Thursday, October 16, 2014

So why should some decisions be made behind Closed doors?

Election campaigns are littered with new candidates pillorying Councils for making decisions in the “Closed” agenda.  Re-nominating Aldermen/Councillors are often defending the same.  Some Councils even close off a number of committee meetings to the public and then are surprised to find themselves up for all sorts of corruption allegations simply because people just don’t know what is going on or what is decided. 

The implication that all decisions made behind closed doors are corrupt and dodgy, or come about as a result of payments in kind, that they are favours for “the boys” or “the big end of town” has to be challenged and examined. 

If candidates are up on their hind legs implying that they are made of greater moral fibre and would NEVER make a decision in confidence behind closed doors, have they really got any idea of the law of local government?

And what do I say?

Bollocks, I say, bollocks, to any candidate who demands complete transparency in all local government decision-making. 

Either these people don’t actually know what they are getting themselves in for under the Local Government Act or we’re seeing a very cynical crop of new candidates who are playing hard and fast for all the electoral benefit it can get them, despite either actually knowing better or acting in ignorance (theirs and the public’s) of the full facts and happy to keep it that way. 

This sort of higher moral ground superiority on the campaign trail is nothing but the politics of division in a handwringing, eyes raised to heaven guise.

And I think it’s a safe bet these are the same people who value having an anonymous voting system for Federal, State and local government elections.

Come to think of it, those who tend to be most ignorant of the provisions of the Local Government (Meeting Procedures) Regulations 2005, Section 15 (see appendix below) are often the loudest in demanding transparency in decision making.  And guess what, they usually have no experience of local government as an elected person.  I can assure them it gets a bit more complex once you’re actually elected.

And it’s difficult to get such high minded candidates to define transparency, because once challenged, they start down their own slippery slide of qualification as to what’s in and what’s out.

Harsh comments?  A tad on the less than diplomatic side?  Perhaps, in some eyes, but now I’m speaking as a person whose seen both sides and been out at enough public meetings for candidates to listen and observe the behaviour before and after.

There has been enough of it on display at a number of candidate meetings around Hobart.

Do as I say, not as I do

And at Council on Monday (13 October) the public gallery observed a fine example of cynical electioneering by a Deputy Lord Mayor aspirant (no, not me) to get Closed meeting reports and votes into the Open.  No doubt it was an attempt to best the motion being put up by a Lord Mayoral aspirant later in the Closed agenda.  And so strongly did the Deputy aspirant feel about the issue of the urgency of getting an urgent report to ensure greater transparency, that person actually voted against the motion they had put up asking for the same!

If the motion had been passed as an urgency motion, it would have been sent off for a report to the November Strategic Governance committee, and returned back for a Council decision in the same month for the new Council to implement.  Now it could be months.

The irony of the evening had to be the same issue being put up as a Notice of Motion in the Closed Agenda.  Now given the way the Lord Mayoral aspirant worded the Notice of Motion, it had to be considered behind closed doors in the Closed part of the Council meeting.  So I can’t talk about what happened, by law.

What I can say is that if people wanted to make a point about openness and transparency, they really need to think out some better strategies.

Is the concern for transparency simply driven by election agendas?  Well, very little has happened in the four years preceding, and the Myer issue has been going for longer than that, as well as a whole lot of other matters I haven’t noticed the sitting Aldermen getting hot under the electoral collar about.

The test of reasonableness

Have a read again of the Section 15 regulation below and ask yourself the question as to what is reasonable in asking for transparency, given the economic and social situation in which we live.  If any person thinks that every bit of information should be available in the world, think carefully.

If you stand for complete transparency, then you are saying no decisions or information of any kind at all can be treated on a confidential basis.  None.  And so what applies to government behaviour therefore should apply to private behaviour as well.  All information should be able to be revealed.

No, I hear you now say?  Now, where do you draw the line, I must ask?

Is the intent of the use of the information the issue?  Is it a matter of consent?

Are you finally waking up to the fact that we live in a complex society which is motivated by self-interest both positive and negative and is probably not likely to change any time soon?  (Go back to reading Iain Banks’ Culture novels, if it’s of any comfort.)

Information transparency is a matter of usage and abusage.

Witness the disgraceful lack of ethics of a long gone Premier of Tasmania revealing under parliamentary privilege for the press to record in the newspapers the next day the poor state of the banking statements of one Mr Tatlow who was in a legal stoush with the State over Crown leases to mine peat moss.  The information was used to undermine Mr Tatlow’s reputation and legal case.  Is this the sort of transparency you have no problem with?

At the local government level there is no parliamentary privilege and transparency is determined by legislation.  

How about a person trying to flee an abusive partner, ends up owning a home in Hobart but does not want their home address or phone number revealed while dealing with Council over a rates matter?  Should this be revealed as a matter of openness and transparency?  How about revealing when Aldermen/Councillors are taking leave of absence to attend interstate conferences, thereby alerting the astute burglar to a home left unattended?  How unreasonable is this?

And what about workplace situations where the facts are very much disputed in alleged wrongdoings and the reputations of a number of people are being questioned?  Should all the details be revealed over the very long stretch of litigation, thereby perhaps creating the situation that further harm may be caused to individual reputations through the stress of having to publicly defend themselves from gossip and innuendo, until the final decision is made and people are vindicated or properly judged?  Where is the issue in dealing with such matters behind closed doors until a final resolution is reached?

When it comes to money, the regulations also allow for contracts for the supply and purchase of goods or services, or proposals for the council to acquire land or an interest in the land or for the disposal of land, or even trade secrets of private bodies, to be kept confidential.  A level playing field reason to treat the information as secret.  It provides the ability to consider a decision without being pressured in such a way that ultimately it is not in the best interests of ratepayers.  It provides the Aldermen/Councillors the discussion space to consider best use of land and all the options, in the best interests of the ratepayers.  Those of you in small business would appreciate being able to tender for goods and services knowing that your profit margins are not being undercut by unscrupulous others with access to your financial papers.  And if you have worked hard to create intellectual property rights, do you want them undermined by transparency requirements?  Should you not reap the rewards of your hard work, if you have a manufacturing process that you need to reveal (say for health and safety or environmental reasons) in order to gain a local government contract?

And then there is the matter of the security of property of the council – now seriously, should we be revealing the pin codes to the public or how often the security guys come round as a matter of openness and transparency?  And in this day and age of computer hacking, let alone home grown terrorism, just how sensible is it to make everything transparent about the safety of our water and sewerage operations, about where the back-up generator is located for the city, where we keep the garden fertiliser?

The law also covers information provided to the council on the condition it is kept confidential.  Commercial business transactions or legal advice most commonly comes under this, although it is a catch-all for other kinds of information.  And take careful note.  You can ask for information to be kept confidential, but a level of scrutiny goes into determining whether the information qualifies or not.  And you can bet your bottom dollar that legal advice will be sought when there is a dispute about this, because we all know legal cases often end up with a result, but the lawyers are the real winners when it comes to costs.

The Value of Privacy

Privacy is both a force for positive change and positive good.  Yes, such power can also be abused.  And we’ve seen the other side of the coin in our little all-dancing Western capitalist economy when it comes to money and information flows – those with access to restricted information can make a killing by cheating.  Where information is shared illegally, it’s called insider trading or an abuse of privacy.  Governments don’t like it when information that affects “national security” is leaked – Wikileaks has done a power of good in speaking to the truth of many a murky matter.  Yet what is sauce for the goose is not for when someone leaks our personal information that relates to our financial privacy – that’s an outrageous invasion, and more so when our family bank accounts become part of an identity theft scam.

If we run a business in our profit-driven economy, we don’t want our competitors to know what we’re doing.  So if we tender to local government in competition with others, we won’t want them to know what our bid is, so we can’t be undercut.  This is critical for small businesses in a world increasingly dominated by larger and larger businesses, and for a place like Tasmania, where in effect there is little choice compared to the larger markets of the mainland and elsewhere.

If we need legal advice, do we personally go into every legal situation with all our cards on the table?  No.  So why the same demands for Council’s acting on behalf of the ratepayers?  The nature of humans is to take advantage, so complete honesty in legal dealings is not the case in the common law justice system within which we work.  Would you be discussing various aspects of your divorce or car accident case with your lawyer in the waiting room for all to hear?  And to let the other side know what your thinking was?

And yes, we’re more than irritated when any government decides to wheel a truckload of documents through the Cabinet Room to give them “confidential” status – we’ve seen enough of this abuse from all sides of government and possible only highly placed public servants and certain politicians on the make would condone such behaviour. 

When it comes to information, sometimes there are genuine reasons to have meetings away from the public gaze.  Not all access is meant to be equal.  But I suspect, with my innocent belief in human nature that, by and large, most people do tend to do the right thing in respecting privacy, and making ethical, reasonable decisions behind closed doors.  As we all know, if you cheat, eventually you’ll get caught out when even the most glittering reign comes to an end.  Disgruntled ex-employees will speak out.  The 30 year rule is applied, etc.  ICAC’s get empowered.  If you do wrong, it will eventually come out.

Where is probity and good governance?

And be aware that at the local government level, there is no power to arbitrarily hide documents.  Local government is subject to FOI requests, and where reports have only small parts of them that are possibly best kept confidential (do they qualify under Section 15?), the Council is now regularly redacting reports.  When Aldermen question why the whole issue is being dealt with in the Closed meeting when only a small part is sensitive, the offending part is removed and the rest of the report is open to public scrutiny.

(The recent reports on encouraging development at the Springs is an example, although personally speaking, the bit that was redacted really is the bit that I’d like people to know about in order to get the whole report and council decision in context.  It was the sensitive bit that caused me to vote against what seemed a reasonable policy decision.  Oh well, you’ll all just have to wait for the development applications being sought by Council when they roll in to find out what I cannot by law reveal.  I meantime am left publicly opposing development at the Springs, which is not the full case, if you only look at how I voted.  Not so black and white, eh?!)

And here’s the thing.  Various candidates will make negative comments about closed decisions over property and developments.  Yet we can’t close a meeting to decide a development application – such items are open to the public by law.  And then they’ll rail against closed discussions over funding.

In our current western democratic economic system, the law under which local government operates states that if a person (or business entity) asks for financial and legal information to be kept confidential, local government must comply.  And you can bet your bottom dollar that local government, at least in Hobart, understands what is meant by the words probity and governance, in deciding what is to be transparent and what is best discussed behind closed doors, within the legal constraints under which we operate.

And even if we do decide for a host of reasons to grant monies to business and the decision is made in the Closed Agenda, it still has to be reported in the Annual Report and that is a matter of law and of policy.  Which Hobart City Council does do.  All of Council’s financial decisions are scrutinised by its Council’s Audit Committee and the State Government’s Auditor-General and reported accordingly in the Annual Report.

In effect, when it comes to transparency, the maxim, first, do no harm, applies.  Complete transparency can only occur when a number of tests are met in the best interests of those involved, and these tests are set in State and Federal legislation. 



Appendix: What can we not discuss openly?

Here’s the rules:

Firstly, have a look at the Federal government’s legislation surrounding privacy and security.

Secondly, enjoy the lighter read of the State government’s Local Government Act 1993 and associated regulations.

Here’s the relevant excerpt from the Local Government (Meeting Procedures) Regulations 2005:

15. Closed meetings

(1) A council by absolute majority, or a council committee by simple majority, may close a meeting or part of a meeting to the public only for a reason specified in subregulation (2).

(2) A meeting or part of a meeting may be closed to the public when any one or more of the following matters are being or are to be discussed:

(a) personnel matters, including complaints against an employee of the council;

(b) industrial matters relating to a person;

(c) contracts for the supply and purchase of goods or services;

(d) the security of property of the council;

(e) proposals for the council to acquire land or an interest in the land or for the disposal of land;

(f) information provided to the council on the condition it is kept confidential;

(g) trade secrets of private bodies;

(h) matters relating to actual or possible litigation taken by or involving the council or an employee of the council;

(i) applications by councillors for leave of absence;

(j) the personal affairs of any person.

(3) Unless subregulation (4) applies, a council or council committee must not close a meeting or part of a meeting when it is–

(a) acting as a planning authority under the Land Use Planning and Approvals Act 1993; or

(b) considering whether or not to grant a permit under that Act; or

(c) considering proposals for the council to deal with public land under section 178 of the Act.

(4) A council or council committee may close a meeting when it is acting or considering as referred to in subregulation (3) if it is to consider any matter relating to actual or possible legal action taken by, or involving, the council.

(5) If a council or council committee closes a meeting or part of a meeting, the grounds for the closure are to be recorded in the minutes.

(6) The chairperson–

(a) is to exclude members of the public from a closed meeting; and

(b) may exclude the general manager from a closed meeting if the matter to be discussed relates to the contract of employment or the performance of the general manager; and

(c) may invite any person to remain at the meeting to provide advice or information.

(7) The chairperson may–

(a) authorise the removal of any person from a closed meeting if that person refuses to leave; and

(b) request the assistance of a police officer to remove that person.

(8) A council or council committee by simple majority may re-open a closed meeting to the public.

(9) Any discussions, decisions, reports or documents relating to a closed meeting are to be kept confidential unless the council or council committee, after considering privacy and confidentiality issues, authorises their release to the public.



Authorised by Eva Ruzicka, 10 Congress Street, South Hobart

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