue.

OLG had rejected our application under the GIPA Act on the basis that the “information sought was excluded information”, in that it was either part of, or “related to”, OLG’s investigation.

OLG filed evidence from their Manager of the Investigations Team, who was cross-examined by our barrister, and we had filed evidence of the process demonstrating factual errors in the Order and the steadfast refusal of the then OLG Chief Executive to respond to our emails pointing out these problems and asking for an explanation. OLG elected to not challenge this evidence...

This is not litigation at its most exciting or colourful. It’s interpretations of administrative law and, in particular, how broadly the expression “relates to” should be interpreted. We argued that process of the Chief Executive receiving a report and deliberating upon it and making a judgement was qualitatively different to the investigating process that preceded it.

The OLG’s argument means that they are not accountable for anything to do with an investigation because of protections under the GIPA Act and there are no options to allow access.

As it was eloquently and compellingly put by our barrister Ian Latham:

The absurdity of using such a paraphrase is that almost everything that the department does in consequence of the complaint would be covered by the definition. Details of a training course imposed as part of the disciplinary process would be so covered. Further, it would be covered by the definition without temporal limitation. The training course will be kept secret forever. Long after the state of New South Wales crumbled into the sea, there would be a file containing details of attendees at a Council training course. That could never be open to the public.

While the case is concluded and a decision reserved, the Senior Member invited the parties to provide any “extrinsic material” that may assist, including potentially second reading speeches and explanatory memoranda on the GIPA Bill, to allow the Tribunal to resolve issues affecting the transparency and accountability of the OLG.

Interestingly, the Office of the Information Commissioner applied to make submissions and in their 63 paragraph submission, focused solely on process and supported neither party. Considering that in the second reading speech by NSW Premier Nathan Rees on 17 June 2009, the Premier said “with these bills New South Wales will gain the nation’s best Freedom of Information laws. The public’s right to know must come first... Our public sector must embrace openness and transparency and governments must forever relinquish their habitual instinct to control information … this is supported by an explicit presumption in favour of disclosure”, this was a wasted opportunity. And given the Premier’s description of the Information Commissioner as a “new, independent champion of open Government”, hardly consistent with a champion of open government.

We have made additional submissions in response to the Senior Member’s invitation, seizing upon statements indicating a clear intention to improve transparency and integrity of government and end unnecessary secrecy.

This intention is clearly not evident in the way OLG conducts investigations, protects their findings and takes deliberate steps to avoid transparency and accountability.

We await the Senior Member’s determination.

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