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:
(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;
(e) proposals for the council to acquire land or an
interest in the land or for the disposal of land;
(h) matters relating to actual or possible litigation
taken by or involving the council or an employee of the council;
(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
(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.
(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
(a)
authorise the removal of any person from a closed meeting if that person
refuses to leave; and
(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
No comments:
Post a Comment
All comments will be moderated and if anyone thinks that appending "confidential" or "private" or similar to a comment, forget it. Democracy at its best is transparent, open and democratic.