Alice in Wonderland-not Julia Gillard- alive and well

It's hard to believe the troubled reaction to proposals for publication of basic information about school performance.

Deputy Prime Minister Gillard had a discussion with 150 school principals in Canberra this week . Here is what she told them. What is contemplated is that each school will have its own profile webpage that will contain a range of information about the school. The categories covered will include: information about the type of school, student and staff numbers, student attendance rate, socio-economic background of theschool student body, results from national literacy andnumeracy tests, and data about vocational education participation and Year 12 attainment.

Information will be available about how a school performs in literacy and numeracy, compared to other schools that serve student populations that have similar socio-economic backgrounds (known as like-school groups). A like-school group could include, for example, schools with similar proportions of students from disadvantaged backgrounds, and comparisons would be made between these schools. Like-school comparisons will be the only form of comparison made. The website will include a list of schools in the local area of the selected school, but comparisons between schools in the same local area will not be undertaken.

Fairly modest really. And the reaction? According to the ABC, teachers and academics have condemned the move, saying the information could be misused to name and shame schools.

I'm no expert in education but I can only see good coming from greater transparency about what's happening in our schools, given the enormous investment of public money and the importance of the issue. A friend who has spent his life in the school system told me today the prime problem was most teachers haven't kept up with the world around them and those in NSW, at best would read the Daily Telegraph each day. If this is near true, no wonder performance measurement is a foreign concept and the reaction to publication of information on the situation in and some achievements of various schools is one of concern.

Queensland shapes up for more reform

The Queensland Government Response yesterday to the public consultation about integrity and accountability includes plans for a suite of reforms that again will see that state move ahead of the rest of the field. And promptly- deadlines for action are by the end of the year or mid 2010. Here are some highlights:

Ban the payment of success fees to lobbyists for achieving favourable outcomes from government.

Replace the Code for Lobbyists with a legislative framework for the regulation of the lobbying industry and put oversight in the hands of the Integrity Commissioner.

Introduce measures to require newly appointed public service officers and ministerial staff to disclose whether they have worked as lobbyists in the past two years.

Create a statutory obligation on Members of Parliament to declare their pecuniary interests rather than leave this to Parliament's Rules.

Require all statutory office holders to declare their pecuniary interests.

Publish the pecuniary interests of Members of Parliament and Ministerial and departmental gift registers online.

Reform the Whistleblowers Protection Act 1994.

Hold regular People’s Question Time.

Lower the threshold for reporting some details of contracts from $100,000 to $10,000.

Ensure publication of contracts over $10 million.

Overhaul political donations and campaign funding if the Commonwealth does not act by July 2010.

Publicly avaiailable information isn't always old hat

A fuss in the UK about fast tracking immigration processing, apparently based on documents released after a Freedom of Information battle and posted in the disclosure log on an agency website seven months ago, but just discovered by the mainstream media and politicians, has given rise, somewhat unfairly to claims of "cover up." However Martin Rosenbaum on Open Secrets commented:

"So what does this tell us? To start with, perhaps opposition politicians and journalists (yes, me included) should read the FOI disclosure logs of government departments more carefully. But perhaps it also tells us something about the relationship between the web and the media. Documents are available on the internet for anyone interested to read for several months - yet it's only when the mainstream media focus on them that other journalists and politicians get interested."

The mindset that information in the public domain can't be of interest or importance is widespread here as well. With Queensland in the vanguard regarding more proactive publication of information since 1 July, I wonder whether journalists, politicians and interest groups there regularly check the disclosure logs of government agencies ( involves going through each agency Publication Scheme to find the Log - and they were admittedly a bit thin last time I looked) or the regular public release of information about Cabinet decisions?

ABC lifts FOI game-50% refusal rate

Regular readers will know of our interest in the Freedom of Information doings of the Australian Broadcasting Corporation. The Annual Report 2008-2009 recently tabled in Parliament includes this in Appendix 18:

"The Freedom of Information Act 1982 (“FOI Act”) gives the public the right to access documents held by the ABC. Part II of Schedule 2 of the FOI Act gives the ABC an exemption in relation to material that is program related. During the past year, the ABC received 10 requests for access to documents under the FOI Act. Two requests were granted, three were granted in part and five were refused."

An improvement on last year's almost 100% refusal rate (8 refusals, 1 part disclosure) but no information about how much reliance was placed on a very generous 2006 Federal Court decision that the exclusion was broad enough to cover any document that had an indirect (as well as a direct) relationship to program material.

10 requests in the year wouldn't have put any strain on the system. Maybe the FOI Act isn't needed when it comes to getting information from the ABC. In contrast the BBC received 1141 requests during the same period.

Business on both sides of FOI battle

Although decided under the now repealed Freedom of Information Act a recent decision by Assistant Queensland Information Commissioner Henry may highlight a situation that will arise more frequently under access laws that place greater weight on disclosure: one business exercising its right of access, a clash between an agency's assessment that release of requested information relating to business affairs of a third party will have no unfair or unreasonable effect, and the business concerned seeking to resist disclosure because of claimed adverse effects.

In Ensham Resources Pty Ltd and Department of Natural Resources and Water (210706 19 October 2009) Assistant Commissioner Henry found that much of the information sought by AOAI Insurance that the Department decided to release despite the objections of Ensham Resources (about the Ensham Central Project, more particularly flood risk and/or flood protection levee banks in the Nogoa River floodplain), was already publicly available on Ensham's website, or in other reports and articles, and on the agency website. Ensham declined invitations to provide more detailed submissions to support its claim that notwithstanding, the documents were exempt, arguing unsuccessfully that it carried no onus. Ensham also failed to satisfy the Assistant Commissioner that other documents not publicly available should be exempt from disclosure: the information in dispute appeared to be aged or out of date, was likely to have been significantly revised or superseded and was likely to have lost any commercial sensitivity due to subsequent events and/or the passage of time. In addition the content consisted of commonly known information

Top end of town lawyers Mallesons Stephen Jaques (for AOIA) and Clayton Utz (for Ensham) were involved in this with a win all round for Mallesons (and of course for the Department and its FOI decision maker). But it took from July 2008 when the FOI application was made, and presumably involved a bit of pain for both companies (and the taxpayer) on the costs front.

Yes, we should rethink everything

Stephen Bartos of Allen Consulting, in The Canberra Times (Forget tinkering: we must rethink everything- no link available) on Tuesday writing about the advisory group on Reform of Australian Government Administration, and changes that should receive attention:

"A world's best public service would be highly transparent, accessible and accountable. Transparency has been sidetracked by an esoteric debate between senior journalists, public servants and academics about whether policy advice should be available under freedom of information. Among others, former Prime Minister and Cabinet secretary Professor Peter Shergold argued cogently that such publication would mean less frank policy advice. If it's going to be a sticking point for reform, policy advice ought to remain confidential; it's not the transparency that concerns most Australians. What matters is program administration rules, procedures and decisions that affect peoples' lives and personal information.

Many parcel companies allow you to track your package online on every step of its journey, anywhere in the world. So why can't departments track every grant application or letter sent to them, and give the sender online access to tracking? Why is it so hard to discover the procedural rules not legislation but internal rules on how programs are run? What about data? Australian government agencies hold vast amounts of data but rarely have sufficient time or staff to analyse it; if it were accessible to researchers, their capacity to make new discoveries would be hugely improved. Genuinely open government would start with a presumption that all government processes and data will be open to public view unless there is a reason for them not to be (reversing the present implicit assumption that public servants operate behind closed doors)."

Transparency sidetracked by an esoteric debate about policy advice and FOI, and its not a big deal in any event? Hardly.

Its an issue Peter Shergold and PM&C Secretary Terry Moran have certainly given a workout in recent months, arguing for confidentiality. But it's really part of a broader issue concerning accountability for government decisions that affect us, and the degree of transparency we should expect concerning what was considered, who was involved, the options available, what the experts thought, and why the choice was made. Unless there is a good reason why we shouldn't know these things.

The (FOI) law of the land since 1982 has been that information of this kind (other than what goes to cabinet or say legal advice) is to be released unless disclosure would be contrary to the public interest. The debate about what this means has been going on ever since, with many years of foot-dragging by the public service even in the AAT .Some including Peter Shergold claim the public service can't operate unless confidentiality for what they say is guaranteed. It's generally accepted that disclosure of some elements of the process before decisions are made may constrain proper consideration of the issues. Primarily it comes down to accountability and transparency after the event, for decisions taken in our name. Some suggest the prospect of disclosure would improve not detract from the quality of decision making. The Government even sees the need to try to better balance the equation by explicitly spelling out factors that favour disclosure in the FOI Reform Exposure Draft Bill. Here is the Minister of State Senator Ludwig on the subject in August, responding to the Shergold line:

"I know that some in the Australian Public Service feel that FOI reforms may inhibit their ability to provide frank and fearless advice. But I believe that the tradition of frank and fearless advice is more robust than that. I believe that our public servants will work professionally within the new FOI framework as they do within other accountability mechanisms. It is beyond dispute that it is in the public interest for ministers to receive written advice on matters relating to their administrative and policy responsibilities. In any given case, whether or not the exemption may be sustained will depend on the subject matter of the document and the circumstances around the Government’s consideration of the document, including whether a Government position has been announced. Political sensitivity will not be an argument against disclosure."

The real problem isn't sidetracking by a small group of insiders, journalists and academics. It's the pace and content of reform, with the Government saying virtually nothing about the detail since the release of the Exposure Draft in March, and the closure of a sort of debate (submissions) in May. However despite the silence, lack of any further information about Government thinking and no Bill introduced into Parliament, some public service wheels are turning. This from the list of courses in the Canberra Times on the same day as the Bartos article:

November 9: Course: Getting to grips with FoI reform. New full-day course examines in detail the most important proposals in the draft Freedom of Information bills, including analysis of similar provisions in other jurisdictions. Inquiries: Australian Government Solicitor, 02 6253 7126 or cbrtraining@ags.gov.au

Tasmanian Parliament hiding bold step under a bushel

Although no-one is shouting it from rooftops, Tasmania is to be the first Australian jurisdiction to bring the Parliament within the scope of information access law as a result of a provision in the Right to Information Act that appears to make information concerning administration of the Parliament accessible under the Act .This didn't rate a mention in the Minister's Second Reading speech in Parliament, wasn't referred to in materials issued during the review process such as the Directions Paper early in the year, or the Overview presentation in April 2009, and apart from a couple of jocular exchanges during the debate in the Legislative Council, wasn't mentioned in hours of debate about the detail of the Bill in Parliament.Notwithstanding, its a groundbreaking development and a step ahead of everywhere else in the country where Parliament is either not an organisation of the kind covered by Freedom of Information acts and similar laws, or has been specifically excluded.

The reason for the silence may be that it is not exactly up in lights from a reading of the Act. The clue lies in Section 6, under the unlikely heading "Exclusions of certain persons or bodies." The section provides (emphasis added):

(1) This Act does not apply to information in the possession of the following persons or public authorities, or in the possession of a person whose services are provided or procured for the purposes of assisting the person or public authority, unless the information relates to the administration of the relevant public authority:

(a) the Governor;
(b) a court;
(c) a tribunal;
(d) the Integrity Commission;
(e) a judge;
(f) an associate judge;
(g) a magistrate;
(h) the Solicitor-General;
(i) the Director of Public Prosecutions;
(j) the Ombudsman;
(k) the Auditor-General;
(l) the State Service Commissioner;
(m) the Anti-Discrimination Commissioner;
(n) the Public Guardian;
(o) the Health Complaints Commissioner;
(p) Parliament;
(q) a Member of Parliament.

The Act 's provisions concerning access rights, publication and disclosure are framed in terms of obligations and duties of a public authority (and irrelevantly for this discussion a Minister) -see for example sections 3 and 7.

First issue: is Parliament a public authority? You would expect so otherwise why refer to it in Section 6 - although I'm struggling to understand the significance of the inclusion of a Member of Parliament.

The only part of the definition of public authority in Section 5 that appears relevant is (e) a body, whether corporate or unincorporate, that is established by or under an Act for a public purpose.

Second issue: is the Tasmanian Parliament (and the Governor, added to the list in Section 6 as a result of an amendment in the House of Assembly put forward by the Opposition Leader Will Hodgman, and accepted by the Government) a body estabished by an Act for a public purpose?

The Constitution Act 1934 (the Preamble refers to earlier legislation concerning governance arrangements for the purpose of securing peace, welfare, and good government, now consolidated into this Act) states (Section 10)

"The Governor and the Legislative Council and House of Assembly shall together constitute the Parliament of Tasmania."

Conclusion: unless there is a quibble from a constitutional law perspective (admission-I'm no expert on this or Tasmanian law generally) it is clear, although not readily apparent from the discussion in Tasmania so far, that the Parliament (and as part of the Parliament and separately, the Governor) as a public authority will be subject to the Right to Information Act with respect to information in its possession that relates to matters of administration. This would include payments to and acquittals by members, and other use of public funds managed by the offices of the clerks. I'm still unclear about what results from the inclusion of a Member of Parliament in Section 6. Two relevant pieces of that puzzle. A member of a public authority is an officer of the authority (definition of officer in Section 5). As a result any information a member holds that relates to administration of Parliament is taken to be held by the Parliament. Section 5(3) of the Act provides:

"For the purpose of the definition of “information in the possession of a public authority”, a public authority is taken to be in possession of information if the public authority is entitled to the information.."

Will other jurisdictions follow this important Tasmanian lead?

Tasmanian Parliament delivers RTI package

The Tasmanian Right to Information Act, to replace the Freedom of Information Act, and the Personal Information Protection Amendment Act have now passed both Houses of Parliament, with a few mostly minor amendments. The RTI Act is to commence on 1 July 2010, allowing plenty of preparation time for the new era, and the PIPA Act (primarily transfering amendment of personal information records from Freedom of Information to the privacy act ) on a date to be proclaimed. Debate on the bills was generally of a high standard with some well informed questions and comments in both houses. While debate was sprung on the Assembly quickly (48 hours notice) there can be no criticism that there wasn't adequate discussion. If you are a detail person here are links to debate in the House of Assembly on 15 October (see the Hansard-commencing 4:39 PM), and the Legislative Council on 28 (Hansard- commencing 9:39 PM) and 29 October (Hansard-debate after 3 PM).

The couple of non controversial amendments agreed to in the Council may need to be ticked by the Assembly although this should be routine.One concerns what happens if the Ombudsman exercises authority conferred by the Act (unusual in the Australian context where ombudsman/information commissioners do not have determinative powers) to order that information be released and the authority ignores the order.There was some mulling over possible options including the creation of an offence, but the Council settled on the less draconian but potentially powerful requirement for the Ombudsman to report such an event to a joint select committee of Parliament.

An observation: this is pretty good stuff but there is nothing in the RTI Act that specifies what information will be published by public authorities in accordance with the much talked about new "push model." All is yet to be revealed with everything dependent on guidelines to be issued by the Ombudsman. And no-one in many hours of parliamentary debate made much of this rather large hole in the statutory scheme.

I'm still thinking through a potentially significant, unique aspect of the Act- more in another post.

Mash-up could show lobbyists in new light

Techo types had a great time in Canberra over the weekend at GovHack an opportunity to mash-up information made available through Data.Gov. Bella Counihan in The Age gives a rundown, including on the winner and a couple of other new twists to government information:

"Lobby Clue turns the lobbyist register and the public tenders register into a visualisation or word cloud to link what clients were given government contracts. As it very coolly describes itself "it correlates data about Government contracts, business details and politician responsibilities to show the relationships between these items." But this could easily have large implications as it provides an easy to use data base for the general public as well as the media, to see where money is being spent, creating greater transparency about the underbelly of lobbying in Canberra...
Other ideas that came out included Know Where you Live, an application which allowed users to enter in their postcode to get all the information about their area, potentially also useful for understanding marginal electorates. It's Buggered Mate set up an easy way to report broken local amenities rather than waiting on a government hotline or filling out a million complaint forms. Rate My Loo helps people to not only find their nearest bathroom but for all the germophobes out there it provides peer reviewed information about their cleanliness. The last two applications have the added benefit of being able to collect data to be relayed back to government."

On a related topic, there is an interesting discussion underway on the Gov 2.0 Taskforce blog about how to free up the public service to participate in public discussion about what they do-all highly relevant to other jurisdictions faced with the culture change challenge.

"There should be a law against it"

Paul Keating- photo James Alcock and SMH

Former Prime Minister Paul Keating's spray at News Limited over an incident involving his daughter at a celebrity event and claimed misreporting in this article in the Sunday Telegraph yesterday, saw him advocate changes to privacy law that go beyond the proposals for a privacy cause of action now on the table from the Australian and NSW law reform commissions . Mr Keating's proposal would require media organisations to gain a person's permission before publishing a photograph or a story deemed to involve their private life:

'Matters for which there is no public right to know ought to be the preserve of the citizenry in its privacy,'' Mr Keating said. ''That includes details of their personal lives, altercations in marriages, love affairs, compromising photographs taken of them privately without their consent. These are all matters that should be off-limits for newspapers and other media.'

Prompting this response from John Hartigan of News Ltd and Australia's Right to Know:

'What we have now is a man calling for a new law so that people like him can use their wealth, power and privileged positions to avoid scrutiny when it suits them, while remaining happy to exploit the media for their own gain at other times.''

Leading to this comment by Tom McLoughlin on an article by Margaret Simons in Crikey
who called it another unedifying stoush in the battle over privacy laws:

"As for Big Media intrusiveness - it’s not just rich folks who would benefit if an offence was wisely drawn up with a sensible cap. After News ran those bogus interventions in the Qld election with images of HansonNot, they can’t really argue their RTK book on personal privacy issues with much cred, though they are still strong on the Kessing/ security/politics side of RTK."

The law reform commissions' cause of action proposals are presaged on the existence of a reasonable expectation of privacy, a matter to be addressed before you get to balancing an alleged invasion of privacy against right to know or freedom of expression or other public interests. I'm not sure a person at a celebrity event, aware of the presence of press photographers would in normal circumstances have a reasonable expectation that their photo wouldn't be taken and published. It seems a far cry from Mr Keating's example of "compromising photographs taken.. privately without their consent."As to the rights and wrongs of who said and did what at the time this photograph was taken- and that's the main reason for the spat- that's another matter.

Senate Committee to open up Government claims of commercial in confidence

An impasse was broken on Thursday over the Federal Government's legislation bill on telecommunications regulatory reform, previously stuck in the Senate as a result of the Government's refusal to comply with an order to produce documents and information on commercial-in-confidence grounds concerning the National Broadband Network. According to AAP in The Australian, the Government won 30-29 on a motion to debate the bill with the support of all the crossbenchers. The clincher, according to Senator Xenophon's office was the Government's agreement to a Senate Committee inquiry into the use of commercial in confidence by government to report back in the first sitting week of next year, ahead of a debate on the draft laws to set up the National Broadband Network. In an earlier debate in the Senate last week Senator Brown (Australian Greens), on the subject of commercial in confidence generally observed:

"In all of my parliamentary life one bane that has been consistent is governments of both persuasions resorting to commercial-in-confidence excuses for blocking from going to parliament information that is required for proper decisions to be made."

Senator Brown went on to say

"Freedom of information ought to have been legislated long ago for the private sector as well as for the public sector because the private sector—as we have just witnessed from the global financial crisis and the need to put its way billions of dollars from the public sector as with the stimulus packages, which are getting up towards $100 billion of taxpayers’ money—is very, very dependent upon the largesse of taxpayers. It cannot resort to secrecy then when taxpayers’ representatives in the form of senators want to look at information which is critical to making decisions."

Thanks to Open Australia for the Hansard link.

Perhaps in the course of the Senate inquiry someone will raise the silence since about the Government intention announced in March by Minister Faulkner, that the Australian Law Reform Commission be asked to look at FOI or alternative access and disclosure law for the private sector?

Kessing and s70 of the Crimes Act

Good to to see The Australian Legal Affairs extensive coverage today of new twists in the Allan Kessing case in articles by Chris Merritt. The headlines say it all:
Kessing's conviction 'tainted';
Whistleblower rolled by jugernaut; and
A pardon for Kessing is not enough.

Auditor General calls for more transparency from Queensland GOCs

The Queensland Auditor General in Report 7/2009 on Government Owned Corporations (GOCS) tabled in Parliament this week is critical of transparency levels. This from the Executive Summary:

"My Auditor-General Report No. 2 for 2006, concluded that the average level of maturity of performance measurement and reporting systems at GOCs was higher than the average level of maturity in the budget sector. Three years on, the GOC sector has made limited progress in implementing the 2006 recommendations. Of the original nine recommendations made to the Treasury Department, only one has been fully implemented and six only partially implemented. In my view, Parliament and other stakeholders do not receive an adequate standard of information on GOC performance in a number of areas, which include a lack of disclosure on forward plans and longer term performance targets. This makes it difficult to determine how GOCs have performed over time and whether longer term performance objectives have been achieved.

I also have concern over the amount of information related to GOC performance that is deemed to be commercial-in-confidence and therefore not published, or not published on a timely basis. The Right to Information Act 2009 is part of a broader ‘push’ model of proactive and routine release of information by the government. Non-disclosure of information on the basis of commercial confidentiality needs to be balanced against the prime consideration for transparent performance reporting and accountability to Parliament for the use of public funds."

The Queensland Right to Information Act does not apply to all GOCs. The Solomon Review proposed that all Government Business Enterprises (primarily GOCs) should be subject to the Right To Information Act but acknowledged that many documents might not be accessible once the public interest test was applied. The Government response was to bring some within the scope of the Act but to continue to exclude others such as electricity generation companies (CS Energy,Tarong Energy and Stanwell Corporation), the trading activities of Ergon Energy
Queensland; and Queensland Investment Corporation; and Queensland Rail’s competitive commercial activities, such as coal, bulk and general freight services.

The Auditor General however was making a general point picking up on this paragraph in the Government's response to the Solomon Report:

"These legislative changes (The Right to Information Act) will be supplemented by increased publication of information relating to GOCs as part of the government’s move to a ‘push’ model of information sharing, which will be coordinated through the Office of Government Owned Corporations in Queensland Treasury."

The Treasury response to the Auditor General's draft report was that it is getting on with the job and that standards for some GOCs need to be in line with the private rather than the public sector.

The last word-so far- goes to the Auditor General:

"...the relatively large amount of information contained in a number of the Statements of Corporate Intent which is currently released at the end of the reporting period raises questions as to the level of commercial confidentiality which existed at the beginning of the period.

The Right to Information Act 2009 is part of a broader ‘push’ model of proactive and routine release of information by the government. When considering the preamble and the objectives of the Act, the Parliament’s intention to emphasise and promote the right to government information is clear. A number of reasons are spelt out in the Act as to why government information is to be made available. Schedule 4 of the Act provides factors for determining the public interest and include: to promote open discussion of public affairs and enhance the government’s accountability; to contribute to positive and informed debate on important issues or matters of serious interest; to inform the community of the Government’s operations; to ensure effective oversight of expenditure of public funds; to assist inquiry into possible deficiencies in the conduct or administration of an agency or official; to provide the reason for a government decision and any background or contextual information that informed the decision.

These matters promote openness in government and increase the participation of members of the community in democratic processes leading to better informed decision-making and improved public administration and the quality of government decision-making. Although the Act provides exemptions to allow the non-release of certain GOC information, the exemptions should be applied within the context of the overall intentions of the legislation for the release of information in the public interest."

Federal Court foray into public interest immunity

(Update: A reader-thanks James- says the Full Court allowed an appeal by the State against this decision last Friday, that reasons have not been published yet, but the orders are available online. They relate only to parts of the decision by Justice Jagot concerning some documents claimed to be subject to legal professional privilege and do not refer to the public interest immunity aspects of the decision. As at 2 November no written judgments have been published but will flag any observations relevant to that issue when they appear.)

An unusual intervention in civil proceedings between other parties by the State of NSW/ Attorney General saw Justice Jagot of the Federal Court of Australia give relatively rare consideration to claims of public interest immunity. The decision is of interest also in the context of the NSW Freedom of Information Act, and the Government Information (Public Access) Act to commence next year, and the requirement in both instances, similar to the test in this case, to balance public interest considerations for and against disclosure of deliberative documents.

The substantive matter has been brought by Betfair against a statutory authority, Racing NSW, which is independent of the government and not subject to ministerial direction. Betfair contends that conditions imposed by Racing NSW on its approvals to publish NSW race field information and requiring it to pay 1.5% of turnover are invalid because they contravene the guarantee of free trade between States in s 92 of the Constitution. According to Betfair the standard turnover conditions are discriminatory against an inter-State trader (Betfair) and protectionist in favour of an intra-State trader (TAB Limited).

The documents in dispute in these discovery proceedings concerned matters leading up to the drafting of legislative amendments for these conditions.

Justice Jagot stated [2-5] the general rule that a court will not order the production of a document in legal proceedings, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it; that the public interest has two aspects: the protection of government from the harm which may be caused by disclosure and the interest in ensuring that justice can be effectively administered; that the court must weigh the competing elements of the public interest; and that a claim for immunity for a class of documents as opposed to a claim in relation to individual documents will be upheld only if it is really necessary in the public interest or the proper functioning of the public service.

The documents in question held by Racing NSW related to matters considered and discussed in a working group that included officers of the government agency, the Office of Liquor Gaming and Racing (OLGR ) and representatives of each of the four racing bodies in NSW, convened by OLGR for the purpose of assisting it in developing legislative drafting instructions to be provided to Parliamentary Counsel concerning amendments to the Racing Administration Act and the promulgation of the Racing Administration Amendment (Publication of Race Fields) Regulation.

Some documents were drafts of the Regulation with drafting notes ensuring that Parliamentary Counsel had correctly understood the drafting instructions; a considerable number were reports to board meetings of Racing NSW identifying Racing NSW’s perception of the position of the NSW Government and its own position; some comprised the provision of statistical and other information by Racing NSW to the OLGR; others involved legal advice and communications about legal advice for which there were separate claims for legal professional privilege; none were papers prepared for Cabinet although one document prepared by Racing NSW and submitted to its Board recorded the contents of a proposed minute to Cabinet which must have been disclosed to Racing NSW. There was evidence that the proceedings of the Working Group were confidential.

Justice Jagot rejected the argument, on behalf of Betfair that the immunity claim failed at first instance because it was for a novel class of documents that were not Cabinet documents. She accepted submissions on behalf of the Attorney General that the classes of documents attracting the immunity at least on a prima facie basis involve a spectrum from those at the highest level (Cabinet documents) to those at lower levels (such as reports of junior Departmental officials). The strength or weakness of the public interest protected (or the harm that might result from disclosure) does not affect the existence of the immunity. It affects the balancing exercise between that public interest and the interest of the party seeking access in order to litigate its claim. In any event, it is well-recognised that the classes of immunity are not closed (authorities deleted). She also accepted the doctrine involved three considerations: - (i) the harm that might flow from disclosure, (ii) the material assistance that disclosure might provide to the party seeking access, and (iii) weighing those conflicting interests. [19-20]

The evidence brought to support the claim by an officer of OLGR was that disclosure of documents concerning the deliberation, advice and discussions of the working group could undermine willingness of people and entities to be involved in similar processes in the future and their confidence that they could give frank and fearless advice to government. The officer stated that disclosure of drafting instructions to Parliamentary Counsel and draft legislation, as well as related documents concerning discussions and deliberations of public servants about those matters, could be harmful to the public interest for much the same reasons.[21]

Justice Jagot stated [24]

"Consistent with the submissions of the Attorney-General, I consider that there is a public interest in ensuring that those involved in advising governments about policy issues proposed to be embodied in legislation feel able to give frank and fearless advice uninhibited by concerns about future disclosure. The fact that this interest in candour or lack of inhibition has been subject to a certain degree of judicial scepticism over more recent years does not mean that this aspect of the public interest may be dismissed outright.

However the key issue was the balancing test which involved an assessment of the nature and extent of the harm to the public interest in the proper functioning of the executive and legislative branches of government by reason of disclosure, compared to the nature and extent of the harm to the public interest in the proper functioning of the judicial branch by ensuring that all relevant documents are available to a party seeking to litigate a claim.[24]

After considering the issues and examining the documents Justice Jagot concluded [43]

(1) The public interest affected by disclosure (that is, future candour and lack of inhibition in those advising the NSW Government) exists. Yet, on the facts of this particular case, this is a relatively weak factor. The documents concern legislative amendments to racing legislation discovered by statutory bodies independent of the NSW Government. The bodies in question are bound by their enabling legislation to provide independent advice. Their interests cannot be inferred to be aligned consistently with those of the NSW Government. The nature of their functions makes it inherently unlikely that they will be anything less than candid and uninhibited in their advice. Insofar as the documents disclose drafting queries by Parliamentary Counsel, the nature of that office also indicates that there is no real basis for a concern about future inhibition or lack of candour. Accordingly, the public interest affected by disclosure is a factor of relatively insignificant weight in the present case.

(2) The decision-making process disclosed by the documents is complete. The public interest in question protected by non-disclosure is limited to cases in the future the same as or sufficiently similar to the present case to justify its consideration. In weighing this factor regard must also be had to the bodies in question – Racing NSW and Parliamentary Counsel’s Office – and my satisfaction that their functions are incompatible with any acceptance of a real risk of a future lack of candour or inhibition in their advice to government. Accordingly, this factor is also of relatively insignificant weight in the present case.

(3) The issue in relation to which production is sought does not involve the freedom of an individual from potentially wrongful conviction. But it does involve an alleged breach of a fundamental constitutional guarantee by the bodies which discovered the documents. Accordingly, this is a material factor entitled to weight in the present case.

(4) Given the nature of the issues in dispute in the principal case, there is a real likelihood that production of the documents will affect the outcome. Accordingly, this is a material factor entitled to weight in the present case.

(5) There is a real likelihood of injustice to Betfair if the documents are not produced for a number of reasons. The documents are centrally relevant to its case. The documents are in the possession of the respondents and not sought on subpoena from the State of NSW. As Betfair said, Racing NSW, at least in respect of part of its function, is the industry representative for the NSW racing lobby. The interests of Racing NSW cannot be inferred to align consistently with that of the NSW Government. They certainly cannot be inferred to be consistent with the interests of Betfair. The legislative amendments the subject of the documents enabled Racing NSW to impose the very conditions that Betfair says infringes the constitutional guarantee to its detriment. The fact that the discussions were expressed to be confidential does not alter the significance of these circumstances. All of these circumstances indicate that there would be a substantial injustice to Betfair by reason of non-production.

At law, therefore, frank and candour are alive and well as a public interest consideration, although a claim for nondisclosure of documents or information on this ground will be weak where decisions have been taken, don't disclose information concerning Cabinet deliberations broadly defined, and are outweighed by the public interest considerations that favour disclosure. Other than the administration of justice considerations relevant to this decision, the GIPA Act lists various factors to be taken into account in favour of disclosure including where disclosure could be expected to promote open discussion of public affairs, enhance accountability, or contribute to positive and informed debate

The Attorney Generals intervention seeking to prevent discovery of documents on grounds of legal professional privilege also produced mixed results. While some claims succeeded, those relating to drafting instructions to Parliamentary Counsel were rejected in all but one instance.. Justice Jagot said she did not accept

"that the drafting of legislation pursuant to an instruction to do so, in and of itself, involves a retainer the dominant purpose of which is the giving of legal advice. More is required to attract legal advice privilege than a mere instruction to Parliamentary Counsel to draft legislation and the provision by Parliamentary Counsel of draft legislation (even if clarification is thereafter sought as to the intent of the instructions). In short, there must be some express or implied request for legal advice. In common with the cases referred to by Betfair where questions arose as to whether wills and the legal transaction documents were subject to legal professional privilege, an instruction to draft legislation does not necessarily carry with it an implied request for legal advice. The provision by Parliamentary Counsel of draft legislation is also not necessarily the provision of legal advice. Whether or not legal advice is involved largely depends on the nature and terms of the retainer (in this case, the drafting instructions).[50]

51. I have read the drafting instructions to Parliamentary Counsel. They are pure drafting instructions. They seek the preparation of an exposure draft of legislation for the purpose of consultation with the industry. They do not contain any request for legal advice. I have also considered the draft legislation discovered. Other than in one case, it is simply draft legislation with certain drafting notes and does not contain anything that purports to be legal advice. I am satisfied that, other than in one case explained below, the discovered documents comprising draft instructions to Parliamentary Counsel (both draft and final) and draft legislation were not brought into existence for the dominant purpose of obtaining legal advice. Accordingly, those documents cannot attract legal professional privilege."

Business sighs of relief as reference to ALRC slips below the radar

Then Special Minister of State John Faulkner in March 2009, releasing the Freedom of Information Reform Exposure Draft, and speaking of the Government's broader agenda:

"the Government will (later this year) provide the Australian Law Reform Commission with a reference to consider whether FOI should be extended to, or another disclosure regime provided for the private sector."

While this extension had been considered but not recommended in the Australian Law Reform Commission's 1995 Open Government Report, Senator Faulkner said in March "the Government considers it timely to re-examine this issue in the context of the general reforms to freedom of information and developments on disclosure regimes in both public and private sectors."

The Minister didn't explain or mount the argument for the initiative then, and neither he nor his successor Senator Ludwig mentioned it publicly thereafter. Nor within government it seems.

ALRC President Professor David Weisbrot told the Legal and Constitutional Estimates Committee on 19 October ( at 25) that he had not heard a word from the Government since. Still, it's still only 26 October....

Breaking down the barriers to open government

At the CeBIT Gov 2.0 Conference in Canberra last week Minister for Finance Lindsay Tanner spoke about the Gov 2.0 Task Force, and the current state of play.

The Minister referred amongst other things to the need to encourage more use of Creative Commons to move on from the copyright limitation on reuse of much government information, and announced the winners of the Gov 2.0 Task Force Brainstorm competition, the first of several: the ‘Government Gazette 2.0' to make the Government Gazette available in machine readable format, to improve its accessibility and open the possibility of mashing-up the Gazette with other types of data (don't mention this to the NSW Liberals and Greens who insist it be a criminal offence for a newspaper or magazine to play around with published data about school performance); and the suggestion to improve the preservation of government data published on websites by setting up dedicated and simple URLs for archived websites – a sort of retirement home for old data – to guarantee the ongoing availability of archived government information for citizens.

The Taskforce recently commissioned its first six projects to provide research and advice on areas of key importance:

• Enhancing the discoverability and accessibility of government information;
• Investigating the barriers within agencies to adopting Government 2.0;
• Reviewing and advising on Australian Government Web 2.0 practices;
• Reviewing copyright and intellectual property barriers to open data sharing;
• The Semantic Web – tagging datasets to enable sharing and re-use of data; and
• Analysing the value of open access to public sector information held in cultural institutions.

Chairman Nicholas Gruen is encouraging the consultants involved to use the Task Force blog to seek input and canvass ideas. Gruen's notes of his speech (doc) to the Conference include a welcome link to the FOI Reform Exposure Draft object that states government information is to be managed for public purposes and as a national resource.

On the culture change challenge the Minister said:

"To make government more open and responsive the public service must be empowered and encouraged to proactively disseminate information and participate in public discussion. The difficulty and importance of this challenge is often overlooked. Yet there are few more important steps for achieving the objectives of Government 2.0 than equipping public servants with the skills, tools and permission to engage. It would be a mistake for Government 2.0 advocates to see the public service as simply an organisation in need of an upgrade. Public service culture cannot be wiped and reprogrammed – and nor should it be. It must be remembered the Australian Public Service delivers enormous value for taxpayers. It is comprised of thousands of talented, dedicated public policy experts, who collectively produce most of the policies and services delivered by government. It is no wonder that many of the leading voices within the government 2.0 community come from the public service. But the success of government 2.0 will not be assured unless the principles and practices of the agenda are embraced by public servants as central to how they do business.....

While no one is suggesting that we allow public servants to simply tell reporters what is on their mind, they should feel free and encouraged to engage in robust professional discussion online....

We need to provide the public service with access to the tools to deliver greater access to information, innovation and collaboration. We need to reward innovation in the public service as much as we do in other areas of society. To change public service culture we must accept that some of what we do will not work perfectly every time. But as Clay Shirky says, the great power of the internet is that it has enabled us to experiment with new ways of doing things at very low cost. This is the nature of empowerment. Public servants trusted to make the right decisions and also, within reasonable limits, the latitude to make mistakes in the pursuit of open, responsive, and innovative government."

Amen to all that. The chilling effect of secrecy laws and other factors that contribute to the prevailing culture, mentioned most recently here, don't get much of a mention in all this.

The Oz, human rights horror stories from the UK, and some exploded myths for good measure.

UK DPP Keir Starmer QC- read on.

Chris Merritt in The Australian today returns to a familiar theme for the paper- the horrors that await us if the Federal Government goes ahead with a Human Rights Charter . This time its about the perils particularly for those of religious belief, based on the views of a British barrister, Paul Diamond, heading our way to join, among others that font of wisdom on the subject, former NSW Premier Bob Carr, at a " public meeting on the dangers of a charter of rights" in Sydney next week.

While acknowledging "(t)here are substantial differences between Britain's Human Rights Act and the scheme that has been drawn up for this country by Frank Brennan's committee," Merritt says, to justify telling us how bad things are in the UK, that " there are enough similarities to ensure Diamond's grim assessment of the British experience might cause some charter supporters to reconsider."

Diamond's "grim assessment" , according to Merritt, arises from involvement with clients who "are religious people whose beliefs, he says, have come under attack because of Britain's charter: an airport worker who refused to stop wearing a crucifix, a teacher who was dismissed when she objected to the promotion of a homosexual lifestyle to children, a nurse who was suspended for offering to pray for a patient."

Shocking isn't it? But a pity also that readers of the Oz and those attending the meeting probably won't hear about the speech yesterday in London by another UK barrister the Director of Public Prosecutions, Keir Starmer QC, one of many I expect who has rather different views. An extract follows- have a look at the myths towards the end.

"A brief look back into history shows that all of the defining documents recognise that human rights are universal, inalienable and perpetual. They are not triggered or defined by any one individual's status at any given time. They are not to be applied or disapplied depending on the situation one finds oneself in. And they are not discriminatory.

Our texts in this area are, of course, the Human Rights Act 1998 and the European Convention on Human Rights and Fundamental Freedoms. As I am sure we all know, Articles 2 - 12 and Article 14 of the Convention are adopted in the Human Rights Act 1998 and so have been with us for over a decade now. However, one cannot escape, particularly in recent months, the debate that has emerged around the extent to which it is appropriate - and these are my words here - to repatriate the Human Rights Act and make it "more British."

I do not think it unreasonable to conclude that those who advance such a view somehow propose to replace the Human Rights Act, or at least those articles in it which are taken from the European Convention, with other human rights which they consider to be more appropriately geared to "British" society.

Pausing only to recall the fact that the United Kingdom played a major role in the design and drafting of the European Convention itself back in 1951, let me just take you through those rights which have been adopted through the Westminster legislation.

• Everyone's right to life shall be protected by law.
• No one shall be subjected to torture or degrading treatment or punishment.
• No one shall be held in slavery.
• Everyone has the right to liberty and security of person.
• Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
• No one should be held guilty retrospectively of a criminal offence.
• Everyone has the right to respect for his private and family life, his home and his correspondence.
• Everyone has the right to freedom of thought, conscience and religion.
• Everyone has the right to freedom of expression.
• Everyone has the right to freedom of peaceful assembly and to freedom of association.
• Men and women have the right to marry.

And Article 14:

• The enjoyment of these rights and freedoms shall be secured without discrimination on any ground.

For my part, I am proud to be part of a society that regards these rights as part of my entitlement as a member of that society. They are basic; they are fundamental; and I venture to suggest that, for the majority of us, they are so much part of our way of life that we take them for granted.

I cannot think of any way in which such basic human rights are either so foreign to England and Wales that they do not reflect those principles that we hold dear, or which for some other unspecified reason, are thought not to be relevant and of direct applicability to each and every member of our communities.

The idea that these human rights should somehow stop in the English Channel is odd and, frankly, impossible to defend.

Let me pause there simply to guard against complacency: everyone of us, I am sure, knows of instances where these rights have been ignored by someone in authority; where they have been deliberately set aside ostensibly to secure some greater goal; where they have been wilfully abused in the pursuit of prejudice and discrimination. So, whilst I recognise that for most they are a part of our way of life, for others, they are vital shields and defences to the abuse, prejudice; and discrimination to which they are subjected.

If there are perceived problems with these human rights under the Human Rights Act, I venture to suggest that they are more borne out of their misapplication and misunderstanding rather than any perception that they lack intrinsic value.

And following that theme, let me dispel some myths about the Human Rights Act and the European Convention:

A police force unable to circulate a photo of a wanted, dangerous and violent criminal because it might breach his Article 8 rights to privacy? My advice - go ahead - it is essential to protect the public.

Unelected judges can now tell Parliament that their laws need not be enforced? No - judges cannot strike down legislation.

Human Rights mean that school teachers cannot enforce discipline at school? No - it is domestic legislation - section 548 of the Education Act 1996 - passed 2 years before the Human Rights Act - that banned corporal punishment in schools. Interestingly enough, it is section 93 of the Education and Inspections Act 2006 - passed 8 years after the Human Rights Act - that now allows school teachers to use reasonable force to prevent a pupil from committing an offence."

It is often in the interests of those who want to debase a principle to chip away at it by citing examples of its occasional misapplication. We should all take care to examine critically the so-called restrictions brought about by the Human Rights Act and consider where the misunderstanding truly lies before condemning a constitutional instrument that has provided legitimate comfort to so many."

Good advice for those in the UK, and here as well.

NSW Ombudsman sees a glimmer, but big job ahead.

The Annual Report of the NSW Ombudsman released yesterday has plenty to say about the public service, including a concern that "(t)oo many public servants think integrity is an old-fashioned, optional concept." The report on the Ombudsman's work on Freedom of Information starts at page 95. Not all grim news. Complaints about FOI matters down about 10% including a decrease of 50% in July 2009.

" In our view, this trend may be attributable to greater openness by agencies following the Premier’s statements of support for a review of the FOI Act and issuing of a memorandum in October 2008 encouraging proactive release of information by government agencies. Another likely reason for the decrease is that the NSW Police Force has substantially reduced their backlog of FOI applications, which has in turn reduced the number of complaints we received about delays in determining FOI applications."

However complaints from third parties objecting to disclosure of documents were up, and the shift in gears appears to mostly be with respect to matters that are more straightforward.

"The largest drop in complaints has been mainly those about delays and less contentious or clear cut merit decisions. We are still finding that agencies are reluctant to release documents which may be embarrassing or reveal matters of maladministration or failure to take appropriate action. Consequently, complaints which disclose broader issues of maladministration have increased in both number and complexity and have taken up considerable resources."

The report provides detail of investigations into the Roads and Traffic Authority, open disclosure practices in two Area Health Services, the Board of Studies and the University of Newcastle that illustrate failure to fully and properly implement the law.

With this report The Ombudsman is moving out of direct involvement after 20 years of dealing with FOI complaints, with the Information Commissioner to take over as the Government Information (Public Access) Act comes into force in 2010. The Ombudsman says the Office will be watching what flows in practice from its important catalyst for change, the own-motion review of the FOI Act in February this year, and for broader instances of maladministration.

The Ombudsman Bruce Barbour and his predecessors since 1989 all deserve congratulations for standing up for the right to know when few others did during much of this time, and long-time staff members Deputy Ombudsman Chris Wheeler and Wayne Kosh who have been working on these matters for all that time deserve a special mention.

The Ombudsman also had a few words yesterday to say about a "don't give it to me in writing" request for advice that surfaced in a parliamentary inquiry into the Department of Planning.

On with the culture change.

Last minute rush on secrecy laws.

Professor David Weisbrot told Senate Estimates (Legal and Constitutional 19 October at 25) the Australian Law Reform Commission has asked the Attorney General for six weeks extension, beyond the end of October, to submit the final report on the reference to review secrecy provisions in Commonwealth acts. The Commission had received 24 late submissions, including from major stakeholders, mostly major government departments whose advice was needed to complete the review.

Battlelines for public interest immunity established again in Senate Estimates

Senate Estimates committee hearings have been underway in Canberra since Monday, with the usual myriad micro Q and (mostly, and in a fashion) A about aspects of government administration.The chair of each committee has tabled at the commencement of hearings this text of the Senate resolution of 13 May 2009, now part of Senate Standing Orders, on public interest immunity claims, and the procedure to be followed in the event of refusal to answer. Paragraph (1) is the nub of it all, and (7) relates to the usual issue of contention.

"Public interest immunity claims

That the Senate— (a) notes that ministers and officers have continued to refuse to provide information to Senate committees without properly raising claims of public interest immunity as required by past resolutions of the Senate; (b) reaffirms the principles of past resolutions of the Senate by this order, to provide ministers and officers with guidance as to the proper process for raising public interest immunity claims and to consolidate those past resolutions of the Senate; (c) orders that the following operate as an order of continuing effect:

(1) If: (a) a Senate committee, or a senator in the course of proceedings of a committee, requests information or a document from a Commonwealth department or agency; and (b) an officer of the department or agency to whom the request is directed believes that it may not be in the public interest to disclose the information or document to the committee, the officer shall state to the committee the ground on which the officer believes that it may not be in the public interest to disclose the information or document to the committee, and specify the harm to the public interest that could result from the disclosure of the information or document.

(2) If, after receiving the officer’s statement under paragraph (1), the committee or the senator requests the officer to refer the question of the disclosure of the information or document to a responsible minister, the officer shall refer that question to the minister.

(3) If a minister, on a reference by an officer under paragraph (2), concludes that it would not be in the public interest to disclose the information or document to the committee, the minister shall provide to the committee a statement of the ground for that conclusion, specifying the harm to the public interest that could result from the disclosure of the information or document.

(4) A minister, in a statement under paragraph (3), shall indicate whether the harm to the public interest that could result from the disclosure of the information or document to the committee could result only from the publication of the information or document by the committee, or could result, equally or in part, from the disclosure of the information or document to the committee as in camera evidence.

(5) If, after considering a statement by a minister provided under paragraph (3), the committee concludes that the statement does not sufficiently justify the withholding of the information or document from the committee, the committee shall report the matter to the Senate.

(6) A decision by a committee not to report a matter to the Senate under paragraph (5) does not prevent a senator from raising the matter in the Senate in accordance with other procedures of the Senate.

(7) A statement that information or a document is not published, or is confidential, or consists of advice to, or internal deliberations of, government, in the absence of specification of the harm to the public interest that could result from the disclosure of the information or document, is not a statement that meets the requirements of paragraph (I) or (4).

(8) If a minister concludes that a statement under paragraph (3) should more appropriately be made by the head of an agency, by reason of the independence of that agency from ministerial direction or control, the minister shall inform the committee of that conclusion and the reason for that conclusion, and shall refer the matter to the head of the agency, who shall then be required to provide a statement in accordance with paragraph (3)."

Special Minister of State Joe Ludwig, representing the Prime Minister in hearings concerning that portfolio told the Finance and Public Administration Committee on 19 October (F&P 43) that

" the minister and the department officials appearing as witnesses before the committee will fully comply with the order. You will be aware that it is ultimately the responsibility of the relevant minister to make a claim of public interest immunity. To avoid any risk of inadvertently damaging the public interest by disclosing information that, in the government’s view, should remain confidential, officials and ministers, including the Prime Minister, are likely to require time to consider whether the disclosure of particular information or documents might damage the public interest. In effect, I am simply reminding senators that it will be entirely appropriate for witnesses to take certain questions on notice in order to give proper consideration to possible public interest immunity claims. So where they are referred to me I will endeavour, as always, to provide responses to the committee. If it is an issue that will cross public interest immunity then it may very well be an issue that I have to take on notice for proper consideration of whether that should be claimed and the reasons for claiming public interest immunity in respect of that."

This led to some inconclusive argy-bargy between Senator Ronaldson and the Minister about whether the procedures required an official citing public interest immunity to spell out the reason immediately, or contemplated that the matter could be referred to the responsible minister.

Victorian FOI precedents support sticking to "confusion" line

The framework for consideration of public interest issues regarding disclosure of deliberative documents under the Freedom of Information Act in Victoria continues to be constrained by precedents that sound out of line with the discussion of open government elsewhere, as evident in this decision by Deputy President Coghlan of the Victorian Civil and Administrative Tribunal in Peter Ryan MP v Melbourne Water [2009] VCAT 2079.

The documents in dispute were an email and attachments relating to the possible entitlement Melbourne Water will hold to water from the Goulburn River.They canvassed potential scenarios about possible water supply and were sent by a junior officer of the Department of Sustainability and Environment to an officer at Melbourne Water. It was clear that the documents were support tools used by the Department, were subject to updating, didn't contain the full story, and were not at the time intended for public release.

Despite weighty arguments [21] about the public interest in disclosure put forward by Mr Ryan, Leader of the National Party in Victoria, those argued against disclosure [22] persuaded Deputy President Coughlan [23-36] to find disclosure would be contrary to the public interest. The decision was underpinned by the acknowledgment of precedent that " where a document does not of itself accurately or fully reflect the reasons for a particular action or decisions made by an agency, disclosure is contrary to the public interest (see Hulls v Victorian Casino and Gaming Authority ((1997) 12 VAR 483 at 488)"[19]; and that it is contrary to the public interest to disclose a document "which would potentially mislead and confuse any debate about a general topic where it deals only with a narrow range of specific issues. If it is susceptible to misinterpretation or mischievous interpretation, disclosure is contrary to the public interest (see Hulls v Victorian Casino and Gaming Authority ((1997) 12 VAR 483 at 488)."[20]

Whether the documents would be released elsewhere is hard to say. However the possibility of misinterpretation or misunderstanding a document by the applicant is an irrelevant public interest consideration that must not be taken into account in the Queensland RTI Act and in the Commonwealth Exposure Draft of March 2009. The NSW GIPA Act even more sensibly extends this to misunderstanding or misinterpretation of released information by any person.

Mr Ryan couldn't get anywhere either in arguing the Tribunal should exercise its limited override discretion to release the documents, even though found to be exempt. Deputy President Coughlan said the grounds he had put forward were

"abstract grounds such as the desirability of accountability and greater transparency, which as the Court of Appeal in Secretary, Department of Justice v Osland [2009] VSCA 69 has said have no role in the consideration and application of s 50(4). The public interest must require release, it is not enough that release might advance or promote such matters."[39]

Override discretions to one side, the object provisions in the Queensland and NSW Acts, and the Commonwealth Exposure Draft might make it more generally hard where those laws apply or will apply, to dismiss arguments for disclosure because of "such abstract grounds as the desirability of accountability and greater transparency."

There is no sign of government interest in broad FOI reform in Victoria, as pointed out by David Rood of The Age in the Law Report today.

The Law Report

The Law Report program on Freedom of Information reforms on ABC Radio National is worth a listen ( but I would say that wouldn't I?).

Estimates questions and answers.

With another round of Senate Estimates committee hearings underway in Canberra this week, the answers to questions taken on notice during hearings in May provide plenty for those interested in the fine detail the accountability system reveals. Something is there from just about every agency, The issues of possible interest to us were raised in the Finance and Public Administration Committee so didn't get far past those.There are 120 or so answers to questions alone from the Prime Minister's Department, nothing earth -shattering, but tidbits such as the cost of each community cabinet meetung (PM 29); that providing a list of official gifts to Prime Ministers Hawke and Keating would involve too much work given the information is stored on obsolete software (PM111); and the listing of contents of the Prime Minister's wine cellar which includes nothing over $100, mostly modest price stuff, including plenty under $20.(PDF 15KB) Nothing much for Senator Trood either in response to his questions (PM 63-65) concerning the views of intelligence agencies about issues canvassed in the Defence White Paper- one of the dust-ups last time when questions were asked about advice.The Treasury portfolio index includes some interesting subjects.

FOI on the airwaves tomorrow

Radio National's The Law Report tomorrow (Tuesday) at 8:30 am on 576 AM is about Freedom of Information and the current state of play. I did an interview for the program, so interested to see what makes the cut. If you miss the broadcast, it will be available here.

Ministers not so high on the hog

I like this from Rex Jory in The Advertiser in Adelaide today (no link) following reports based on Freedom of Information disclosures about ministers' spending on entertainment. Although I'd part company with Jory's "so what" about Grange at taxpayers expense. And the best way to avoid "shock-horror' reporting is to make this information available routinely, on the web. The public can distinguish dull from too flash, when it comes to use of our money.

"It was one of those elegant Sydney restaurants set high above the city with views of the Harbour Bridge and the Opera House. The menu was expensive as well as expansive - the sort of place folk like me only go for a special celebration.Nearly every table was occupied but in the prime window position a table set for 12 was empty. Suddenly billionaire businessman Kerry Packer swept in with a group of businessmen and took over the empty table. Mr Packer was obviously the host. Other diners were abandoned as a waiter stood behind every chair at the Packer table. French champagne and Penfolds Grange flowed. When we left, the dinner was still in full swing. It is hard to imagine Mr Packer would have got any change out of $10,000. It's the way the complex world of business works. Spend big to entertain clients and, who knows, perhaps clinch a major business arrangement.

One night at a silver service Adelaide restaurant I happened to sit quite close to the then Prime Minister, Malcolm Fraser, who was entertaining a local businessman. They were drinking Grange which, at today's prices, would probably cost around $800. I can only presume the Prime Minister was paying. So what! It's part of the necessary cost of running a government, or a business.

These dinners make the disclosure by the State Opposition recently of the entertainment expenses of some State Government ministers look paltry and small town. On this evidence, to accuse ministers of lavish expenditure is narrow thinking. Pay peanuts and get monkeys. I'm not blaming the Opposition for pursuing, through documents obtained under Freedom of Information laws, the Government's entertainment bills. That's what oppositions are about - keeping governments honest and accountable. But let's keep the entertainment spending in perspective.

A random example. The Health Minister, John Hill, ran up a bill for $219 at a lunch for four people at Chesser Cellars. He should be congratulated. I've spent that much at a table for two with the great lunch-time legend, Des Colquhoun. I scanned the fine print in the Opposition's disclosures, reported in the Sunday Mail, to find even the sniff of a scandal, a hint of financial indiscretion. It quickly became evident that Cabinet ministers are a boring lot. I'd be surprised if some of them don't take beef and pickle sandwiches to work to help the Government save money.

The Treasurer, Kevin Foley, spent $29 on a glass of Moet champagne while entertaining the Philippines trade ambassador. On a good night, I've spilled that much. The Premier, Mike Rann, spent $275 on a meal with an undisclosed number of representatives from the Carnegie Mellon University. That's hardly excessive. The blunt truth is governments cannot function effectively without entertaining real or potential investors and other people who can help make the running of government more efficient.

It's not always convenient or productive to talk to potential clients across a business desk. A mutual venue, like a restaurant, with a meal and some fine wine makes guests feel more important and more relaxed. In some cases the investment in a meal and a bottle of wine can reap enormous dividends for the state.

It is like criticising politicians for travelling overseas. Certainly in the case of Cabinet ministers, discussions with world business and political leaders and first-hand experience with emerging technology developments can have huge long-term benefits.

I'm not encouraging governments to abandon spending caution and toss around the credit cards. The figures so far revealed suggest the present Government is prudent, even dull. The Government should do what it has to, without fear of criticism, to attract new investment, new jobs and increased economic security to South Australia.

If that means the Deputy Premier has to spend $29 on Moet, it's a price we all have to pay."

New chairs at the seat of power

Michael Cooley Senior Adviser to the Cabinet Secretary and Special Minister of State, takes up the position of Senior Adviser - Governance and Probity in the Prime Minister’s office today. Now it's a good thing the PM has someone nearby with that title and another good thing it's someone like Cooley. But the team that came in with background, experience and commitment to Freedom of Information reform (and the whole raft of other promised integity reforms) when the Government came to office - Senator Faulkner ( the first ministerial appointee and now Minister for Defence), Kate Harrison as Chief of Staff to the Minister (who followed Faulkner to Defence) and now Cooley - have all moved on, while we are yet to get the reform bill into Parliament, let alone up and running. After close to two years. High priority reform? Queensland, NSW and (soon) Tasmania have shown Canberra a clean pair of heels on this one.

Good luck and best wishes to Cooley and to Cecelia Burgman, an adviser to Senator Ludwig, who will take responsibility in the Minister's office, for Privacy, Freedom of Information and Archives. And to those of us still waiting for change.

Tasmanian FOI replacement bill through lower house

The Tasmanian House of Assembly passed the Right to Information Bill and related legislation yesterday. Some changes from the Draft are evident and interested to see any close analysis of the differences.The promise of greater proactive disclosure has been given more credibility by a provision requiring the Ombudsman to issue guidelines on all means of access and disclosure, including publication, informal and formal requests. Still room for quibbles ( "impecunious" even survived) but overall significant, positive change.

The House also passed the Personal Information Protection Amendment Bill.

Both bills now go to the Legislative Council.

NSW court information problematic, so too reform measures.

Over three years ago the NSW Government issued a discussion paper on proposed changes in the law regarding access to court information, and I for one had heard little since. So interesting to read in Court review shows nobody was listening by Susannah Moran in today's Legal Affairs in The Australian that a consultation draft Court Information Bill has been released for comment. According to Moran, Australia's Right to Know "is very disappointed with a bill which purports to further the principle of open justice but in fact will be more restrictive than previous practice in NSW and less liberal than in a number of other Australian jurisdictions." A search of the Legislation and Policy Branch of the Department of Justice and Attorney General's website turned up an Access to Court Information Paper dated 2008 but no sign there of the Consultation Draft Bill, or any update since. Update: it's here on Lawlink's Latest- thanks to an alert reader on 20 October.

The slow grinding wheels of justice, or at least policy reform......

Federal FOI and privacy law changes

If you are interested in more information than in the previous post about the interplay between the proposed new Federal privacy law and the Freedom of Information Act as it now stands, and might become in the light of the Government's FOI reform proposals, particularly access and correction issues, see the response and narrative regarding Recommendation 29 starting on page 64 of the First Stage Response pdf 805kb

A related issue for policy makers, given recent Queensland and NSW access to government information laws that adopt the existing Federal Privacy Act definition of personal information, is this recommendation and response:

"Recommendation 6–1 The Privacy Act should define ‘personal information’ as ‘information or an opinion, whether true or not, and whether recorded in a material form or not, about an identified or reasonably identifiable individual’.
Response: Accept
The Government agrees it is important for the definition of personal information to be sufficiently flexible and technology-neutral to encompass changes in the way that information that identifies an individual is collected and handled. The ALRC’s recommended definition continues to allow this approach and also brings the definition in line with international standards and precedents. The proposed definition does not significantly change the scope of what is considered to be personal information. The application of ‘reasonably identifiable’ ensures the definition continues to be based on factors which are relevant to the context and circumstances in which the information is collected and held. The Government proposes that this element of the definition will be informed by whether it would be reasonable and practicable to identify the individual from both the information itself and other reasonably accessible information."

Rewrite of privacy law for 21st century

The Federal Government has announced its stage one response to the Australian Law Reform Commission's Report 108, For Your Information: Australian Privacy Law and Practice.

In a speech to the International Association of Privacy Professionals in Melbourne, Special Minister of State Senator Joe Ludwig said the Government’s intention was to effectively rewrite the Commonwealth Privacy Act 1988 for the 21st Century. Full details of the response are contained in this 144 page response released at the same time. The response sets the foundation for a revamped privacy framework, addressing 197 of the 295 recommendations in the ALRC’s Report. Key features, as outlined in the Minister's speech and in the detailed response are to

• provide for one set of Privacy Principles for Commonwealth agencies and relevant businesses alike. Senator Ludwig said the Government was all too aware of the flaws of regulatory duplication, unnecessary complexity of obligations and rights, and the impediments to information-flow inherent in the current situation of treating the Government and private sector separately. New Government proposals for the Privacy Principles include: a requirement to take reasonable steps to implement compliance with the Privacy Principles, under the ‘openness’ principle; a ‘missing persons’ exception under the ‘use and disclosure’ principle; greater accountability for entities that transfer information overseas under the ‘cross-border data flows’ principle; and specific permission to handle Commonwealth, state and territory government identifiers for identity verification purposes under the ‘identifiers’ principle.
• deal with developing technology by ensuring the Privacy Act will be technology neutral. Various parts of the response will further protect against emerging threats and privacy pitfalls by empowering the Privacy Commissioner to undertake research, and provide guidance and education on technologies that enhance or impact on privacy. Biometric information will be included in the definition of ‘sensitive information’ (reflecting its unique nature and heightened risks of misuse)
• strengthen the Privacy Commissioner’s powers of investigation, compliance and enforcement of the Act. The Commissioner will be able to handle complaints and gather information more effectively, compel appearances or production of documents, accept enforceable undertakings, and seek civil penalties for serious or repeated breaches of the Act. A new development will be a three-tiered scheme for binding Privacy Codes. Binding codes can be developed by organisations or agencies voluntarily, but the Commissioner will also be able to request a group of organisations or agencies to develop one where it would serve the public interest. If they fail to comply, the Commissioner can impose a mandatory code on the group. The Commissioner will be able to direct an agency to provide a Privacy Impact Statement. For the private sector, the Commissioner will be empowered to conduct Privacy Performance Assessments of personal information records to see if they are abiding by the Privacy Principles.
• provide for the enhanced use of data for the purpose of credit reporting while including additional specific protections to ensure such data is used appropriately. In order to allow credit providers to undertake a more robust assessment of an individual’s credit risk, the Government will make changes which allow five positive datasets - the type of each active credit account, date of opening and closure of account, account credit limits and credit repayment history- to be included on an individual’s credit report.
• improve health sector information flows and provide additional guidance for the use of health information; enact new rights to request transfer of records and to be told what will happen to health records if a provider closes down or changes hands
• support and facilitate research in the public interest by simplifying regulation,while protecting community expectations of personal privacy. A harmonised set of rules for Government and private sector researchers will replace the two sets of binding guidelines on non-consensual handling of personal information; and the research provisions will be expanded to allow such handling for any research in the public interest, not just for health and medical research. Two important parameters of the current regime will also be maintained: the public interest in research must ‘substantially outweigh’ the protection of privacy – requiring a clear choice in favour of the research; and the National Health & Medical Research Council and the Privacy Commissioner will retain primary responsibility for issuing and approving the research rules.
  
• new and consistent provisions on cross-border data flows. Agencies and organisations will remain accountable for personal information which is transferred overseas unless there is: informed consent of the individual; a legal requirement or authorisation for the transfer; strong public interest grounds; or, the other country has a law or a binding scheme, similar to the Privacy Principles, that will protect the information. Such a law or scheme must be enforceable by the individual. A mere contract binding the overseas party would not be enough to remove accountability for the information if it is offshore and there is no viable remedy for the individual.
• through guidance and legislative amendment make clear that the Privacy Act (not the FOI Act as is the case at present) is the primary avenue for access to, and correction of, an individual’s own personal information. The Privacy Act will be the key Commonwealth law for the collection, handling, disclosure and accessing of personal information. The focus of the FOI Act is intended to be on access to documents held by government other than an individual’s own personal information. However, in recognition that there will be circumstances where documents held by agencies contain a mixture of: (a) an individual’s personal information; (b) the personal information of third parties; and (c) non-personal information, in such a way as to make it difficult to release only the individual’s personal information, or that individuals may make access requests for files that contain such a mixture of information, the Government agrees that rights to access some personal information should be retained under the FOI Act. Agencies will need to establish administrative processes for dealing with the different access and correction requests that will arise under the Privacy and FOI Acts, having regard to the types of records and information they hold. Guidance on the interaction between the two Acts will be critical for agencies.
  
• work with the states and territories to harmonise privacy law across the nation. The first stage response will create a platform from which the Government can pursue national harmonisation through discussion with the states and territories. Ultimately, the aim will be a consistent set of privacy standards for the Commonwealth, state and territory public sectors, as well as the private sector. The Federal Government will be looking to the states and territories to repeal privacy laws including health privacy laws that apply to the private sector. Additional national consistency issues will be considered in the second stage response.

Of the 197 recommendations addressed in this first stage, the Government

• accepted 141, either in full or in principle;
• accepted 34 with qualification; and
• noted 2 recommendations.

20 recommendations were not accepted. While opinions will differ, only two struck me as noteworthy: rejection of the recommendation to extend privacy protection to personal information held about a deceased individual dead for 30 years or less; and rejection as unnecessary of action to ensure that federal legislative instruments establishing public registers containing personal information set out clearly any restrictions on the electronic publication of that information.

The Australian Law Reform Commission was pleased with the "giant tick" for its recommendations.

Next steps: the Government intends to release an exposure draft bill reflecting these changes to be sent to a Parliamentary Committee for consultation early in 2010, before returning to Parliament with a final bill. Once the first stage has progressed, the Government will then begin considering the ‘second stage response’ to the ALRC’s remaining 98 recommendations. ‘Second stage’ issues include proposals to clarify or remove exemptions; data-breach notification; a statutory cause of action for serious invasions of privacy; telecommunications privacy; decision making issues (such as authorised representatives and children’s privacy); and further national harmonisation.

NSWADT override discretion limited where legal privilege applies

The background and complex detail of a five year battle (and numerous Tribunal and court decisions) arising from a Freedom of Information application for access to legal advice about responsibilities of the University Council provided to the University of NSW will only be of interest to those very serious about their NSW FOI. The culmination, in the Court of Appeal in McGuirk v University of NSW [2009] NSWCA321 involved a draw for the parties on legal points as the two issues for consideration went one each way but Mr McGuirk will end up with his document if this is the end of the ride, and with a limited order for costs for part of the proceedings.

Of broader significance however was that in the course of the decision the Court unanimously declared [92] the NSW Administrative Decisions Tribunal has no power under s 63(2) of the Administrative Decisions Tribunal Act 1987 to grant access to a document which is found to be exempt by virtue of Schedule 1, cl 10 ( the legal professional privilege exemption) of the Freedom of Information Act 1989 (NSW). As explained below (with all due respect etc) the reasoning for the decision seems questionable.Mr McGuirk gets to prevail for reasons that are too complicated to explain here [41-87 if interested].

There is nothing in the relevant NSW laws (unlike Federal legislation) that states the Tribunal cannot order the release of an otherwise exempt document. But no provision (unlike Victoria) either that confers an override discretion. The issue of the Tribunal's powers on review of Freedom of Information decisions has been long contested.The Supreme Court (Nicholas J) in another case involving the same parties, University of New South Wales v McGuirk [2006] NSWSC 1362 at [102] ended years of uncertainty and differing decisions by tribunal members when it decided that the Tribunal had the same discretion as the original decision-maker where a document has been found to be exempt: that is to consider whether disclosure or non disclosure was the correct and preferable decision, consistent with the objects of the Act. The reasoning was that Section 25 of the NSW FOI Act provides that in determining an application an agency may (not shall) refuse access to an exempt document. Section 63 of the Administrative Decisions Tribunal Act provides:

(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.”

Justice Nicholas cited the following passage from the Tribunal decision in Mangoplah as correctly stating the position:

“85 Consistent with this jurisprudence, absent any special limitation on the Tribunal’s review function in applications under the FOI Act, it has the function by reason of s 63 of the ADT Act – indeed the duty – when reviewing a determination under ss 24 and 25 of the FOI Act to consider all issues arising in the case in relation to whether a document should be released. As indicated above, once a ground for refusal of access arises under s 25(1)(a) the issue arises whether to exercise the discretion to release an exempt document which is not a restricted document the subject of a Ministerial certificate. The decision under review must have, or must be taken to have, addressed this discretion before determining to refuse access on the ground of an exemption. The Tribunal must also address it”.

In the Court of Appeal, the only ground of appeal by the University against a decision of the Tribunal Appeal Panel considered [26] was that the Panel had erred in proceeding on the basis that it had power to grant access to a document exempt by operation of legal professional privilege. The University submitted [31] that any power a relevant officer of the University may have had to grant access to a document subject to legal professional privilege arose under the general law and not under any enactment. Justice Basten (with whom Justices Ipp and Macfarlan agreed) said:

32 Because s 63(2) is limited to the exercise of functions conferred or imposed “by any relevant enactment” the power to waive legal professional privilege is not a power enjoyed by the Tribunal..... A relevant enactment must be an Act, regulation, by-law, rule or ordinance.. Where the University obtains advice from lawyers, its rights with respect to that advice will depend upon the general law, even if it is obtained for the exercise of its statutory functions....

33 In the present case, there was no relevant grant of statutory authority. The power to waive privilege did not arise under any enactment. Accordingly, at least in respect of the exempt document in question, no power was conferred on the Tribunal by s 63(2) of the ADT Act to waive any legal professional privilege as might remain extant.

The problem with this is that while there is strong legal precedent for the general proposition, the FOI Act contains a clear additional statutory provision regarding release of documents, including any containing legal advice.The decision completely ignores the FOI Act- clearly an enactment for the purposes of Section 63(2) of the ADT Act- and Section 25 which contains a provision of the kind contemplated by Section 63(2): the exercise of functions by the administrator who made the decision, that is to release an otherwise exempt document.This isn't waiver but a statutory discretion. Parliament didn't put legal privilege documents outside the scope of the discretion. Section 25 formed a key element in Justice Nicholas' reasoning, but doesn't get a mention anywhere in Justice Basten's consideration [29-40] of the relevance of other provisions of the ADT and FOI acts. Section 63(2) provides the Tribunal with the same functions as were available to the determining officer.

Justice Nicholas' decision about ADT powers had for different (and more understandable) reasons been qualified by the Appeal Panel in IPART v Services Sydney [2008] NSWADTAP 79. Although not the central point in the case, the Appeal Panel decided [46] that the discretion did not extend to documents found to be exempt under clauses 1, 2 and 4- "restricted documents" in the language of the NSW Act.

This issue of ADT override discretion will not be relevant when the NSW FOI Act is replaced by the Government Information (Public Access) Act early in 2010. The issue in any ADT review of refusal of access under GIPA (except those concerning Cabinet and Executive Council documents where review is to be limited to whether there are reasonable grounds for the claim) will be whether there is an overriding public interest against disclosure of the information. Those with FOI cases before the Tribunal concerning legal professional privilege claims however can forget arguing that the Tribunal should exercise its discretion to grant access- unless there are any takers for another Court of Appeal challenge?

Public money between us and the tax office, says Acting Premier

Acting Premier Paul Lucas

In a recent post we commended the Queensland Information Commissioner's submission on the Government's Green Paper on Integrity and Accountability, which included the suggestion that the push agenda of Right to Information reforms (transparency) should be applied to the expenditure of all public monies, including Ministerial and Parliamentary allowances unless it can be shown to be clearly contrary to the public interest. Well how about this from AAP in The Australian today when the Acting Premier commented on the idea:

"Acting Premier Paul Lucas said on the Gold Coast that MPs were already accountable to the tax office. "I don't want to see an army of bureaucrats - who are taxpayer funded - being employed to check expense claims," Mr Lucas said."

Has anyone told Mr Lucas the Commissioner's suggestions also included "make work" ideas that gifts and hospitality received by Ministers, Members of Parliament and public sector employees and their travel and entertainment expenses should be published online? He'll be starting to wonder what you have a tax office for.

More public access to information about child care centres catching

This report for the Department of Community Services on NSW childcare centres wouldn't give parents great confidence in childrens' safety in the system, but a tick in any event for those who decided the report should be publicly available. The report made other recommendations but none about how more transparency might promote better compliance with the law and standards. Minister for Community Services Linda Burney however told Andrew Clennell of the Sydney Morning Herald about new legislation to be introduced that will toughen up the compliance regime including powers "to name and shame centres that do the wrong thing.'' Queensland and NSW are now both on the job on this one.

Hyperbole and the human rights debate

The Sydney Morning Herald in its editorial was sceptical about actions recommended in the Brennan Report to protect human rights. But the Weekend Australian was in a class of its own slamming the report in two front page leads, this by Paul Kelly and another by Kelly and Chris Merritt. Kelly labelled "hyperbole" the claim by Opposition Attorney General that the report threatened "the most important de facto alteration to Australia's system of government in our history. " I sent a letter to the editor on Saturday, but no dear reader it's not published today. However to the editor's credit the one letter that made it, written by a manager of a legal service for the homeless, rightly took issue with another claim that a Human Rights Act would be a triumph for elites, arguing instead it would be "a victory for the most marginalised and disadvantaged members of our community."My unpublished contribution:

"George Brandis wasn’t the only one resorting to hyperbole.Your reports of mixed fact and opinion under headlines featuring” enormous problems,” “chaos,” and “poisoned chalice” on the “human rights lobby”, its alleged political agenda to obliterate the Howard cultural legacy and its plans to change our system of government, were over the top.The Australian’s “Right to Know” banner only makes sporadic appearances these days but its interest in rights clearly stops short of any meaningful embrace of broader internationally accepted rights and ways to best protect them. Victoria and the ACT don’t seem to be on another planet despite adopting comparable schemes to the dastardly proposals put forward by Brennan. By the way 16 of the 31 proposals were for protections other than by way of a Human Rights Act. What’s the problem again with initiatives that Paul Kelly acknowledges would bring Australia “into line with international human rights norms”? You give little hope to those of us who are confident we can better define and protect rights and sort out the wrinkles and problems on the way through."

Australians say human rights need better protection.

The Brennan Committee report to the Federal Government on the National Human Rights Consultation makes 31 Recommendations, 16 concerning action to protect and promote human rights more effectively and 15 about a Human Rights Act for Australia and the preferred model- the "dialogue" model allowing for judicial opinion concerning incompatibility, but Parliament at the end of the day to prevail, along the lines of models currently operating at state level in the ACT and Victoria. Rights in seven international treaties signed by Australia (subject to any claimed reservation) including the International Covenant on Civil and Political Rights (Articles 17 and 19 confer a right to privacy and to information respectively) should be protected and promoted; and the right to privacy and the right to freedom of expression are among those listed for inclusion in the Act. The Chairman on ABC PM explained the proposed model and discussed what turned him from a self-confessed sceptic - it all makes welcome good sense to me.

Best public service should lead on open government as well

In the weeks since the Prime Minister set the Australian Public Service what he said was the "entirely reasonable and achievable" aspiration to be "the best public service anywhere in the world", an Advisory Group on Reform of Australian Government Administration has been appointed, chaired by PM&C Secretary Terry Moran to point the way. Verona Burgess in her Government Business column in the Australian Financial Review recently (no link available) criticised the composition of the group- all but four of the ten are insiders- and the decision to leave out some former insiders and others such as heavies from the Department of Finance and the former Finance boss Ian Watt now running Defence.

Another omission was any link with the Gov 2.0 Taskforce whose terms of reference include to advise and assist the Government " to establish a pro-disclosure culture around non-sensitive public sector information; ...to maximise the extent to which government utilises the views, knowledge and resources of the general community;.. to ensure that government is receptive to the possibilities created by new collaborative technologies and uses them to advance its ambition to continually improve the way it operates" etc, etc, all a good fit you might think with a world's best ambition.

The Advisory Group has released a discussion paper, again criticised by Burgess last week on several fronts including that it makes a weak case for some changes, and that in shooting for the stars, it may be putting the cart before the horse.

While the paper includes various references to the importance of improvements in transparency and accountability, citizen engagement and collaborative policy development (page 11) there is no reference at all to the Gov 2.0 project. The section (page 15) on "Trust and accountability" is self-congratulatory ("Australians have more trust in their government than citizens in most other comparable jurisdictions") but at least acknowledges:

"Maintaining trust and confidence arguably depends on a robust approach to transparency and openness. Transparency ensures that the public is well informed, that taxpayers can determine whether their tax dollars are being spent effectively and efficiently, and that as many decisions as possible impacting on the public and the public interest are subject to appropriate scrutiny. An open approach requires a culture of disclosure and cooperation which facilitates the transmission of ideas and allows critical review of performance and actions. To this end we note the contributions of reforms currently at various stages of development and implementation including:

• freedom of information reforms to promote a pro-disclosure culture across government

• the provision of greater protection for public service whistleblowers

• reviewing the privacy framework to ensure effective protections are in place for personal information."

However "Possible reform directions" doesn't take things in this area much further suggesting (page 19) simply "there may be room for further work" to strengthen accountability and trust,

"particularly in relation to performance and reporting on the achievement of outcomes. Increasing the public availability of government data and performance related information could enable citizens to better understand what the government does and how it affects them, as well as how the public service is performing."

Well yes, but it's all a bit skinny on the well-known and oft canvassed problems that need to be addressed if we are to move in the direction of greater openness and transparency beyond what might come from long overdue FOI reform and whisleblower protection.

For starters, the climate created by over 500 secrecy provisions in Federal laws (the ALRC is due to report on this by the end of the month); what is seen to be the political sensitivity associated with some government information, for example the options considered and the basis for many decisions, and the zealous attempt at the top to micro-manage as many information flows as possible, especially to the media; an overly risk-averse attitude generally within the public service and the encouragement this receives within a system that sees protection of the minister as the vital part of the job; the absence of incentives for, and limited recognition of, those prepared to challenge entrenched preferences for secrecy, yet plenty of interest in finding someone to blame when things go wrong; the leadership vacuum within the public service on the importance of open government principles and making democracy work better through improved dialogue and participation, while at the same time plenty of highly placed advocates who emphasise the need for confidentiality if the public service is to do its job properly; technical, legalistic interpretation and application of disclosure law, and at some points in the recent past, questionable attempts at very senior levels to outmanoeuvre FOI applicants who seek to exercise their rights- see Andrew Podger's account.

Onward to world's best- or moving forward to world's best practice, as the PM might say, much to the delight of Don Watson.

Some sunshine in the Queensland childcare industry

The Courier Mail following a series of stories highlighting unsuccessful freedom of information applications seeking to identify child care centres issued with compliance notices, is no doubt pleased to report today that Education Minister Geoff Wilson has introduced legislation into State Parliament allowing centres seriously or repeatedly breaching regulations to be named online from February 1 next year. Of course it makes sense. As to other states???

Taxi audit hailed down

www.abc.net.au

The Sydney Morning Herald has been on the job for several weeks about the NSW taxi industry, and today reports on a 2007 audit released yesterday, after unsuccessful attempts to obtain it under the Freedom of Information Act, and the commencement of an Ombudsman investigation, at the Herald's behest, into the handling of the matter. The audit reveals breaches of conditions of a special license category, resulting in substantial profits for some key industry players and was made public by the Minister for Transport as part of an announcement of major reforms to taxi licensing. No sign so far of the report online on the Minister's Media Release website. Update- thanks for the comment- the Report is here.

Public broadcasters and the right to know-about them

In a recent post I commented on the Australian Broadcasting Corporation's various views about it's current exclusion from the Freedom of Information Act "with respect to documents in relation to its program material" and whether this matched or should match the BBC's exclusion from the UK FOI Act "in respect of information held for purposes other than those of journalism, art or literature". Two decisions last Friday in the UK reversed previous thinking there that the predominant purpose for keeping the material determined whether it was covered by or excluded from the Act. Justice Irwin in the High Court said information fell outside the FOI Act if it was held to any significant extent for one of the purposes mentioned in the exclusion provision. The Federal Court of Australia in 2006 interpreted the ABC exclusion as covering anything that had a direct or indirect relationship to program material, so welcome aboard BBC. Martin Rosenbaum at Open Secrets has more about the UK developments. As to any real difference between the formulations or at least court interpretations of them.....

"People,not laws block freedom of information"

Matthew Moore in the Sydney Morning Herald gives the recent NSW Deputy Ombudsman's report on the Board of Studies a going over, citing it as providing a "standout example of what is wrong with freedom of information in NSW". The title as above, says it all, although the law does play a part. Moore concludes:

"It was precisely the behaviour of agencies such as Office of the Board of Studies that prompted the Parliament to pass a new freedom-of-information law, the Government Information (Public Access) Act. This act, which comes into force early next year, will be overseen by an Information Commissioner. There is much to like about the new law, especially the principle that all government information is to be made public unless there is an overriding public interest against disclosure. But as the Ombudsman's investigation shows so clearly, it is not the law that will make a difference; it is the attitudes of people who administer it, the Board of Studies bosses and a hundred other agencies. Unless their attitudes change there will be no improvement.."

NSW Information Commissioner hits the web

Judge Ken Taylor AM RFD Acting NSW Information Commissioner

The Office of NSW Information Commissioner is up on the web as of today, with details of preparations for the commencement of the Government Information (Public Access) Act, to replace the Freedom of Information Act in early 2010. Among the materials posted is this plain-English guide to the new act Right to information in NSW which provides an overview including the many significant changes from FOI "pull" to the GIPA Act "push" model with its emphasis on proactive disclosure.

For the record I was engaged by the Office to research and prepare a draft of the Guide .

More disclosure might lead to less questions about public servant travel

Damien Brown in The Mercury reports that questions in State Parliament in Hobart yesterday about travel expenses of Health Secretary David Roberts had the Minister and Deputy Premier Lara Giddings crying foul, suggesting professional public servants would be discouraged from relocating to Tasmania by "appalling" and "disgusting" questioning.

Hmm, there I was hoping governments and senior public servants there and elsewhere would be working on the basis that the publication of this sort of information on a regular basis is one of the things that might be expected in the new or coming era of proactive disclosure. As Attorney General, Minister Giddings has carriage of that matter in Tasmania (referred to here yesterday) as well.

Brown reports:

"Mr Roberts' 60 intrastate, interstate and international trips between December 2007 and May this year were part of a $110,000 travel bill for Tasmania's top health bureaucrats obtained by Mr Whiteley (Opposition Health spokesman) under Freedom of Information legislation. The figures also featured the travel movements of deputy secretary Alice Birchall.

Mr Whiteley defended his questioning."I asked them questions. Can't I do that?" he said in Parliament."All I am doing is asking questions and for you to justify these expenses -- they are massive expenses. You must be joking if you think we can't ask questions."

The Minister said:

"We have had FoI after FoI on two specific individuals -- that is what I call a personal attack. Why are we not asking questions of all of our public servants?

I'm not against travel when its necessary and useful, but the question for the Minister is why not publish this information regularly- and for ministers as well. I doubt the slightest slowdown in recruitment of public servants as a result. Anyone concerned should try private sector transparency demands for top executives these days.

The Oz splashes out on whistleblower protection

www.cpsu.org

Chris Merritt in The Australian gives whistleblower protection a solid run today, at least those aspects regarding disclosure to the media: comparisons between the Dreyfus proposals before the Federal Government and US schemes, courtesy of a visiting academic; and comparisons between Federal proposals and what Merritt refers to as a report to the Queensland Government - I think this is a submission by Dr AJ Brown on the Green Paper on Integrity and Accountability which is yet to appear on the published submissions list. The article includes comment about Section 70 of the Crimes Act and the need to review it, but, as in a long line of earlier reports in The Australian, contains no acknowledgment that the Australian Law Reform Commission has been examining Section 70 and other secrecy laws since August 2008, has published papers on the subject that identify the problems, and possible answers, and will report to the Government with final proposals by the end of this month.

In a third article Merritt makes some observations about Senator Ludwig's difficulties: responding to the Dreyfus Report by the end of the year, making the response consistent with the Government's open government commitment, and with any response to an application for a pardon by Allan Kessing:

".. the debate on Ludwig's (response) will coincide with the government's decision on whether Kessing's conviction for revealing airport security flaws should be wiped away by a pardon. Superficially, the Kessing affair might appear to be complicated by this retired Customs officer's assertion that he never leaked a report to The Australian outlining those security flaws. But that is a red herring. If Kessing did leak that report, he is hero. He deserves a pardon as a long-overdue "thank you" from a grateful nation. His actions placed the public interest ahead of his own and may well have saved lives. If Kessing was not responsible for that leak -- as he asserts -- a pardon is even more justified. Kessing's claim of innocence must be seen as far more credible because he now admits that he leaked that material to an employee of Labor's Anthony Albanese, who is now Transport Minister. Why would Kessing lie about his lack of involvement in the leak to The Australian while taking responsibility for a leak that, until now, had remained a closely guarded secret? It is also clear that the court that convicted Kessing -- and the appeal court -- were never given the full story. In the light of the disclosure about the Albanese link, the weight given to at least part of the circumstantial evidence that was used to convict Kessing must be reassesed."

Merritt reports Kessing is hard at work drafting an application for a pardon, and that he will need to persuade the government he can be deemed "morally and technically innocent of the offence" and show that exceptional circumstances have precluded him from going to the High Court. Kessing's principled stand and his cause deserve our full support.

Not much Gov 2.0 detail in Tasmania's RTI Exposure Draft

Submissions closed today on the Tasmanian Exposure Draft Right to Information Bill 2009, to replace the Freedom of Information Act, and the Personal Information Protection Amendment Bill 2009. I didn't manage a submission, but make these couple of comments.

While there are some positives, the RTI Bill is not all you hope for in a modern, plain - English, access to government information act. The drafting for a start strikes as "old-style" - even "impecunious" gets a run in Section 17 - but that's neither here nor there in the broad scheme of things.

More importantly, while the Department of Justice Review team's webpage states the Bill proposes (among other things) to "mandate greater proactive release of information by the Government", the Exposure Draft does nothing of the sort. It does not require the proactive publication of any information, simply authorising agencies to release information by way of "routine" (in the public interest), "active" (in response to requests outside the Act) or "required" (by another act) disclosures, all to be preferred to the last option of "assessed" disclosure- release in response to a formal application under the Act. No further requirements are imposed regarding proactive disclosure. The Ombudsman who has specified powers may (Section 50) issue guidelines relating to disclosure under the four specified types. But if any guidelines are issued there is nothing in the Exposure Draft that requires an agency to have regard to or comply with them. There is a general power to make regulations for the purposes of the Act (Section 55) but under the Bill as it stands, each agency will decide what if any information should be proactively released. There is no mention of the Internet in 85 pages.

A couple of other points.

The application fee for assessed disclosure applications for the "impecunious" and a Member of Parliament acting in connection with official duties can be waived (Section 17) but no-one else who might be seeking information for broad public purposes gets a mention. Neither is there any mention of processing charges, so maybe there's to be none?

Grounds of exemption are to a large extent Australian standard, and for those subject to a public interest test, some relevant considerations for and against disclosure are listed (Schedule 1) to be taken into account in deciding whether disclosure would not be contrary to the public interest. A couple are unusual and may be unique- (t) whether the applicant is resident in Australia; and (u) whether the information is wrong or inaccurate.

Schedule 3 includes matters relevant to refusing an application on grounds of substantial and unreasonable diversion of resources. Regular users of the Act for example journalists, interest groups and politicians might be a little wary about what could constitute "applications of the same kind" and "similar information" as in:

(g) the extent to which the applicant is a repeat applicant to the public authority in respect of applications of the same kind, or a repeat applicant across government in respect of applications of the same kind, and the extent to which the present application might have been adequately met by those previous applications; and (j) the number and volume of assessed disclosures of information to the applicant about similar information in the 12-month period immediately prior to the present application.

There is no Information Commissioner as such and the Ombudsman (Section 48) has various powers some of which need beefing up from the discretionary "may", and as mentioned above, given some clout, although in one respect - the power to direct an agency to implement the Ombudsman's decision after considering a review application - the Tasmanian Ombudsman is a step ahead of what the information commissioners can deliver under Queensland, NSW or proposed Federal legislation.

Other good elements: the Act (Section 8) covers information related to performance, evaluation or progress of work provided to a public authority by a private organisation that is funded by or performs a role of that public authority unless the information is exempt; the shift from "documents' to "information" and clear search requirements for electronic information (Section 10); the inclusion of an offence for "unduly" influencing a decision (although there appears to be a drafting error in Section 51 which seems to apply to internal review decisions, but not not others).

Talking up RTI in Queensland

Speeches this week by David Solomon and Queensland Information Commissioner Julie Kinross on separate occasions in Brisbane are both of interest. They cover some common and different ground, with Kinross providing record managers with some historical context for Freedom of Information reform, and explaining the broad scope of change underway as a result of the Right to Information Act 2009 (RTI) across many parts of agencies that demand the attention and leadership from the executive level.

Dr Solomon's Right to Know Day speech, "The sky didn't fall in", included an account of the developments leading to the RTI Act, and the flow-on effects in other jurisdictions.

He also commented on an issue emerging from his other involvements as Queensland Integrity Commissioner and member of the Federal Government's Gov 2.0 TaskForce: how little community awareness there is about integrity and accountability measures, and the need for
initiatives to increase awareness of government decision-making processes, structures and policies. And that the availability of information is not an end in itself- it's the means to improving democratic practices:

"Of course the fact that agencies proactively make more information available to people, that they adopt publication schemes that enable people to better understand what the agency is doing and how it works, that they develop websites that are easily accessible and searchable, that they release information administratively rather than forcing everyone making an inquiry to use the RTI processes – all these aspects of the “push” model won’t necessarily mean that people are better informed about how the government works, what processes and institutions it has developed to try to ensure integrity and accountability. People have to want to know, they need to be motivated to seek information whether from websites or other forms of publication. Establishing transparency is one thing – persuading people to look through the portal and read what is there may be another. That motivational task is probably a matter for government, particularly if the high ideals of the Right to Information legislation are to be met, and it will probably need to begin in the education system. Ensuring a better flow and availability of government information is not just a good in its own right. It has an important purpose in the scheme of government."

Dr Solomon concluded:

"The message is that RTI is the beginning. It provides a framework for more developments, for better communication between the government, its agencies and the people. Ultimately its success will be judged by the extent to which Parliament’s aims in passing the legislation are satisfied. A final word about our new RTI Act. What is does is create a framework for the evolution of a better-informed community, where the government is more open and responsive. In our report we stressed the importance of cultural change and political leadership in driving that change. There can be no doubt that the Premier is anxious to ensure that RTI succeeds. It is to be hoped that the most recent message she sent to all government agencies on RTI principles, gets through to everyone involved in its administration."

Integity and accountability paper sparks ideas

There were 114 submissions in response to the Queensland Green paper on Integrity and Accountability with many urging parliamentary reform, including for Australia's only unicameral state system, an upper house of parliament. (The 17500 word submission from the Clerk of the Parliament makes the news in the Courier Mail this morning)

The Information Commissioner made some suggestions including specific transparency and accountability measures that would be applicable in other jurisdictions as well. Some could have been but weren't included in the Ministerial Guidelines on Publication Schemes

All expenditure of public money
The push agenda of Right to Information reforms (transparency) should be applied to the expenditure of all public monies, including Ministerial and Parliamentary allowances unless it can be shown to be clearly contrary to the public interest.

Who's influencing what
Ministers should be required to publish the names of the groups whose interests are brought to their attention ; inviting submissions during public consultations should be on the basis that submissions will be made public, unless it can be established that publication would be contrary to the public interest and to be made in a form that the writer is comfortable with the document being made public; the community should be informed how that information was used and weighed in the decision making process.

Gifts hospitality and travel on-line
Gifts and hospitality received by Ministers, Members of Parliament and public sector employees and travel and entertainment expenses should be registered and published online.

Government intentions
There should be more publication of information about forthcoming projects, upcoming consultations and the forward policy agenda, not just what has been done.

Agency files
The publication of a list of titles of files created in the central office of a department or portfolio agency for the relevant period, with some exemptions should be included in agency publication schemes.

The Commissioner also plans to take some initiatives regarding contract disclosure, and raises the need for specific powers to investigate the use of confidentiality provisions.

Transparency and school performance

Associate Professor Tony Taylor of Monash University in Crikey today on why we need more accessible information about school performance, and three spot-on suggestions about what can be done to combat silly sensationalism from some champions of the right to know (you know who they are):

"First, the authorities must publish reports that give accessible, clear and authentic information that paints a fair, a detailed and a broad picture, and Barry McGaw, the federal curriculum head honcho, has promised this. It may take time, since it has taken Ofsted eighteen years to get to where they are today (with some major diversions along the way), so be patient. Second, all governments, federal and state/territory, must educate parents and teachers so that they will actively look for the more complex backgrounding and make informed judgements about education, instead of just relying on banner headlines and crude rankings. This approach, presumably, is on its way and may result in an increasingly knowledgeable public disposition about schools and schooling. We live in hope. Third, tabloid journalists must change their ways, look for a deeper meaning in life and disdain league tables. Don’t hold your breath."

Two out of three's not bad.

Something's gotta give.

In a comment on a post last week, an anonymous reader who claims to have worked in media relations in the Keating, Howard and Rudd governments said he had never witnessed anything in his professional life like the present government with its "paranoia and centralised control of media management." On Radio National's FutureTense last week in a discussion "Participatory Democracy, Web 2.0 and the Government 2.0 Taskforce," Taskforce Chair Nicholas Gruen said:

"We know what we have to do, and that is to take the situation that we're in now, where government information is secret, unless a decision is made to release it, and basically reverse that, so that government information is in principle, open, accessible, available, unless there's some good reason for that not to be the case. Now the government has in some senses signed on to that principle. It's clearly indicated that it's keen on that principle in appointing us, but it's also been co-author of a set of OECD principles which we reproduced in our Issues paper, which say that. The hard part is actually getting it to happen."

A fair bit of what followed was about the culture change needed in the public service to bring this about, but if Anonymous is right that isn't the half of it. In addition new legislation that requires proactive publication of government information will blur distinctions between media liasion, public affairs and FOI related work, making for interesting times, particularly for those intent on controlling all information flows.

Queensland marks Right to Know Day

Tomorrow 28 September is International Right to Know Day in some parts of the world, and usually passes largely unnoticed in this neck of the woods, so congratulations to the Queensland Information Commissioner for organising in the morning the first Solomon Right to Information breakfast featuring Dr Solomon, chair of the FOI Review panel that got things moving there, on the Right to Information Act " How we will know when we've succeeded." That map needs a little flag in the upper right hand side of Australia from here on, and maybe more to follow.

Queensland whistleblower reform

Haven't seen Dr AJ Brown's report but Chris Merritt's story in The Australian about what's on the table in Queensland for reform of whistleblower protections sounds good and positive.