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Iain Stewart[*]
The Commonwealth Games will be staged in Melbourne in 2006. For Australia's elite athletes it will serve the purpose of demonstrating their prowess along with the supposed effectiveness of various publicly funded sporting institutions. For the government of the State of Victoria it is an opportunity to 'showcase' Victoria:
I suppose one of the surprising aspects was the poor performance of the Canadian team, but that also signifies that many of these countries are appreciating the greater value of sport to their communities and the opportunity that is provided through hosting the Commonwealth Games and there are a number of countries vying for the 20 I 0 Commonwealth Games, including Canada, Singapore and India -to showcase not only their cities and their countries but also the value of sport to the greater community as well as their elite performers.
We look forward to the Commonwealth Games and the success of Victorian athletes here at the Commonwealth Games in 2006 and to having the'ability to reinforce and reinvigorate the investment in sport in our community, to showcase the state and the nation and to show to all Victorians and Australians the value of sport in the greater community. [Minister Madden, Minister responsible for Commonwealth Games - Hansard, 9 October 2002]
Successive state and federal governments have heavily invested public funds in 'major events strategies'. The Victorian Government in particular, has hosted an impressive list of events.[1] However, the value of such events is open to debate,[2] and the quality of that debate is directly affected by the quality of the information available to the public. While governments have alleged many benefits flow from hosting such events, in general, they remain reluctant to disclose information concerning the arrangements for these events contained in the contracts made between government and private individuals and/or corporations. In this context, freedom of information legislation should provide an avenue for the community to obtain access to the type of information that would ensure the openness, transparency and accountability of government. In practice, this is not always the case.
There is evidence of a prevailing culture of secrecy in public administration in Victoria (and elsewhere). This culture thrives, in part, because too few citizens have the wherewithal-time and finances, in particular-to effectively overcome the hurdles placed in their way. As an experienced community activist I felt I possessed some of the skills and resources necessary to pursue the matter. This article describes the difficulties I encountered in obtaining details of the contracts made to stage the Commonwealth Games through the Freedom of Information Act 1982 (Vic) (Fol Act). In so doing, it considers, the effectiveness of the FoI Act, the workings of the Victorian Civil and Administrative Appeals Tribunal (VCAT) and access to information via this process. This article also describes my experience (as a white male with legal training, in the middle-income bracket) of attempting to engage with legislation supposed to encourage everyone's participation in government.
Access to information, in a comprehensible and affordable form, is a fundamental prerequisite for citizens' participation in the democratic processes of a liberal-democratic state. While citizens' ability to participate may well be effected by issues such as class, gender, ethnic, cultural or structural barriers, access to information is an essential precursor to (effective) participation. In spite of legislation embodying commitments to open government, successive Victorian governments have, by their actions, made access to that information more difficult.
For example, in 1994, the then Premier Jeff Kennett took the extraordinary step of exempting contractual arrangements for the Australian Grand Prix (GP) from the operation of the Foi Act.[3] At that time, the Victorian Labor opposition opposed this move. In 1999, announcing the Russell audit review of government contracts, Premier Bracks claimed, 'We will lift the veil of secrecy and reveal to Victorian taxpayers the details of contracts kept hidden by the previous government'.[4] However, of the 85 contracts reviewed, the only one which the review recommended not be disclosed was that concerning the Grand Prix.
It is 20 years since the FoI Act was introduced in Victoria. In that time journalists, activist groups and Opposition members of parliament have been frequent users of the system. The current Deputy Premier John Thwaites, a former barrister, carved an enviable reputation while in Opposition as a consequence of his dogged pursuit of various issues within the Health portfolio. More often than not, specialist legal professionals represent these applicants. It is easy to understand why.
I made a request for access to nominated documents[5] about the 2006 Commonwealth Games in June 2002. Access was refused. The refusal stated:
Each of these Contracts contain confidentiality provisions which prohibit disclosure to third parties. Disclosure damages our commercial reputation and ability to enter into similar contacts [sic] if we are not able to abide by such confidentially [sic] clauses.
An internal review was submitted and duly rejected. Up to this point, the experience was painless, but time consuming. No special knowledge was required to make the application, with the exception that I took great care in crafting the original request to minimise the scope for the Department of Tourism, Sport and the Commonwealth Games to deny knowledge of the existence of the relevant documents, or to claim the request was too vague.
The next step under the FoI Act was to lodge an appeal with VCAT, an administrative tribunal.[6] The first unexpected hurdle was the filing fee. On lodging the necessary originating documentation I was advised to pay $250. This came as a surprise given the Tribunal's website suggested a lower figure. The Registrar Customer Service later wrote indicating that I 'may have been given the wrong advice' and further, that a refund of $80.00 was being processed and a cheque would be forwarded in due course (it was received two weeks later). A $170 filing fee may be less than the stamp duty on a Supreme Court writ,[7] but it is still a significant amount and certainly challenges the notion of an inexpensive jurisdiction-an immediate impediment to the concerned citizen.
The matter was then listed for a Directions Hearing. According to correspondence from the Tribunal, VCAT 'may attempt to resolve the issues in dispute and may make directions for the conduct of the proceedings. VCAT may also make a determination on any legal issues raised.' I was already feeling uncomfortable, notwithstanding long distant legal education[8] and stints as an advocate before other administrative bodies, because I did not have experience in this particular jurisdiction. Specialist legal practitioners and frequent users, develop a more finely nuanced grasp of relevant law along with a knowledge of the practices and habits of the jurisdiction including the language used by a specialist jurisdiction. The self-represented litigant (even one with legal training) does not have these advantages and no amount of preparation eliminates the feeling of a lack of insight and/or control over the process.
At the hearing I was urged to acquire a copy of 'Kyrou and Pizer'[9], the bible in the jurisdiction. I was advised it may be available in some municipal libraries, but certainly in law libraries. In the course of the preparation for the case I ended up photocopying most of the relevant sections of the 'bible' at the University of Melbourne's Legal Resource Centre. Fortunately, this facility is easily accessible from my workplace and residence. I could also afford to keep topping up the photocopy card (12c a page).[10] But, this cost reminded me that pursuing your 'right to know' is not without cost (both financial and otherwise). Fortunately, the Directions Hearing fell on a non-work day; otherwise I would also have been out of pocket for lost wages.
At the Directions Hearing each party was ordered to prepare and file a 'Statement of Legal Contentions and (their) Public Interest (arguments)' by close of business on specified dates, with the Department having to deliver theirs a week before mine. During the course of these proceedings I had a number of conversations with the Tribunal Registrar who seemed to understand the difficulties of the self-represented litigant. The Deputy President sitting at the Directions Hearing had invited me to contact the Registrar or indeed the barrister representing the Department if I required assistance. I did not take up the invitation in relation to the latter. I can only ponder whether the notion of 'officer of the court', and the consequent duties attaching to such persons would extend to practical assistance to an opponent.
The Department served their documentation by email a few minutes after close of business on the requisite day. Subsequently, the other party, M2006 also provided their statement, also out of time. The tactic of delaying service of documents until the last possible minute (or after) results in frustration for the non-professional litigant. While the applicant may make an application to have the matter struck out, the self-represented litigant is unlikely to do so. It requires further time to prepare the necessary documentation, file and serve the material and attend another hearing. However, I had written to the Department advising that if they did not strictly comply with the Directions order I might ask that the Tribunal not hear or consider evidence not provided within the required time frame. I did so in case I required an extension of time to respond.
Receipt of the Department's material resulted in four frenetic days researching, reading, photocopying and writing. Simultaneously, I searched for witnesses, with appropriate qualifications, and standing, to support my public interest contentions. Obviously the most likely candidates are all extremely busy. The task of introducing yourself, the background to the proceedings, your interest in the subject matter and how they might assist is a lot to convey accurately and honestly. The present status of public sector funding of universities, makes some hesitant in placing themselves in a position where they may be seen as 'biting the hand that feeds them'. Professor Graeme Hodge, Director of Monash University's Centre for the Study of Privatisation and Public Accountability, agreed to act as a witness.[11] Notwithstanding his broad knowledge of the key issues motivating my pursuit of the relevant documents, I needed to expend valuable time discussing his specific evidence. Again, time and cost is a factor. Without access to the technology of the modem office, along with the ability to use such technology, most aspects of conducting a case, would be rendered even more difficult and (especially) time consuming for a self-represented applicant.
Witnesses will always present a difficulty, as most citizens do not necessarily have the professional or social networks that readily facilitate the identification of appropriate 'expert witnesses'. In addition, without such networks witnesses may be more reluctant to agree to appear. In this matter, I desperately required witnesses to rebut evidence about the process of bidding, securing and commercially exploiting the rights to major events. My knowledge on such subjects is based on research and anecdotal evidence. While this may be an informed viewpoint, it is worthless as evidence before a Tribunal/Court.
It is particularly easy for a non-professional litigant to overlook the 'hidden' requirements of preparing a viable case. It is sometimes difficult to understand the need for, and role of, the barrister and solicitor. However, as the process wears on, the benefits become more and more apparent.
In FoI proceedings the applicant theoretically may sit on their hands because the burden of proof rests with the respondent. Four working days before the hearing the Department advised they would seek leave, at the hearing, to introduce a fresh witness statement from a new witness. This would require me to redraft the documents outlining my case which had already been filed and served.
The matter was set down for hearing for three days, commencing on the Wednesday after Melbourne Cup Day. After 4 pm on Cup Eve (Melbourne, at this point, is feverishly preparing for one of the world's great state sanctioned parties) I received an email from the large law firm acting for M2006 advising me that they would be seeking leave to intervene at the hearing.
At the hearing, the Tribunal joined M2006 as a party to the proceedings despite the fact that M2006 had known about the proceedings for some time. Indeed correspondence from its Chief Executive Officer had been relied on by the Department and appeared as an attachment to the written statement of a Department witness. The practical effect of joining M2006 as a party to the proceedings meant that the Department did not need to pursue its application to introduce a new witness, being a senior employee ofM2006. This person was ultimately called as a witness by M2006. It also meant further delay. Once joined M2006 was provided time to prepare its witness statements along with any other documentation and fresh directions were issued with respect to M2006's Statement of Legal Contentions.
At this juncture events swirled around me and I felt like a bit player on the periphery rather than one of the central characters. I left the hearing frustrated that the matter had not proceeded. I had put in a lot of work in preparation and stretched the tolerance of a supportive family. I had also taken three days leave from work without pay. Worse still, the addition of the new party to the proceedings would make my task harder. Although there was some overlap in my opponents' interests, they now, in effect, had twice the opportunity to make their case. The matter was adjourned until the beginning of December and scheduled for hearing over five days. The dynamic of the case changed and I now had to confront another, different case. Adjournments for one reason or another are a commonplace, natural aspect of the administration of justice. As such, the legal profession takes such developments in their stride. Such an accommodation is not easy for the amateur. The need to re-focus and prepare to meet unforeseen new dimensions demands a lot of energy and will power.
At the hearing, M2006's barrister, although not instructed by either the Commonwealth Games Federation (COF) or the Australian Commonwealth Games Association, managed to convince the Tribunal that they may also wish to be joined as parties. The Tribunal determined they should be given that opportunity and directed the Department to write, advising them of the proceedings and offering them the opportunity to make application to intervene if they notified the Tribunal within ten days. This seemed generous given both organisations had written to the Department indicating their resistance to the application. The Deputy President had the benefit of this correspondence as it formed attachments to the statement of the Department's witness. Arguably the two entities had adequate forewarning and understanding of the proceedings to form a view as to whether their professed interest warranted intervention. Obviously the Tribunal felt otherwise.[12]
The introduction of M2006, an incorporated company, not subject to FoI, whose interests did not overlap exactly with those of the state, introduced fresh elements. All my prior preparation had been focused on meeting a case against the state. The new party introduced not only new grounds under which it claimed exemption, but brought subtleties and complexities not previously present. As a result, the nature of my argument needed a substantial re-working. It was far harder work preparing the second time, the enthusiasm and energy sagged and the overwhelming sensation was to have the matter concluded. Where previously I had been confident, I now readily identified strong aspects of my opponents' cases and weaknesses in my own.
The case scheduled to commence on a Monday was postponed to Tuesday. Moreover it was listed before the Tribunal Vice-President. These changes were communicated in a short, uninformative letter two days before the hearing. Having negotiated a week off work, this last minute change left me angry and frustrated.[13] The matter commenced on the revised date with the Department leading evidence from a senior Victorian public servant. In essence her evidence was directed at supporting the Department's contentions regarding the likely impact on the viability of the event if information from the contracts was disclosed and, secondly, the adverse impact on the state's ability 'to do business' if potential business partners could not have the necessary confidence that whatever they agreed to with the State of Victoria would remain confidential.
Effective cross-examination is a skill professional advocates develop through years of practice. The ability to interrogate a witness to enhance your case or undermine your opponents necessitates the juggling of factual information, the rules of evidence (or, in the Tribunal environment, at least, the key rules) and the relevant substantive law. Although I had a long list of questions prepared, my relative inexperience meant I sometimes lost direction and momentum. The witnesses' evidence was (to me) unconvincing. But, I was unable to land the killer blow(s) that unequivocally illustrated this. Of course, in addition, you have to contend with His Honour's (usually) probing questions and learned Counsel's constant interruption objecting to this or that question. It is also necessary to deal with a certain amount of not so discrete guffawing in the Tribunal room, no doubt intended to distract and/or infuriate. It is easy to lose focus and confidence.
At one point in the proceedings Counsel for M2006 rose to his feet to indicate to His Honour that whilst he was not objecting to my immediate question to the witness he could see I was drifting into 'dangerous territory' and he foreshadowed taking issue with my next question (quite clever as I often did not know what my next question was).
FoI proceedings are, by their nature, difficult. As the applicant, invariably you are endeavouring to access information the precise character of which is unknown. Under s.56(3) of the FoI Act, the Tribunal may, in circumstances where an applicant is represented by a qualified legal practitioner, order the documents in dispute be disclosed to the lawyer provided the lawyer gives the necessary undertaking to respect confidentiality that would otherwise apply. The policy reasons behind this provision are immediately evident. Theoretically, the practitioner may determine the documents do not contain the information sought or, confine the area of dispute. In this instance it was not an option open to the Tribunal.
According to His Honour this had the effect:
that the applicant was, in essence, presenting his case 'blindfolded'. Those at the respondent's end of the bar table knew the contents of the documents. I knew the contents of the documents. The applicant did not. Therefore, considerable care had to be taken in relation to determining what questions (and answers) were permissible ... Accordingly what was attempted during the conduct of the hearing was the striking of a balance between the necessity that the contents of the document not be disclosed pending final determination, whilst attempting the avoidance of undue and, what would be from the applicant's viewpoint mysterious references to the contents of the document, and yet conducting the proceedings in a meaningful and intelligible fashion.[14]
This rendered the task of cross-examining witnesses, whose evidence was that the relevant documents did contain information of the character necessary to attract exempt status and which would have the detrimental effect claimed, impossible. Central to the proceedings was the claim that an unreasonable disadvantage would befall the State of Victoria and M2006 if certain information was released. There was no way I could test the merit of these assertions. As is evident from the above extract, His Honour, strongly supported by my opponents' barristers, was at pains to ensure that the content of the documents in contention not be surreptitiously secured 'on the record' through cross-examination or revealed in His Honour's decision. As much as I recognise the dilemma, it surely posed what seems like an insurmountable problem for the self-represented applicant. The respondent can assert whatever they wish as to the contents of documents and the effect of the release of such information and not be challenged except by the Tribunal member.
The hearing concluded on the third of five scheduled days. During the course of my submission, I felt pressured to conclude it quickly. His Honour, on being advised by Counsel that they were required briefly elsewhere at 2:15 p.m. on day 3 of the hearing, observed with disbelief that he would have been very surprised if the matter was still proceeding at that time despite my submission at that point being far from complete. Perhaps it is necessary to simply display a certain bravado and resist the temptation to rush to satisfy a real or perceived pressure.[15] His Honour, conscious of the proximity of the Christmas vacation period advised it was his intention to produce a decision as early as possible. I asked His Honour if the listing could be before or after normal business hours as opposed to normal legal hours. The attempted humour was only partly jocular. It seemed that this exchange encapsulated in one pithy moment the difficulty an 'outsider' can experience in this supposedly informal jurisdiction. The applicant is constantly required to comply with the requirements and standards of the Tribunal, with little concession. This is odd given the nature of the proceedings, stated public policy and legislative intent that citizens should be able to access information quickly and cheaply. The contrary appears the case with the process conspiring to ensure it is neither quick nor cheap.
Waiting for the decision I confronted my greatest fear-that I might win. The strong likelihood of an appeal to the Supreme Court had been foreshadowed by my opponents. As I could ill afford to bear the possible costs of a lost appeal I resolved that I would offer an undertaking to the Court that I would not seek to enforce the judgment I had gained before the Tribunal. In the event this was accepted I would then embark on a political campaign to highlight the obvious inadequacies of the FoI schema in the hope the government might make the necessary changes.
On 30 January 2003 the application was dismissed.[16] The judge found in favour of the Department and M2006.[17] The outcome was no surprise. Nonetheless, I was disappointed that the judgment, in my opinion, did not offer a detailed analysis of the arguments put and the case law cited. Whether the decision was fashioned in this manner to avoid fertile ground for an appeal, or, because His Honour simply was unimpressed by the arguments I submitted will remain a mystery.
While the enhancement of open and accountable government is fundamental to the purpose of the Foi,[18] the legislation recognises that in achieving that goal there is also a need to balance competing interests. For example, the Act recognises the public's right to know but, equally recognises that effective government administration and sound commercial enterprise sometimes demand secrecy. As a matter of sound public policy this goal is hard to fault.
However, not surprisingly, a gap exists between theory and practice. The economic capacity of the state alongside the unrepresented litigant creates an imbalance that should not be a factor in proceedings such as Fol. In addition, the process, and the dominance of a black letter law approach, ensures the balance is tipped significantly against applicants, particularly those who are self-represented. Understandably, members of VCAT must apply 'the law', knowing a reckless or ill-considered judgment may be appealed to the Supreme Court. This is even more likely when the respondent is the state. Equally understandable is the vigour with which barristers and solicitors strive to achieve the best outcomes for their clients. Additionally, the physical environment in which the proceedings are conducted is inhospitable to non-users. Even though it is less imposing than a court, the format for the Tribunal remains disconcertingly close to that of a court.
Debate surrounding the problems associated with reducing legal formality in administrative and quasi-judicial jurisdictions is not new. However, if this experience is typical, it is evident that further changes are required before the Bracks Government's oft-repeated commitment to be an 'open and accountable' government is achieved through the mechanism of freedom of information. It seems no matter what the legislative prescription and/or intention may be, administrative and quasi-judicial bodies that permit legal representation tend to replicate more formal structures. If part of the purpose of the jurisdiction is to make justice more affordable and accessible, then a less adversarial, less legalistic environment is required.
On 6 June 2003 the state government tabled the Commonwealth Games Arrangements (Governance) Bill. Among other things the Bill converts the organising committee M2006 P/L to a statutory authority which will be subject to the Freedom of Information Act, the Auditor-General and the Ombudsman. On announcing the introduction of the legislation, Minister Madden indicated that one of the purposes of the legislation was to ensure greater transparency and accountability.
[*] Iain Stewart is a South Melbourne resident who lives in close proximity to the Albert Park Reserve where the Melbourne F I Grand Prix is held and where the Melbourne Sports and Aquatic Centre is located. He was the first convenor of the Save Albert Park group and is currently writing a thesis on openness, transparency and accountability of government.
email: stewartnoone@bigpond.com.au
© 2003 lain Stewart (text)
© 2003 Jane Cafarella (cartoon)
[1] The Australian Fl Grand Prix, the Australian Motorcycle Grand Prix, World Masters Games, Presidents Golf Cup, the International Air Show are only a few of the more prestigious events.
[2] Economists At Large & Associates, Grand Prixtensions: The Economics of the Magic Pudding, prepared for the Save Albert Park group. Dec. 1997; ACT Auditor-General's Office, Performance Audit: V8 Car Races in Canberra-Costs and Benefits, Canberra, July 2002; Gans, Joshua, 'Of Grand Prix and Circuses', (1996) Australian Economic Review 299-307; Gittins, Ross, 'Olympics won't bring gold to the economy', Age, 19 November 1997; Black, Terry and Pape, Amelia, 'The IndyCar Grand Prix: Costs and Benefits', (1995) September Australian Accountant 25-8.
[3] See s.49 Australian Grands Prix Act 1994.
[4] 'Premier announces Audit Review of Contracts', Media Release, Office of the Premier, 15 December 1999. Professor Bill Russell's report 'Contracting, Privatisation Probity and Disclosure' was published in May 2000.
[5] Some background facts-The documents bolded were the documents the subject of the application.
• The Australian Commonwealth Games Association (ACGA) endorsed Melbourne as its preferred bidder for the 2006 Games. This arrangement is detailed in the 'Endorsement Contract'. The Department of Tourism, Sport and the Commonwealth Games is party to this contract.
• The State Government established another company, M2006 Commonwealth Games PIL (M2006) to manage the Games. It is not subject to Fol. M2006 entered into an agreement with the Commonwealth Games Federation and the ACGA which gives them the right to commercially exploit the Games. This agreement is referred to as the 'Host City Contract'.
• M2006 served a 'notice of intervention' resulting in it becoming a party to the Endorsement Contract. An 'amending contract' alters three clauses of the Endorsement Contract. The Victorian Auditor-General's reports into the State of Victoria's finances covering the last three financial years reported in some detail on the key obligations and rights that fall on the State of Victoria arising from these Agreements.
• The Premier is the sole shareholder of M2006 Commonwealth Games PIL. Its Board of Directors comprises five state government appointees, three from ACGA and two from CGF. Mr Ron Walker, Chairperson of the Australian Grand Prix Corporation is the Chairperson of the Board of Directors. M2006 is a 'public body' as defined by s.5 of the Audit Act 1994 and is subject to audit by the Auditor-General. [See Postscript.]
[6] Under s.98 VCAT Act , the Tribunal is bound by the rules of natural justice, not bound by the rules of evidence and must conduct proceedings 'with as little formality and technicality' and 'with as much speed' as possible to ensure proper consideration of matters.
[7] Currently the cost of issuing an originating motion in the Victorian Supreme Court is $610, The filing fee for an application for unfair dismissal in the Australian Industrial Relations Commission is $50. There are no fees for various applications under the Workplace Relations Act 1996. Many registered organisations, major users of the Commission, have considerable financial reserves.
[8] It is almost 20 years since I held a practising certificate.
[9] Kyrou, E. and Pizer, J., Victorian Administrative Law, Law Book Co, 1985 (looseleaf).
[10]I spent many hundreds of dollars photocopying.
[11] I am grateful to Professor Hodge for doing so.
[12] Neither sought to intervene. The Commonwealth Games Federation wrote directly to the Tribunal expressing its resistance to the disclosure of the relevant documents.
[13] In fairness to the Vice-President, the delay arose because of his desire to attend the funeral of a friend, a Queensland Supreme Court judge. It was acknowledged that the correspondence might have been more forthcoming.
[14] See para 16 of decision, 30 January 2003, Stewart v Dept of Tourism, Sport and the Commonwealth Games [2003] VCAT 45, 30 January 2003.
[15] If it had not been for the support of a number of helpers present in the room (David, Frances and Marg) I might have succumbed to my lack of confidence and given in to my desire for the ground to swallow me up and the matter to be at an end. Without the support and encouragement of these people and a host of others I could not have pursued the matter as far as I have. Also, in addition to my own legal training, albeit now decades old and unpractised, and therefore of fading usefulness, I received valuable assistance from a number of members of the legal profession in academia, at the bar and in practice, all of whom I thank.
[16] Stewart v Dept of Tourism, Sport and the Commonwealth Games, above, ref 14.
[17] With the exception of M2006's argument in relation to trade secrets.
[18] See second reading speech, Freedom of Information (Miscellaneous Amendments) Bill, 8 December 1999. That Bill, amongst other things sought to narrow the exemptions available for exemptions for 'Cabinet confidentiality' and 'Commercial confidentiality' and also to reduce the costs of appeals.
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