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International Law

: Open and Shut

NSW ministers-even the standards are opaque

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We might be hearing more than we need to know about former NSW Minister for Transport David Campbell but there are large gaps in our knowledge about the standards of conduct and integrity of ministers in the NSW Government. This extract, with emphasis added to the last sentence, is from an Issues Paper on lobbying (page 22) released last week by the Independent Commission Against Corruption (more about lobbying in another post.)

In NSW there are currently no restrictions on former MPs or staffers becoming lobbyists, although ministers must consult the Parliamentary Ethics Advisor should they consider such a position within 12 months of leaving office. This is similar to the UK and Scotland although both those jurisdictions are in the process of developing restrictions (and, my comment, NSW is unique in Australia in not having legislative or other restrictions on such post office employment.) As the current NSW Ministerial Code of Conduct is not a public document it is not known to what extent, if any, it addresses this issue.

That issue or anything else to do with what is expected in the conduct of duties as a minister.

Then there's this provision in the soon to commence Government Information (Public Access) Act (Schedule 1, Clause 11) the need for which has never been explained, and represents a new departure in the direction of non-disclosure in that the Register of Minister's Interests is not given specific exemption in the Freedom of Information Act that has been in operation since 1989. The provision attracted virtually no attention when the legislation went through Parliament last year.

Ministerial Code of Conduct

It is to be conclusively presumed that there is an overriding public interest against disclosure of information the disclosure of which would disclose information contained in the Register of Interests kept by or on behalf of the Premier pursuant to the Code of Conduct for Ministers of the Crown adopted by Cabinet.

That is an absolute protection against disclosure, with no public interest or other factors to be weighed in the balance.In my submission to the Department of Premier and Cabinet on the Exposure Draft dated 3 June 2009 (page 11) I commented:

Ministerial code of conduct: why the Register of Interests kept by the Premier should have the status of an exempt document in all circumstances is hard to reconcile with the need for accountability and transparency in the conduct of public duties.

And then there's the matter of members of parliament and the decision to not extend the access to information law to the parliament, rejected by the Government after the Speaker and President ran up arguments that don't hold water including their assertion that sufficient public scrutiny comes from publication of the annual reports of the Department of Parliamentary Services that include aggregate data about expenditure on members' entitlements. Last year the Department spent a total of $123 million. There is a single line item in the accounts of expenditure of $29 million on members salary and allowances plus superannuation plus tax. What allowances are included isn't mentioned in the report. There is no break down of other expenditure on members electoral offices and staff.

Part of the argument was that no Australian jurisdiction has done this- Tasmania since has. Another was that the separation of powers meant that the parliament had to have the same rules as the courts to preserve independence. Yes, but the courts are covered by the Freedom of Information Act and the new law in respect of information other than that relating to the exercise of judicial functions, ie matters of an administrative nature.

The open government promise rings a bit hollow when these gaps in transparency and accountability of ministers and parliamentarians remain.

Full post as published by Open and Shut on May 21, 2010 (boomark / email).