Commenting on the story: Moran shrugs off misconduct finding, announces mayoral run
Is it odd that in the 21st century, the public office of Ombudsman appears to have transmogrified from an independent role that generally investigates and addresses or mediates complaints by a citizen about the conduct of an entity or public agency in respect of that citizen, to one that is now charged with the usually separate roles of investigator (collector of information), jury (determiner of facts) and judge (determiner of law and penalty)?
I’m reminded of the 17th century Star Chamber that began with good intent, eroded over time, and ended in ignominy and historical infamy.
Cr. Moran might be excused for ‘shrugging’ off what appears to be a ‘storm in a teacup’, but the effect of the report and its findings raise some serious questions.
The Ombudsman concluded ‘that the remarks do not appear to have disclosed information that was likely to be of particular sensitivity to the state government or the council’; a key conclusion omitted from the ‘opinion’ of the Ombudsman. The Ombudsman does not identify that any confidential or sensitive information was disclosed; the only information identified being information already in, or readily surmised from, the public arena.
The Ombudsman says that all that is required is to ‘divulge information’ that falls ‘within the ambit of the confidentiality order imposed by the Committee’, despite the ‘broad terms of the … order in question’. On that basis, had the official time of sunset been discussed during a meeting from which the public had been excluded, a subsequent public statement by an elected member about the time of sunset would be at risk of reprimand for misconduct because it was information ordered to be kept confidential; surely a perverse result that cannot reasonably be said to be in the public interest and or within the legislative intent. That is not an extreme example.
The report relies on InDaily’s article referring to Cr. Moran apparently saying the State government was planning to undertake a ‘detailed cost benefit study’, which is simply another way of saying ‘Feasibility Study’. Such a ‘Study’ was referred to in the applicable Notice of Meeting and Agenda item; was referred to by the Committee Chair and the Acting Chief Executive; was subsequently referred to in the published Minutes; and as reported by InDaily, was remarked upon by the ‘council’s director of growth’. Nonetheless the Ombudsman was ‘satisfied that [remark] identified information falling within the ambit of the confidentiality order imposed by the Committee.’
The Ombudsman opines that it is ‘important that council members … uphold the lawful decisions of the council’s governing body’. One might not argue with that, but it begs the question of lawfulness, the determination of which is a question for a judicial body. However, given the gravity of possible consequences for an elected member, it also begs consideration of the legislative provisions relied on by the Committee and the ambit of its resolutions.
The Council Committee resolution to close the meeting to the public relies on section 90(3)(j) of the Local Government Act – i.e. ‘information the disclosure of which would divulge information provided on a confidential basis’ – and, as required by s 90(2), specified the ‘ground’ on which the exclusion is made (s 90(7)) as: ‘this item includes information provided on a confidential basis provided by a public authority’, the ‘disclosure of [which] could reasonably prejudice the ability of Council to undertake/participate in further negotiations relating to hosting a future Commonwealth Games.’
There is nothing within the report of the Ombudsman that identifies that any of the remarks attributed to Cr Moran was confidential information that had been ‘provided’ by the public authority at the time the Committee resolved to exclude the public or, in relation to public interest, ‘may pre-empt the potential negotiating ability … for future commercial deals …’.
There is nothing apparent on the face of the report that establishes that any of the ‘remarks … attributed to Cr Moran’ in the InDaily article came within the basis on which the applicable resolutions were made. The Committee’s subsequent ‘Confidentiality Order’ was made ‘in accordance with Section 91(7) & (9) of the Local Government Act’. Those provisions make no reference to ‘discussion’, to which the resolution refers. S 91(7) is confined to documents: a council does not have to make public ‘a document or part of a document if [it] relates to a matter dealt with by the … committee on a confidential basis … and the … committee orders that [it] be kept confidential’. S 91(9) deals with duration, requires the ‘grounds’ for the decision to be specified, and enables a delegate to revoke the order.
The part of the Code of Conduct referred to speaks to ‘information … ordered to be kept confidential’. Surely that Code cannot require ‘information’ to be kept confidential what the legislation does not so require. There is no finding (or even a suggestion) that the remarks ‘divulged information provided [by the public authority] on a confidential basis’, that is, there is nothing to suggest that each or any of the remarks were information that the public authority considered to be confidential or had been provided on a confidential basis.
The media has run a campaign about the ‘culture of government secrecy’ that it asserts is ‘stifling public debate and the public interest’. Here is an example that warrants its consideration. There is no finding by the Ombudsman of any disclosure of any confidential information. The Ombudsman noted ‘the broad terms of the confidentiality order in question’; the order appears to go well beyond being confined to ‘confidential information’. The report does not mention or consider the legislative provisions on which the Council Committee relied in making its resolutions, none of which refer to ‘discussion’. There is no finding that the remarks divulged information provided on a confidential basis.
Regrettable it may be that the role of Ombudsman appears to have become investigative, determinative and punitive, albeit phrased in the language of recommendation, the effect of this report extends well beyond the council and councillor concerned.
It exposes an elected representative to the gravity and serious risk and consequences of an unappealable official reprimand for bona fide comments of public information published by the ‘fourth estate’, which information is not confidential per se. It must surely be a misnomer that public information is confidential; and somewhat odd that by the mere wave of the requisite number of hands, a local council can order public information to be kept confidential.
This report and its findings ought not to be ‘shrugged off’. Within a liberal representative democracy, the effect of this report and its recommendation squarely raises both a public interest issue and the issue about which the media complains. – Elbert Brooks
Commenting on the story: Liquor licence backdown as Fringe fee hike falls flat
It is nice to see that the State Government has seen fit to reduce the liquor licencing fees for Fringe traders, but I am still unhappy that there has been no mention of other organisations, especially charitable non-profit organisations.
Those cafes, bars etc that stand to make large amounts of profit for themselves during the Fringe are getting relief from the hike in liquor licencing fees but it appears that non-profit organisations that are fundraising for charities, disasters etc still have to pay the full amount.
This somehow seems inequitable to me so I think the Government needs to look further at this. – Geoff Grant
Quoting from your story: ‘The new price cap would not apply if licensees serve alcohol past 2am, or if venues feature sexually-explicit, boxing or martial arts entertainment.’
Little did I know that in boycotting the East End and its parklands during the Fringe Festival I was missing the apex of its cultural offerings. – Cathy Chua
Commenting on the opinion piece: Radical ideas put full employment back on the agenda
It is about time that society took control of this debate back from the politicians elected to represent us, and the bureaucrats who administer the system.
We need to demand change and stop counting dollars and cents and do something.
The definition of insanity is doing the same thing over and over again without changing anything and expecting a different result.
The current setup is not helping society, not only those of us who are unemployed or under-employed. – Graeme Crook
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