NSW Ombudsman: Speech – Creating Open Government – Information and Privacy Conference, 21 Aug 2012 1

Accountability – what is it and where

is it going?

Creating Open Government – Information and Privacy Conference NSW Premier's Conference Rooms

Level 41, Governor Macquarie Tower 21 August 2012

Bruce Barbour NSW Ombudsman

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Thank you Deirdre,

I acknowledge the traditional owners of the land on which we meet today and I pay my respects to Elders past and present.

I am pleased to have the opportunity to speak to you today about open government and the importance of accountability.

What is accountability? Last month, I took part in an administrative law conference in Adelaide. The overarching topic for the two days was based around integrity. Now integrity seems to be a fairly straightforward word and concept. But it was very interesting to see what happened when you put 140 administrative law experts in one place to discuss it. While there were some common elements, there were also differences across the sessions about definition, focus, impact and so forth, and there were a lot of them. What it really showed is that sometimes concepts and language we think simple and straightforward can have multiple approaches, views and perceptions.

With this in mind, what do we mean by accountability?

A particularly important question for today’s forum, as holding government to account is the foundation for arguments around open government.

There are a number of terms that have become public service catchcries.

Ethics, integrity, transparency and, of course accountability.

All levels and parts of government, including members of Parliament, Ministers, heads of agency and their agencies rely on them to demonstrate they are doing their jobs and are acting in the public interest.

These terms are seen in every annual report – including my office’s – and as part of every public and almost every private sector statement of corporate purpose or direction. They are in our codes of conduct and are often referenced in our employment contracts.

There is no doubt – accountability is a term that is used very frequently. The Premier used it a number of times when discussing his government’s direction around service delivery at the IPAA conference two weeks ago. The expert panel that considered how to deal with those arriving by boat in Australia seeking asylum, noted that offshore processing in Malaysia should not be cast aside, but that there was a need for strengthened “safeguards and accountability”.

It is also a term that has gone well beyond the public and private sector and found its way to slightly unexpected areas. A recent newspaper article described a Sydney Swans ruckman as having, and I quote, ‘taken on dual roles of accountability and creativity to great effect this season’. Now I am not entirely sure what that means, but it is further proof that terms such as this are not easy to pin down and different people will use them in different ways to promote different purposes.

What I’d like to focus on today is certainly not a definitive answer to the question of what is accountability, but rather what I see as some of the important elements. I will look at some foundational issues, some of the changes that have and are taking place and end by looking at some of the future challenges and opportunities that I believe will arise in the next few years.

As I am sure we all accept, there are a number of different types of government accountability – political, ministerial, financial, and personal. We all have the opportunity to hold our politicians to

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account at election time. Sittings of Parliament are an opportunity to question and challenge Ministerial decisions. Parliamentary Committees are an opportunity to ask difficult questions and look at issues more closely. Oversight and integrity bodies such as Ombudsman, Auditors General and Anti Corruption bodies shine a light on abuses, wrong conduct, failures and weaknesses. Certain decisions of government can be challenged in Courts and Tribunals. And of course access to information regimes allow members of the public to be better informed, to look behind decisions, to see why they are made and in turn to question them.

These elements are the basic but indispensible pillars of a modern democracy, and ensure that the community is fully informed and that, in turn government at all levels is held to account. These measures are particularly important for those who are the most vulnerable in our society and who, for a variety of reasons, do not have a loud or influential voice.

The current situation All of these accountability mechanisms have been in place for quite some time. They are so well established that we not only accept them, but perhaps even take them for granted. But what is very interesting are some of the changes that have taken place in how these mechanisms work. Not surprisingly, none are the same as they were when they were first established.

The starting point in any discussion of government accountability will always be our Parliaments. While question time was originally designed to be an opportunity to ask probing and important questions, I am sure I will get little argument when I say that it is, and has been for some time, more akin to theatre. Just look at yesterday’s events in Federal Parliament for confirmation. But there are other elements of Parliamentary scrutiny that are far more effective at getting to the heart of a policy decision.

At the Federal level, few would question the effectiveness of Senate Committees in achieving this aim. Former Howard government Minister Robert Hill suggested several years ago when discussing scrutiny by Parliamentary Committees, the transparency and accountability role performed by estimates committees might not have been part of the original design, but instead has been part of an evolution of process. He went on to say that it provides a way in which information about government decision making, and I quote, ‘can be effectively communicated to the broader public, which, hopefully, then influences the health of our parliamentary process and our democracy’.

Many accountability mechanisms have grown out of a need to gain and maintain community trust in government. Where this trust was once largely unwavering, increasing community knowledge, interaction and understanding have meant the public are far more questioning. This change in relationship resulted in the public demanding a greater amount of information about the operation of government. The community also wanted to be able to question administrative decisions that impacted on them, and to do so quickly and inexpensively.

These expectations resulted in a number of important changes to the way in which the public sector operates. These included the creation of administrative appeal and review tribunals, Ombudsman offices, and of course the introduction of freedom of information legislation.

All of these were designed to make government more open, and all were substantial changes to traditional methods of accountability, which had focussed on the role of Parliament. These new systems also presented an opportunity to bypass what former NSW Chief Justice Spigelman has said many saw as ‘the perceived inadequacies and technicalities’ of the Courts.

Most importantly, these changes had a profound effect on how government agencies interact with the community. Decision making processes could now be open to scrutiny through their supporting documents, administrative decisions could be questioned without going to court, and government

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agencies could be held to account by independent bodies if they misapplied or misused their powers.

As David Goldberg showed so vividly in his keynote presentation, speaking about and attempting to hold government to account is not a new development. Brave individuals have always sought information about their government, and have then attempted to report what they find without fear or favour.

But while for some this core intention is the same – the way in which that information is provided, and more importantly the way it is used, have changed greatly.

Several years ago, we saw a seismic shift. Across Australia, there was significant public debate and governments started to act on recommendations for reform to the way in which information about government is provided. The impetus for this change were reviews such as those conducted by David Solomon in Queensland, and my office here in NSW. We saw the focus move from people having to pull, and in some cases, drag information out of government to a situation where government makes information available as a matter of course without requiring an application or a request. While initial steps along this path were tentative, I think we are starting to see some encouraging signs.

These developments once again appear to be driven by community demand, and interestingly the motive of those demanding information has changed, just as the systems to deliver it have also.

In the past, people often wanted information so they could look behind a decision. Applicants were seeking information that had not traditionally been made freely available, which they could then use to better understand government or challenge or question why a decision had been made or its applicability to them.

Now, many who want government information are not looking to simply be informed or hold government to account. They want to use it for a practical purpose, to support their ideas, and ultimately in many cases to make them money. As with all aspects of modern life, people want better, up to date and accurate information as quickly as possible. This type of open source information is increasingly in demand, and it is often reworked to give it new meaning and new application.

This interest and activity by members of the public can also benefit the agency as well, as it can contribute to broader service improvements. This means that open government is now not just accountable government, it can be smart, engaged government. I want to touch briefly on just a few examples of this new direction in open government, I know many more will be the subject of discussion during the day.

At the Commonwealth level, data.gov.au now has more than 1,100 data sets, provided by 114 agencies. The most downloaded datasets include everything from the location of Centrelink offices, to the national public toilet map.

This type of release of information is supported by the default position in the Commonwealth Information Commissioner’s first draft information principle. John McMillan may well talk about this in more detail this afternoon, but it was very encouraging to see that, unless there are compelling reasons to the contrary, access to government information should be open, that is:

• free

• based on open standards

• easily discoverable

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• understandable

• machine-readable, and

• freely reusable and transformable.

Similar commitments have been included in the NSW government ICT plan, with government agencies required to report to the ICT board on how they are:

• identifying priority datasets

• increasing open access information

• facilitating public participation

• increasing online access to government services

• working with the community, industry and research partners to co-design service solutions.

In the UK, an Open Government White Paper was released last month. When looking to the future, it states that the government:

... will be unrelenting in our efforts to get more data out. Typically, governments go cold on the idea of openness and transparency after a couple of years in office. We are determined that enhancing access to public data will be an enduring characteristic of this one.

This change is leading to some interesting developments. For example, here in NSW, one of the winners of the last apps4nsw competition developed an application called Demographic Drapes. This draws on a range of data sources such as census data to allow users to zoom in on an area, and then apply a range of “drapes” to the map, depending on their area of interest.

Like access to information systems, oversight bodies have had to change in order to keep pace with community expectations, and continue to perform our roles as effective accountability mechanisms. In my office’s case, this has meant finding ways to work smarter and to add greater value to service provision in NSW. The foundation for this change has been a shift in focus.

No longer entirely driven by the complaints that come to us, we work to identify future systems weaknesses as or even before they happen. This systemic work is often based on a simple platform of reviewing a new program or system, looking at what it promises on paper and checking if it is delivering.

An example of this – and one that I am sure many of you are familiar with – was my office’s review of the former Freedom of Information Act. We used our powers to require the production of information, and seek public and agency submissions on the operation of the FOI Act. Our final report included 88 recommendations, of which all but three were accepted and implemented by government. The GIPA Act was introduced, an independent Information Commissioner was established, and most importantly a new model based on a push rather than a pull approach was introduced.

My office and other oversight bodies in NSW continue to conduct this kind of work and bring important issues out into the public holding government to account and recommending how things can be done better. In just the past month:

• We released two reports to Parliament around the management of hazardous materials in police buildings and incidents where force is used in prisons.

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• The Audit Office has released a performance audit report highlighting the need to do more to improve Aboriginal literacy rates.

• The ICAC has announced public inquiries to look into mining exploration licences and related decisions made by the former government.

But open government is not achieved through providing information. And it is not just based on Parliamentary committees or oversight bodies looking behind the scenes and shining a light into forgotten, neglected and mismanaged corners.

There is also an element of personal responsibility and accountability. Open government suggests honest government. It suggests fairness. This means telling people what you are going to do, why you are going to do it, and then actually doing it. It means telling the truth, even when that truth may not be very popular or palatable.

This is where personal responsibility and ethics have a part to play. If a public servant sees something in the workplace that they do not agree with or that they think is wrong, they are placed in a very difficult position. Their position is even more difficult if the behaviour or actions they are concerned about are happening above them. This is why there are new, strong legislative protections within the Public Interest Disclosures Act to provide support and protection for those staff. I am not going to go into detail, but internal disclosures are another accountability mechanism. They are a particularly important internal accountability tool. Agencies can identify problems and fix them quickly. Matters may not end up in the newspaper, as the subject of an Ombudsman investigation or an ICAC inquiry.

I have largely focussed on the roles, responsibilities and expectations placed on government. But there are a number of other parties who play an important part in ensuring open government does really mean accountable government.

Saying that releasing a greater amount of information about the operation of government will in turn lead to more accountable and better government is built on a substantial assumption – that the information will be used, reported and debated fairly and accurately. Accountability is a term that rarely accompanies good news for governments. I cannot remember seeing a newspaper article saying that an agency had successfully fulfilled its accountability requirements. It usually gets an outing when something goes wrong, or when an agency has tried and failed to keep a mistake out of the public sphere.

It is here that the media play a very important role. I appreciate the importance of a robust and independent fourth estate. It is certainly a very important accountability mechanism, and has brought some particularly important and concerning issues out into the open. But it is not always the most reliable one, as it is typically driven, rightly or wrongly, by commercial considerations, political interest or maintaining market share.

This is where it is an advantage for government to be proactive rather than reactive in the release of information. In the past, persistent journalists quite often stumbled on a gold mine through FOI requests. In other cases, the information they got was not as sensational as they had hoped. But if they had spent a great deal of time, money and effort getting it, the tortuous process itself would become the story. Now, as agencies continue to make more information available, it takes the wind out of these process stories, as the information is there for everyone. This should also mean those matters pursued through applications throw up stories and issues that are genuinely in the public interest.

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Future direction So what then are some of the future challenges and opportunities presented as the evolution of accountability continues?

One of the greatest challenges will be keeping pace with the fast rate of change to the way in which government services are delivered.

It was relatively easy to build systems to hold government to account when all the work of an agency is done within the agency. As I am sure you all know, this has not been the preferred model in most Western democracies for some time. More and more, government services are contracted out in the interests of efficiency and value for money.

Here in NSW, the current government has made plain its intention to seek, wherever appropriate, a greater level of non-government involvement in the provision of what were traditionally government services.

While there are undeniable benefits to this approach, it also presents some challenges –not the least of which is ensuring those performing the work are the best, most appropriate people for the job, and that they are doing what they are paid to do and the quality of services to the community is not diminished.

My office has looked at this issue recently in relation to those non-government organisations, or NGOs, providing certain community services. Each year an estimated 3,000 organisations receive almost $2 billion in funds and subsidies to deliver a range of community-based services on behalf of the NSW government. While there are systems in place to ensure children are safe from harm, the systems in place to check other aspects of suitability were not quite so robust. The probity checks that should be standard have not always been present. Our report noted the challenge for those funding services in holding NGOs to account for the services and outcomes that they are funded to deliver, without imposing burdens and costs that may unnecessarily impede their efficiency and effectiveness.

In addition to seeking greater non government involvement in areas such as community services and out-of-home care, the government is also seeking to transfer a greater amount of responsibility and control to those tasked with front line service delivery. School principals for example will be given greater responsibility for the management of their schools as part of the Local Schools, Local Decisions reforms.

Recently the State’s Commission of Audit released its final report, providing a blueprint for reform.

The report notes the need for oversight and accountability, but does not expand upon how this will work. That is not surprising – given the wide range of recommended approaches to government service delivery. I am hoping that this will be part of the next stage in the discussion.

Such reforms present a real challenge for those of us working as part of the accountability framework. At the recent IPAA conference, the Premier was very clear in stressing that the current period of transformation of the public sector will be built on innovation and creative solutions. As he noted, in order for this to succeed, public servants must be given permission to fail in that pursuit. I agree with the Premier that there is a need to strike a balance between encouraging innovative and new approaches to service delivery, while still ensuring, that public servants ‘use that permission creatively, wisely and accountably, so that we test our innovation and ideas, and learn from the experiences.’

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This is possibly the biggest challenge for those of us tasked with ensuring government decisions are made and implemented in the public interest. On the one hand, we cannot turn away and allow for abuse, wrong conduct, failings and weaknesses in the name of encouraging innovation. But at the same time, we should not place unnecessary blockades in the way of improvements and innovation.

My office is certainly alive to the importance of maintaining this balance. Much of our work in recent years has focussed on evaluating the implementation of government programs involving significant public resources. I recognise that new approaches and ideas have to be tested, particularly in areas where past approaches have failed. But we have to make sure that the programs are delivering what is promised, and that there is appropriate evidence to support a continued commitment to them.

I have only touched on a couple of current developments and future issues and challenges around accountability and open government. The range of reforms that are either in their early stages or have been slated for the coming years, show that we are heading into a period of substantial transformation. If these reforms are successful, the way in which public services are delivered, who delivers them, and even what those services look like will be altered dramatically.

Accountability mechanisms and systems, both those within agencies and those operating on the outside, can and must work alongside this change. They will help to show what is working, what isn’t and what needs further work. The reforms around open government and access to government information, particularly the provision of information online, present a real opportunity to develop an active, real-time reporting model.

This could allow those with some form of interest or involvement to keep tabs on how changes affecting them are going. This would seem to be a logical progression in both accountability and open government. It is encouraging to see that the government ICT strategic plan states that progress in making more government information easily available will be reported publicly. But this approach must go further and be applied in other areas of service delivery.

For this to be successful, accountability mechanisms, and particularly those organisations tasked with making sure they work, have an important continuing role to meet and assess these changes head on. There is a very real push at the moment to bring service delivery together and try to develop one ‘face’ for government. Bodies such as mine have to consider how we can do the same, and keep pace with community expectations. I believe this will be one of our greatest challenges in the coming years.