IDASA (POLITICAL INFORMATION & MONITORING SERVICE)
THE OPEN DEMOCRACY BILL

Justice Committee Public Hearing: 23 March 1999
Submission from Idasa

Purpose of this Submission
To focus on
• Workability, and
• Enforcement

Key Themes:
• If the Act is not workable, in a practical sense, then it will fail
• Moreover, if it is the enforcement mechanisms and procedures are unworkable and inaccessible, the Act will simply be used by the rich and powerful to protect their interests, when…
• The Act is surely supposed to help and protect the weak and the poor

Guiding Principles
The System should be
• Clear
• Cheap
• Accessible
• Speedy

The System From Start to Finnish…
Hence, these principles should inform
• The Automatic Disclosure System ("Right to Know" disclosure)
• The Internal Review Procedure
• The External Review Procedure

Proposed System: Implementation
• Places a crucial responsibility with the Human Rights Commission – to assist people, receive reports, monitor the system and its administration, develop and conduct education programmes, promote dissemination of information by government bodies, power to train information officers, etc
• Plainly they should play a role in the implementation of the Act, but can they cope with all these additional responsibilities?

Key Question: Where do people – especially the poor, the unorganised and the weak – go in order to access information?

Possible Answer (s):
• Information Access Offices (eg Australia)
• Information Commissioner
• Public Protector (provincial offices?)
• "One Stop" Human Rights Office

Proposed System: Enforcement & Legal Remedy
External Review is by Application to the High Court, which is
• Expensive
• Slow
• Inaccessible
• Intimidating
• Adversarial

And, therefore, inappropriate.

Alternative System?
• Magistrates Court, given current problems and backlogs, is unlikely to provide an answer
• Need for Creative & Innovative Thinking
• No new institutions: we understand the pressure on resources
• But, if the system is to work, must be a commitment to finding an appropriate system

The Case for a Tribunal System
• Inquisitorial
• Informal
• Cheap for users
• Cheap for Government: use current infrastructure, such as Magistrates Court rooms and administration, and
• Can link Costs to government departments: ie Department who is subject to appeal pays/contributes to overall running costs (rather than Justice Department)
• More accessible
• Speedier
• Specialist
• Better feel for the issues
• Link in with Administrative Justice: joint jurisdiction, given similarity of subject matter?
• Works pretty well elsewhere (eg UK Tribunal System)

Summary
If the right of access to information is to be meaningful the enforcement procedure must be cheap, speedy and accessible, otherwise the Act will be used by the rich and powerful to defend their interests. External review by the High Court, as currently envisaged by the Bill, does not provide a remedy that is cheap, speedy and accessible – in fact, the reverse. Hence, a creative, innovative – and cost effective – alternative, such as a tribunal, must be considered.

Richard Calland
Programme Manager: PIMS
The Political Information & Monitoring Service at Idasa
19 March 1999