<< back to archive index Speeches Regarding Bills Date: 19th October 2006 Subject: Speech by The Hon. Dr ARTHUR CHESTERFIELD-EVANS, on theFreedom of Information Amendment (Improving Public Access to Information) Bill From Hansard The Hon. Dr ARTHUR CHESTERFIELD-EVANS: "Just my like Open Government bill in 2003, the bill was passed by the Upper House with only the Government voting against it. I hope if dosn’t suffer a similar fate when the Coalition changed their minds when the bill was voted on the Lower House!! New South Wales operates in secret. It is a State governed by an undemocratically elected Executive; a handful of people control the fate of the State; and the lower House is merely a very expensive rubber stamp. The Government spends obscene amounts of money and time hiding information from the public. Indeed, when this Parliament-as if armed with a tool kit with only a sledgehammer in it-demands the release of papers, the Government complains very loudly about the cost and gives us as many boxes of documents as it can to make it very difficult for us to sift through them. The Government obstructs the process the whole way. I cite the Cross City Tunnel, Beacon Hill High School and the sale of Flemington Markets as specific examples of how the freedom of information laws do not work in New South Wales. As such, I support a review of the Act. When I first came into Parliament I investigated this matter, and in 2001 I held a seminar on open government at Parliament House and gathered together experts from around the world, the European Union, New Zealand in particular, and also Western Australia. That seminar showed that the best model to deliver open government was the New Zealand model. The concept of the New Zealand model is that all government decisions are available to the public under what is called the Official Information Act and the Government has to make an application to the Ombudsman to have any document withheld. The only grounds on which to have a document withheld is national interest. I brought over Brian Elswood, who had been the New Zealand Ombudsman since the legislation had been introduced in 1985, and his conclusion was that it worked quite well. He said that when the legislation was first introduced he received a huge pile of applications for exemptions. He said he was not quite sure what to do about them because there were so many, so he simply knocked them all back. There were appeals to the Supreme Court and he won a couple of appeals. Since that time he said he gets many fewer applications and most of them are reasonable. So the Act did work. There was a review of the Act in New Zealand and the review concluded that whilst a few people had made excessive requests, the cost of meeting those excessive requests was less than the cost of vetting them and having an appeal system to deal with that. Adopting the principle that people should be able to ask for information if they want to, it was considered that the Act should not be changed. That was a serious review of a far more radical Act than this one and it concluded not only that it worked quite well but that it did not need to be changed. The New South Wales Freedom of Information Act has been in place for 17 years and it did not have a review date, which is unusual for most Acts. The Act has not been reviewed and it does not work. The legal cost of trying to stop anyone getting any progress in the Administrative Decisions Tribunal has increased. Down at the tribunal-which is supposedly the people's court where everyone is equal-the Government spends huge amounts of money on very expensive lawyers. Also at the seminar I held was the freedom from information commissioner from Western Australia. She had been a policewoman and she was flabbergasted because she said basically all the public servants simply ignored the Act, that it was as if she was walking down a street booking everybody who parked in a no standing zone as if the sign was not there. Her indignation was almost amusing. Members of the media have commented that they make an application, they pay a fortune, but before they get an answer it goes through the Minister's office and some announcement is made about finding a problem, and some sort of a solution, or apparent solution, is found by the Minister's office just before the information is released to the journalist. So, effectively, a journalist has been gazumped in the story and the story has had all the sting taken out of it, and all that expense and trouble that the journalist went to is wasted. By contrast, in America there are lists in the standard database formats and one can compare them to look at progress in different situations. If members want to look at those papers, google "Open Government" and get them from my web site. I have looked at the matter of freedom of information in this Parliament. In answer to question 2324 the Government talked about the different information management systems it has to look after its documents. Theoretically, the software is keeping track of things, but it simply does not work. Transparency International, which is an international body that looks at lack of transparency and corruption, particularly in Third World countries, luckily has not looked at New South Wales. I have asked it to do that and it said it needed quite a lot of money to do that audit. Queensland had such an audit but New South Wales did not. Interestingly, Transparency International commented that the New South Wales law looks as though it works, it is all there in theory, but it just does not work in practice. I want to talk about two specific FOI matters that I have had dealings with: the sale of Flemington Markets and the closure of Beacon High School. Robert Cianfrano has been battling the Government for 10 years trying to get information about the sale of Flemington Markets to a new company, Sydney Markets Limited. An indication of how fiercely the Government resisted this FOI application is illustrated in what the Government has spent in fighting Mr Cianfrano's application and subsequent court appearances. From July 2004 to March 2006 the Government's legal fees were $210,929.28. In relation to the sale of Flemington Markets to Sydney Markets Limited I have received the following information: This is in relation to the matter of transfer and the ownership of The Sydney Market Authority's assets which was a Statutory Authority with the function and the legal enforceable right under State legislation to conduct and promote a Market place for the wholesaling of fresh fruit and vegetables and retail market activities in the County of Cumberland. The Sydney Market Authority turnover from rents and services in 1996 was 37,675 million dollars and operating surplus of $7,216 million dollars. Land Assets and Market Values of the SMA was $225, million dollars in assets to the State Government in 1991. (1991 / 1992 annual reports) The Sydney Market Authority Act was expunged by the Government in the dissolution bill before Parliament of NSW in 1997. In 1997 the running of the SMA Business was handed over to SML. The Sydney Market Authority assets were leased to Sydney Markets Limited for a period of 15 years with options of 10 years, 5 years and 5 years. Total of the value of the lease was $169,238 million dollars as a 20 year lease to SML. Paddy's market at Haymarket nets 3 million dollars in rents per year 20 years netting 60 million dollars. The total amount of money paid by SML for the lease was 5.5 million dollars increasing with CPI per year to the State Government. The fifteen year lease net value of the lease payments would be worth 84,619,198 million within the first ten years of the lease. The whole suburb of the Flemington Markets site was sold for 88 million dollars to SML. Probative evidence and documents such as annual reports will prove this. I would like to bring to your attention ADT Judgement and background information as per FOI request in this issue. I seek leave to incorporate in Hansard a page of citations of legal cases. Leave granted. ---- 1.Cianfrano v NSW Department of Commerce [2004] NSW ADT 134 (8 July 2004) [100%] (From Administrative Decisions Tribunal of New South Wales; 8 July 2004; 59 KB) 2.Cianfrano v Chief Executive Officer, NSW State Rail Authority [2004] NSW ADT 223 (7 October 2004) [100%] (From Administrative Decisions Tribunal of New South Wales; 7 October 2004; 11 KB) 3.Cianfrano v Director-General, Premier's Department NSW an or [2004] NSW ADT 255 (9 November 2004) [100%] (From Administrative Decisions Tribunal of New South Wales; 9 November 2004; 75 KB) 4.Cianfrano v Director General, New South 'Wales Treasury [2005] NSWADT 7 (10 January 2005) [100%] (From Administrative Decisions Tribunal of New South Wales; 10 January 2005; 101 KB) 5.Cianfrano v Director General, Department of Commerce and anor [2005] NSWADT 282 (5 December 2005) [100%] (From Administrative Decisions Tribunal of New South Wales; 5 December 2005; 79 KB) 6.Cianfrano v Director General, NSW Department of Commerce [2005] NSW ADT 283 (5 December 2005) [100%] (From Administrative Decisions Tribunal of New South Wales; 5 December 2005; 16 KB) 7.Cianfrano v Department of Commerce [2005] NSWADT 297 (16 December 2005) [100%] (From Administrative Decisions Tribunal of New South Wales; 16 December 2005; 42 KB) 8.Cianfrano v Director General, Attorney General's Department [2005] NSW ADT 303 (20 December 2005) [100%] (From Administrative Decisions Tribunal of New South Wales 9.Cianfrano v Director General, NSW Department of Commerce [2005] NSW ADT 283 (5 December 2005) [91 %] (From Administrative Decisions Tribunal of New South Wales; 5 December 2005; 16 KB) 10.Cianfrano v NSW Department of Commerce [2004] NSW ADT 134 (8 July 2004) [91 %] (From Administrative Decisions Tribunal of New South Wales; 8 July 2004; 59 KB) 11.Saggers v Director General, Attorney General's Department [2005] NSW ADT 193 (16 August 2005) [54%] (From Administrative Decisions Tribunal of New South Wales; 16 August 2005; 28 KB) 12.Cianfrano v Director General, Premier's Department [2006] NSWADT 137 (9 May 2006) [51%] (From Administrative Decisions Tribunal of New South 13.Director General, Attorney General's Department v Cianfrano (GD) [2006] NSW ADT AP 26 14.Saggers v Director General, Attorney General's Department (GD) [2006] NSWADTAP 11 Sydney Market Authority (Dissolution) Act ----- The Hon. Dr ARTHUR CHESTERFIELD-EVANS: The document continues: Sydney Market Authority (Dissolution) Act There is no documentation from the previous Minister Mr Richard Amery and the Sydney Market Authority. In spite of numerous applications under the FOI Act, no documents have ever been produced which demonstrated legal compliance with the provisions of s 5(3) or s 8(1)(a) and the sale of Paddy's Market as per the Sydney Market Authority (Dissolution) Act 1997. Sydney Market Limited Sydney Market Limited is a private company with stallholder based on their tradable space holding shares as tradable space that is rented by the stallholders the more tradable space the more shares you have and you have more voting power at the elections to vote in the directors. On the Board of SML. This private company SML and the method of the shareholding was established prior to accusation. This 100 acre block of Crown Land and the business was valued at $223 million in 1993 by the NSW Valuer General. It was then deliberately devalued to 116 million dollars by 2002. Sydney Market Limited V the State of NSW The sale of the business, infrastructure, assets and goodwill was sold off for 88 million. Sydney Markets Limited took Court action in relation to the purchase price of 116 million dollars which is a figure that was found in the NSW Treasury documents. SML v State of NSW, Supreme Court Equity Division 4141 of 2000. Further more 28 to 30 million dollars were discounted by the Government because of litigation that was deliberately and falsely claimed by Sydney Markets Limited. Probative evidence and documents are available. See Section 198L, 198M, 198N. Legal Profession Act 1987. The sale of the business, infrastructure, assets and goodwill was sold off for 88 million dollars to Sydney Markets Limited the private company that was leasing the property for 5 million dollars per year from the Government. I have the probative evidence and documents such as annual reports etc to prove this. Furthermore there were further reports prepared by Neville Wran and partner as a consultant to the Government and was paid a couple of hundred thousand dollars for his services. Also I have evidence that Mr John Dermody traded as a consultant for the Government and was a partner to a major player in the Sydney Markets. He now works in Premier's Department as a director for special projects (OCG) with the Government. Now the Government is going to rezone the land to residential use for his mates. Probative evidence and documentation is Sydney Metropolitan Strategy and Parramatta Road Project. Sydney Markets Limited has the land valued at 32 million dollars in the annual reports of 2004. Probative evidence and documentation is available. The State of NSW has been also ripped off with Stamp duty, Land Tax and Council Rates. We have had a meeting with Phillip Weston NSW Valuer General and he could not answer [the concerns of Robert Cianfrano] and his Department have no documents to the sale of this Crown Land and any valuations. I also asked Phillip Weston on other sales in relation to Crown land and Public assets. There is no documentation from the previous Minister Mr Richard Amery and the Sydney Market Authority All documents are missing or have been hidden. [Cianfrano] contacted NSW State Records Department. Probative evidence is available to prove this. The is really about corruption of the administration of this State, and the freedom of information legislation has enabled it to remain hidden. Information is not available and the State is down millions. The administration and compliance of the freedom of information legislation by this Government has been very difficult and time wasting. The agencies are wasting thousands of dollars to deter applicants from continuing with their FOI applications. Another example is the sale of rail goods yard at Flemington, which was sold for $4.4 million, again to Sydney Markets Limited. A similar example of sale of land was pursued, with help from Robert Cinfrano and generally by the group trying to save Beacon Hill High School. Indeed, the Parliament received a call for documents under Standing Order 52. Sue Covey, a member of the Save Beacon Hill High School Committee, spoke to me in 2003 about the closure of the Beacon Hill High School. On 21 December 2004 the House passed a resolution under Standing Order 52 that documents relating to the closure of Beacon Hill High School be tabled. Sue Covey had made numerous FOI applications for the same documents. Sue Covey received a letter dated 18 September 2006 from the Director of Education and Training, Dr Andrew Cappie-Wood, admitting that one document had not been provided under FOI and the Legislative Council resolution. This was a restructure proposal entitled "New Horizons: A Proposal To Restructure Secondary Education in the Northern Beaches District". It was an information document prepared by the department and released in early 2000. The document, not surprisingly, recommended that Beacon Hill High School should not be closed. Its non-disclosure shows the abject failure of FOI in New South Wales and the supposed document management systems, and it also shows utter contempt for this House and the Parliament. The document entitled "New Horizons" was an elaborate colour brochure and I have the document in my hand. It was not some draft; it was a printed document to provide the public with information about the options, but not only did it disappear without trace, it could not be found in answer to a resolution of Parliament or under an FOI application. When the Ombudsman examined the matter, he merely said the process was not clear but that as the decision had been made that the school would be sold, basically it was tough luck. That is the way FOI works in New South Wales, which is totally unsatisfactory. The document only came to light when Sue Covey examined a development application for the Beacon Hill High School site that came before Warringah Council and this document was attached to the development application. In May 2000 a new 29-page document was issued by the then Director General, Ken Boston, called "The Northern Beaches District Strategy Analysis and Plan for Secondary Education". This plan did not include the retention of Beacon Hill High School. Basically, although a plan of analysis recommended retaining the school, when the Parliament called for documents under Standing Order 52, the documents were not produced. If the Parliament cannot -succeed in getting papers, how can members of the public expect any guarantee of probity from the legislation? The legislation is fundamentally flawed. It works on the principle that secrecy is the baseline and any access to information is against the norm. Just as was evident in Western Australia, those responsible for FOI are far more scared of their political masters and members of the public service hierarchy, who themselves are beholden to their political masters in a highly politicised public service, than they are of being prosecuted under the FOI legislation. I do not believe there have been any prosecutions under FOI legislation of people who failed to provide documents. The situation is very one-sided. At the very least the freedom of information legislation should be reviewed. My bill, drafted before I discovered the conceptual simplicity of the New Zealand legislation, stated that all government contracts had to be made available. Questions are asked in budget estimates committees about how government money is spent, particularly in advertising, media management and spin doctoring, but no quantitative answers are ever provided. When I have asked how much money does the State to give to churches and charities in forgone revenue because of land tax concessions the answer is always, "We do not know and we are not even going to find out." The State is forgoing millions and perhaps billions of dollars in revenue but it is too expensive to get the information and the Government will not make any effort to find out. Even when information is available, such as a document saying that Beacon Hill High School could close, the document disappears without a trace and it cannot be found even under FOI provisions or under Standing Order 52 of this Parliament. That is a disgrace. A review of the freedom of information legislation is long overdue as it is 17 years old and has never been reviewed. Most legislation is reviewed routinely every five years. The legislation is conceptually flawed and its execution is appalling. I support the bill. I seek leave to table a copy of the "New Horizons" document because of its importance and the fact that when Parliament asked for these documents they could not be found. Leave not granted. I note that a Government member does not want the document tabled. The Government is still hiding documents. This shows that the Government's FOI system does not work and that the government tries to deceive this House and has complete contempt for FOI, I have the document in my hand in this Chamber yet the Government refuses to allow the document to be tabled. The DEPUTY-PRESIDENT (The Hon. Amanda Fazio): Order! No member is interjecting so there is no need for the Hon. Dr Arthur Chesterfield-Evans to shout. The Hon. Dr ARTHUR CHESTERFIELD-EVANS: The Government, as its last ditch, will not let the document leave my hand to be tabled. The Hon. Catherine Cusack: It is a cover-up. The Hon. Dr ARTHUR CHESTERFIELD-EVANS: Thank you for that interjection. It is a cover-up by the Government at the last ditch. The Government will never tell the truth, even with the House looking at me holding the document in my hand. What great frauds and spin doctors they are. The legislation looks great but it is not worth a fig. I support Ms Lee Rhiannon's demand that the legislation be reviewed, and it is a very moderate demand at that."

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