The Australian: Tasmania: Friday,
March 03, 2017.
Tasmania’s
right to information laws are being undermined by a major loophole that allows
ministers to extinguish appeal rights when denying information requests.
The
situation, confirmed to The Australian in a decision by the state’s ombudsman,
has prompted freedom of information experts to call for urgent action, if
necessary legislative amendment, to prevent wholesale exploitation of the
matter by ministers.
The
Australian is aware of at least three occasions in which senior ministers,
including the premier, have appointed delegates to make RTI rulings, which have
then denied the release of information.
Decisions of
a minister’s delegate cannot be reviewed internally and Ombudsman Richard
Connock has now ruled he has no jurisdiction either, due to the wording of the
RTI Act 2009.
“Section 45
(of the Act) specifically provides for external review of a minister’s
decision, but ... not one made by his or her delegate,” Mr Connock said.
The state
Liberal government disagrees with Mr Connock’s interpretation of the Act,
pointing to another section of the Act that says “any act or thing done by or
to a delegate ... has the same force and effect as if ... done by ... a
minister”. However, despite being elected on a promise of new era of
transparency, it is refusing to amend the legislation to fix the problem; and
is in the meantime enjoying the benefit of a mounting number of RTI refusals
not being open to appeal.
University of
Tasmania FOI expert Rick Snell said it appeared ministerial offices were
already exploiting the situation to avoid the release of sensitive
correspondence and action was needed to prevent widespread undermining of the
Act. “If the Ombudsman is going to insist on this interpretation of the Act ...
and now agencies are abiding to it, then the Act needs to be urgently amended,”
Associate Professor Snell said.
“It was
clearly not the intention of the drafters of this Act that there be this
loophole. The trouble about the loophole is that if you don’t close it, it’s
like a black hole ... that sucks everything in and becomes a routine means of
avoiding disclosure. The temptation now is becoming almost irresistible for
them that’s the nature of public servants, advisers and ministers’ offices.”
This had occurred
in Tasmania and Queensland in the past, when it emerged that documents that
been before cabinet could not be released. “They started to gather up all the
sensitive documents and attach them as (cabinet) agenda items on a routine
basis,” Mr Snell said.
The
government denied it was exploiting the loophole to avoid disclosure of
sensitive correspondence. “The government’s advice is that an RTI decision of a
delegate is reviewable under the current Act, and we have conveyed that view to
the Ombudsman,” a spokesman said.
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