Statement of Public Interest

This site covers:

1. The requirements for NSW government ministers and their agencies to prepare a Statement of Public Interest for each Bill (other than an Appropriation Bill) introduced in the NSW Legislative Council.
2. The findings of a Review of the quality of the first 34 Statements of Public Interest tabled in the NSW Legislative Council based on the adequacy of their answers to the six public policy questions for each Bill.
3. The two best practice Statements of Public Interest identified by the Review that can act as examples for agencies preparing a Statement of Public Interest for a Bill.
4. Why the six questions posed in a Statement of Public Interest should be addressed during the development of a public policy requiring legislation, not just answered to justify a bill after it is drafted.

NSW Premier’s Memo

Following the adoption of a Statement of Public Interest Sessional Order by the NSW Legislative Council on 17 May 2022, the NSW Premier issued a Memorandum on the 24 June 2022 stating:

“Any Government bill, other than an appropriation bill for the ordinary annual services of the Government, must be accompanied by a Statement of Public Interest before proceeding in the Legislative Council.”

The memo also said:

“The Minister responsible for the introduction of a bill will be required to make a statement following the first reading as to whether a Statement of Public Interest has been prepared.

“If a Government bill is not accompanied by a Statement of Public Interest, then a motion may be moved without notice (and prior to the second reading of the bill) that the bill not proceed until a Statement of Public Interest is tabled, or that the bill is “referred to a standing or select committee for inquiry and report.

“Agencies responsible for assisting a Minister or Government member with carriage of a bill in Parliament should prepare a Statement of Public Interest using the (following) template.”

[INSERT NAME OF BILL]

STATEMENT OF PUBLIC INTEREST

Need: Why is the policy needed based on factual evidence and stakeholder input?

[Insert content explaining the evidence base for the Bill.]

Objectives: What is the policy’s objective couched in terms of the public interest?

[Insert content explaining the way in which the Bill serves the public interest.]

Options: What alternative policies and mechanisms were considered in advance of the bill?

[Insert content describing any alternative policies or options considered before the drafting of a Bill.]

Analysis: What were the pros/cons and benefits/costs of each option considered?

[Insert content describing – in further detail – the relative benefits and detriments of each of the options identified. This should describe why the drafting of the Bill was the preferred option.]

Pathway: What are the timetable and steps for the policy’s rollout and who will administer it?

[Insert content describing the practical steps following passage of the Bill through the Parliament to implement the policy given effect to by the Bill.]

Consultation: Were the views of affected stakeholders sought and considered in making the policy?

[Insert content describing the consultation that occurred prior to or following the introduction of the Bill.]

For the full text of the Premier’s memo visit: https://arp.nsw.gov.au/m2022-03-statements-of-public-interest/

NSW Standing Order

The NSW Legislative Council’s Sessional Order after a 6-month trial period was made a permanent Standing Order on 17 December 2022 with its wording streamlined and strengthened to read:

(1) On a government bill, other than an appropriation bill for the ordinary annual services of the government, being read a first time, the minister must table a statement of public interest which addresses each of the following questions:

• Need: Why is the policy needed based on factual evidence and stakeholder input?
• Objectives: What is the policy’s objective couched in terms of the public interest?
• Options: What alternative policies and mechanisms were considered in advance of the bill?
• Analysis: What were the pros/cons and benefits/costs of each option considered?
• Pathway: What are the timetable and steps for the policy’s rollout and who will administer it?
• Consultation: Were the views of affected stakeholders sought and considered in making the policy?

(2) If a statement of public interest in relation to the bill is not tabled after the first reading, a motion may be moved without notice that:

(a) the bill not proceed until a statement of public interest is tabled, or

(b) the bill be referred to a standing or select committee for inquiry and report, and

(c) the motions may be debated.

(3) If the question under paragraph (2) is agreed to, the second reading of the bill is set down as an order of the day on the tabling of the Statement of Public Interest or the report of the committee.

(4) On the order of the day for the second reading being read, a motion may be moved, without notice, that standing orders be suspended to allow the passing of the bill through all its remaining stages during the present or any one sitting of the House.

(5) A motion ‘That the bill be considered an urgent bill’ under standing orders 137A and 138 may not be moved until a statement of public interest is tabled.

Note: The new Standing Order of 17 December 2022 did not require any changes to the requirements of the Premier’s Memo of the 24 June 2022 since it already reflected its intent.

Review of Quality of Statements of Public Interest

The Evidence Based Policy Research Project (EBPRP), with funding from the Susan McKinnon Foundation, commissioned Kim Garvey, a former senior budget officer of the NSW Treasury to review the adequacy of the first 34 Statements of Public Interest tabled in the NSW Legislative Council between June 7 June  (when the Sessional Order came into effect) and 20 October 2022. Her full report can be accessed here .

Review Findings

The following table from her report shows how each of the six questions was addressed over the survey period:

The Attorney General submitted most bills (8), followed by the Deputy Premier, Minister for Regional New South Wales, and Minister for Police (5) and the Treasurer and Minister for Energy (5). Eight portfolio areas each submitted one bill over the period.

The report found:

• All 34 bills were accompanied at the second reading speech with a Statement of Public Interest,
• All 34 bills addressed each of the six required questions,
• Three statements were assessed as exceeding requirements, with two addressing all six questions comprehensively,
• 21 of the statements were assessed as meeting requirements, which meant that broadly 70% passed muster or did better, and
• 10 statements were assessed as below requirement, with room to improve – approximately 30%.

The report noted that since the sitting week commencing on 20 September 2022 and after consultation by the EBPRP with some Members of the Legislative Council and with officers from the Department of Premier and Cabinet, the general ‘quality’ of responses improved:

• 19 statements were assessed as meeting or exceeding requirements – over 90% – with three of them exceeding requirements and two addressing all six questions comprehensively, and
• Only two statements were assessed as below requirement, compared with 10 statements for the entire period.
• Responses to questions addressing ‘Options’, ‘Analysis’ and ‘Pathway’ were the most challenging, with more responses assessed as below requirement and fewer responses assessed as exceeding requirement.
• For responses to questions assessed as meeting requirement, the quality of responses was generally consistent across each of the six question areas, with responses to ‘Analysis’ being the weaker response area, and
• For responses assessed as exceeding requirement, questions related to ‘Objectives’ and, noticeably, ‘Stakeholder consultation’ were the most satisfactory responses.

Review Observations

Key observations from the analysis were:

• Some question areas, namely ‘Options’, ‘Analysis’ and ‘Pathway’, require more guidance to those preparing the statements as to what a ‘good response’ looks like,
• The predominant response for the ‘Options’ question was that legislative amendment was the only option. Legislative amendment is the machinery to give effect to a policy option, not the option itself. In some cases, responses may have been hindered by adherence to Cabinet, confidentiality in discussing options and the benefits/costs and pros/cons of each option, and
• Some responses assumed a degree of familiarity with the subject areas and a knowledge of discussion papers and community feedback that was publicly available on the policy matter, when it would be helpful if the answers were self-explanatory.

Review Conclusion

Overall, the level of compliance, together with an improving ‘quality’ content, clearly demonstrates

• An acceptance of the Statement of Public Interest as a mechanism to foster a broader understanding and community debate of the policy matter and as an adjunct to informed parliamentary debate,
• That the Statement of Public Interest can provide a discipline by which Government policy can be evaluated and by which Government can be held accountable for the policy decision, and
• Preparing a Statement of Public Interest may not impose an administrative burden on agencies and can easily become standard operating procedure as part of the parliamentary process.

Best Practice Statements of Public Interest

The Garvey Report found 2 of the 34 Statements of Public Interest reviewed “exceeding requirements…addressing all six questions comprehensively”. They were:

• Law Enforcement (Powers and Responsibilities) Amendment (Digital Evidence Access Orders) Bill 2022, and
• Treasury and Energy Legislation Amendment Bill 2022.

The Statements of Public Interest for each of these bills serve as best practice examples for NSW government agencies required to prepare such a statement for their Minister to table with a bill.

These two exemplary Statements of Public Interest together with the Garvey Report’s review of them can be found here:

• …(Digital Evidence Access Orders) Bill
  • Statement of Public Interest 
  • Garvey Review of SPI 

• …Energy Legislation Amendment Bill
  • Statement of Public Interest
  • Garvey Review of SPI

Conclusion

Ideally, the six questions posed by a Statement of Public Interest should be addressed from the outset of developing a public policy that eventually becomes a bill, not just answered as a compliance exercise to satisfy the Standing Order and the Premier’s memo and to post-rationalise a government decision.  

The six questions are those that every policy maker should ask to identify the optimal policy solution for a particular problem based on factual evidence and stakeholder input. Such an approach ensures that the policy chosen has been thoroughly worked through to avoid conceptual and implementation risks. That’s why “good policy is also good politics” – it is less likely to backfire on a minister and their agency when a bill is subjected to legislative, media and stakeholder scrutiny.