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Thursday, August 23, 2012

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:
Public sector attitudes to openness and transparency
"In the 1970’s and 1980’s, when the view was put to public officials by Ombudsman staff that the public had a right to know (subject to certain essential limitations) and that government held information ‘in trust’ for the people of NSW, it was rejected out of hand.  This widely-held view only started to change with the introduction of the FOI Act in 1989.  However, this change was very slow as the new Act was met by an almost uniform approach by agencies and their legal advisors to read down its scope by the adoption of a very narrow and pedantic interpretation of its provisions.

The view that official information was held by government in trust for the people of NSW only achieved general acceptance across the NSW public sector (although still not universally) when it was effectively given statutory force in the Government Information (Public Access) Act 2009 (which implemented the majority of the recommendations made by the Ombudsman in his 2009 report to Parliament, ”Opening up Government”, following his review of the FOI Act). What assisted immeasurably in bringing about this change in attitude was a series of public statements made by the then Premier (Nathan Rees) in support of greater openness.  These statements were backed up by several Premier’s Memoranda and press releases, even before the new Act came into force.  We in the Ombudsman’s office noticed the change in approach almost immediately – our FOI complaint numbers went down significantly, with the proportion of FOI complaints from third parties objecting to release increasing."
From the paper's conclusions:

"The NSW Ombudsman, and the environment in which it operates, has changed radically since the Ombudsman Act was passed by the NSW Parliament in 1974:

·            The Ombudsman has gone from being a body:

-   with jurisdiction limited to most (but certainly not all) of the public sector, to a body with jurisdiction across the whole public sector as well as several thousand private sector organisations.

-   whose only role was complaint handling to a body with a wide range of review functions including:  administrative, compliance, legislative and death reviews

-   that was almost exclusively reactive and individual complaint driven, to a body that emphasises a pro-active approach with a focus on systemic issues, and
-   that was in many respects effectively a business unit of the Premier’s Department, to a separate administrative unit oversighted by a Parliamentary Committee.

·            The environment in which the Ombudsman operates has gone from having a single administrative review type body to a range of bodies, often with jurisdictions that overlap to one degree or another.

·            The attitudes of the government of the day and the public sector to oversight in general and the Ombudsman in particular have improved immeasurably.

·            The public sector now accepts that the public is entitled to expect high standards of customer services as a right, not a privilege.

·            Complaints are now generally seen by the public sector to be an entirely valid source of feedback from the public, and a valuable management tool, which has also led to a much more positive attitude to complainants.

·            The attitude of the NSW public officials to whistleblowers is also changing for the better, although there is a long way still to go.

As to the future, the speed of change in the operating environment of the Ombudsman shows no sign of abating.  We can hope, however, that the very ad hoc and incremental changes  that have characterised developments to date give way to some rationalisation and simplification.  The starting point for this should be a comprehensive review of the existing environment, and a more rational and considered approach to future changes in that environment.  Another related development that I foresee is a gradual recognition of an Integrity Branch of government, and the resulting greater level of actual and perceived independence for ‘integrity’ bodies."

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