The Rule of Law

THE RULE OF LAW

The Rule of Law is discussed here in the context of the public's fundamental rights to access NSW government information.

What is The Rule of Law?It is the concept that both the government and the public know and obey the law, it is not one-sided.

Sounds simple enough, however when an unrepresented person decides to bring a request for information for review before the NCAT, it often seems the rules do not apply to agency personnel.

One of the most reported frustrations of those unrepresented before NCAT, is NCAT's reluctance to report agency misconduct.

As at Right to Know Week 2022 (Sept), the NCAT has not made a single report since the inception of the Government Information (Public Access) Act 2009.

On the other hand, unrepresented people often find they are penalised with costs, they are deplorably labelled with terms such as querulous, vexatious, fixated; accused of harassing government personnel; leaving them stigmatised for exercising legally enforceable (supposed) rights; with reputations damaged and suffering long-term trauma for their efforts.

These stigmatisations and labelling are regularly circulated and shared between agencies, which are then regurgitated over and over again, usually behind agency office petitions.  And once such comments are published in caselaw, they are there forever.

This does not align with the principles of the Rule of Law and the public's expectations of democracy and justice.

"With us every official, from the Prime Minister down to a constable or a collector of taxes is under the same responsibility for every act done without legal justification as any other citizen.  The Reports abound with cases in which officials have been brought before the Courts, and made, in their personal capacity, liable for punishment, or to the payment of damages, for acts done in their official character but in excess of their lawful authority."

The Origins of Dicey's Concept of The Rule of Law, 4th Edition, 1893

REQUEST REFUSED

Seeking access to the law in the administrative review process can be a test of endurance, as the first cases of McEwan & Webb v Port Stephens Council (2017) commenced in Sept 2016 but were not finalised until March 2019.

Both cases encompassed Open Access Information Mandated for Release Free of Charge.

However, the information was not released, charges were imposed, and Port Stephens Council would eventually use the GIPA Act 2009 Section 14, Table 3(f) a total of 270 times, based on an unlawful agreement between Council's Governance Manager Tony Wickham and a member of the public.

Section 14, Table 3(f) asserts release of government information could expose individuals (public servants and / or the public?) to a serious risk of harm, harassment, or serious intimidation.

Tony Wickham secured his false allegations against McEwan & Webb within a letter he authored, falsely stating apprehended violence orders had been issued against them.

Tony Wickham then weaponised his letter and sent it to numerous government departments to influence decision-makers, including the NSW judiciary NCAT.

At the heart, the centre, of the Rule of Law Wheel "no one is above the law" and "the law is applied equally and fairly."

Agencies do not embrace active citizens, often labelling them as vexatious, querulous, and fixated.  Such labels eminate from the NSW Ombudsman's office, supported by Managing Unreasonable Complainant Conduct policies, and are readily used by agencies to justify withholding information and mistreatment of the public.

This supports the view that agencies see those seeking government information as complainants.

*  Presumption of Innocence
In the cases of McEwan v Port Stephens Council (2017) NSWCATAD 269 and Webb v Port Stephens Council (2017) NSWCATAD 271, the presiding member held a confidential session with the agency, allowing untested evidence to be admitted, with the resulting NCAT decision stating both parties presented a serious risk of harm, harassment and serious intimidation to the authors of documents they'd requested.  NCAT declined to view Police Records, and did not ask either party a question.  Since the decision, documents have been obtained showing how an agency can easily create a false narrative to influence a judicial outcome; as simple as making a false and misleading statement.
*  Open, Independent and Impartial Judiciary
The case of Webb v Port Stephens Council; Webb v Port Stephens Council; Port Stephens Council (2020) NSWCATAD 81
was overturned on bias, as the presiding member had inadvertently disclosed his forthcoming decision(s) during the case conference processes, guiding the agency in a course of action.
*  No Retrospective Laws Should be Made
Agencies are known to ratify the legislation, actioning legislation as though always in place when not.
*  Laws are made in an open and transparent way by the people
Legislators give greater heed to agencies wants than the public's needs, despite the public being able to make submissions.
*  Government Agencies to Behave as Model Litigants
Agencies ignore any referral to this philosophy, mostly looking for loopholes in legislation to take advantage of the public.
*  Fair and Prompt Trials
Trials is the operative word, with citizens often feeling they are on trial in the administrative review arena.  Agencies are known to make false statements and provide fabricated evidence to support their decisions.
*  Separation of Powers between Legislature, Executive and Judiciary
When NSW Right to Information Officers have direct access to the NSW Civil & Administrative Tribunal (NCAT), the Office of the NSW Information & Privacy Commissioner, the NSW Crown Solicitors' Office, and Justice NSW, and where they can unlawfully share the public's information and single out citizens for a "collective strategic response" to requests for information, it is difficult to see any lines of delineation.  This is compounded by the fact NCAT regularly acts outside of its jurisdictional powers, in the context of executive power creating and manipulating the legislation to meet a particular case or agency wish.
*  People can Only be Punished in Accordance with the Law
NSW freedom of information legislation allows the public to be punished.  NCAT legisation supports that punishment, effecting it, using terminology designed to criminalise those rightfully seeking access to government information.
The legislation currently labels people discussing their requests for information as consorters, which can be used against the public.
In the case of Webb v Port Stephens Council; Webb v Port Stephens Council; Port Stephens Council v Webb (2020) NSWCATAD 81 the NCAT actually granted an order preventing Webb from consorting to get information, when NCAT had no jurisidiction to do so.  Port Stephens Council intended to prevent Webb from discussing her access applications with her husband.  This decision was overturned because NCAT did not have jurisdiction to grant such an order.  The public should not have to go through such an unlawful process, taking on the responsibility of righting judicial wrongs.
*  The Law and its Administration are Subject to Open and Free Criticism
In the case of Webb v iCARE, Webb was ordered not to disclose any evidence given in the proceedings that would identify a deponent, due to her open discussion and criticism of agency personnel misconduct, with NCAT acting in contradiction to the Rule of Law.
*  The Law is Known and Accessible
Presently the NSW public does not have the same access to freedom of information training and support as do Right to Information Officers.  These officers receive training at the public's expense, yet the public are completley denied access to the same information.  This puts the public at an immediate disadvantage from the outset of the freedom of information process.
In recent proceedings concerning Port Stephens Council and training materials created by the NSW Crown Solicitor's Office, the NCAT endorsed the public's being obstructed from the same training as NSW Government Agencies, formalising the fact NCAT agrees the public should come into its chambers commencing and finishing with a total disadvantage.
This case with Port Stephens Council and the NSW Crown Solicitor's office revealed an accounting ledger showing the two agencies had colluded against an unrepresented party, adding to the costs which were awarded against her.
The public does rightfully expect the NCAT to read the evidence before it to ensure it makes just, right decisions.

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This Site welcomes ongoing discussion on the topic of the Rule of Law.
If you would like to submit comments and / seek publication of your experiences with the Rule of Law please use this contact form to start the conversation, or contact us directly via email info@nswfreedomofinformation.net.

Thank you!

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