Lawyers back in the driving seat on access to information in NSW

The new face of government in NSW on access to information-Attorney General John Hatzistergos.

The NSW Government, having done well with generally good reforms in the yet to commence Government Information (Public Access) Act has now dampened hopes ( well at least mine) by giving the Attorney General responsibility for this and related acts. There has been no announcement other than the publication of a notice in last Friday's Government Gazette ( Page 4110).

This is a whole of government administrative reform, not a primarily legal issue that fits with the responsibilities of the First Law Officer of NSW. The reform initiative has had up until now leadership from the top, with the Premier announcing the commitment to turn past practices of secrecy on their head, and with he and his department with all its clout shepherding the legislation through to finalisation. Now the Government has passed the parcel to the minister with a legal perspective to manage implementation from here on, with the major task the oft-spoken culture change. The Premier should be standing behind the Information Commissioner, particularly when other ministers will need to be required to toe the line.

The Freedom of Information Act which the new legislation replaces has been the responsibility of the Premier since commencement in 1989 because it was seen from the start as primarily a matter of public management, with administrative law implications, not the other way round-one of the reasons NSW earned a reputation until recent years for being less legalistic in this area than other jurisdictions. The new act-with emphasis on pro-active disclosure and formal applications for information only required as a last resort- properly moves even further in this direction, just as as more open government becomes part of the Government 2.0 discussion about changing the relationship between government and the citizenry. It's not primarily lawyer turf, as we see elsewhere.

For example, the Federal Government moved responsibility for Freedom of Information, and the proposed Office of Information Commissioner (incorporating the Privacy Commission) from Attorney General's to Prime Minister and Cabinet under the Special Minister of State. In Queensland the same shift of responsibilities to the Premier has taken place as a result of the passage of the Right to Information and Information Privacy acts. The recognition that less legalisms and more emphasis on citizen rights and public participation is behind these changes. NSW appears to be going in the opposite direction.

On the day that responsibility for the new legislation was given to him, the Attorney General appointed the NSW Privacy Commissioner Judge Ken Taylor Acting Information Commissioner to begin the process of setting up the new office. According to the announcement, "the appointment is being made as a transitional measure only. The Government will shortly commence the public advertisement and selection process for the appointment of a permanent Information Commissioner, with a view to having a permanent officeholder appointed upon commencement of the new legislation in early 2010."

Judge Taylor is a former District Court Judge, for two years NSW Health Care Complaints Commissioner, and sometime Director General Naval reserves. He'll need all the public administration experience he can muster to deal with the tough issues flagged in this letter about his appointment to the Joint Parliamentary Committee on the Ombudsman and Police Integrity Commission. Getting the public service ready for the change doesn't seem to be part of his responsibilities as training isn't mentioned. (Correction-it does include preparing draft guidelines and training materials). Nor are any initiatives to inform and educate the public about what are major generally positive changes in their rights. But I'll bet no fine legal point escapes attention.