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Premier – Transparency

Cassy O'Connor MP  -  Monday, 23 November 2020

Tags: Transparency, Right to Information, Parks EOIs, Reserve Activity Assessments

Ms O'CONNOR - Premier, notwithstanding that you have met with the Ombudsman and you said you have been through the Ombudsman's report, but for the Committee and so it is on the record again, the Ombudsman's report says:

Tasmania's public authorities refused access to any information in 30 per cent of their 2018-19 RTI decisions. This rate of refusal was nearly twice that of the next highest jurisdiction and 750 per cent that of Australia's most open jurisdictions. Tasmania's percentage of refusals in full has been increasing each year since 2016-17, when it was 15 per cent.

You would have to acknowledge there is a longstanding systemic and cultural issue here where government agencies, since the Liberals came to government in 2014, have been at least applying the Right to Information Act in its most restricted sense, we would argue not complying with the Right to Information Act and in fact that is one of the Ombudsman's findings around timeliness of responses. What are you going to do to improve the public's access to information through the Right to Information Act and to make sure that in future Tasmania does not have a reputation as the secret state?

Mr GUTWEIN - First, I make the point that the same act existed under you that exists under us.

Ms O'CONNOR - We didn't have data like this.

Mr GUTWEIN - In fact we have made some improvements to the act over time, which you supported in the parliament.

What I have undertaken to do - and I began that conversation with Richard Connock on Friday - is to look at ways and means that we can provide a more consistent approach across government, informed by Mr Connock and his investigations of what is occurring in other jurisdictions. As I indicated in the parliament, I want to fully understand that 30 per cent, what type of application was being refused and why and, regarding Mr Connock and the work he currently does, provide additional resources to ensure that those processes of review and any backlog can be caught up as quickly as possible. It is fair to say that the act is the same act that the government you were previously part of operated under.

What is interesting, and I discussed this briefly with Mr Connock on Friday, is the point is made here that the annual report highlights that the reasons for refusing. In the main, the reasons for those refusals is that information is already publicly available. I need to understand that thought because again, and to be fair to Mr Connock, he had a different view to that, I have undertaken to work through these matters and I will. I will take advice from him and others and have more to say in the new year.

Ms O'CONNOR - Premier, you might say, and it is true that it is the same act as was in place when we were in government, but it points to the act really only being as good as the government of the day. Isn't it a fact that changes to the act are meaningless in a way if the act isn't going to be complied with? Improving these statistics in the Ombudsman's report is as simple as you as the Premier and you have the head of the State Service here, letting the secretaries of agencies know you expect more openness and you expect more volunteering of information and you expect the act to be complied with.

Mr GUTWEIN - I do not think there is any argument that the act isn't being complied with. Regarding the decision-making process, that it is by delegated officers at arms' length from me or from other ministers. The matters that were raised last week, I have committed to looking into them. I have committed to work with Mr Connock and where necessary, providing changes to the act should he have recommendations for us to consider. He has indicated that he does have some that in large part are minor, other than a review in terms of his own function and decision-making. To be clear, I have committed to looking at this and I will.

Ms O'CONNOR - Your predecessor made a pledge at the Estimates' table that, for example, ministers wouldn't delegate Right to Information decisions so that there could be internal review.

Mr GUTWEIN - Wouldn't delegate or would delegate?

Ms O'CONNOR - No, your predecessor made a commitment that they would fix up some processes where ministers' delegates were making decisions that under the act were not subject to review. Last year at the Estimates' table in State Growth Estimates, we had a Right to Information response from the secretary of State Growth that had been delegated to him around the EOI process for development in parks that was not subject to review. Is this another issue you could please have a look at and perhaps uphold your predecessor's commitment for ministers not to use that loophole to stymie RTI requests?

Mr GUTWEIN - I would need to refer myself back to the commitment that was made by the previous premier and have a look at it.

Ms O'CONNOR - If it is a problem, will you fix it?

Mr GUTWEIN - I am happy to commit to having a look at that.


Ms O'CONNOR - Premier, back to Right to Information. We have heard repeatedly from yourself and other ministers, that RTI decisions are at arms' length from ministers. That doesn't mean 'hands-off', does it? You talked about the previous government having the same act. I can tell you, that the Greens ministers pushed out information proactively and we didn't need to sign off.

Are you aware that DPIPWE has a quality control committee which has been established to examine RTI applications and information, which is contrary to the act, and that quality control committee has overruled delegated officers? Are you aware that officers sometimes spend weeks refusing to accept a fee-waiver application in order to exploit a loophole not to begin assessment?

Recently we were told that we needed to wait for the minister's office to sign off on our Right to Information application before we could get the information. Would you agree that there is a cultural and systemic issue? I am interested in your thoughts specifically on a quality control committee that has been set up inside DPIPWE.

Mr GUTWEIN - First, I am not aware that there is a quality control committee and the assertion that you make. DPIPWE was one of the agencies that Richard Connock said was a better performer, whether that is as a result of training over the last 12 months. I asked him whether there are agencies that are better than others that he could point to. He pointed to Police, DPIPWE and Justice, from memory.

I am not aware of the quality control committee. All I can speak on regarding RTIs and my own experience with Treasury over a period of time, they have all been done completely at arms' length from me as Treasurer.

Ms O'CONNOR - Why do you think then there has been such a problem with the way the act is interpreted by agencies and those revealing statistics that were in the Ombudsman's report?

Mr GUTWEIN - Based on the discussion I had with Mr Connock, there is a need for consistency across government. I have undertaken to work with him. He has undertaken to do some of his own investigation regarding what happens in other jurisdictions and how matters are managed. I will wait until I can have that next conversation with Mr Connock, but it makes sense regarding an earlier question on training that we have a whole-of-government approach to how these matters are dealt with. I will certainly take advice and we will move forward on that next year.

Ms O'CONNOR - You would agree, Premier, that good governments have nothing to hide. Can you give the committee any indication when we are likely to see some improvement in the way the Right to Information Act is applied by agencies?

Mr GUTWEIN - I will continue to work with Mr Connock. I am not certain how long it will take him to make the inquiries that he has undertaken to do. I will be continuing the conversation with Mr Connock early next year.


Ms O'CONNOR - We have talked already about the lack of information about historical allegations of abuse from government. We have talked about huge problems with the Right to Information Act and the way it is interpreted by agencies. There are a whole lot of issues which point to secrecy not being a glitch but a feature of this Government, from the expressions of interest process for developments inside protected areas where no information has been allowed to be released unless the Ombudsman forced it, and that was around lease and licences.

There is a gag clause on proponents which is now the application process has been removed from the State Growth website. There is the political donations report which your Government has sat on for a year now. There is the opacity of the Office of the Coordinator General, there is the notorious small business hardship grants. Huge question marks being asked by people in Westbury about the lack of openness from Government on development.

Historically, there is the Tamar Valley power station and your refusal to provide information on that front. Marine farming, huge concern amongst communities about secrecy over the Government's plans for expansion, information on leases and environmental impacts. We have had difficulty getting information out of your Government on how much Crown land has been sold or leased or exchanged. You would not tell us at last year's Estimates who was on the Expenditure Review Committee of Cabinet.

Don't you agree that there is a cultural problem here that needs addressing as a matter of urgency? You are the one person, right now, who can do something about Tasmania's reputation as being the secret state which brings shame on us all.

Mr GUTWEIN - First, I do not think that Tasmania deserves that reputation as the secret state. As a government, we push more information out by routine disclosure than any government before this one. Things that were not in place under previous governments, we've released more than 60 new routine datasets on line. That expands public access to information. We've launched the new Government Information Gateway webpage that's available on DPAC's website to make government information proactively disclosed easier to find.

We continue to publicly report on gifts, benefits and hospitality. We have implemented and updated the Ministerial Code of Conduct and supported parliament's adoption of a new member's Code of Conduct. We have undertaken a review of the Electoral Act and, as I said, I will release that report early in the new year -

Ms O'CONNOR - Where's that?

Mr GUTWEIN - I will release that report early in the new year when I have turned my mind to it.

I wasn't being trite or trying to obfuscate. I've just simply had other priorities this year to deal with and I hope you can accept that. That report will be made public next year and I will provide the Government's position on it as well.

You touched on EOIs. We have actually increased the level of transparency. I know that you don't like the expressions of interest process but we actually provided an additional layer of transparency in that process. In the past, as you well understand, there was no expression of interest process; there were no applicants -

Ms O'CONNOR - No, that's right.

Mr GUTWEIN - No, it was just dealt with behind closed doors. We have provided an additional level of scrutiny.

Whilst you may not like the outcome of that process, it is more transparent than what occurred before. In terms of the thrust of your question, I reject that Tasmania is Australia's most secret state. However, there are always things that we can improve. I've undertaken through the process with the Ombudsman to look closely at the processes and procedures and importantly, the consistency across government in those RTI requests. I will continue with that process and as I've said, I'll have more to say early next year.

Ms O'CONNOR - I take on board what you said about Government pushing out information but that's information that's packaged up and it is information that you choose to make public. The issue here is that when there are community groups, individuals, stakeholders who are trying to access information which should be in the public domain, they're routinely knocked back. This is where there's an interface, if you like, or conflict between industry or a developer and community.

Always, Premier, the way the systems and processes fall into place is on the side of industry and you've got communities all over Tasmania who are feeling disenfranchised and they feel that there is secrecy at the heart of government, like the Fishers and Walkers Against Helicopter Access, and that's about Lake Malbena; the Westbury prison people. There are many groups of people who have formed a very clear view that this is the secret state.

Mr GUTWEIN - I again reject that broad assertion that you're making. As I've indicated, in terms of those datasets that we've put out, whilst you might put little weight on them, that is more information that's provided than what was provided under previous governments. I think you'd have to accept that.

Ms O'CONNOR - I'll just give you an example. The second round of the expressions of interest process for developments in public protected areas has a gag clause in it which prohibits developers from even talking about the proposal that they put to government - any part of it. The information that was on the State Growth website that related to that gag clause itself has now been removed.

Can you see why there is a strong perception in the community that secrecy is at the heart of your Government and it's a particularly pointed example with the expressions of interest process which you can claim is transparent but we know it's not because the Lake Malbena lease and licence went to lease and licence four years before Tasmanians found out about it.

Mr GUTWEIN - Regarding the expressions of interest process, I honestly do believe that we provide an additional layer of transparency in that compared to what occurred in the past -

Ms O'CONNOR - Where?

CHAIR - Ms O'Connor, do not interrupt, please.

Mr GUTWEIN - Prior to this Government, leases were signed with no knowledge whatsoever of even the lease being put in place.

Ms O'CONNOR - Not for lodges and huts and whole islands being privatised.

CHAIR - Don't interrupt, please.

Mr GUTWEIN - In terms of that process, the Auditor-General looked at it -

Ms O'CONNOR - And found significant problems.

Mr GUTWEIN - I thought quite the opposite, to be frank.

Ms O'CONNOR - Because you cherry-picked it.

CHAIR - Ms O'Connor, if you interrupt again I will have to give you a warning and the call will go to Mr Ellis. I ask that you allow the Premier to finish his response, please.

Mr GUTWEIN - My understanding is that that audit concluded that the EOI process as measured against the audit criteria was in all material aspects implemented and administered effectively and in a manner consistent with the Government's policy objectives. I don't think that's cherry-picking.

Ms O'CONNOR - Did you read the RAA bit?