Why I am going to court today with the Victorian Government

Information and transparency are the lifeblood of any democracy. To hold governments accountable when we cast our ballot, we need to know what they have done, and what they haven’t done.

In the latter half of the 20th century, these values moved from words to deeds. The passing of freedom of information laws across liberal democracies enabled citizens to view government conduct and deliberations where they were in the public interest. Our human rights laws also make access to relevant government information a human right, protected under Victoria’s Charter of Human Rights.

In Victoria these deeds risk to receding back to words, with a breakdown of transparent and responsible government. The outgoing commissioner from the Office of the Victorian Information Commissioner recently described a ‘secrecy reflex’?whereby government departments are prioritising ways to keep information secret, rather than available to the public. Our freedom of information laws are, thankfully, due to come under review soon.

This matters to Victorians in the mental health system. Like every other state and territory in Australia, Victoria has laws permitting compulsory treatment and restrictive practices like seclusion and restraint. Unlike our counterparts, we have had a specialist agency to provide additional human rights protections: the Mental Health Complaints Commission.

But the Commission hasn’t turned out as we would have hoped. Having worked there and advised there for four years, I still see a Commission that fails to live up to the expectations of Victorians. Despite $27.4 million in taxpayer money over nine years, and 14 000 complaints, the Commission has never issued a single compliance notice to follow the law.

This abstinence occurs despite a Royal Commission highlighting the regular breaches of human rights, including people close to me. It resists the allure of action despite consumers regularly reporting that complaints are not promoting change. Information I obtained via freedom of information revealed that feedback to the Commission described the complaints process as a ‘sounding board’. More recent evidence finds that only 24% and 26% of people believe that their complaints resulted in a positive benefit for them or for others using the system (respectively).

The Commission’s response to the lack of compliance notices is that they make (voluntary) recommendations to mental health services that are always complied with. Great news, if true. The problem? The Commission does not want Victorians to see those recommendations.

After years of advocacy from the sector and calls from the Royal Commission for more accurate data on service performance, the Commission still resisted releasing these recommendations. I also made these requests over several years.

That's why I made a freedom of information request in May last year. Initially rejected by the Commission, my application was vindicated when the Office of the Victorian Information Commissioner upheld my application. The grounds used by the Commission to reject the application - secrecy and apparent privacy concerns - were found not to be based in fact or not properly weighed against the public interest.*

Sadly, rather than commit to transparency and efforts to act in good faith, the Commission is now appealing, with the help of external lawyers, OVIC’s decision to court. On Monday at 3:30pm, we will begin a process that will test whether we have a chance for a new mental health system, or more of the same. This is a decision that has the awkward infamy of uniting both the Victorian Greens and the Opposition party in denunciation.

Tim Read MP (Greens) stated:

Trying to suppress this stuff doesn’t fill anyone with confidence that effort is being made to fix the problem...If they say it can’t be done, then they’re not trying hard enough.

Emma Kealy MP (National Party) stated:

Labor is failing these workers by ignoring the royal commission’s priority recommendations around workforce and increased transparency around Victoria’s mental health crisis

On 1 September the Commission is being rolled into a ‘new’ Mental Health and Wellbeing Commission, with the Victorian Government choosing to re-appoint two of the current Commissioners as well as two new Commissioners. There is so much work to do.

It is a sad indictment on the prospect of our mental health reforms that this is the focus of our Commission, less than two weeks out from the commencement of a new Mental Health and Wellbeing Act.

We can’t create a new mental health system by covering up the issues in the current one. Let’s take stock of where we are so that we can move towards a better mental health system that everyone wants.

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[*Note: these recommendations are not focused on an individual's resolution of their complaint. For example, the recommendations being sought are about suggested changes to a mental health service's overall performance rather than changing an individual's treatment.]