How the Gutwein government in Tasmania flouts the law to hide its secrets (and gets away with it).

Each issue of The Washington Post carries this message right below the masthead: democracy dies in darkness

You can’t run a functioning liberal democracy if the voters don’t know what’s going on. Putin’s Russia is an extreme but valid warning.

If Tasmania declared war, no one would notice. But certain basic principles remain. So when the government of Australia’s smallest state dodges democratic values and its own  law, it’s time to worry.

The state’s Liberal government came to power in 2014 after 16 years of Labor rule. Since then the framework of laws and conventions safeguarding the public’s right to know – already flimsy – have been rendered almost meaningless. Most governments seek to protect their political interests by hiding scandals and secrets, but Peter Gutwein’s  administration has gone further than most.

Freedom from information

The Right to Information Act 2009 was a personal initiative of David Bartlett, then the Labor premier. It aimed to bring Tasmania more into line with freedom of information measures that had long been common elsewhere.

The Act provided a formal process by which any person could request information from any state public authority. There were certain exemptions, such as cabinet documents, some internal ministerial briefings, legal privilege and information that could compromise national security. But that left open the opportunity of finding out more than ever before about most aspects of public administration.

Crucially, unreasonable delay in complying with an RTI request was outlawed. The minister or agency had to respond “as soon as practicable but in any case not later than 20 working days after the acceptance of the application”.

It also required a standard of basic fairness: “A person who makes a decision in accordance with this Act is to act impartially in making that decision”.

But there were no sanctions. In practice, an agency could take as long as it liked. The only redress by an applicant would be to request an investigation by the Ombudsman – but the Ombudsman’s office has been so over-worked and under-resourced that such a process takes a year or more. And it’s getting worse. The Ombudsman, Richard Connock, reported to Parliament that by last June the average time taken to resolve an RTI complaint had blown out to 486 days – an increase of 22% in a year.

By that time, any information is likely to be useless.

And nobody is ever punished. Just the reverse: a bureaucrat could expect to get into serious strife for giving sensitive information to the public, no matter what the law says.

“It is the inevitable conflict,” one official recently explained to me, “between premiers who proclaim a new openness and ministers who understand that their performance or even success has nothing to do with the results of their agencies but of how that performance is represented in the media. So their focus is on avoiding scandal (which is usually an individual's suffering) rather than the needs of the many.

“So certain Ministers insist on being ‘briefed’ on RTI applications received and on decisions to release before the information goes out. Some of their chiefs-of-staff – the people who actually run government in Tasmania – will then try and influence the decisions or the release date.  Sometimes it is subtle; at other times it is blunt and directive.”

It has also been confirmed to me by a highly credible source that ministers and their chiefs of staff have threatened public servants with dismissal if they released information which, under the terms of the Act, should be released. This behaviour is a serious breach of the law, both in terms of failing to release the information and in threatening a public employee in this way and for this reason.

The record shows that the Police Department is the most open and responsive agency; the Health Department is the worst.

The answer to one journalist’s inquiry about ambulance ramping at the Royal Hobart Hospital took over four months. By that time, the information was all but useless. Another journalist asked about complaints at Tasmanian aged care facilities. That answer took six months.

Those reporters could, of course, have appealed to the Ombudsman’s office. One ABC journalist filed an appeal in September 2014 and got the answer in October 2018 – over four years later. The ruling was that the original request was wrongly denied and that the agency had acted incorrectly. By then it was a bit late.

National figures show that across the Tasmanian government in 2019-20, 21% of applications were refused in full by the agency concerned, by far the highest rate in Australia. Only 74% of decisions were made within the statutory time-frame, the nation’s second-worst. And 5.3% ended up being reviewed by the Ombudsman – a much higher rate than in any other state.

Not surprisingly, people are giving up on the system. In 2019-20, fewer RTI applications were made in Tasmania on a population basis than in any other jurisdiction – 1.9 per head, against 6.1 in Victoria and 6.9 in Western Australia.

A decade ago, the Health Department released information on around two dozen RTI applications every year. In 2020-21, there were just five.

Health is the most complained-about agency. In 2020-21, the Ombudsman carried out reviews into 16 RTI decisions and another 12 concerning Communities Tasmania, which previously had been part of Health. Together, they accounted for 55% of the total for all government agencies.

Nowhere in Australia is there adequate access to information that someone, somewhere in government would like to keep secret – but people in the smaller states are the most defenceless. The federal Freedom of Information regime has also been undermined, but the national parliament’s committee system helps to fill the gap. In Tasmania, parliamentary committees are routinely rebuffed and ignored by ministers, their staffs and officials. Seldom, if ever, are they ever brought to account. The threat of prosecution for contempt of parliament would be effective but is never used.

Although skilled, inquisitive journalism is an essential element of democracy, news organisations are weaker and more compromised than ever. Good journalism costs money, and that money has been flying away. Every major news organisation is weaker than it was a decade ago: the ABC is staggering under budget cuts, the non-Murdoch papers have lost their main income streams, and commercial radio is still dominated by shock-jocks.

Democracy dies in darkness, and it may just be doing that.