In the wake of a scathing report into Child Protection by the NSW Auditor-General, the NSW Civil and Administrative Tribunal (NCAT) has consciously delayed well into next year the release of crucial child protection oversight documents. Rex Patrick reports on a government tribunal serving its masters.
I can comfortably say that I’m one of, if not the most experienced Freedom of Information litigants in the country. I’ve had matters in the Federal Court (including the Full Court), the Administrative Appeals Tribunal, the South Australian and NSW Civil and Administrative Appeals Tribunal and with various Information Commissioners around the country.
I mostly win FOI cases, but not always. I react to the losses with quiet reflection or an appeal. So, this article of criticism of NCAT is a little out of the ordinary but justified.
Put it in the post, please
My first strange experience with NCAT was when I tried to make an application for the review of a GIPA decision (the NSW equivalent of an FOI). Like I do in all other jurisdictions, I emailed my application to NCAT.
The response I got from the Registry was one of, sorry, we don’t accept applications or submissions, via email.
I was told to package my documents up and send them via Australia Post. It was like something straight out of the 1980s – and certainly a first deterrent to anyone under 50 in NSW that wants to challenge a Government decision.
Get a lawyer, really?
The next strange experience I had was when NCAT refused to let me represent (free of charge) ‘Sally’, a whistleblower who was then forced out of the NSW Health System.
Sally suffered from mental health issues following a complaint she made about corruption in the senior echelons of NSW Health. She FOI’d the report generated in response to her complaint and was refused access to it. She’d gone to NCAT to have the refusal independently reviewed and found herself up against a seasoned barrister representing NSW Health.
She asked me for help. I said yes. NCAT said no. They weren’t about to let me, a non-lawyer assist her. Principal Member Aaron Suthers, clearly oblivious to what someone has to pay to have a lawyer to represent them in a complex FOI matter, suggested Sally hiring a lawyer was her best course of action.
Lawyers’ Picnic: NCAT fails to protect whistleblower in case against NSW Health
Sally withdrew her application. A later FOI showed that NSW Health’s costs for its legal team, paid for by the taxpayer, was $47,509.
(Source: FOI) Money paid to Clayton Ute to Resist Sally’s FOI
Smelling a rat
As a former senator I’m experienced at smelling a government rat.
Hearing that NSW child protection was in total disarray, on May 20 this year I made a request for the Budget Estimates brief that had been used by the NSW Department of Communities and Justice (DCJ) Deputy Secretary Simone Czech when she appeared before a NSW Legislative Council budget estimate committee in March. At the national level, I’ve successfully FOI’d Senate Estimates briefs many times.
Just over two weeks later, the NSW Auditor-General handed down a scathing report into the State’s Child Protection System. He found:
“The NSW child protection system is inefficient, ineffective, and unsustainable. Since 2018–2019 there have been increasing child protection reports, escalating out of home care costs, insufficient placement options for children with complex needs, and limited services or support for children and families engaged in the child protection system. Despite numerous reviews into these issues, DCJ has failed to make the necessary changes to ensure its child protection service model meets the needs of children and families.”
Covering the cover-up
DCJ then responded to my FOI suggesting I couldn’t have the Estimates Brief because it’s a Cabinet Document (really, estimates briefs are sent to Cabinet?) and a document subject to Parliamentary privilege.
I was ready for the refusal. The document’s contents are no doubt ‘red hot’, and they weren’t just going to hand them over.
With my application to NCAT for a review, I included a detailed and forceful submission. That immediately caused DCJ to engage counsel and for the Premier’s Department to intervene in the proceedings. The NSW Information and Privacy Commissioner intervened as well, presumably to act as amicus curiae (a friend of the Tribunal).
Exemption farming
DCJ, the beneficiary of any delay in the release of the document, asked for the Cabinet exemption claim to be dealt with first, then the Parliamentary privilege issue to be dealt with at a later date.
I strongly objected, pointing out to the Tribunal that GIPA (FOI) primary purpose is to advance responsible government – where citizens get to have a say and to scrutinise and criticise the NSW Government – and that can’t be done with stale information. It’s quite normal for tribunals to deal with multiple exemptions at a time.
Despite my pleadings, Principal Member Kay Ransome acquiesced to the government’s request.
“I’m disappointed Principal Member”, I said. “The effect of this will mean this controversial documents will not see light of day until well into next year. The State thanks you.”
Refusal to enforce its orders
To wrap up my experience to date, there’s another matter before NCAT where, on no less than four separate occasions, the DCJ has failed to comply with NCAT’s orders to make a decision. But the Tribunal has just ignored the contempt … and the matter has gone on and on and on, unresolved.
When I raised a contempt application, I was confronted with NCAT Deputy President, acting Judge Nancy Hennessy, who expressed doubt as to whether the Tribunal can even hold a Government Department in contempt and indicated the application I had made could result in an adverse cost order – I formally ask the Tribunal to enforce its orders against the Government and the prospect of me having to pay for the offender’s lawyers was raised.
What a remarkable state of affairs. I formally ask the Tribunal to enforce its orders against the Government and the prospect of costs gets raised.
One would expect a recalcitrant agency to get a good thrashing, but not even a wet lettuce leaf is produced, and the applicant who had the temerity to suggest that bureaucrats comply with the law is confronted at the outset with the risk of heavy financial cost.
Rex Patrick is a former Senator for South Australia and earlier a submariner in the armed forces. Best known as an anti-corruption and transparency crusader, Rex is running for the Senate on the Lambie Network ticket next year - www.transparencywarrior.com.au.