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Thursday, November 27, 2014

World Bank: "Information Commissions play a crucial role in guaranteeing the right to information"

As the Australian Government moves to abolish the position of Australian Information Commissioner (I hear that a vote on the FOI amendment bill is likely to be deferred from today Thursday to next week, the final week of sittings for the year) and continues to consider whether to proceed or not proceed with a notice of intention to join the Open Government Partnership, Jeff Thindwa, Practice Manager Governance and Inclusive Institutions at the World Bank, writes about the importance of both outlining how accountability institutions such as Information Commissions "play a fundamental role in advancing government openness" and initiatives "such as the Open Government Partnership should deepen engagement with them." 

Presumably the Executive Director for Australia at the World Bank in Washington is happy about the support the Bank gives to "the strengthening of Information Commissions for effective access to information legislation implementation.." 

Meanwhile in Canberra....
Accountability Institutions – such as Information Commissions, Ombudsman and Supreme Audit Institutions – play a fundamental role in advancing government openness. Initiatives such as the Open Government Partnership should deepen engagement with them. Transparency and accountability are key priorities of the Open Government movement. They are also areas where accountability institutions can have real impact. Information Commissions play a crucial role in guaranteeing the right to information. Ombudsman institutions handle citizen complaints about public administration and help protect citizen rights. They have a crucial mediation function that fosters reciprocal engagement of the citizen and state. Supreme Audit Institutions (SAIs) are also a critical part of the national accountability architecture, with a mandate to “watch over” government accounts, operations, and performance, through external auditing. - See more at: http://www.opengovpartnership.org/blog/jeff-thindwa-and-marcos-mendiburu/2014/11/26/does-open-government-need-accountability#sthash.L8KDRKX6.dpuf

Wednesday, November 26, 2014

Will government succeed and abolish OAIC or the ALP, Greens and a coalition of common sense prevail?

The Senate Legal and Constitutional Affairs Legislation Committee Report (pdf) on the Freedom of Information Amendment (New Arrangements) Bill tabled yesterday is unfortunately predictable, in line with other recent Senate committee reports on contentious government legislation.

It canvasses and reasonably accurately summarises the many issues and concerns raised in some but not all submissions, none of which are countered by information or analysis that supports the government view that the bill is somehow a step forward. 

All the evidence and expert opinion from outside government circles is that it is a step in the opposite direction.

But this didn't stop the committee's three government members, two of whom didn't make it to the one hurried public hearing, waving the bill through, recommending only a change to overcome to a degree problems arising from the proposed relocation of the Privacy Commissioner in the Australian Human Rights Commission. Oh and recommending that the government respond to the Hawke review "as soon as possible' and undertake some consultation while they are at it. The Chair Senator Ian Macdonald had been more direct and probably accurate at the hearing when he expressed the personal view it was only about trying to save $10 million over four years and nothing else.

 The two Labor and one Green senators in similar dissenting reports recommend a vote to reject the bill, call on the government to fund the OAIC and to undertake a comprehensive review or at least a review the OAIC. They point out:
  • Proper process requires comprehensive review first, action second, not the other way round.
  • The cost savings are questionable and the measures involve significant cost -shifting to applicants who will now have to pursue an expensive formal appeal process instead of a free and accessible non litigious one. No evidence was received that AAT review would be faster than review by the OAIC-the main plank in the government's case for change.
  • No one was consulted beforehand and support for the bill was virtually non existent in more than 30 submissions to the committee.
  • The current system of management of FOI and related information policy through an independent information commission is best practice as seen in a global trend in comparable jurisdictions and in four Australian states.
  • Oversight of FOI–a system designed to hold executive government to account – will now be led by a core government department, a clear conflict of interest.

The Bill comes on for debate in the Senate on Thursday 27 November. 
With Labor and The Greens opposed, its fate is in the crossbenchers' hands. The Government needs the support of six of eight.

I spoke to their offices in the last two days-except that of Senator Muir where no one answered the phone.

In all cases they were interested in what I had to say: that the legislation is retrograde not beneficial and if passed will be a giant step backwards for the open, transparent and accountable government cause when excessive and unnecessary secrecy is painfully evident.

If you feel similarly, I urge you to contact any or all of the following today:
Ring- simply say you wish to talk to someone there about the freedom of information bill currently before the Senate, and make as few or many points as you wish.
Tweet: hashtags #OAIC. #Auspol #FOI
Email
Senator Day
(02) 6277 3373
twitter @senatorbobday
Senator Madigan
(02) 6277 3471
twitter @SenJJMadigan
Senator Xenophon
(02) 6277 3552
twitter @Nick_Xenophon
Senator Leonhjelm
(02) 6277 3054
twitter @DavidLeonhjelm
Senator Lazarus
(02) 6277 3204
https://www.aph.gov.au/Senators_and_Members/Contact_Senator_or_Member?MPID=108616
Senator Wang
(02) 6277 3843
Senator Muir
(02) 6277 3040
Senator Lambie
(02) 6277 3063
https://www.aph.gov.au/Senators_and_Members/Contact_Senator_or_Member?MPID=250026



      Who knows- common sense anyone?

      Monday, November 24, 2014

      FOI amendment bill wishfully or wrongly listed as non contentious

      The Draft Legislation Programme  for the Senate this week lists the Freedom of Information Amendment (New Arrangements) Bill for Thursday 27 November under the heading "Non controversial legislation-to be confirmed."

      I have it on good authority this is either wishful thinking on the government's part or a mistake after the program was discussed between party whips.

      Labor is opposed; The Greens are opposed; and my conversations with staffers in crossbench offices today suggest they see the point -  the legislation is retrograde not beneficial to those who may use the act, and more broadly a set back on the long journey towards open transparent and accountable government.

      The government needs four six of eight crossbench votes for the bill to pass.

      If you have time for a brief "I want to let you know that I hope the senator votes against this bill" or something even stronger, the phone numbers are here.

      The Senate Legal and Constitutional Affairs Legislation Committee is scheduled to report on the bill tomorrow 25 November.

      Voice up about the government bill to abolish the information commissioner

      Add Professor AJ Brown of Griffith University to that group urging the Senate not to vote to abolish the Office of Australian Information Commissioner. 

      Writing in The Conversation about what was achieved on the anti-corruption front at the G20 Leaders Summit and what still remains to be done, Professor Brown asks can we do better?
      Can Australia, or the G20 as a whole, do better than this? The answer is we must. Why would Australia not also show its leadership by completing the decision to join the Open Government Partnership? Or announce that it intends to become a full member of the Extractive Industries Transparency Initiative, another international mechanism endorsed and encouraged by the G20? Or back its commitments to transparency with a positive blueprint for open data and citizen rights to information, rather than abolishing the Office of the Australian Information Commissioner as is currently underway?  Or say how it intends to clean up its own “know your customer” requirements and enforcement, under the new beneficial ownership principles? All these issues signal what many average citizens fear – there’s a huge gap between the rhetoric of leaders and the reality of their governments’ actions."

      Contact a crossbencher today about the Freedom of Information Amendment (New Arrangements) Bill, up for a vote soon- the bill is not a step even vaguely in the right direction.

      Senator Day
      (02) 6277 3373
      senator.day@aph.gov.au
      twitter @senatorbobday

      Senator Madigan
      (02) 6277 3471
      senator.madigan@aph.gov.au

      twitter @SenJJMadigan

      Senator Xenophon
      (02) 6277 3552
      senator.xenophon@aph.gov.au

      twitter @Nick_Xenophon

      Senator Leonhjelm
      (02) 6277 3054
      senator.leyonhjelm@aph.gov.au

      twitter @DavidLeonhjelm

      Senator Lazarus
      (02) 6277 3204
      https://www.aph.gov.au/Senators_and_Members/Contact_Senator_or_Member?MPID=108616

      Senator Wang
      (02) 6277 3843
      https://www.aph.gov.au/Senators_and_Members/Contact_Senator_or_Member?MPID=250045

      Senator Muir
      (02) 6277 3040
      https://www.aph.gov.au/Senators_and_Members/Contact_Senator_or_Member?MPID=250024

      Senator Lambie
      (02) 6277 3063
      https://www.aph.gov.au/Senators_and_Members/Contact_Senator_or_Member?MPID=250026


      Sunday, November 23, 2014

      Abolish the OAIC? Let the crossbenchers know what you think.

      The Senate Legal and Constitutional Affairs Legislation Committee is due to report on the Freedom of Information Amendment (New Arrangements) Bill this Tuesday 25 November during the second last sitting week of the year. 

      Labor and The Greens maintain their opposition to the bill so the Government needs votes in support from six of the eight crossbenchers if the bill is to pass.

      I've written to each of them as below. If you like me think abolishing the Office of Australian Information Commissioner is a giant step backwards for the open, transparent and accountable government cause, see also the contact details of the eight senators who will determine the matter. A phone call, tweet (to the only one with a Twitter account), or email letting them know your views might help.

      Senator,

      I urge you to vote to reject the Freedom of Information Amendment (New Arrangements) Bill.

      Around 25000 FOI applications are made each year. While media use of FOI makes the news, the vast majority of users are individuals seeking access to documents held by Veterans Affairs, Human Services and Immigration.

      This backward step on transparency and accountability will affect all Australians not just those responsible for close to one million applications since FOI commenced thirty years ago.

      The bill removes from the scene entirely the independent monitor, champion and advocate for more open, transparent government; abolishes the non-litigious free external merits review process for review of agency and ministerial FOI decisions, and moves this function exclusively to lawyers' territory at the AAT where the application fee for those who do not qualify for a concession is $861; fractures the synergies established only four years ago between FOI, privacy and broader policy on information management in the digital age; and places the attorney general in the position of government wide influence through the issue of guidelines in the stead of the independent commissioner.

      The government claims the move will 'reduce the burden' on FOI applicants and asserts savings of $10.4 million will be achieved over four years. Neither claim is substantiated.

      In the short period available to make a submission to the Legal and Constitutional Affairs Legislation Committee, the following joined me in urging the committee to recommend against a vote for the bill:

      Transparency International Australia
      Accountability Round Table
      Electronic Frontiers Australia  
      Queensland Integrity Commissioner
      Open Australia Foundation
      Public Interest Advocacy Centre
      Australian Privacy Foundation
      NSW Council for Civil Liberties
      Liberty Victoria
      Pirate Party Australia
      Guardian Australia

      Dr David Solomon who chaired the groundbreaking review of the Queensland FOI act in 2007-2008, whose submission raises important human rights and constitutional issues;
      Associate Professor Moira Paterson Monash University Faculty of Law Director, Graduate Studies; author of Freedom of Information and Privacy in Australia: Government and Information in the Modern State (LexisNexis, 2005) and FOI Editor of the Australian Administrative Law Service.
      Dr Johan Lidberg, Monash University. Senior Lecturer in Journalism in the School of School of Media, Film and Journalism, who has undertaken international comparative research into FOI practical functionality for the last 13 years.
      Public Law and Policy Research Unit, The University of Adelaide. Submission written by Dr Gabrielle Appleby, Deputy Director of the Public Law and Policy Research Unit, Dr Judith Bannister, Senior Lecturer, Adelaide Law School and Anna Olijnyk, Lecturer, Adelaide Law School
      Assistant Professor Bruce Baer Arnold, University of Canberra School of Law    
      Craig Thomler, social media and Government 2.0 advocate and practitioner.
      Megan Carter, Consultant with 33 years experience in this field in Australia and overseas.
      George Samuel.
      Andrew Donnellan.

      The Law Council of Australia submitted that the matter should be delayed for three months to permit full examination of the proposal.

      The President of the Australian Human Rights Commission told the committee the proposal in its current form to relocate the Privacy Commissioner is unworkable.

      There are many other options to improve the operation of the FOI system and to look into possible cost savings and efficiencies.The conduct of some agencies adds considerably to cost to the taxpayer.

      The framework that the bill would abolish is basically similar to the framework in Queensland, NSW, Victoria, Western Australia, and has been proposed to the SA government in a special report by the former ombudsman earlier this year.

      The information commissioner model is accepted international best practice , now in place in over 40 countries.

      Labor and The Greens have indicated their intention to vote against the bill.

      In the interests of open, transparent and accountable government, I hope the crossbenchers will do likewise.

      I would welcome the opportunity to talk to you or a member of your staff and to provide additional information if that would be useful.

      Thank you in anticipation.

      Peter Timmins
      Open and Shut
      www.foi-privacy.blogspot.com.au


      Crossbench Contact Details

      Senator Day
      (02) 6277 3373
      senator.day@aph.gov.au
      twitter @senatorbobday

      Senator Madigan
      (02) 6277 3471
      senator.madigan@aph.gov.au

      twitter @SenJJMadigan

      Senator Xenophon
      (02) 6277 3552
      senator.xenophon@aph.gov.au

      twitter @nick_Xenophon
       
      Senator Leonhjelm
      (02) 6277 3054
      senator.leyonhjelm@aph.gov.au

      @DavidLeonhjelm

      Senator Lazarus
      (02) 6277 3204
      https://www.aph.gov.au/Senators_and_Members/Contact_Senator_or_Member?MPID=108616

      Senator Wang
      (02) 6277 3843
      https://www.aph.gov.au/Senators_and_Members/Contact_Senator_or_Member?MPID=250045


      Senator Muir
      (02) 6277 3040
      https://www.aph.gov.au/Senators_and_Members/Contact_Senator_or_Member?MPID=250024

      Senator Lambie
      (02) 6277 3063
      https://www.aph.gov.au/Senators_and_Members/Contact_Senator_or_Member?MPID=250026

      Friday, November 21, 2014

      Finance says Australia yes, still 'considering' OGP membership, but participating and busy with preparatory work

      Answers to questions from Senator John Faulkner in the delayed Senate Estimates hearing for the Department of Finance yesterday provide a glimmer of hope that Australia might yet proceed to fully join the Open Government Partnership. 

      Minister Cormann gave the standard summary: 
      "the situation is as it was when we last discussed this in May or June. The government has expressed an interest in joining the open government partnership. We are undertaking the necessary due diligence in order to come to a final decision. A final decision has not been made this point." 
      However when recently appointed Secretary Jane Halton expanded on this it turns out a ministerial/prime ministerial decision was taken that Australia should participate in voting in the election of the OGP Steering Committee a few months back, and the department is working on a national action plan, with a rather mysterious reference "to 162 particular recommendations on 19 different topics."

      Secretary Halton:
      "So whilst we are participating as a participating country, we are doing the domestic work that would enable us, should the government choose to participate, to do the public consultation on the National Action Plan, and then ultimately to agree and sign on."
      So all to the good, if as slow as a wet week given that we were invited to join over three years ago and the previous government lodged a notice of intention to join in May last year. Surprisingly that's enough to get us a vote.

      And while public servants continue with what the Secretary described as "quite a lot of work" on the OGP, it's remarkable that no one I know outside the hallowed halls of power in Canberra has been asked for any input on any issue to do with membership, process, or the range of matters that might be considered relevant to a national action plan. 

      Those 162 recommendations on 19 topics must represent a public service view of the open government space. Did 'abolish the OAIC' get a mention I wonder?

      Those of us on the outside may share or differ on the list but as the Secretary knows, the clever people don't all reside in the Department of Finance. 

      The Mandarin this week reported on an interview with Secretary Halton in which she talked about e-government, claimed we are no digital dawdler particularly in comparison to the British government, and revealed her interest in reaching out to the real world:
      Along with impressing upon her team the need to “join the dots” between the department’s various projects to form a picture that reflects the government’s objectives, she’s been asking them to “talk to people”. “There’s no point us dreaming up an idea if it doesn’t work in the real world; it won’t be used,” she said. “So, one of the things I’ve been talking to my people a lot about is ‘consult, consult, consult’. Ultimately, government will make a decision, but I need to know and I want my people to know what the CFO down in Health thinks about a framework, or what the secretary of the Defence Department thinks about how this will work for him. We need to understand and get people’s input. I mean, there’s a lot of clever people in the public service. They don’t all reside here, so why wouldn’t we get their ideas?”
      There are lots outside the public service as well, looking to advance the partnership in Open Government Partnership.

      The relevant extract from the transcript follows:

      Warning that doing government business through personal emails could amount to misconduct, or worse.

      The South Australian Independent Commissioner Against Corruption (Annual Report pdf P57) is concerned that some public officers, mainly ministerial staffers, use personal rather than government email accounts to conduct official business and sounds a warning:
      "It has been suggested that the reason for doing so is to avoid the requirement to disclose those emails where an application is made under the Freedom of Information Act 1991(‘FOI Act’). If it is the case that public officers are engaging in this kind of conduct to avoid the consequences of the FOI Act, that conduct should cease immediately. It is a matter of concern that public officers would seek to circumvent a legislative scheme designed to enhance transparency in government decision making. Such conduct might, at the least, amount to misconduct in public administration and be the subject of investigation and potential disciplinary action. I am told that the FOI Act is often abused. If that is so that is a reason to address that Act. It is not a reason to frustrate the FOI Act. While it remains the law the spirit of the Act should be observed by all public officers. Presumably those emails are not maintained in accordance with the State Records Act 1997 (‘SR Act’) (where that Act applies). The conduct therefore might also amount to an offence against section 17 of the SR Act. An offence against that section by a public officer while acting in his or her capacity as a public officer would amount to corruption in public administration under the ICAC Act."
      Just a South Australian issue? 

      I haven't seen it raised by the various watchdogs in other Australian jurisdictions, but it would be naive to think it doesn't or couldn't happen elsewhere.

      And just ministerial staffers?

      In an article in July this year based on documents released under FOI about an advertising campaign by the Rudd government to deter boat arrivals, Tom  Swann uncovered references to an email described as from “the Minister’s Gmail”:
      The first email was sent at 8pm on Thursday, July 18, by the department’s head of communications, Sandi Logan. It contained the guidelines’ criteria for exempting a campaign from normal scrutiny, with the words “extreme urgency” underlined. Close to midnight someone in the prime minister’s office sent a media plan – “canvassed and locked-in” – to Burke’s media advisers and senior immigration bureaucrats. The sender’s name is redacted, but the email is described elsewhere as coming from “the Minister’s Gmail”. The email ordered “Full-page ads in all metro tabloids the day after the announcement and the next 3 days”, “Ads in all major ethnic papers”, “radio spots” and “social media”, with a budget of $30 million. It also provides the campaign slogan.


      "Personal emails" cropped up in the UK in 2011 as an access issue prompting the Information Commissioner there to issue guidance that emails of this kind could, depending on content, come within the terms of the FOI act there. On that score in most jurisdictions here, the test would be whether the email is held by the agency or in the possession of an officer carrying out duties. 






      Thursday, November 20, 2014

      Crossbenchers should insist on evidence based approach to FOI policy

      The Canberra Times (Freedom of Information watchdog may be saved but staff have already left) suggests the government is struggling to find votes from the crossbenches to ensure passage of the Freedom of Information Amendment (New Arrangements) Bill.

      I hear that an offer was made that if the bill passes, the government will commit to a comprehensive review of the FOI act to commence within three months.

      Not hard to spot the flaw in this befuddled approach to policy making that involves acting first then taking a close look at what should be done.  

      The review was the first recommendation of the Hawke review that the government has sat on for 15 months. It's needed but before not after demolishing a key element in the 2010 reforms and abolishing altogether the independent monitor advocate and champion of open government.

      And if the claimed but not evidenced savings of $10 million over four years is really what this is about, a close look at agency performance might also reveal how to save money in the administration of the FOI act. The Open Australia Foundation has put before the Senate committee inquiring into the bill 17000 pages that document the user experience in the form of correspondence with agencies of hundreds of FOI applicants, providing a unique treasure trove of the legalistic pettifogging gaming that goes on in some agencies. That would be a good place to start.

      As indicated at the committee hearing last week the issue of support staff for the commissioners to carry out their functions from 1 January will need attention if the bill does not pass, but hey those genii who came up with the idea of abolishing the OAIC can surely rise to that challenge.

      Tuesday, November 18, 2014

      The public trust principle and delivering on the G20 'best practice' commitment

      Tim Smith QC, Accountability Roundtable, yesterday on Fairfax The Zone:
      I think it is clear that open and accountable government will produce better government than secret government. Secret government - government that thrives on secrecy - becomes hostage to the more powerful and assertive interests in the community, and tends not to have the benefit of the views of others in the community who have something relevant and important to say.

      Turning to the public trust principle: it is one that I was not aware of until 2009, and I have found that I am in good company. Very few people are aware of it. Now, obviously when you say that you have entrusted someone with power over your life, you expect that person to exercise the power in your interests and not their own interests.

      That would be the expectation on the person to whom you have conferred the power. In terms of public office, we voters entrust those we give our vote to with enormous powers over our lives. And simply as an ethical principle, it seems to be unarguable that in that situation the person entrusted with the power by us should give primary emphasis always to what is in the public interest, and if they find their personal interest in conflict, they must give priority to the public interest.

      But I now know, after further research and consideration and discussion that this is not simply an ethical principle. It is part of the common law of Australia.

      May I quote the former Chief Justice of the High Court from his speech made before presenting the ART Parliamentary Integrity Awards last year

      “It has long been an established legal principle that a member of Parliament holds “a fiduciary relation towards the public” and “undertakes and has imposed upon him a public duty and a public trust”. The duties of a public trustee are not identical with the duties of a private trustee but there is an analogous limitation imposed on the conduct of the trustee in both categories. The limitation demands that all decisions and exercises of power be taken in the interests of the beneficiaries and that duty cannot be subordinated to, or qualified by the interests of the trustee”
      And on the question how might Australia best proceed with the G20 commitment 
      to international best practice,Tim flags the Open Government Partnership as one of the pathways:
       
      To honour our commitment to lead by example in implementing international best practice for public sector transparency and integrity, Australia will need to attend quickly to two other major international commitments as signatories to the UNCAC and as an applicant to join the Open Government Partnership (OGP). The OGP was established in 2011 by 8 countries including the USA, UK and Indonesia. Under the UNCAC, Australia is yet to complete its required National Anti-corruption Plan (NAP) and, under the OGP, its first Direct Action Plan. Both the UNCAC and OGP also spell out, as international best practice, that the plans required be developed in consultation with civil society. 
So there is cause to hope that our G20 commitment indicates that these matters will now be addressed. After all, we would otherwise fail to honour our commitment to lead by example. In addition we would be ignoring, to our own cost, what the over 60 members of the OGP understand and accept, namely, that strengthening open and accountable government will help domestic and international economic growth, one of Australia's major objectives. The public interest appears to point in one direction.

      Monday, November 17, 2014

      G20 countries to lead on international best practices for public sector transparency and integrity

      From the 2015-16 G20 Anti Corruption Plan (pdf), an "agreed document" that supports the Communique issued at conclusion of the Leaders' Summit in Brisbane yesterday, this from the section Public sector transparency and integrity:
      "G20 countries commit to leading by example in ensuring our government agencies, policies, and officials implement international best practices for public sector transparency and integrity.  The (Anti Corruption Working Group) has identified public procurement, open data, whistleblower protections, immunities for public officials, fiscal and budget transparency, and standards for public officials as issues which merit particular attention."
      We look forward to engaging with the Government on this challenge. For starters, abolishing the Office of Australian Information Commissioner and its important function as independent monitor, advocate and 'champion' of open government, as proposed in government legislation currently before the Senate, is not international best practice.

      Timely also that Tim Smith QC from the Accountability Roundtable is in The Zone
      at Fairfax Media today explaining
      those in public office hold positions of public trust and should therefore place the public interest above all other considerations. From this flow such tenets of democracy and public policy as accountability and transparency. And under our legal system, the principle has expanded beyond the realm of ethics to guide and become enshrined in judge-made law, the common law.
       Tim is answering questions here .

      Friday, November 14, 2014

      NSW Parliament sorts crown privilege and public interest immunity claims

      And in some respects it's a win for the public right to know that government is discharging its responsibilities to safeguard our interests as it is required to do.
       

      See here for background but in brief, the issue arose following an order by the NSW Legislative Council to produce the Crown Casino VIP Gaming Management Agreement for the James Packer casino to be built at Barangaroo. 

      The Department of Premier and Cabinet supported by Crown claimed privilege for parts of the agreement citing commercial confidentiality, statutory secrecy and public interest immunity and arguing they should not be tabled and available for public inspection. (See Correspondence.)

      The Independent Arbiter (former Crown Solicitor and President of the Court of Appeal) Keith Mason QC examined the agreement, accepted some of the claims but rejected others. 

      The Greens Dr John Kaye moved the matter be referred to the Privileges Committee to assess the Arbiter's decision. DPC and Crown continued (in confidential submissions) to argue their case.

      The Privileges Committee recommended that the Council order tabling of the agreement in accordance with the decision of the Arbiter.

      Dr Kaye decided not to push for more. The version of the agreement redacted in accordance with the ruling of the Arbiter was tabled on 13 November.

      The exercise provides another example for parliaments elsewhere around the country that have no mechanism to resolve disputed claims that the NSW system is an excellent model. 

      The Privileges Committee report reveals that since 1999, the Legislative Council has made over 300 orders for production of papers."In almost 50 instances, the services of an independent legal arbiter have been employed. In the committee’s view, the process is robust and effective."

      Sean Nicholls in The Sydney Morning Herald highlights the bits that the government unsuccessfully argued to the Arbiter and the Privileges Committee should not be publicly disclosed, in particular Schedule 1 of the Agreement. The schedule includes measures that the government required in the agreement to ensure Hong Kong/Macau gambling magnate Stanley Ho or his associates had no involvement in or connection with Crown's activities here or overseas, ever.

      There are differences between the issues and those that arise under public access to government information law, but the following points from the Privileges Committee report are of interest and some relevance:

      Former Victorian FOI decision maker denies being as denying as commissioner said

      Of all the possibilities that annual reports on the operation of freedom of information legislation contain misleading information (such as 'everything is going along wonderfully well') I never expected a claim of the sort made by Don Coulson former senior adviser to the premier and reported in The Australian today would make news.

      The claims relate to the 2012-13 annual report of the FOI Commissioner, and the publication of a list of decision makers with a mini scorecard on their decisions:
      (Mr Coulson) said the commissioner’s ­report identified him as a decision- maker and attributed to him the making of five decisions to deny access in full, one decision of partial release of information and no decisions allowing access in full. However, Mr Coulson said this was incorrect and that he had made one decision to release ­documents in full, one in part and only two were denied in full.
      “While these decisions may not seem to be significant, the ­incorrect figures tabled by the commissioner resulted in adverse comment about me in newspaper reports, which were repeated in other websites across Australia,’’ he wrote.“As well as the incorrect date about my decisions, I am also aware of at least one decision made by Tony Nutt as the chief of staff ...“While Mr Nutt as a decision­-maker was not reported in the commissioner’s tabled report, I believe (he) ought to have been.’’Mr Coulson wrote to FOI commissioner Lynne Bertolini about the alleged errors, but they have not been corrected."
      It clearly matters to Mr Coulson who is pursuing a wrongful dismissal claim, and information provided to the parliament should be correct, but....

      Maybe we will see a really exhaustive examination of FOI in Victoria in The Australian sometime soon?

      Thursday, November 13, 2014

      Victorian FOI Professional Standards may set new standard for agency bosses

      At five minutes to midnight - well, on 31 October, days before the government went into caretaker mode on 4 November prior to the election on 29 November -  Victorian Attorney General Robert Clark issued the first Freedom of Information Professional Standards, exercising powers (Section 6L) inserted in the Victorian FOI act in 2012 with the passage of legislation to establish the position of foi commissioner.

      The standards are the new benchmark for Victorian government agencies in administering their responsibilities under the Freedom of Information Act and establish "overarching principles to steer Agencies' conduct in their handling of freedom of information matters, with a view to making their actions of the highest standard."

      The standards are mostly statements of what you hope you could expect of government in handling your FOI application.

       But the act, Section 6M, provides that the Principal Officer of an agency "must ensure that any officer or employee of the agency concerned in the operation of this Act complies with any professional standards that are prescribed by the regulations in performing his or her functions under this Act."

      That plus this principle in the Standards seems to constitute a performance commitment that may be the first of its kind for, us at least - any comments?

      Principal Officers have a responsibility to:
      a.  promote an appropriate pro-release culture to ensure the transparency of public sector information

      b.  ensure FOI decision makers are aware of the requirements of the FOI Act and these professional standards, and how they apply to decisions and actions in the course of processing FOI requests

      c.  ensure relevant staff are provided with adequate information, guidance, training and support in applying these professional standards and the requirements and objects of the FOI Act

      d.  ensure internal FOI procedures are regularly reviewed in regard to their effectiveness, compliance with legislation, case law and any guidance from the FOI Commissioner

      e.  ensure their agency’s decisions comply with the requirements of the FOI Act and these professional standards

      f.  provide an appropriate level of resources to ensure the timely processing of requests, and

      g.  keep the FOI Commissioner informed of changes to their agency’s Principal Officer and FOI contact details.

      Section 6M provides that the obligation to comply is with any professional standards that are "prescribed by the regulations." I don't see any relevant regulation published to date so maybe the Attorney General didn't get that far before campaigning intervened.

      No mention under timeliness in the Standards of contact with the minister's office, a subject addressed in the Department of Justice Practice Notes issued until 2012 that are still up on the internet. Practice Note 10
      “Where a decision relates to a Minister’s portfolio and/or where a Minister could be asked by the media or in Parliament to comment or explain about the response to the request or the contents of the documents once disclosed, or they are sensitive in any way, the agency is to provide a brief to the Minister. This is to be done five days prior to the proposed finalisation…”
      In cases where the agency needs to brief the Minister, the five-day noting period needs to factored into how the agency divides the processing time of a maximum of 45 days."
      The Ombudsman years ago raised concern about long delays as decisions sat in ministers' offices awaiting 'noting' and The Greens Greg Barber highlighted interference by ministerial staff in decision making as a result.

      I don't know if the Freedom of information Commissioner has delved into that practice, but after 29 November it all starts again.

      The Accountability Roundtable is keeping track of what the major parties say they will do if elected. 

      A comprehensive review of the Victorian act which shows all the signs of 1983 thinking, and holding principal officers to those professional standards should be high on the list of whoever wins.

      Wednesday, November 12, 2014

      FOI review rights won't disappear if New Arrangements bill doesn't pass.

      Paul Farrell writing in The Guardian on the Senate Legal and Constitutional Affairs Legislation Committee public hearing on the Freedom of information Amendment (New Arrangements) Bill reported that the ABC’s freedom of information editor, Michael McKinnon, appearing on behalf of the media coalition Australia's Right to Know, had raised significant concerns that if the bill did not pass applicants would be left without any review options, due to the closure of the OAIC. The OAIC is funded only to 31 December. “Unhappily and reluctantly we support some form of bill getting through in order to create a review process,” he said.

      Farrell did not report that both Australian Information Commissioner Professor McMillan and First Assistant Secretary of the Attorney General's Department Matt Minogue in later evidence assured the committee it was not correct that review options would disappear.

      Professor McMillan:
      "Just on that, I might intervene to correct some confusion on the point of discussion in the last panel session on what will happen after 31 December if this bill is not passed. If the pill (sic) is not passed the OAIC will still continue to exist. It will not have a budgetary allocation, but the OAIC will still exist. The three commissioners each have appointments that extend beyond 31 December. The FOI commissioner and myself, for example, have appointments that continue until 30 October next year. There is of course a legal duty on government, under our constitutive act read with the Remuneration Tribunal Act, to ensure that we are paid at salary while we are still in office. There are practical questions, obviously, about the administrative support that would be needed to discharge functions if the normal budgetary allocation has expired but the legal reality is that the commission still exists, the commissioners still continue in office and the functions conferred upon them by the various acts are still relevantly conferred and are exercisable.....
      At the end of the day, one simple option is for the person occupying the position of FOI Commissioner or Information Commissioner or Privacy Commissioner to refer all matters to either the ombudsman or the AAT. The short answer is that appeal rights will not be lost if the legislation does not go through. There are still legal avenues, legal realities, that will ensure that matters can be resolved."

      Matt Minogue:
      "Certainly. In terms of the key issues that have been raised in the questioning this afternoon, the concern is that, come 1 December (sic) if the bill is not passed applicants would be left with no appeal mechanism at all. That is not the case. You would be rightly be horrified if that were an unintended error, but that is not the case. I think the answer provided by the OAIC commissioners was appropriate there. If the legislation is not passed the commission continues. Yes, there will be practical considerations that government will have to undertake in negotiation with the commission about how to resolve those practicalities, but it is not the case that there will not be any appeal mechanism for applicants.

      CHAIR: As I heard Mr Pilgrim, he said they will still do it but they will not be getting paid and would not have any staff—if the bill passes.

      Mr Minogue : If the bill passes the external merits review mechanism is the AAT, as outlined in the provisions of the bill.

      CHAIR: What someone was telling us was that to go to the AAT you had to have an authority from the commission, and if the commission no longer existed how could anyone go.

      Senator JACINTA COLLINS: If the bill did not pass.

      Mr Minogue : That is right. If the bill did not pass the concern was that there would be this disjunct between the formal requirement to go to the OAIC, but no OAIC there to be gone through. That is not the case, as I think Professor McMillan outlined. That threshold concern will not materialise. Yes, there will be practical considerations about how that function is continued, given that since the announcement of the government's decision the work has been on implementing the government's decision, not unsurprisingly. So the resources available to the commission will be less than they are today, and government will have to consider that at the time. But I think it would be appropriate to put to ministers, rather than officials, what would happen if the bill does not pass."

      Publication of incoming government briefs: New Zealand shows the way.

      I know there are differences in the type of issues covered.

      But following decisions right across government to refuse access to the incoming government briefs prepared for Abbott government ministers last year, the general thrust of which was confirmed by the Australian Information Commissioner on the basis that 'frank and candid', poor petals, required that a brief not be disclosed because public servants wouldn't in that event do their job properly next time, developments in New Zealand provide a sharp contrast.

      The State Services Commission has proactively published, with some redactions the incoming government brief provided to all ministers and the brief provided to its incoming minister following the October election. We can only be reasonably confident our equivalents will be publicly available in 28 years.

      (Update: There I was thinking this was a big deal when what State Services has done is commonplace In NZ not unusual.)

      The government brief outlines thinking about steps to address challenges including
      • Getting greater access to complete data sets that will inform effective targeting of effort and investment.
      • Engaging in a deeper way with New Zealanders over their issues and solutions.
      • Strengthening New Zealand‟s strong reputation nationally and internationally for operating with integrity and inclusiveness.
      And the minister's brief includes a reference to a subject government here doesn't talk about publicly: making a real fist of its Open Government Partnership commitments. 

      Australia apparently is still 'considering' whether to proceed or not proceed with the previous government's May 2013 notice of intention to join the OGP. It is three years since we were invited, and the membership ranks have since swelled to 64 or 65. As to NZ:
      We had some initial ideas about how we can make the greatest contribution to the Government’s plan for New Zealand. We would welcome an opportunity to discuss these ideas with you.

      By 2017……

      System Stewardship

      We will have strengthened the perception of New Zealand as a high integrity country. We have met New Zealand’s Open Government Partnership commitments, put in place a Code of Conduct for Ministerial Advisers and embedded improved information security and privacy practices across the State services.
      Meanwhile here Canberra is head down and flat out trying to win support in the Senate for its legislation to abolish the Office of Australian Information Commissioner and remove from the statute book the role of independent monitor, advocate and champion of open government...


      Tuesday, November 11, 2014

      FOI New Arrangements Bill

      The Senate Legal and Constitutional Affairs Legislation Committee public hearing yesterday on the Freedom of information Amendment (New Arrangements) Bill had its moments.
      Only three members attended, the Chair Senator Ian Macdonald (Liberal National), Deputy Chair Senator Jacinta Collins (Labor) and Senator Lee Rhiannon (The Greens), so that was disappointing. Then Senator Macdonald recused himself from the session with the Office of Australian Information Commissioner because he, as a third party who objects to disclosure of information about a disputed payment has a matter before the Office awaiting a decision. 

      The transcript for your edification-comment when I get a chance.

      (Update: Paul Farrell in The Guardian is one of the few who reported the hearing.)

      Monday, November 10, 2014

      Experts in no doubt: no merit, and a backward step in move to abolish OAIC

      In the course of its inquiry into the Freedom of Information Amendment (New Arrangements) Bill 2014 the Senate Legal and Constitutional Affairs Committee will hold a public hearing in Sydney on Monday 10 November from 1.15pm - 5.00pm at the SMC Conference and Function Centre, 66 Goulburn Street.

      I am down to appear, so too the Law Council of Australia, Open Australia Foundation, Public Interest Advocacy Center, Australian Press Council, Australia's Right to Know, Office of Australian Information Commissioner, and the Attorney General's Department. Submissions from OAF, PIAC, OAIC and me have been published so what others have to say is awaited with interest. 

      As to published submissions twenty four organisations or individuals from outside government who reacted in time to the five days notice are virtually unanimous on the big question: 
      The committee should recommend that the Senate vote against the bill. 
      Those organisations and individuals are:

      Transparency International Australia
      Accountability Round Table   
      Queensland Integrity Commissioner
      Open Australia Foundation
      Public Interest Advocacy Centre
      Australian Privacy Foundation
      NSW Council for Civil Liberties
      Liberty Victoria
      Pirate Party Australia
      Guardian Australia
      Associate Professor Moira Paterson Monash University Faculty of Law Director, Graduate Studies; author of Freedom of Information and Privacy in Australia: Government and Information in the Modern State (LexisNexis, 2005) and FOI Editor of the Australian Administrative Law Service.
      Dr Johan Lidberg, Monash University. Senior Lecturer in Journalism in the School of School of Media, Film and Journalism, who has undertaken international comparative research into FOI practical functionality for the last 13 years. 
      Public Law and Policy Research Unit, The University of Adelaide. Submission written by Dr Gabrielle Appleby, Deputy Director of the Public Law and Policy Research Unit, Dr Judith Bannister, Senior Lecturer, Adelaide Law School and Anna Olijnyk, Lecturer, Adelaide Law School
      Assistant Professor Bruce Baer Arnold, University of Canberra School of Law    
      Craig Thomler, social media and Government 2.0 advocate and practitioner.
      Megan Carter, Consultant with 33 years experience in this field in Australia and overseas.
      George Samuel.
      Andrew Donnellan.

      And your blogger, Peter Timmins.

      The Queensland and NSW information commissioners spoke in similar terms at a conference last Thursday. 

      More on the submissions and the hearing to come.

      Friday, November 07, 2014

      The Australian dusts off the "Must resist any move to give a right to sue over privacy" file.

      In response to the headline to Chris Merritt's report in The Australian "Time to stop droning on about privacy, as a tort is unnecessary", it's wishful thinking but...
      it's way, way past time for Chris Merritt to stop droning on that the very idea of a tort for serious unwarranted invasion of privacy would be the end of the world as we know it.
      Of course as the Attorney General apparently has said "the Government has made it clear on numerous occasions that it does not support a tort of privacy" this issue is in the lost cause box in any event. Until something in the mix changes regardless of evidence of increasing threats to what we thought might be private, the high level of public concern about privacy and the view of most experts not employed or retained by News Corp that the gap in the law should be filled by a carefully crafted statutory provision. 

      News Corp publications of course always have an unerring eye when it comes to balancing privacy and the public right to know and be informed even when it comes to intimate details about Senator Peris. (Segue to a wonderful reflective piece on the general subject by Jack Waterford in The Canberra Times although whoever wrote the headline should have read the article more closely.)  Their activities in the conduct of journalism aren't covered by the Privacy Act but privacy complaints about others were up 183% in the year to June.

      This time Merritt is on about a parliamentary committee report that recommended the following among many other steps to deal with gaps in the law in the light of the widespread and growing use of drones.  


      You wouldn't know it from Merritt's article that use of drones by journalists wasn't central to the committee's consideration of the problem. Or that there is a stack of reports other than this one that recommend a statutory cause of action:
      The Committee recommends that the Australian Government consider introducing legislation by July 2015 which provides protection against privacy-invasive technologies (including remotely piloted aircraft), with particular emphasis on protecting against intrusions on a person's seclusion or private affairs.
      The Committee recommends that in considering the type and extent of protection to be afforded, the Government consider giving effect to the Australian Law Reform Commission's proposal for the creation of a tort of serious invasion of privacy, or include alternate measures to achieve similar outcomes, with respect to invasive technologies including remotely piloted aircraft.
      It's in Attorney General Brandis' in tray. Don't hold your breath.