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.