BILL: Simplify

In speaking to the Government's Simplify Bill today, Mark noted that the vast bulk of it relates to access to government information and that while overall the reforms are an improvement, they are modest, lacking in ambition as to what is possible and what is needed. 


Statutes Amendment and Repeal (Simplify) Bill 2018

Twelve years ago, The Guardian newspaper wrote a piece about access to government information. Referencing material that will be common to people of middle age or older, the article said the following:

Almost as well known as Monty Python's parrot sketch is the rant in Hitchhiker's Guide to the Galaxy against local council planning by its hero, Arthur Dent. Where did he discover the council's plans to demolish his house? 'It was on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying, 'Beware of the Leopard'…'

In fact, if you go back to Douglas Adams' original script, Arthur Dent has to first make his way to a basement in the dark without stairs before he even gets close to the disused lavatory with its locked filing cabinet and security leopard. Why do most of us find that so humorous? The answer is because it is so true. Finding out what is going on in government can be a labyrinthine process that defies logic and appears to be deliberately evasive.

How is that relevant to the Statutes Amendment and Repeal (Simplify) Bill 2018? The answer is because the vast bulk of this bill, its 53 parts and 102 sections, is in relation to access to government information. The bill deals with dozens of acts that have existing provisions for notifying the public of decisions that have been made or that are under consideration.

Historically, the main methods of notification have been the Government Gazette and public newspapers. Now I bet, Mr President, that if you and I were to walk down Rundle Mall and ask a random selection of, say, a thousand South Australian citizens if they have ever heard of the Government Gazette, or if they have ever read the Government Gazette, then we probably would not need to take off our socks to count those who reply in the affirmative.

I do not want to discount the role of the Government Gazette. It is an important record of key decisions, but what it is not is a useful tool for notifying the public of things that might affect them and that they have a right to know about. That is why, over the last 200 years or so, rules have developed requiring certain notifications to be inserted in local newspapers. The idea was that most people read newspapers, so that would be a good way to reach people. Of course, not everyone did read newspapers but people of property, of wealth or influence did, so that was good enough.

These days very few people read newspapers. I do not know many people at all under 30 who read newspapers regularly. They might read online versions of newspapers occasionally, they might get their news from other digital sources, but young people in general do not read physical newspapers, and even those few who do do not examine the tiny public notices cramped up the back of the paper in six point font using archaic legal language that is incomprehensible to the bulk of the community. If the stated objective of public notification in the Government Gazette or in printed newspapers is to actually notify the public, then clearly more needs to be done.

The reforms in this bill include adding requirements for public notices to be published online as well as in the Government Gazette and newspapers. Of course, we do not yet have a single online government repository of public notices, but a requirement for online publication of notices is, nevertheless, a positive development. The wording in the bill is typically that the notice 'must be published on a website determined by the minister'. Overall, the reforms in this bill are an improvement, but they are modest reforms and they lack ambition as to both what is possible and what is needed.

In my view, they go nowhere near far enough to bring government into the digital age or to provide genuine, timely and appropriate access to important information about government that affects all South Australians. In the digital age there is no excuse for the levels of secrecy that still prevail in government. I will go into what the Greens believe the government should be doing shortly, but first I want to address the cultural shift that is needed within government and within government agencies.

In my 35 years of professional experience dealing with government as a lawyer, an advocate, a campaigner and a member of parliament I have experienced the huge culture of secrecy within bureaucracies that I believe is fueled by two primary factors. I believe one factor is an attitude or a culture of elitism. In many walks of life people become expert in what they do.

A common consequence is that they disregard the views of anyone who is not in their club, who does not have the same degree of experience or whose intervention is not likely to be useful in their eyes. At worst this manifests itself in making life as difficult as possible for people to find out what is going on. That was the experience of the fictional Arthur Dent in his hunt for the plans to demolish his house: they were hidden in the dark in a basement and guarded by a leopard.

At other times agencies will follow the strict letter of the law but they do nothing to encourage people to respond. They know that few people read the Government Gazette, and even a legislative requirement to publish a notice in the newspaper does not actually specify what page it has to be on, the font size, or whether the notice needs to be published in a way that makes it comprehensible, especially to a non-legally trained audience. However, we do not need to rely on fictional examples because there are a number of real-life case studies that illustrate the point.

I have previously used the example of mandatory public consultation in the planning arena. There is a provision in the legislation that requires local councils to consult their communities every five years about zoning rules, planning guidelines and development assessment. One council publishes a small newspaper advertisement way up the back, the language refers to 'a periodic review of the development plan pursuant to section 30 of the Development Act 1993', and the response they got from their community was zero. No-one responded to that ad.

On the other hand, another council publishes a much bigger ad, they letterbox all their local residents and they pose a more open-ended question along the lines of, 'What do you want for the future of your community?' If you add other questions such as, 'Are you happy with the provision of services and infrastructure in your neighbourhood?' and, 'Is there enough open space in your neighbourhood?' then you get people's attention. The council that framed the question like that filled the town hall with people who wanted to talk about those issues, and I know because I was there. It was about five or six years ago and it was Charles Sturt council under then mayor Kirsten Alexander.

The second main factor that I think goes to the culture of secrecy is an often irrational fear amongst public servants of the wrath of their political masters if they reveal too much information, whether or not the public has the right to see that information. It often involves self-censorship and it manifests itself in agencies doing the bare minimum to comply with notification rules. When we put our freedom of information applications in, you can almost hear the response in the department: 'What reason can we find to deny access to this information?'

I will give one example a bit closer to home. I hope they will not mind me referring to it because it is now old, but a few years ago I asked the Parliament Research Library to see what they could find out about a new public transport initiative that I had become aware of. The new initiative was called the passenger information system (PIS). I could not find anything online and I did not think it warranted a question in parliament or a freedom of information application, so I asked the library whether they might be able to help.

As it turned out, even professional researchers had trouble getting information out of the government. The sort of responses they were getting were: 'Who wants to know? What do they want to know for?' It was like extracting teeth. It was a simple question that was asked and their reaction appeared to be: 'Be nervous, be afraid; someone is out to get us.' In the end, the PIS turned out to be a completely non-controversial and very sensible measure whereby loudspeakers were installed at railway stations to enable someone in the control room to notify patrons waiting at the platform if their train was delayed. It was hardly going to bring down the government. The point I make is that you do have this culture of nervousness and secrecy within the bureaucracy.

In relation to this bill, expanding public notification to government websites should ensure that more people are reached, but it does not address these cultural problems, and that requires political leadership. The problem of tiny notices buried up the back of newspapers, amongst the used car and massage parlour ads, has its digital equivalent. In fact, it is even easier to bury in a complex website a notice, especially if that website has multiple menus and submenus.

Last year, when we were discussing the ICAC powers bill, I issued a challenge to MPs to see if they could find out from the ICAC website how they should go about making a complaint about ICAC or the Office for Public Integrity. The information was there, but it was so deeply buried within the website that Bill Gates himself would have struggled to find it. That is why my plea to government and to public servants over the last 30 years has been to make access to information the default position rather than the exception.

My plea to the government is: notify the public as if you really want them to get the information and consult the public as if you really want to hear their response. That is the cultural shift that is needed. Whilst I am not privy to the process that the government went through in preparing this bill, my guess is that they probably did an electronic word search for 'newspaper' or 'Government Gazette' throughout the statute book to identify where references to publishing notices on websites could be added to 'Government Gazette' and 'newspaper'.

That is fine as far as it goes, but I think the government could do so much more. I would like to briefly outline a simple measure the Greens believe the government should do if they were going to seriously reform the problem of community access to information and public participation, and that would be that each government agency should be required by legislation to publicly notify the general public of the availability of documents or the ability to make submissions or representation, and they should do that in a direct notification form: directly notify people who have previously expressed an interest in receiving this type of information. That is not rocket science; we all do that every day. We tick boxes in online forms: 'Please keep me up to date,' or, 'Please notify me about X, Y and Z.' All of us do that all the time; government departments do not do it.

That would be the simplest method: government agencies maintaining email lists, which go to people, and they can subscribe and they can identify what information they want to be told. To put that simply, you should not have to trawl through government websites, which is what this bill largely is about, and you should not have to trawl through newspapers or the Government Gazette on the off-chance that something of interest to you might have been published.

For example, if you are interested in development applications, licence applications, management plans, a call for submissions or any of the other hundreds of types of documents that legally must be publicly notified, then why not have a simple email subscription service whereby interested people receive an email when something happens that they care about. Like I said, it is not new; we all do it all the time.

The question is: why should it be easier to be notified of the day's news or weather than it is to access things that the law says we have a right to know about? I get a notification every Wednesday night to put out my rubbish bins. I have now remembered that it is Thursday and I can turn off that notification. However, government departments do not have this proactive pushing of information.

I will say that the government's YourSAy website is starting to get there. That is a very good service, and I think that would provide a useful platform for a more general notification regime, whereby people identify what it is they want the government to tell them about, and that ties in nicely with statutory public notification in these dozens and dozens of bills that are being amended by this simplify bill.

The Leader of the Government asked me some time ago what particular questions we might have, given that there are dozens and dozens of bills that are being amended. I think there are 53 parts; I think that 52 acts of parliament are being amended. The Leader of the Government said, 'Can you tell us what questions you might have because, whilst they do fall into some natural groupings, there is no one public servant that has their head around the whole of this bill.' So we were invited to put in advance our questions.

The questions that I will put on notice now are more general questions and they relate to this more general topic. Firstly, what policies or protocols does the government have in place to guide public notification? Is there in fact any overall policy in this area, or is it simply a case of agencies being allowed to do the bare minimum that is required by legislation, with the question of how they comply being left up to individual agencies?

My gut feeling is that that is the answer, but is there some overarching document that tells government departments: 'Make the font size at least this big, pay a bit extra and get it put up the front of the paper rather than up the back'? In particular, with this new legislation we are voting on, what protocols will there be? If it says in legislation that it must be published on a website maintained by the minister, where on that website? On the front page of the website, in the 'contact us' page or in the 'more information' page—where? Where are the protocols? What guidance has the government given?

A related question is: what administrative reforms, other than those in this bill, is the government now working on? I am hoping they are working on a more general public notification policy, but that is my question. I would point out that most of these other reforms that I have been calling for do not require legislation. I understand that governments are always nervous about legislating for more than the bare minimum, but that does not mean that you should not do more than the bare minimum. If you really want to protect yourself you put provisions in there to say, 'Even if someone subscribed to a government notification service and they didn't get notified, that does not invalidate the process.' There are all sorts of things you can put in to cope with electronic glitches.

Having gone through that general material, and given the hour of the day, I do not propose to go on a whole lot more but I will say that, with these 52 or so acts being amended, one of the obligations on us as members of parliament is to go through this carefully and to look for ulterior motives or unintended consequences.

I know the Leader of the Government has had some good sport at my expense when I previously and probably unwisely declared my disappointment at discovering a provision that I believed had been snuck into a previous simplify bill that had the effect of denying public participation in relation to the disposal of publicly owned waterfront land on Kangaroo Island to a private golf course developer. I have learnt my lesson; I do not want to give the Hon. Rob Lucas too much material to beat me up on.

The minister quite rightly pointed out that the job of MPs is to fully understand both the intended and the unintended consequences of every clause in the bill that we pass. That situation holds through even if the minister does not have that knowledge and even if there is not a single public servant who has all that knowledge—MPs have no excuse. So I have chased every rabbit down every burrow and what I found were more rabbits.

Certainly, we have had comprehensive briefings. Various government agencies, from parliamentary counsel right through to officers in individual departments, have responded to particular questions that I have raised. Some drafting errors have become apparent as a result of the work that we have done.

There are a few things that have been put in here which clearly are not simplified: they are not red tape; they were policy changes and we have identified those. They are not things that we are necessarily opposed to so there will not be any specific amendments in relation to those. However, I would like to thank the government for the effort it has gone to and the very many public servants required to give us a proper briefing on this.

I always reserve the right to be disappointed. I reserve the right to be deceived. I have not found anything in this particular bill but that does not mean that it is not there. With those words, I look forward to the committee stage of the debate.