NCAT smashes depa and the OLG can keep their secrets

Details: Published: Wednesday, 18 May 2022 13:00

SagittiariusA1

Yes, this is an image of Sagittarius A, the massive black hole discovered and photographed only last week, right in the middle of our galaxy. It’s incomprehensibly huge and powerful, it’s 26 million kilometres in diameter and 25,640 light years from Earth.

OLG has regularly been characterised as a bureaucratic equivalent of the Bermuda Triangle, and as a black hole, and while investigations and reports might take years and years from the initial complaint, if your next complaint about the behaviour of a councillor heads for Sagittarius A, it will be gone forever. There’d be bureaucrats over the years at OLG who would envy that.

It’s notorious we wanted some documents from OLG, not about an investigation, but about the decision following an investigation that would allow us to understand what appeared to be factual mistakes made by former CEO Tim Hurst over a councillor at Wagga Wagga. And, in particular, that Hurst had “considered and taken into account that this conduct occurred in a single episode, and the absence of any prior offending or post event conduct in the past two years and the lack of previous incidents of misconduct on the part of Clr Funnell”. This in turn meant that the recidivist serial offender got off lightly.

The GIPA Act was introduced as a bill into the Legislative Assembly by the NSW Labor Premier at the time Nathan Rees, who described it as a huge step that would be best practice in Australia for allowing access to documents previously unreasonably denied, and at the same time established the Office of the Information Commissioner to ensure this would be best practice in access for the public to decisions of government that had affected them.

So it seems hugely inconsistent we would find ourselves in NCAT with OLG unreasonably denying access and with the Office of the Information Commissioner vigorously supporting them.

The GIPA Act excludes access to information about investigations conducted by OLG and while we didn’t want to know about the investigation, just how the decision was made subsequent to the investigation, we know OLG rejected our request, even before our $30 cheque would have arrived in the mail to their Nowra Office, we thought it unreasonable and went to NCAT for a remedy.

Last week NCAT rejected our request, deciding if OLG says it’s excluded information, then it must be excluded and unavailable for review - untouched by the ambitions of Premier Rees and the ambitious transparency of the GIPA Act and a theoretically enabling Information Commissioner.

This is enormously disappointing, inconsistent with the purpose of the GIPA Act and we are looking at our options. While OLG has the power to withhold the information, they also have the capacity to exercise a discretion to provide it. Maybe we should ask them nicely? Again.

Here is a summary of the judgement by our barrister Ian Latham.