The emerging integrity branch of government- so far "more by good luck than good planning"

At the AIAL National Administrative Law Conference in Adelaide last month, Deputy NSW Ombudsman Chris Wheeler spoke to this paper "Review of Administrative Conduct and Decisions in NSW since 1974-an ad hoc and incremental approach to radical change." (Box)

 At 38 pages it's a big but worthwhile and informative read including observations about changing attitudes within government to openness and transparency, and whistleblower protection.

 One of his two main points picks up on a theme advanced by then NSW Chief Justice James Spigelman in 2004, and by the Commonwealth and Victorian Ombudsman and others including NSW Ombudsman Bruce Barbour in this 2010 speech, that it is time to recognise a fourth branch of government – the ‘ Integrity’ branch."The role of the agencies within that Branch would be to ensure proper practice on the part of the organisations within the other branches of government." Wheeler argues for a review, clarification about where review bodies best fit, and some rationalisation and simplification.

Two extracts:

"FOI for the private sector" on the agenda at Canberra law conference

The 2011 National Administrative Law Conference will be held in Canberra on 21-22 July, with the theme "Democracy Participation and Administrative Law." I'm not going this time but a number of sessions are of interest, apart from the big picture topics: Sven Bluemmel, Western Australian Information Commissioner on Corporatisation and electronic records: on a collision course with administrative justice?; and FOI papers by Dr James Popple, Australian Freedom of Information Commissioner on Commonwealth FOI, and Avinesh Chand, Clayton Utz, Extending FOI to the private sector—accountability strikes back or a bridge too far?

I will be particularly interested in what Chand has to say about extending FOI.

Senator Faulkner’s announcement in March 2009 came as a surprise and out of the blue.

"the Government will (later this year) provide the Australian Law Reform Commission with a reference to consider whether FOI should be extended to, or another disclosure regime provided for the private sector."

While this proposal had been considered but not recommended in the Commission's 1995 Open Government Report, Senator Faulkner said

"the Government considers it timely to re-examine this issue in the context of the general reforms to freedom of information and developments on disclosure regimes in both public and private sectors."

There was no attempt then or since to explain or sell the idea. After the announcement it disappeared, apart from a couple of desultory repetitions of the intention in parliamentary debate in 2009.  

In late 2010 I made an FOI application for documents on the subject held by the departments of the Prime Minister and the Attorney General and wrote about what was revealed in January. It seems when Senator Faulkner moved to Defence later in 2009 the government dithered over what to do with an initiative approved by Cabinet but largely owned by him. Eventually in April 2010 public servants-who apparently were not involved in research or advice about the idea in the first place-recommended moving on. Attorney General McClelland was happy to approve other references to the ALRC. Nothing was said publicly that the FOI reference had effectively been ditched.

The draft terms of reference contained in documents released to Open and Shut state the subject was to be referred to the Commission 

Chief Justice reflects: admin law has come a long way in 40 years

In his Garran Oration 2010, Public Law and the Executive, delivered at the Institute of Public Administration Australia National Conference in Adelaide recently, NSW Chief Justice James Spigelman examined the growth and development of the law in Australia concerning the exercise of executive power. The address includes observations about the interpretation of the Commonwealth constitution, and the constitutionalisation of administrative law. The Chief Justice points to some surprising possible flow on effects to amendment of state constitutions that with hindsight might have rendered the abolition of the Queensland upper house of parliament unconstitutional. Much of the speech is devoted to the jurisprudence of judicial review of executive action and the proper role of the courts.

The Chief Justice reflects also on his first public foray into the world of government secrecy in a paper delivered to a conference in January 1972, his first book Secrecy: Political Censorship in Australia, published later that year, and the prominence it gave to the case of the late Detective Sergeant Arantz.

Arantz had leaked a research report on the incidence of crime in NSW that conflicted with the Government's public version of events, to be hounded out of the Police Force as a result of his public spiritedness, and with a politically influenced psychiatric assessment hanging over him to boot. (This post  on Arantz, and the book, was written last year on the death of Basil Sweeney, the journalist who broke the story.) As the Chief Justice observes:

The treatment that Phillip Arantz received is inconceivable today. The institutional structure has been transformed. I refer, for example, to Freedom of Information legislation, Whistleblower legislation, the Ombudsman, ICAC, Corruption Commissions, Integrity Commissions, Statutory Inspectorates and the enhancement, especially through Committee processes, of the efficacy of the ultimate accountability institution, the Parliament. These new mechanisms for ensuring the integrity of executive decision-making, have been reinforced by statute and by development of the common law, in the form of the invigoration of administrative law. This has been, in my opinion, the most significant judicial development of the law in my legal lifetime. We now have a vigorous set of institutions, principles and practices much of which have been conferred or extended by legislation, to reinforce the integrity of governmental activity.

Thank goodness.