Initial Reflections on the last 30 years of Open Closed Government in Tasmania

Rick Snell

 

Preliminary note

This was drafted as a summary of my thoughts about 30 years of Freedom of Information and Right to Information in Tasmania. I was keen to keep it accessible as possible. I may revisit and expand the analysis and provide evidence, referencing and more detailed explanations at a later date.  As I type this it occurs to me that the Tasmanian Government, bureaucracy and Ombudsman have failed to celebrate the 30^th anniversary of Freedom of Information and Right to Information in Tasmania. A telling silence.

 

 

Introduction

Three decades ago, the mission we chose to accept in Tasmania was to have a transparent and open government, supported by strong legislation and a bureaucratic culture dedicated to open government.

 

Thirty years later the mission appears to have been a failure. The original goals appeared achievable and not all that revolutionary. Successive governments, and the service that supports them, managed to keep the status quo despite successes in legislating a reinforced requirement of openness and renewing that parliamentary mandate for open government in 2009.

 

There is a chance to revive the mission, but we need to focus on some key achievable goals:

 

1. Recommit to a culture of openness, not fear, regarding the public seeing information that effects citizens lives;

2. Ensure that public officials, especially those whose role it is to promote transparency, lead by example;

3. Be aspirational – set transparent targets for releasing government information when requested (and clear processes for resolving disputes where the release is contested) and have plans to recover if the targets are missed; and

4. Leadership in words and deeds by the Premier, the Ombudsman and heads of agencies.

 

This will not take legislative change – although it might help;  instead it will take commitment, ambition and a culture of openness working in the best interests of all Tasmanians.

 

 

Strong resistance and indifference to the mission

 

What we sought 30 years ago, was to make Tasmania more democratic, make Ministers and public servants more accountable, and allow and encourage citizens to participate effectively in policymaking. In my view, we have abandoned the mission. Too many journalists, members of parliament and citizens have thrown up their hands and walked away from the system.

 

We had wins, including the major intervention and revamp put in place by the Right to Information Act in 2009. Yet very little has changed in the dynamics, processes and outcomes of Freedom of Information (FOI)/Right to Information (RTI) requests.

 

Some information has found its way into the public domain, often after delays of many months, indeed in some cases, years. By the time we see the information that would allow effective participation in open government, there is no longer the time or opportunity to allow citizens to engage in the decision making process.

 

The FOI Act, was a critical element of the 1989 Labor-Green Accord. This agreement was imposed on a public service that enjoyed all the advantages of secrecy. We underestimated what would be needed to dismantle this culture.  The writing was on the wall from the beginning.

 

The FOI Act was amended prior to commencement. Government and bureaucratic leadership undermined the Act, in part by eliminating the capacity of the Ombudsman to release otherwise exempt information in the public interest.

 

Adding insult to injury, the Act was delayed 2 years, as a reluctant and resistant public service needed time to prepare itself.  The Government also reneged on a promise to give the Ombudsman extra funding to help embed the Act.

 

Even this amount of undermining was not enough.  During the first 18 months of the Act’s existence, the Government and its senior bureaucrats prepared an Amendment Bill in secret that would overturn all the major decisions in favour of openness made by the Ombudsman in that initial period.

 

The Government’s submission to the subsequent parliamentary review of the proposed amendments was essentially a handbook on the necessity of secrecy. The submission went to great pains to explain why FOI was a fundamental threat (or an anathema) to what the Government and public service appeared to view as the fundamental elements of the Tasmanian Westminster system. A journey towards continual improvement in transparency was not the take home message of the Government’s submission.

 

After this attempt to dismantle the 1991Act,  FOI was largely ignored for a decade. The six Ombudsmen (including acting Ombudsmen) between 1991 and 2007 made little impact upon public service behaviour and failed to change the culture of secrecy in the public service.

 

In August 2008 Premier Bartlett set in motion a review of the FOI Act.  The review resulted in the report Strengthening Trust in Government …Everyone’s Right to Know. The Report concluded:

 

“The review is also timely in regards to modernising the Act to better reflect the changing times in which we live and work. For instance when FOI was first established in Tasmania in 1991, we were at the dawn of the digital information age, access to computers was limited, the internet didn’t exist in Tasmania, emails were not part of normal government communication and the sophisticated information management tools we use now, were not available. Therefore, with improved information flow and increased community expectations around transparency, the old legislative framework is arguably no longer relevant or appropriate.” 

 

Most of the legislative recommendations from the 2008 Review were adopted. However, despite the best of intentions in the Review, the public service, political leadership and the Ombudsman have failed in the last 13 years to make any wide-reaching changes to the culture of secrecy and closed government in Tasmania.

 

In 2023, with very few exceptions, any one making requests for timely information to inform public debate, to scrutinise performance of government agencies or compare public statements with accurate government information will not be successful. Moreover, they are likely to be better served by relying on pre-1991 techniques – leaks and information from mates.

 

Many RTI Officers use the RTI Act as a Guide to Prevent Disclosure of Information. In practice, the Act is cut and diced to select clauses favouring non-release, with the Object Section of the RTI Act seemingly regarded as an optional part of the legislation. The public interest test is applied in a minimalist fashion to block release, time overruns are commonplace (despite relying on a processing period of 20 working days in a digital age) and very few current RTI Officers have received any significant training from the Ombudsman.

 

Meanwhile the RTI system continues to disintegrate around the Ombudsman. Since 1991, all eight of the Ombudsmen who have had the mission to make FOI/RTI work have struggled and have left their successors with a deteriorating system.  Despite the reboot in 2009, the system is now overwhelmed. The Government has partially re-addressed the lack of resources but not enough to ensure positive change.

 

The Ombudsman is aware of the problems. However, the office appears to struggle to make any significant changes. Particularly concerning is the fact that a number of the external reviews dealt with in the 2021-22 financial year (and several in the first part of 2023) identified issues with the manner in which the public authority had responded to a request for assessed disclosure. The express object of the RTI Act is clear in relation to its pro-disclosure focus, seeking to increase government accountability and acknowledging that the public has a right to the information held by public authorities acting on behalf of the people of Tasmania. The Ombudsman’s report notes that: 

 

“sadly, too often, adherence to this object is not evident in practice and a closed, and at times obstructive, approach is taken when responding to requests for assessed disclosure which come before my office. While this is not universal and definite progress has been made in some areas towards the adoption of a more open approach, there is room for major improvement and I urge all public authorities to do better and strive harder to achieve the object of the RTI Act in future.” Tasmanian Ombudsman Annual Report 2021/20223 at 30.

 

A plea to the better nature of the public service is a far cry from actually making a difference. The Premier, and even the most junior RTI Officer, should hang their heads in shame.  This desperate plea by the Ombudsman is both understated and far too timid.

 

My view is that the Ombudsman fails to lead by example both on transparency and performance, as evidenced by the dismal statistics on resolving reviews. In 2021/2022 the average time for reviews to remain open blew out to 622 days (thankfully that dropped significantly to 587 average days by 30 June 2022). When it takes close to 2 years for requests to be finalised, it is little wonder that a cultural shift towards openness has not been achieved. Both agencies and applicants, aware that any external review request to the Ombudsman is not going to be resolved quickly, know that there is little chance of a timely resolution of a request for transparency. Cynically, public servants seeking to exempt information understand that the delay game is likely to reap significant dividends. Even where the Ombudsman determines the information to be released, in many cases there is often further delay for agencies to actually release the information after an Ombudsman’s decision.

 

My understanding is that the Ombudsman has also failed to deliver regular and extensive training to RTI officers and even less to senior managers in the public service. The Ombudsman also struggles to recruit officers to undertake RTI reviews – in the 2022 Annual Report he notes he is advertising a position for the 4th time.

 

The Ombudsman fails, apart from calls to do better, to put pressure on underperforming agencies. For example: 

 

“While I acknowledge that both departments have advised of a significant increase in the volume of assessed disclosure applications, there are improvements that could be achieved by both departments in relation to issuing of decisions within the statutory timeframe, improving communication with applicants regarding delays and ensuring decisions are of high quality. Such improvements might reduce the volume of external review requests relating to these departments.”

 

The Ombudsman should be performing Own Motion investigations under the Ombudsman Act to identify the problems with RTI processing in some departments and make specific recommendations.  Additionally, the Ombudsman’s task is made more difficult due to the failure to update policies, guidelines and the RTI Manual. The Ombudsman appears to be only going through the basic motions of administering the RTI Act. The Ombudsman needs to reread Section 3 of the RTI Act and passionately reengage with the mission for Open Government.

 

Four RTI cases illustrate the negative impact of the Ombudsman on the functioning of the RTI system. 

 

Case 1 Woolnorth Wind Farm Holdings Pty Ltd and Department of Natural Resources and Environment (April 2023)

 

The Ombudsman’s decision was released on 28th April 2023. 

 

•           The RTI request was lodged by a journalist in early August 2019.

•           The agency made a decision within 13 days.

•           Decision was to release but needed a 3rd party consultation.

•           Agency still determined to release after consultation.

•           3rd party appealed on 13th September 2019.

•           Ombudsman released preliminary conclusion to release (either late March or early April 2023).

•           Agency accepted the preliminary conclusion – 3rd party responded 20th April 2023.

•           Ombudsman final decision to release 28th April 2023.

•           Apologised for “inordinate” delay. No reason given.

1.         The information requested included: 

 

·      records of eagle strikes across... all Tasmanian wind farms...;

·      any photographs of dead or injured eagles at windfarm locations across Tasmania...; and

·      reports of dead or injured eagles at Wind Farm zones submitted to DPIPWE [the Department] since the start of recording to the present. 

The photographs were the main sticking point for the 3rd party. 

 

Information delayed significantly undermines the RTI system. Agencies are normally blamed for this delay yet an Ombudsman who takes 27 months to make a decision, without justification, inflicts ongoing damage to the system. RTI officers and their superiors do not receive important feedback on their RTI performance and their interpretation of the Act or the Ombudsman’s guidance in relation to discretions.

 

The journalist has been denied information – and 27 months in the current world of media means that the particular journalist has moved on either in employment or coverage of this sector.  Interest in the potential story frizzles out or the Government’s version of the story remains unverified.

 

The RTI officers involved, the agency and all RTI officers throughout the state, have been denied access to the thinking and direction of the ombudsman on key sections of the Act. Quick feedback is critical to install and reinforce a culture of openness. Clear and prompt guidance is needed to allow RTI officers to improve their understanding and application of the Act.

 

The decision making efficiency of the RTI officers in the above case has not been rewarded or made known to the wider public who criticise agencies for time delays.

 

It becomes difficult, and embarrassing, for the Ombudsman to urge speedy decisions when their own track record (without explanation) is so abysmal. A 27 month delay in a world of quills and paper, legal research by hand and communication by letter may have been excusable. In a digital age, the delay is unfathomable and inexcusable.

 

Freedom of Information and Right to Information relies on champions. These champions include RTI officers who attempt to achieve the objects of the Act, while protecting sensitive information, heads of agencies and Premiers who demand open government, and an Ombudsman who lead by example. The internal processes of the Ombudsman Office in recent years reveals significant issues that severely weaken its capacity to drive open government in Tasmania.

 

Cases 2-4  Tenants Union Requests re Processing Delays within the Ombudsman Office

 

Since October 2019 the Tenants Union has put in three RTI requests to the Ombudsman Office to establish the internal workflow and progress of draft decisions. This was in response to knowledge that a number of applicants had been waiting for significant period of time for a decision.

 

The first request in 2019 revealed that there were 76 active cases on hand and 83% of these cases had reached the stage of being drafted ‘pending approval of a preliminary decision’. Two of these cases were drafted in May and July 2017 with no movement to the next stage of ‘Pending Approval of Final Decision’. 

 

The Ombudsman’s delegate provided a table outlining the Reference Number of the Decision and the date when the decision was drafted and the stage reached at the time of the RTI request from the Tenant’s Union. However, no reasons for the extraordinary delay (21 and 23 months) was provided.

 

In 2020 a follow up request was made. This time the Ombudsman’s delegate was not as helpful but did give a fuller picture of the stages of determining an RTI request. The Delegate’s response notes:

 

“A full external review process involves at least the following steps: 

1.         receipt of the application for external review and creating its file;

2.         establishing jurisdiction for an external review;

3.         obtaining all the relevant information from the public authority or Minister; 

4.         assessing the relevant information, and parties’ arguments, against the Act;

5.         preparing a case note documenting key points from steps up to and including particularly step

6.         preparing (a more developed) draft/preliminary decision;

7.         settling and making the draft/preliminary decision;

8.         seeking input on the draft/preliminary decision from the relevant party or parties pursuant to s48(1);

9.         preparing a final decision (including its statement of reasons);

10.       settling and making the final decision;

11.       distributing the final decision to the parties under s48(3);

12.       and publishing the final decision online under s49(5). “

 

In June 2020 the Ombudsman had 82 Active cases, 22 had reached Step 5, 18 were at  Stage 6, and 1 case had reached Stage 9. All others were at Stages 1-4.

 

In December 2021 another RTI application was made. This was responded to by a different delegate (the previous two having left the office) who was less informative and did not present a detailed list of cases like those provided by the previous two delegates.

 

What can be determined from the Tenant’s Union  RTI requests?

 

 The Ombudsman has a serious processing problem at Stages 7-12.  This has not been assisted by constant staff turnover. However, the Ombudsman hampered by staff turnover, the time taken to have officers come up to speed, and the complexity and size of files all present a serious inability to get high quality decisions out the door. 

 

Yet the Ombudsman is simply one of many, including journalists, members of parliament and citizens involved in critical areas of government policy to have surrendered to mission fatigue and assigned RTI to the dustbin.

 

A few generalisations on the performance of RTI officers. These generalisations do not apply to all RTI officers or all agencies but would apply, unfortunately, in the majority of cases. The generalisations are based on the performance in relation to non-personal affairs information. Improvements in a number of these areas would start to indicate progress towards more openness in government.

 

Since 1993:

•           The average time for processing requests has become longer.

•           The first step in reviewing an application is to identify possible exemptions.

•           The % of requested information that is released at first instance has become lower.

•           The % of requested information that is released at internal review has become lower.

•           The first step in reviewing an application is to identify possible exemptions.

•           Where the public interest needs to be considered, RTI officers put less effort in identifying reasons for release in the public interest compared to arguing against release.

•           The % of decisions overturned in full, and in part, by the Ombudsman has increased.

•           The amount of formal training received by RTI officers has decreased.

 

Conclusion

 

What are the first steps in the rescue of Tasmanian RTI:

 

1.         Concentrate on the culture and performance of Agencies – no need for major legislative changes at this stage.

2.         Ombudsman to lead by example.

3.         The Premier to issue a statement demanding RTI Officers and their Managers implement and achieve the goals set out in Section 3.

4.         Reduce the time periods for RTI decisions from 20 to 10 working days.

5.         RTI Officers to make Section 3 their mission statement.

In the last few months,  there are indications that the Ombudsman has come off the sidelines. His office  is starting to call agencies and RTI officers to account in the way they interpret the Act in general and more specifically, on how they apply the public interest test.  But clearly, this Ombudsman activation is both welcomed and far too long in the making.

 

 

 

Speech, Language and Communication Difficulties - A personal reflection on social justice

Speech, Language and Communication Difficulties

A personal reflection

Another facet of social justice

In a recent meeting with Rosie Martin from Speech Pathology Tasmania http://spt.com.au/http://spt.com.au/ my attention was drawn to the strong impact of speech, language and communication difficulties (SLC) upon those who find themselves mired in the youth justice system. This is set out in Back on Track: Speech Pathology in Youth (Justice) Custodial Education (SPyce) Project Report 2013 http://www.speechpathologyaustralia.org.au/library/SPyce_Report_FINAL_lores.pdf

Despite my own background (see below) the impact and dimension of SLC on many people and their encounters with the legal system was largely an issue I gave little attention to. Given the high level of SLC skills demanded for a legal education and a profession in law (or related fields) it is not surprising that the difficulties associated with poor SCL skills are largely invisible or heavily discounted by lawyers and law reformers. At best efforts to use plain language, avoidance of jargon in conversation and the occasional referral to literacy help programs is seen as sufficient.

Law students with SLC difficulties (or ones like me with ad hoc coping mechanisms) are highly likely to stumble at several potential hurdles and rarely find themselves with law degrees. If graduating they feel like imposters and rarely confide in anyone about the struggles or  share their stories.

Whilst I started with severe SLC problems I was able to avoid being towed under. I found a few coping mechanisms, a way around the major problems (via reading literacy) and worked hard and constantly on ways to cope in a job that demands high performance of SCL skills. 

It was interesting to talk with Rosie about my history and have her provide a speech pathology and SLC analysis of what I had encountered, what I still struggle with and why some of the things I had done had worked (and others failed) and why access to the Queenstown Central Primary School library in Grade 3 had made such an important difference for me.

In my online memoirs I have mentioned the difficulties I encountered (and to a degree still encounter) with my speech when young http://leavesfromyypast.blogspot.com.au/2013/11/part-2-riding-winds-of-reflection.html

My speech impediment

“My speech difficulties started earlier and lasted longer than I originally remembered.  When we were living in country Victoria, neighbours remarked how chatty a little boy I was but they were unsure of my nationality as they couldn’t make out the words I was saying. Mum and others close to me could understand, with some effort, but strangers were left with the distinct impression I was from another country. The problem was a combination of speed, a struggle to form understandable syllables and difficulties with ‘th’ etc sounds. The end product was not the stuttering found in The King’s Speech but the same crippling level of anxiety, frustration and social isolation – without the castles, servants and money to soften the adversity.

It seems I had started kindergarten while living in St Kilda and my speech problems continued both, at East Launceston Primary School and to a lesser extent in the early months of our move to Queenstown. Mum recalled constant hours spent helping me to try and pronounce words under the guidance of the speech therapists. I recalled none of this.  However 3 to 4 years of struggling to communicate must have been frustrating to family, teachers and myself. As I write this I have vague recall of spending my play and lunch times at school in East Launceston on my own, isolated and often fearing having to ask questions in class. The move to Queenstown seemed to trigger a major communications breakthrough.”

In talking to Rosie I related a particular instance that epitomised the isolation, frustration and spirit breaking impact of SCL difficulties. My teacher in Grade 2 at East Launceston had a name like Swain, Train, Twain etc (you can see the difficulties a tongued tied kid would have with this name) before you could be excused from class you had to raise your hand and ask “Mrs Txxxx…… can )”In one encounter I had to stand and continually try and pronounce it right (simple really – the teacher states her name, you repeat - how easy) not only did that end in tears but also wet pants. The family’s move to Queenstown could not have been better timed.

Part 2 - Riding the winds of reflection

Part 2 - Riding the winds of reflection

Until I started composing the leaves in Part 1, I left my past largely untouched, apart from one brief moment late in a Mexican afternoon. It was unexplored territory, hidden from everyone, including myself. If I had ever turned a light, as Karl Popper suggested, onto that forgotten region it was only a small and weak torchlight for a few seconds and directed to the fringes.  The process of writing, reflection and sharing of various drafts of the memoir had brought me to the cusp of a critical decision. Would I exchange the torchlight for a searchlight and was I willing to alter my history to account for new facts? I had shared earlier drafts of my stories with a small circle of friends to get their feedback but had hesitated to share these drafts with my family, especially my mother.  My mother, now separated from Dad, was not on the internet so my choices about how to share were limited. I could mail it or I could travel north to Devonport and ask her to read it.

 My past is also her story. By sharing, was I asking to open a conversation about my natural father and my early years? Would she read it or talk about those times? Throughout history, authors, especially where they directly mined their own lives for content, inspiration and story ideas, had been confronted by their choice to reveal secrets long kept buried by others in their family or to form judgments favourable or unfavourable on the actions and inactions of those around them.  These authors, often simplistically depicted family members as villains, self-centered or they selfishly opened difficult and intensely private decisions to public judgment and walked away from the fallout. Others have learnt more about themselves by learning to understand the ‘others’ around them -- to appreciate the lover, young girl/boy, old woman/man who before, simply wore the label ‘mother’ or ‘father’. In my life, my mother had simply not discussed or hinted at period after I was born until my first tentative memories.

I half played with the idea of heading to Devonport, over the Christmas period, to share the stories with mum. However I jumped at the slightest excuse to delay the journey northwards and into my past.

The decision was made for me. Lance, my son, had headed north on a Sunday night, after Christmas, to visit a girlfriend’s family in Devonport. In the glove compartment of his car were his sister’s Falls Festival tickets.  Lance was not returning home until after the festival. By 6am on Monday morning, with a new version of the draft printed out, I was on the Midlands Highway playing Dylan Live 1975 and The Clash with two missions: retrieve the tickets; and share my reflections with mum.

Mission 1 was easily accomplished.  I reached Devonport around 9am, had a late breakfast with Lance and caught up with Dad. Mission 2 was just as easy. I made a quick visit to Mum, explained I had been writing about my journey and had come north looking for old photos but would also like her to read the stories. We arranged to meet the next day for lunch. I left the printed out stories on her kitchen counter.

During the afternoon, Dad’s brother in law from Queenstown, Kevin popped in to chat with Dad. He was in Devonport for his regular visit to watch the Devonport athletic carnival. The afternoon passed in a lazy conversation between Dad and Kevin, two men in their 60s who had intricate and overlapping histories of family, work and sport and the experience of living most of their lives in one small remote town and working for the Mt Lyell Mining Company.

I always had difficulty keeping track of family conversations. Dad and Kevin were recalling the past, mostly about their workmates from West Lyell and stories connected to playing footy in the 1960s on Queenstown’s famous gravel oval. The conversation was an ongoing ebb and flow of free association, name recall and a challenge for me to piece together bits and pieces of stories and keep up with a constant turnover of characters and relationships.

Dad “His mother worked in the corner shop, she had married Buster’s son Old Flabby….”

Kevin “ You mean Doreen’s cousin Nell who lived up near the smelter who married the guy at the pump station before she took up with the oldest boy of the Craigbourne’s.”

Dad: “Dickie James from the Comstock?”

Kevin “You mean Stewie Jones played half back for Gormie when Tiger Barnes was coach.”

As I tried to align their oral history with my faint knowledge of places and people, my carefully created understanding of my own history was flipped on its head by another turn in the conversation.

Kevin “He played for Smelters with Dougie Gamble.”

Dad “Yeah Dougie was a good player, I played against him” ….turning to me and in a rare venture into the personal simply announced “that was your real dad”.

I stopped listening, as I struggled to take this in, and the conversation headed off into new side tunnels.

In my history, Doug Gamble was simply a name on my original birth certificate and a man who had exited stage left before the real drama of my life had really started. To this point he had no history, no presence and no real story that connected at all with mine. Now his ghost had returned and it had played footy against the only man I had called Dad.  Where was I in this story? If my Dad had played against Dougie it had to have been in the early 1960s after I was born. Nothing in the fragments of my past or photos had suggested an earlier association with the West Coast.  However old information started to have newer connotations. When Mum had taken us to Queenstown in 1966/1967 her parents and brothers were already living or working there. How long had they been there?  A long forgotten memory resurfaced where as a very young boy I was watching my Mother’s brothers walking up the old Sand Hill, after a day working at the mines, at the top end of Queenstown, near the Central Queenstown Primary School. This memory had always been out of synchwith the way I had constructed my history. Now I was sitting there with new pieces of a puzzle and did not want to pry further until I had talked with mum.

Later that night I started to sort through and scan the old photos. With each photo especially those of my mother when she was a young woman, I looked closely at any men in the picture. Was this man my father? That one? Was that man in the background a cousin or family friend? Meanwhile, Dad and I kept up a conversation about footy and relatives. We have very few areas of common ground or interests. He has never read and all his spare time has been spent working on cars (he was an auto-electrician), in the garden or doing up the house. The only travel he is interested in is trips back to Queenstown. My lack of interest and skill in most things mechanical kept us restricted to a narrow band of topics.  My tales of Botswana, Mexico or Vienna were politely listened to.  For Dad sheer hard, or long, manual work weighed the measure of a man. Reading books and office work (uni) seemed to be an easy life.

Late next morning, I visited Mum at her apartment. She had prepared scones and sandwiches that we ate while I set up the scanner. We started to talk.  We edged closer to the key point of my visit, each of us treading carefully. Mum’s main concern with the stories were their intended publication. She has always been a private person and she felt that people would look at her like a scarlet woman, moving from relationship to relationship, having exposed her young children to a troubled childhood.  She contrasted her life and parenting to the longevity and stability that Esther and I had created. There is no escaping that both Esther and I have worked hard to achieve that stability based on a strong mixture of love, as well as a reaction to both our childhoods.  I told mum, I admired her for following her own heart and surviving in a tough environment. The early 1960s were not kind years to lone women with two young children.

We used the scanning of the photos as conversation bridges and inroads to our shared past.  Mum would fill in details for me of people, places and surrounding events often struggling to recall times and places. What follows are the newer segments of my history many of them reworking my story as I had known it.

Movements

Mum confirmed my hazy memory of moving frequently. After mum left Doug we left Cornwall, a small village on the East Coast up in the hills behind St Marys and seemed to be endlessly on the move. First we stayed with mum’s Aunty Clarice near St George’s Square in Launceston and then a large house in East Launceston at Hornsey Avenue. Nan and Pop Gleeson rented the downstairs area and shared with Mum, my baby sister Julie and mum’s Aunty Clarice and her partner Roy. During this period Pop Gleeson contracted TB and was in hospital for a fairly long period. Somewhere in this period, I have a faint recall of being encouraged/forced to toss my dummy into a fire in return for getting a Sooty teddy bear.

After Hornsby Avenue we moved to Melbourne, living in St Kilda, with Mum’s new partner and, for part of the time, in country Victoria. I have a faint recall of living in St Kilda and the detour to a Victorian country town but the recall was too faint and indistinct to expand upon in my early stories. I remember playing behind Punt Road Oval, going to the shops for milk and being somewhere that had a pigeon coop.

We then returned to Launceston and a downstairs flat in Elphin Road near city park where Aunty Clarice and Roy lived in an upper flat. Roy was the old man I recalled teaching me draughts. Clarice and Roy would often look after Julie and I when mum was at work.

My speech impediment

My speech difficulties started earlier and lasted longer than I originally remembered.  When we were living in country Victoria, neighbours remarked how chatty a little boy I was but they were unsure of my nationality as they couldn’t make out the words I was saying. Mum and others close to me could understand, with some effort, but strangers were left with the distinct impression I was from another country. The problem was a combination of speed, a struggle to form understandable syllables and difficulties with ‘th’ etc sounds. The end product was not the stuttering found in The King’s Speech but the same crippling level of anxiety, frustration and social isolation – without the castles, servants and money to soften the adversity.

It seems I had started kindergarten while living in St Kilda and my speech problems continued both, at East Launceston Primary School and to a lesser extent in the early months of our move to Queenstown. Mum recalled constant hours spent helping me to try and pronounce words under the guidance of the speech therapists. I recalled none of this.  However 3 to 4 years of struggling to communicate must have been frustrating to family, teachers and myself. As I write this I have vague recall of spending my play and lunch times at school in East Launceston on my own, isolated and often fearing having to ask questions in class. The move to Queenstown seemed to trigger a major communications breakthrough.

Doug Gamble

As we talked about the various photos I was scanning, mum reached for an old photo album and said, “[t]he picture you are looking for may be in here.”  Mum pulled out an old group photo taken with a box brownie camera. I’m in the front, aged about 1 or 2, along with a very young looking Pop and Nan Gleeson and my uncle Basil with a dog.  In the background, wearing some type of cap and overalls, is Doug Gamble. It is the only photo mum has of him.  This was not the photo or man I was thinking of when I had written about Doug’s photos in my Mum’s old tin.

We then had our first and brief conversation about the man who was my father. Mum said he was a good man and their breakup was mostly caused by her and her immaturity. Their split came shortly after Julie was born when Mum was about 24. At that point the shutters went up and our conversation stopped.

The destination of this journey

Mum asked what I intended to do with the writing? At first, with the urging of Professor Gary Meyers, a friend at the Law School, I just tried to capture a few of the key stations of my journey: the story of a recently promoted law professor who had followed an uncertain and meandering journey from a working class, West Coast environment to become the first in my extended family to attend university.  By the time I had travelled to Devonport, the story had become much more complex, multi-layered, hybrid concept, somewhere between Patricia William’s Alchemy of Race and Rights and a Rough Guide to Teaching.

The next step in the journey was enriched by the intervention of Taylor Bildstein. When I first meet Taylor, as a postgraduate Masters student, I was struck by her beauty, her earnestness and her determination. Taylor would become my first postgraduate student, strangely, in journalism rather than law, and I learnt to fully treasure her skills as a writer, editor, researcher and friend.

Yet, it was in the personal part of my life rather than the professional that Taylor would forever place me in her debt.  When Elise was in Grade 9, the parent-daughter relationship became very rocky and under intense pressure. I was doing my best to aggravate the problems by channelling the only male role model I had  - my loving but strict disciplinarian father. A lunch time conversation with Taylor rescued me from the gravest of parental errors. My response to the problems with Elise was to assert my will. But I was confronted by a daughter, proudly and deliberately raised to be independent, strong willed and more than capable and stubborn enough to see through any struggle of wills to the end, no matter the consequences. As Esther said, “[s]he’s your daughter.”

Seated across from me at a small café in South Hobart Taylor, simply advised me to stand back. She described a similar confrontation with her father and advised what I  needed to do was to let Elise know I loved her, and would always be there, but let go of the reins. This would allow mother and daughter to keep open the lines of communication and avoid the inevitable escalations when Elise and I butted heads. This advice and the circuit breaker of Elise spending 6 months in Spain as an exchange student, allowed us to form a much more understanding and supportive relationship. A few years on I now share a strong and intense friendship with my daughter.

A couple of years later in a small coffee shop in Salamanca Square, after my dash to see Mum and Dad, Taylor put me in her debt again.  In between our meetings and relaxed sharing of coffees, she had moved to Ottawa and undertaken a Masters course in International Relations in French.  She quizzed me, with all her skills developed as a communications director and editor. What type of book was I trying to write? Who would be the main audience? Why was I writing it? I couldn’t give a clear answer to any of these questions. Taylor, generously and without criticism, allowed me to mumble a few incoherent explanations. She then asked, had I read Obama’s  Dreams From my Father? She had half read it in French and thought there was some degree of similarity with what I was attempting to describe as the end result of my writing.

After Taylor and I had said our goodbyes, I walked through the bus mall to a bookshop. I was surrounded by “bogans.” a term invented well after I had left Queenstown, but which would have fitted so well with the younger version of me.  If the current version of me now met the bogan me of yesteryear would I be aware of, and wary of the latent aggression and the coldness in the eyes looking at me? Would a slightly more radicalised and older youth hold this middle class academic in contempt? Later at the bus stop, I watched as these reflections of a younger me walked away towards a future of limited options. I started to read Obama’s search for his past and his attempts to construct and understand his identity.

Dreams from My Father blew me away. I was impressed by the use of words, Obama’s reconstruction of scenes, his careful but frank interrogation of his surroundings and his willingness to expose himself on the eve of his plunge into adversarial politics. Taylor was right, there were faint echoes of my tale in Obama’s book but he has forged a much more poignant, perceptive and in many places, rawer account than I had accomplished. I loved and responded to the passage where Obama wrote:

“Then they’d offer a story to match or confound mine, a knot to bind our experiences together—a lost father, an adolescent brush with crime, a wandering heart, a moment of simple grace. As time passed, I found that these stories, taken together, had helped me bind my world together, that they gave me the sense of place and purpose that I’d been looking for. Marty was right: there was always a community there if you dug deep enough. He was wrong, though, in characterising the work. There was poetry as well — a luminous world always present beneath the surface, a world that people might offer up as a gift to me, if I only remembered to ask.” At 190.

Leaves 41 - 43 Media Tart, Teaching in Canada and public engagement

Leaf 41 An introduction to the world of the media tart, local ABC Radio 1991

Until the early 1990s, only two University of Tasmanian academics seemed to feature regularly in local media: Michael Stokes, a constitutional law expert, and Richard Herr, a political scientist. Both had taught me in the 1970s. Richard had supervised my Political Science Honours and Masters theses and had enticed me into tutoring in political science in 1988 as a means of ‘blowing the cobwebs from my mind’ after a period of time working in the Australian public service. Within academic circles, there was a fairly heavy air of disdain for this activity and both men were regarded as “having tickets on themselves” – a politer label than the latter use of the term media tart.

The issue of Tasmanian secession from the Australian Commonwealth had been raised in the Tasmanian media and somehow both Michael and Richard were unavailable for comment. An intrepid ABC radio journalist managed to trace down a tutor in constitutional law and postgraduate political science student - me. My dilemma was that the issue of secession was far from any of my areas of speciality. Indeed, it was hard to find anyone with any degree of expertise in this area in Australia. I promised the journalist I would do some research overnight and would be prepared to try to add a little more objective information to what had been a fairly uninformed debate to that stage. I didn’t realise it must have been a quiet news week because normally a request to do some overnight research would have been the kiss of death. The media will lose interest in most topics – especially secession – before any work day is ended.

 The gradual building of a media profile had begun.  Over the next couple of years, I made a couple of further forays into radio, print and two brief spots on local TV.  From 1993, my media activity expanded in terms of quantity, variety of topics and medium. I now average 20+ appearances, in both local and national media, a year. The total, since that first and hesitant interview, is almost 500 media comments ranging from brief 15 second TV grabs, to 30 minute morning talk back sessions, in-depth interviews, talk back radio, special filming sessions for SBS Documentaries  and opinion articles in national newspapers.

My first media foray taught me a couple of quick lessons. Despite briefing the interviewer, on the key points I wanted to focus on, the first few questions were only indirectly relevant to the topic. I fell into the murky waters of trying to tackle the question asked while attempting to move the conversation back to the more germane points. I quickly learnt the trick of answering the questions I wanted to rather than being solely guided by the interview questions.  Lesson 2 was that listeners found long answers difficult to follow unless you had a clear structure.  I was only vaguely aware of the concept of ‘sound bites’ but within a couple of years I had mastered packaging my responses, especially for non-live media (recorded radio and TV interviews or journalists seeking a quote or two to fill out a story). The biggest danger in the recorded interview is the chance, almost likelihood, of misquotation or selective editing that will make your carefully limited and qualified response seem abrupt, pointed and heavy handed. The well chosen sentence and carefully outlined qualifiers sound completely different when only the last half of a sentence or carefully crafted quote is used in the TV footage and juxtaposed with another different comment from someone else. Sometimes it pays to be first off the rank in terms of comment because you set the tone of questions asked of those interviewed after you. On occasion, it pays to be last and receive a brief summary from the journalist of the ‘sound bites’ already given and then pitch yours to best fit or respond to the direction of the commentary.

In my first few media encounters, it annoyed me that the interview I did a day’s research for, or the 10 minute conversation with a journalist, filled with great points, or that an hour spent filming ended up as a 5 second grab or a half sentence quote. Later, I learnt to trust most journalists and understand how they crafted their stories.  If I presented them with clear material, insights and ideas they would often construct their stories using those ideas but use better visuals (than a pudgy balding wild eyed academic) or manage to get a government minister scrambling to respond to the questions I raised earlier with the journalist.

Many academics, afraid of being misquoted, avoid the media and/or view those like me who engage with the media as simply media tarts seeking every opportunity to jump in front of a camera or radio microphone. One night in a Sydney restaurant, two fellow legal academics were savaging Professor George Williams, in his absence, because he had listed his media interviews on his cv/publications listings. The savaging came to a halt when I pointed out that I did the same. Media engagements were not undertaken lightly, they were high risk and exposed your expertise to full scrutiny. I have refused more requests than I’ve accepted to comment or be interviewed. The key questions I ask myself when a media comment is sought are – what is my level of expertise, is someone is better placed to comment, what can I add to the debate or existing commentary and will my involvement make a positive or informed contribution?

Leaf 42 “Forty degrees below zero - blessed are the micro thermals and Gore-tex coats” London, Ontario January 2003

The temperature in Ontario, Canada in January 2003 never rose above 0 degrees for the month I was teaching at the University of Western Ontario Law School. The micro thermals, I had purchased at a Katmandu clothing shop in Hobart in the middle of a hot summer, offered only a minimal layer of protection against wind chill temperatures of -15 to -30 degrees. My first purchase on day one in Canada, after slipping and sliding across several massive car parks and 4 lanes of slush, ice and exposure to Canadian drivers, was a $320 Gore-tex coat. Over the next 30 days, that thin coat was a lifesaver and one I still wear 10 years later. My January in Ontario also taught me that “Too cold to snow” was very true.

I was in Ontario for a month teaching an intensive course on Comparative Freedom of Information (the first such course offering in the world) to 25 students, mostly Canadian but including students from Hong Kong and France. In early December 2002, I had emailed all the students advising them of the course outline, reading list and assessment tasks including a small group work component worth 20% of the final mark. I soon discovered that special species of Canadian graduate law student -  “next stop Bay Street.”  Bay Street, Toronto is the centre of the commercial law district. The Bay Street students had a serious mission in life:  to out compete, out score and out apply all others to gain the holy grail of a job with a Bay Street firm.  Shared marks for group work was both anathema and a complete threat to the very core of these students.

In the emails I could feel the angst and tension I had caused one student in particular. Let’s call her Miss Bay Street. She wanted to know what was I going to do about this inequity as there was no way she would allow her hard fought marks to be lowered by the lesser capabilities of others in her year group.  My solution arose from a conversation about the use of reflective journals in education teaching I recalled having with Maureen Innes, a fellow Salamanca stallholder and casual lecturer in the Education Faculty. I offered my University of Western Ontario law students 5% to write a 1 page reflection on their experiences of group work and stated if it seemed from any student’s account that they had been disadvantaged in the group process I would adjust their marks.

Miss Bay Street, in her single page, reflected upon how dysfunctional and difficult to manage her group had been. On the other hand, the rest of her 5 member group reflected on how they had to wait until Miss Bay Street was absent so the group could function co-operatively and achieve their peak performance. I called it a draw and left the marks for that group work undisturbed. Yet this purely instrumental and limited initiative left an unexpected and incredibly rewarding legacy. A number of other students wrote more than a page about the group work, and then went on to reflect deeply about the course, the readings, their experiences and even the extent, and basis, of the differences in teaching style between their crazy Aussie Professor and the local staff.  

Student reflective journals became a key part of my teaching over the next decade. In many ways, this insight into the thinking, perceptions and motivations of students allowed me to find a way to fully develop my approach to teaching. It turned haphazard impressions, wishful thinking, assumptions and guesswork into much more informed intelligence about what motivated my students and what caused them to disengage.

Over many centuries, the nature, purpose, intent of, and approaches to legal education, and university education in general, has remained in continual contention. Therefore, I was not surprised when a colleague complained, with only a slight degree of exaggeration, that the greatest difficulty faced when marking an exam was finding a mark between 30-50% to give most students. In this model of legal education, the lecturer is a gatekeeper for the profession and his/her job is not to assist students to pass but to assess whether they had passed and to what degree. The job is to simply be an assessor of quality and the better the quality of students (proven in difficult exams and marked hard) the better the academics are as lecturers.

My approach, derived in part from my background but also from the history of successful sporting teams, is built around providing the support and assistance to students who want to improve their capacity and skills.  This approach centres more on the student and relies very much on the level, type and degree of student engagement. The former approach centres on the lecturer and requires attention to their comprehension, determination and delivery of the material on which the student is tested. The lecturer is a gatekeeper, constantly vigilant to bar the way to barbarians, the unwashed or those lacking credentials.  My approach to the gatekeeping role was to turn away those who were in the wrong place but to steer others to where they wanted or needed to go even if they couldn’t identify their destinations. Exceptional students can cope with both regimes but the former inflicts a heavy toll on many students and often on the lecturers. The marking process rather than being an opportunity to celebrate student achievement and understanding more often than not becomes an intense process of lamenting student incapacity to get the basics of a particular subject.  And this lament is often more strident and angrier year after year. 

Leaf 43 “A call to arms” the Staff Club, University of Tasmania, Wednesday 19^th October 1994

My lunch, at the University Staff Club, was interrupted by a phone call. John White, the then Shadow Attorney General was on the line. The Groom Liberal Government had, that morning, introduced an FOI Amendment Bill (that they had previously denied they were working on) into the Tasmanian Parliament.  Could I immediately come to Parliament House to brief the ALP opposition?  The Liberal Government had mistimed their introduction of the Bill and had left Michael Aird, an opposition MP, holding the floor at the luncheon break, thereby allowing him the opportunity to fully respond to the amendments after lunch.

In the Opposition rooms at Parliament House, I was confronted with a scenario we often described to our students of what thinking like a lawyer requires. The amendment bill was over 30 pages in length and changed 29 out of the 55 sections of the Freedom of Information Act and significantly altered the structure, purpose and operation of the Act. I had about 30 minutes to read, analyse and then present to the Opposition members key points they could make about the amendment. As always the academic, media tart and activist within me conflicted. Many of the key amendments hinged on slight changes that had a profound impact, but would be difficult to get across either in a media sound bite or by an opposition member on the floor of the House. In the end, I produced a brief presentation with a few key examples and talking points that would gain traction in the press and would survive any government attacks on the credibility or relevance of the points.

The Government was caught flatfooted, first, by my involvement and presence at Parliament House, and second, by the precise nature of the Opposition response. After the briefing, I spent the afternoon being on hand to do interviews and background briefings for all the TV stations, papers and radio.  Unfortunately the Government had picked a day where I had no teaching commitments.  Surprisingly, the Government had no campaign in place to justify or promote the changes and found itself on the defensive for several days. Furthermore, the early influence of the internet and the benefit of my embryonic networking came into play. I was quickly able to call on the input and expertise of several academic colleagues and activists, from interstate and overseas, to support and improve my original critique of the changes. In the mid- 1990s, this rapid networking and influx of commentary from outside Tasmania was unheard of – whereas in 2013, it is the norm. A further surprise was that the Parliamentary Greens made no effort to call on my expertise in resisting the changes.

 Many academics would have refused to become so directly involved in a political process holding to the view that their role extended only to providing objective analysis of proposed changes when formally requested. Or worse the reluctant academic commentator uses the old “on the one hand this is a negative but on the other this change may be a positive” device.  I had been influenced by the writings of Sir Geoffrey Palmer, a former Kiwi Prime Minister and administrative law academic, who argued that public law academics need to play an active role in the debate. Moreover, previous experience in various jurisdictions demonstrated the necessity to intervene when administrative reforms like Freedom of Information were under threat of being undermined by political processes or the bureaucracy. Sitting back and allowing the government to alter the very dynamics of the game with their proposed retrograde changes was not an option.