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Friday, May 22, 2015

Victorian FOI Commissioner 'under investigation'

 This report in The Mandarin is all I know:

Secretary of the Department of Premier and Cabinet Chris Eccles  told the the Public Accounts and Estimates Committee:
“There were certain matters that were brought to my attention — and it’s not appropriate to disclose the detail — which I consider to be sufficiently serious to call upon the Public Service Commission to initiate an inquiry. “That inquiry is on foot, and the matter is before government.” A government spokesperson told The Mandarin: “The Secretary of the Department of Premier and Cabinet commissioned a review of the Office of the FOI Commissioner by the Victorian Public Sector Commission, after receiving certain allegations. The review was led by the former Public Sector Standards Commissioner, Mr Peter Allen. The review’s findings are currently under consideration by the Government.”

Tuesday, May 19, 2015

'Dire year' for press freedom in Australia but you won't read about it in the media

Two reports on press freedom -The Freedom House world wide Freedom of the Press 2015 Report and the Media, and the Entertainment & Arts Alliance (MEAA) 2015 annual report on the state of things in Australia Going After Whistleblowers, Going After Journalism  - present different assessments of the situation here reflecting differences in the depth of inquiry and when the surveys were undertaken.  

The Freedom House report provides a worldwide snapshot based on a survey undertaken last year. The MEAA report focuses on Australia with some coverage of the regional big picture, provides more comprehensive examination of issues and includes developments up to publication on 1 May. 

Freedom House concludes generally "conditions for media freedom deteriorated sharply in 2014 to their lowest point in more than 10 years." 

Australia is rated overall "Free" and receives a numerical score of 22 on a scale of 0 (the most free) to 100 (the least free), about where it has hovered since 2007. In the first survey in 1995 Australia's score was 7. There is no Australia country report.The score puts Australia at 31 in the global rankings (Report p 22). New Zealand with 19 points is at 26.

CEO Paul Murphy in the MEAA report describes "a dire 12 months for the state of press freedom in Australia." 

The report (in the first 47 pages) highlights concerns over the government’s three tranches of national security laws that were passed by the Parliament with by-partisan support, the failure to act to improve whistleblower protection, the undermining of journalist shield laws and Freedom of Information developments.

The section on Freedom of Information (p46) recounts matters raised in submissions to the Federal and NSW governments and reiterates the need for a comprehensive review of the kind Alan Hawke wasn't in a position to undertake.

Looking ahead the MEAA sees
The way forward from this point is a complete, comprehensive review of Australia’s counter-terror legislation and a concomitant review of Australia intelligence, surveillance and law enforcement agencies. The aim should be to introduce meaningful media exemptions from the excesses of these laws so that the vital work of public interest journalism can continue unheeded.

There must also be a rethinking of the role of public disclosure, freedom of information, open government and whistleblowers in our society so that these things are not feared, undermined and even attacked but are embraced as a necessary part of a healthy functioning democracy. To do otherwise means the war on journalism that has become a subset of the war on terror is fought and lost on the home front. And that is too dreadful an outcome to contemplate.” 
But if press coverage is any guide the media is struggling to get this message across. Two Australian outlets carried something about the Freedom House report but neither found the pages that included Australia's score or global ranking so this didn't get a mention in either. 

The MEAA report (dry as dust IMHO) attracted the attention of the Communist Party Of Australia Guardian but that seems to be it.

Maybe the woes of the media wouldn't have much impact on public thinking in any event given media types aren't rated highly.

In The Roy Morgan 2015 Survey of public opinion concerning ethics and honesty in the professions, Newspaper journalists came in at 19 of 30 ( rated highly by 18%), Talk back radio announcers at 21 (16%), and TV reporters 22 (15%).

At least ahead of State MPs 23 (14%) and Federal MPs 25 (13%).

Nurses as usual came in tops - 92%. 

Addendum: those reports don't feature but the SMH editorial "Free speech and democracy v metadata and Telstra" explains why it's not just journos who should be concerned about our metadata:
..the new laws give the authorities a comprehensive picture of the physical movements, interests, contacts, connections and digital trails of everyone in the country who has a smartphone or uses the internet. The implications are vast, and not just for private citizens who are uneasy about the potential for misuse of a vast digital dossier that collects their every move...
The Herald believes the new laws will have a chilling effect on public interest journalism which often relies upon leaks of government information by public servants. As it stands, whistleblowers have no protection at law, even when their leaks are indisputably in the public interest. Disclosing government information of any kind is a crime punishable with two years jail. Exposing official secrets will get you up to seven years. So whistleblowers, including those attempting to remedy official misdeeds, have only had the secrecy of their communications with journalists to protect them from prosecution.
Now, armed with straightforward access to two years of the communications data of everyone including public servants, MPs and journalists, the Australian Federal Police and related agencies will find it relatively simple to identify the source of leaks, effectively gagging bureaucrats who might otherwise have made significant revelations in the public interest. Waste, fraud, incompetence by public officials will go unexposed. Our democracy is much the poorer for it.

Thursday, May 14, 2015

FOI gets a run in debate on Tribunal Amalgamations bill; Senator Ludwig rides a hobby horse

Freedom of Information cropped up in debate in Parliament this week quite apart from mutterings in the corridors about the revelation in the Budget papers that the government in providing some funding for 2015-16 stands by its intention to proceed with the Freedom of Information Amendment (New Arrangements) Bill that would abolish the Office of Australian Information Commissioner.

Both houses passed the Tribunal Amalgamations Bill 2014. The bill's primary purpose is to merge the Social Security Appeals Tribunal, Migration Review Tribunal and Refugee Review Tribunal into the Administrative Appeals Tribunal. As a result of a Labor amendment the AAT as newly constituted will include a Freedom of Information Division.

And In a somewhat surprising choice of priorities given the FOI issues on the table or that
should be on the table, former minister now Labor back bencher Senator Joe Ludwig introduced a private members bill, the Freedom of Information Amendment (Requests and Reasons) Bill 2015. 

The bill would require government agencies and Ministers to publish online the exact wording of freedom of information requests and the statement of reasons for the decision to allow or refuse release, and require information in released documents to be available for downloading from the web. 

(Comment: Interesting, but not the top of my wishlist of reforms that parliament might consider. And if Senator Brandis who since October has baulked at bringing the bill to abolish the OAIC on for a vote in the Senate in light of its likely defeat, you have to wonder whether the combined forces of Labor, The Greens and the cross-bench might do him, the commissioners and staff and the rest of us a favour by moving the bill, voting it down and turning attention to ensuring executive government adequately funds the office that oversights parliament's FOI reforms of 2010. Whether Senator Ludwig's bill gets attention beyond the Second Reading speech remains to be seen.)

Australian Information Commissioner 
The bill to abolish the OAIC did come in for comment in debate on the tribunal bill in the Senate on Tuesday before the budget presentation that night and in the House on Wednesday, with Labor on both occasions affirming its opposition.

Senator Jacinta Collins said Labor moved the AAT FOI division amendment
to deal with the fallout from the government's Freedom of Information Amendment (New Arrangements) Bill 2014, which would abolish the Office of the Australian Information Commissioner and make the AAT the first port of call for those seeking independent review of FOI decisions. We oppose that bill and the crossbench opposes the bill. The government has been unable to explain, in the face of its failure to pass the ill-fated measure from last year's budget, how it will proceed. If the government is happy to undertake now that it will withdraw its freedom of information bill, the need for this amendment will fall way. But whilst the government persists with that bill this amendment is necessary. If the AAT is to be the main jurisdiction for handling FOI appeals, we must support the AAT to develop sufficient expertise, experience and specialisation in handling those matters. This amendment would go some way towards achieving that, though we are clear that the best case scenario is the withdrawal of the freedom of information bill itself
 Senator Brandis responded
The government is happy to support this amendment. We think it is not strictly necessary. What it does is establish in addition to the six core divisions of the tribunal an additional division dealing with Freedom of Information Act matters. Senator Collins refers to the government's proposal to abolish the Office of the Australian Information Commissioner. Although this is perhaps not the place to have that debate, can I respond to the observation you have made, Senator Collins, by pointing out the anomaly in the existing law that, unlike almost every other area of merits review, there was a double level of merits review in relation to FOI matters. If the government's other legislation would be passed, there would be a single level of merits review, and that merits review would be conducted by the AAT. You propose that there be an FOI division. We would have thought that that could be perfectly well accommodated within the general division of the AAT. Nevertheless, rather than have a fight about it, if you are of the view that there should be an FOI division, as well as the other six divisions, of the AAT, we are happy to support your proposal."
(Comment: As the Attorney General said this was not the place for the wider debate. But yes, the FOI merits review functions could do with some rethinking, something that shouldn't be left to those in the Attorney General's Department. However any changes that might be warranted could be achieved without removing from the scene entirely the independent monitor, champion and advocate for more open, transparent government; abolishing the non-litigious free external merits FOI review process, and moving this function exclusively to lawyers' territory at the AAT where the application fee for those who do not qualify for a concession is $861 at present and to rise in line with the CPI from 1 July; fracturing the synergies established only four years ago between FOI, privacy and broader policy on information management in the digital age; and placing the attorney general in the position of government wide influence on access decisions through the power to issue guidelines in the stead of the independent commissioner.)

In the House of Representatives on Wednesday Shadow Attorney General Dreyfus said:
Members will be aware that the government's Freedom of Information (New Arrangements) Bill 2014, presently in the Senate, would confer responsibility for determining disputes about FOI applications in the first instance on the AAT. At present, the specialist body the Office of the Australian Information Commissioner fulfils that role. We oppose that bill. It is nothing less than an attack on the FOI system, and the government has, thankfully, not been unable to pass it through the Senate. Embarrassingly, in the recent budget the government has been forced to reallocate funding to the Office of the Information Commissioner a year after announcing that office's abolition. Nonetheless, we want to take this opportunity to ensure that the AAT is better able to handle FOI disputes whether the government's FOI bill passes or not. Accordingly, we moved in the Senate to amend the bill to create a specialist division of the AAT to deal with FOI matters.
(Thanks Open Australia for the Hansard links.)

Wednesday, May 13, 2015

Budget allocates transitional cash to Office of Australian Information Commissioner

Enough to continue to carry out its Freedom of Information functions at a reduced level for a period at least. But the fine print reveals the government hasn't given up on plans to abolish the office.

You find nothing about the OAIC in the Attorney General's Media Statement on Budget Measures.

The Portfolio Budget Statement (pdf) reads as if the government has reversed the decision in last year's budget to abolish the office.

The PBS refers to the OAIC as is, outlining the freedom of information and privacy functions and explains (emphasis added):
In the 2014–15 Budget, the Australian Government announced that the OAIC would cease operation and new arrangements for privacy and FOI regulation would commence from 1 January 2015. The new arrangements included the establishment of an Office of the Privacy Commissioner; the right to external merits review of FOI decisions to lie directly with the Administrative Appeals Tribunal; and complaints about FOI administration to lie directly with the Commonwealth Ombudsman.
Funding transfers to other entities to facilitate these changed arrangements occurred as part of the 2014–15 Budget.
As the legislation giving effect to these changes has not passed Parliament, the OAIC remains responsible for privacy and FOI regulation. Additional resources will be provided to the OAIC for the exercise of FOI functions, and the funding appropriated to the Australian Human Rights Commission for privacy functions will instead be appropriated to the OAIC in 2015–16.
The allocation in 2015-16 is around $12 million, with average staffing of 72 compared to 64  in 2014-15.

There's a hint about the real situation in the fact that nothing is included in the forward estimates for the three subsequent years.

Over to Budget paper No 2 where we find 
"transitional funding of $1.7 million will be provided to the Office of the Australian Information Commissioner for its functions in 2015‑16, pending the implementation of the measure Smaller Government — Privacy and Freedom of Information functions — new arrangements." 
This is the bill that has been before the Senate since October. All the indications are that it does not enjoy majority support. (The Ministerial Paper on Smaller Government issued last December makes only a passing reference to legislation to 'divide' the office but no comfort from that. Monday's Smaller Government Reform agenda doesn't mention it at all)) 

The government plans to send the OAIC into 2015-16 with the same constraints and uncertainty that made 2014-15 a horror year. 

And a step backward in the long journey towards transparent accountable government.

Budget Paper No 2 also reveals:
  • an allocation of "$4.2 million over four years for the Privacy Commissioner to provide oversight of privacy implications arising from the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 and the Counter‑Terrorism Legislation Amendment (Foreign Fighters) Act 2014." 
  • an allocation of $254.7 million over four years from 2015‑16 to support the initial implementation of the Digital Transformation Agenda, which will deliver a better user experience for individuals and businesses engaging with government, reduce red tape and increase the efficiency of government service delivery. This measure includes the provision of $95.4 million over four years from 2015‑16 to establish the Digital Transformation Office (DTO) as a new Executive Agency within the Communications portfolio.
No mention anywhere of the Open Government Partnership. 

In tallying winners and losers from the budget, despite Minister Turnbull's hopes for the DTO, count open transparent government as a loss.

Media coverage:
 IT News

Social Media

My tweet in the early hours is also floating around out there with welcome retweets:

OAIC gets some petty cash while clings to bill to abolish the office


Monday, May 11, 2015

Victoria to rebrand FOI commissioner and extend powers.

In its first budget the Andrews government in Victoria transfers privacy regulation and the Freedom of Information Commissioner from Justice to the Premier's portfolio to be part of the Department of Premier and Cabinet Public Sector Integrity output. 

Special Minister of State Gavin Jennings in a Media Statement said
"The Budget also contains $15.9 million to establish and administer the Office of the Public Access Counsellor, which will support Victorians’ rights to access vital Government information previously hidden from view. The new, independent Office will maintain all existing powers of the Freedom Of Information Commissioner, and will gain the authority to review Departmental and Ministerial decisions, including those on the grounds of Cabinet-in-Confidence."
That $15.9 million is $16 million on page 92 of Budget Paper 3 and of course it's spread over four years.

The Counsellor will also set FOI professional standards currently set by the Attorney General.

Legislation will be necesssary to create the Office and confer powers. 

The Freedom of Information Commissioner's modest output measures are on page 309 of BP 3.

Here's what Labor said about this before last year's election “LABOR’S FOI CHANGES TO END NAPTHINE’S SECRET STATE”

The title 'Public Access Counsellor' is new here -  Illinois has the only one I could find.
Maybe someone's study tour included Chicago?

A comprehensive review of the Victorian FOI act - which shows all the signs of 1983 thinking - should be on the list of priorities but yet to hear anything along those lines.

Budget 2015-16: time to right the wrong of last year's attempt to abolish information commissioner

All eyes on Canberra and the budget on Tuesday night to see if 'good policy' and 'fairness' extend to ending the government attempt to abolish the Office of Australian Information Commissioner. 

And for signs after 18 months of mostly war on this front that the government can connect the dots to move ahead not backwards on open transparent and accountable government.

The lack of evidence in support  of abolishing the OAIC was clear from the time the announcement was made a year ago, the government has produced none since and there is no majority in the Senate to pass the bill necessary to achieve its purpose.

 The Public Eye in The Canberra Times 7 April put it succinctly:
FOI farce drags on
What follows is not new news, but we note it precisely because there has been a despairing lack of news. It's been almost a year since the Abbott government announced it would abolish its information watchdog, and three months since its regular funding was scheduled to end. Nothing has happened. Information Commissioner Professor John McMillan's Canberra office has closed and most staff have left, but he continues to fulfil his statutory obligation to oversee freedom of information law, mostly from his home.

He was on leave when his office last fronted up to an estimates hearing, so Privacy Commissioner Tim Pilgrim had to explain that McMillan and a handful of staff were "triaging" FOI reviews to ration out their scant resources. "At the moment, we are working on the basis that we have, if I can put it this way, cash reserves to be able to maintain the status quo as we have it now, through for some months to come," Pilgrim said.

Attorney-General's Department executive Matt Minogue said last year that, if the bill to wind up McMillan's office and give his powers to other agencies did not gain Senate backing in February, "the government can make a decision in light of that". Time is well up. If there's no crossbench support for the bill, end the farce now and reinstate the office.
The Accountability Roundtable is among those looking forward to Attorney General Brandis getting things back on even keel. 

So too I imagine the thirty-five information commissioners from 25 countries meeting in Santiago, Chile last month who “expressed concern” regarding challenges to the right to information including the lack of adequate funding, support and maintenance of the organs of supervision. (Thanks

Open government in the digital age
The budget will include funding for the Digital Transformation Office in the Communications portfolio.

Minister Turnbull in a speech last week spoke about our big picture intentions:
We should aim to become the world's leading digital economy.....
Governments across the world are at varying stages of their digital transformations so the DTO has an opportunity to collaborate with the world’s leading digital economies. These include, but are by no means limited to the D5 - Estonia, Israel, New Zealand, South Korea and the UK, as well as state and local governments in Australia. I have spoken to Victor Dominello, the NSW Minister for Innovation, and we’re on a unity ticket on the need to collaborate. We will also make myGov available to all other state and local governments at no cost, other than those associated with the initial onboarding.
The DTO, and all other parts of government for that matter, should never be arrogant enough to believe that Canberra has all the answers.

The movers and shakers in this field are all members of the Open Government Partnership including all nine countries ranked above Australia (10th) in the World Wide Web Foundation Open Government Index 2015-UK, US, Sweden, France, New Zealand, Netherlands, Canada, Norway and Denmark.
A government serious about such things must quit dithering about joining and fully participating in the OGP. We were asked to join almost four years ago but Finance Minister Cormann has said for over a year the Abbott government is still 'considering.' 

In an opinion piece in The Australian recently Minister Turnbull said Australia would join the D5.

The D5 Charter (pdf) at 3.5 requires members to belong to the OGP. 

Signs in the budget of reaffirmation of the importance of the OAIC and a commitment to participation in the OGP would be timely welcome indications that the dots on the way to more open transparent government have been joined.

Tuesday, April 28, 2015

Vietnam vet with a good cause enters difficult territory with broad FOI applications

In Q&A on ABC last night questions were raised about government policy regarding veterans pensions, drawing acknowledgement from panelists including former Deputy Prime Minister Tim Fisher that more has to be done to get things right. 

As reported in The Australian Vietnam veteran Don Tate also "questioned the faith Australians could place in accounts of the nation’s military history. He claimed a number of omissions by The Australian War Memorial, including the existence of one platoon he fought in, had led to further stress over the subsequent years."
Private Don Tate, Vietnam-ABC 7.30 Report

Mr Tate referred to Administrative Appeals Tribunal Freedom of Information proceedings in which the Australian War Memorial refused him access to information sought about the "D&E Platoon” in which he served, and claims by others in the light of the secrecy that he had lied about his participation in the Vietnam War.

The decision he referred to is Tate and Director Australian War Memorial [2015] AATA 107
handed down by Deputy President Tamberlin in February. 

The Tribunal upheld the agency decision that the work involved in dealing with two applications by Mr Tate would involve substantial and unreasonable diversion of resources. The evidence was that one application would require at least 150 hours of processing time after taking into account the work involved in producing 90 documents already furnished to the Applicant and at least 48 hours for the second application.

(The issue about the D&E platoon seems to be whether it existed as a discrete unit. It has been widely canvassed previously.)

I'm sympathetic to Mr Tate's cause, the more so as he represented himself in the case, up against the Australian Government Solicitor's office, but the Tribunal decision on substantial and unreasonable diversion of resources appears sound. 

All inclusive applications unbounded by time periods such as these (see below) will always raise the substantial and unreasonable diversion of resources question. Mr Tate declined the opportunity to narrow his applications other than exclude his own correspondence when properly consulted about ways the requests might be revised in an attempt to remove the practical refusal reason.

The FOI act (s 24AA (3)) provides that in deciding such matters no regard is to be had to any reasons that the applicant gives for requesting access so Mr Tate's submissions in this regard were not considered.

Here are examples of how to run into difficulty if FOI requests are framed in the broadest catch all terms, difficulties that arise even before the agency dives into the exemption provisions:

Thursday, April 23, 2015

They'll be talking about Australia at two international conferences this week

But it's unlikely to extend to praise or admiration for leadership and performance in the open, transparent and accountable government space.

On the contrary the lead question when Australia is mentioned at the Open Government Partnership Steering Committee Meeting in Mexico will be "what's going on down there?" And at the Ninth International Conference of Information Commissioners in Chile, "where are they?"

Australia's dithering about membership of the OGP won't escape attention at the meeting in Mexico.

And those attending the information commissioners gathering in Chile are certain to be puzzled at the absence of anyone from the Office of Australian Information Commissioner, let alone the explanation: that the government has been unsuccessful in achieving its plan announced last year to abolish the office with the bill stuck in the Senate without majority support since October, and that the freedom of information functions of the office have been unfunded since 1 January.

Open Government Partnership
At the OGP Steering Committee Meeting in Mexico, a ministerial level meeting from 21-23 April, the agenda item Criteria & Standards includes discussion of a proposal clarifying OGP rules on how to deal with delays in developing new Action Plans. The proposal looks into what should be done where countries do not meet OGP process requirements.  

A related agenda item is an update on several countries, including those that received letters at the end of last year for being late with their Action Plans.

Australia is one of these countries.

The OGP Support Unit wrote to the Department of Finance in November last year pointing out that Australia had acted contrary to the OGP process in failing to meet deadlines for lodgement of a national action plan.

In March Finance Minister Cormann told a Senate committee the government was 'positively inclined' to join the OGP but the minister stuck to the still under consideration line.

For those like Prime Minister Abbott who aspire to 'good government' OGP membership and participation should be a walk up. After all
"The Open Government Partnership (OGP) is a multi- stakeholder initiative focused on improving government transparency, accountability and responsiveness to citizens. OGP brings together government and civil society champions of reform who recognize that governments are much more likely to be effective and credible if they open their doors to public input and oversight."
Sixty four countries have joined the OGP or are in the process of doing so. Australia was invited to join in September 2011. OGP countries represent one third of the world’s population and have made more than 2,000 open government reform commitments.

Documents (pdf) released under Freedom of Information reveal Prime Minister Abbott in October last year wanted to see the detail of what Australia might commit to in a national action plan before deciding whether Australia should join the OGP.

In a letter to Finance Minister Cormann, Prime Minister Abbott instructed that no announcement of Australia's position on the OGP should be made "until a draft national action plan is submitted for my consideration. The action plan must give effect to practical measures that align with the Government's overall policy objectives in this area and that take into account the work of the (Redacted: s 34(3) Cabinet) and the timeframes for Government decisions on that work."

A brief to Minister Cormann advised that Finance had commenced work on a draft plan scheduled for completion by the end of November, Finance in March refused access to the draft plan citing those great old time APS support players "Frank and Candid" who are getting a heavy workout in agencies these days.

The redacted words in the PM's letter and the briefing note might refer to work that led to the announcement by the Prime Minister and Minister for Communications Turnbull in January of the intention to establish the Digital Transformation Office. Minister Turnbull in launching the office two weeks ago reaffirmed "one of the commitments of our government is greater transparency and accountability" and in answer to a question said Australia intended to reach out globally for ideas and to assist others. He later indicated Australia would join the D5. 

The D5 is a network-United Kingdom, South Korea, Estonia, Israel and New Zealand- that will "meet annually to work together and showcase the best digital government activity around the world."All D5 countries are members of the OGP. (Update: it's no accident. Thanks to the NZ reader who points out the D5 Charter (pdf) at 3.5) requires members to belong to the OGP.)

In fact the movers and shakers in this field are all members of the OGP including all nine countries ranked above Australia (10th) in the World Wide Web Foundation Open Government Index 2015-UK, US, Sweden, France, New Zealand, Netherlands, Canada, Norway and Denmark.

Membership and participation in the OGP and a genuine partnership in developing a national action plan that results in commitment to improved transparency, more open government and increased citizen participation should be high on the government's 'good government' list.

Information Commissioners.
But that list shouldn't include abolishing the Office of Australian Information Commissioner, a move out of step with best practice internationally and among the Australian states and territories. 

The Federal government's unprecedented plan will be a talking point in Chile on 22-23 April where one of the topics for discussion is “Access to Information Enforcement Bodies: Institutional Design, Jurisprudence and International Exchanges.”

If anyone's there from the Information and Privacy Commission NSW, the Office of the Information Commissioner QLD, the Freedom of Information Commission Victoria, the Office of the Information Commissioner WA, or the Office of the Information Commissioner NT, maybe they can give Federal Attorney General Brandis a short summary of best practice on return. 

It won't include removing the independent office that oversights FOI, undertakes non litigious review of agency decisions and champions transparent, accountable, open government.

Ditching the bill, and adequately funding the office while engaging minds inside and outside government on how to deliver the goods in an efficient and effective manner should be the next step in this ill fated saga.

Saturday, April 11, 2015

Budget time in Canberra the chance to get back on track towards 'good government.'

I'm away from Australia until 19 April but I'm hoping those with heads down in Canberra nutting out repairs to the policy framework and developing the 2015-16 budget decide to join a few dots on the path towards good government:
1. Withdraw the ill fated Freedom of Information Amendment (New Arrangements) Bill that has been sitting on the Senate bill list since October. There is no majority to support the bill.
2. Restore funding for the Office of Australian Information Commissioner to pre 2014-15 levels as a temporary measure.
3. Appoint a panel of government and non government experts to examine the efficiency and effectiveness of the OAIC, particularly its FOI and related functions and report within three months on scope for improvement including other models and funding levels for oversight and review that could deliver better results.
4. Proceed to membership of the Open Government Partnership, in line with Minister Turnbull's recent reaffirmation of the government's commitment to greater transparency and accountability and to Australia taking a global approach in moving ahead on digitisation and open data.
5. Enter into a meaningful partnership with civil society to develop the required OGP National Action Plan to be finalised within six months.

Thursday, April 09, 2015

Federal Parliament without the means and will to deal with contentious public interest immunity claims

A year ago the question was "Is this the Senate to sort out public interest immunity claims?"

The answer is no to this point.

But the ATO refusal to disclose to a Senate committee the names of ten resources companies that transferred a combined $31.4 billion to Singapore in the financial year 2011 – 2012, backed up as a public interest immunity claim by the Treasurer, might give it another kick along.

"Labor Senator Sam Dastyari will write to the Clerk of the Senate to see what power the Senate has to appeal against the public interest immunity claim .."

Hmm, I think the Clerk is likely to repeat what she told another committee in February last year: it's all about the need
"to balance competing public interest claims by governments on the one hand, that certain information should not be disclosed because disclosure would harm the public interest in some way, and by parliament's claim, as a representative body in a democratic polity, to know particular things about government administration, so that the parliament can perform its proper function of scrutinising and ensuring accountability for expenditure and administration of government programs.."
The Clerk said Senate powers to enforce an order, if it comes to that, are limited. Failure to respond to an order to produce is treated as a "a political question."

"We have no powers to sort out the political questions. We suggest the parties go away and do what they can to sort the matter out." 
Hardly satisfactory you would think, particularly in light of the failure over the years to sort many such matters out even when the Senate seeks to impose procedural penalties as the Clerk explained in this (see correspondence) letter of advice. But preferable apparently to the other available options, for the Senate to vote to impose a term of imprisonment for a contempt or impose a fine, powers that have never been exercised. 

The Senate Procedural Information Bulletins faithfully record the stand-offs. 

In response to questions then about what else could be done, Dr Laing identified the NSW Legislative Council as having

"the best system around at the moment for adjudicating these matters They have chosen a system of adjudication and the council has a process whereby if there is a claim like a public interest immunity claim made in response to an order for production of documents, the process nonetheless involves the documents being handed into the custody of the Clerk and if there is a contested subset of those documents then an independent arbiter is appointed to assess the documents in the light of the claim of public interest immunity that is made and then to provide a report. It is then a decision of the council whether to publish the arbiter's report and a further decision of the council whether to then publish any of those documents.
Might this senate grasp the best practice nettle?

Tuesday, April 07, 2015

NSW Premier Baird needs no hand with intergrity

Premier Baird had a good win in the NSW election on 28 March and has since announced a new ministry "A Fresh team for Rebuilding NSW."  The team consists of 22 ministers who between them carry 45 titles (Minister Goward has five) plus 16 parliamentary secretaries. 

Regrettably no one is singled out for special responsibility for integrity and related matters.

The Premier has previously stepped up on political donations and lobbying but there's still much to be done  and a co-ordinated approach would be a sign of serious intent. Maybe Catherine Cusack who has no specifics in her job title of Parliamentary Secretary to the Premier may take this on board?

During the campaign Premier Baird declined to sign the Politicians' Pledge promoted by the St James Ethics Center. 

So did all but three of his Liberal/National Party colleagues. Two of the three feature in the front bench lineup: Mark Speakman Minister for the Environment, Minister for Heritage, and Assistant Minister for Planning and John O'Dea Parliamentary Secretary for Major Events and Tourism.

Prior to the election the Liberal Party did respond to questions from the Accountability Roundtable confirming no plans to diminish the powers of the ICAC; support for further reform of political donations law; commitment to open data and open government; acknowledging "public office is a privilege and that the exercise of power as a public office holder should and will always be made in the public interest"; and vowing "to clean up politics in NSW."

All to the good. 

But in a state with more than its share of dodgy business in recent years from those in both major parties NSW should follow the lead of the two other new state governments where the premier assigned specific responsibilty for integrity and transparency matters.

In Victoria Gavin Jennings is Special Minister of State, operating within the Premier's portfolio  to "oversee government transparency, integrity, accountability and public sector administration and reform." In Queensland  the Premier is supported by Assistant Minister Stirling Hinchcliffe who will "directly assist me on integrity and accountability issues."

Good luck to us all.

Friday, March 27, 2015

Some of Prince Charles letters under FOI scrutiny-at last

The Prince Charles letters Freedom of Information saga now in its 10th year is back in the news in the UK and here with the Supreme Court decision that some now ancient letters to ministers in so far as they contain 'advocacy correspondence' should be released, 

It's about powers to issue a conclusive ministerial certificate so not all that relevant in FOI jurisprudence here as certificates were abolished by Labor in 2009.

As to the battle by The Guardian, deep breath, here's my short summary:
The Supreme Court upheld the Court of Appeal decision to quash a certificate issued by the Attorney-General that vetoed an Upper Tribunal finding that reversed the decision of the Information Commissioner who had upheld the departments' decisions to refuse to disclose the letters. 


(Update - Kevin Dunion in a comment says my summary left one decision out-I defer to him.)

Monday, March 23, 2015

NSW election: Politicians' Pledge too big an ask for many

 Including the Premier and all but three Liberal Party candidates.

Luke Foley signs the pledge that Mike Baird refuses
"When I first read the St James Ethics Centre's Politicians' Pledge, I signed it immediately......As Labor leader I insist on the highest integrity standards for MPs of any party anywhere in Australia."
Premier Mike Baird not keen.
Simon Longstaff, St James Ethics Centre
The resilience of our democracy is also being put to the test by the circumstances of our times – with profound challenges to be met in the face of climate change, difficult economic conditions, terrorism, an epidemic of domestic violence, etc. Some people (especially younger people) are beginning to doubt the capacity of the democratic system of government to meet these challenges. Unfortunately, this relative loss of faith has been exacerbated by the perception that some of our elected politicians have, at best, only a trivial regard for the public interest.
Our society benefits from robust argument, competing policies and contending ideologies – championed by politicians of all stripes. We should applaud those who are willing to give up a huge amount of time and much of their personal lives to help improve our society. But we will only be able to do so if our politicians accept that they have one thing in common – a duty to adopt and uphold a shared ethical foundation on which we might recall the best of our democratic ideals.
To that end, I would ask every citizen to invite candidates standing in their electorate to take the Politicians' Pledge. Our motto: "Ask early, ask often!"
Voters look like they're happy to stick with Teflon Mike:
"Voters appear to trust him, even to the point where they are backing his government for a second term to implement a policy half of them don't like."

Of interest:
Baird pledges to make it easier and cheaper to register abandoned dogs and cats

'Scandal' pips pets policy in NSW.

The current list of signatories Politicians' Pledge:
Many independents and third party candidates. The four main parties:
Labor: 53
The Greens 13
Liberal 3: Notley-Smith Coogee, ODea, Davidson, Speakman, Cronulla
Nationals 0.

New government, same story on access to incoming government brief in Victoria

A newish government in Victoria but nothing seems to have changed regarding access to the incoming minister briefs.

The Age reports "Labor fails to meet its own freedom of information test" that a request by the shadow health minister was refused by the Department of Health on the grounds that "the document could be characterised as a cabinet document."

Re-run of 2010?
Following the 2010 election Melissa Fyfe of The Age unsuccessfully pursued the Departmental Status Report (DSR) and the Policy Implementation Action Plan (PIAP) prepared by the Department of Sustainability & Environment for the incoming Baillieu government all the way to the Victorian Civil and Administrative Tribunal

Along similar lines to what was done in NSW and South Australia to protect these types of documents, the grounds for refusal were set in place when the Department of Premier and Cabinet issued guidelines to agencies before the election that stated the purpose for which they were to be created included to brief the Premier on an issue to be considered by cabinet.

I expect it's the same situation this time around.

According to The Age, in opposition "Labor repeatedly demanded the former Baillieu and Napthine governments "lift the veil of secrecy" and release the briefs."

Discretion to disclose
Of course the Premier and ministers then and now have a discretion to disclose such documents outside the confines of the FOI act. In the same way the Premier released 9000 pages of documents in December on the East West Link that the previous government argued could not be disclosed because they were cabinet documents.

Premier's Department Guidelines that came to light in the Fyfe case in 2012 described the documents then in dispute:
"DSR.. sets out for the information of the Premier the current status of the department. The Premier may also provide the DSR to the relevant minister. ... The DSRs are prepared in confidence for the consideration of the Cabinet and will be presented to Cabinet by the incoming Premier ... preparation of DSRs ... should be in strict accordance with guidelines for document and information security relating to Cabinet in confidence information. ... If the Coalition is elected to government, the incoming premier and ministers are given the Blue Books. PIAPs provide advice to the incoming premier on how a particular policy can be implemented. .."
Public interest
While any government may want to withhold PIAPs and their equivalents unless compelled to disclose, why DSRs need to be locked away from public scrutiny for years is less clear. Information about structure and functions of a department, key personnel, facts and statistics, and upcoming events isn't sensitive. 

In addition the public interest factors that favour disclosure in order to inform discussion and debate are arguably strong where the information concerns the state of the state or slices of it, relevant trends, work underway in the department and the challenges facing the new government. Unfortunately such considerations are given no weight if a document satisfies the cabinet document exemption. They came into play in this Commonwealth decision 
last year but not enough to tip the balance in favour of disclosure.

The South Australian Ombudsman nailed it with this comment in 2011urging exercise of a discretion available there to disclose:

In my view, there are reasons why the agencies might give access to parts of the portfolio briefs and other briefing documents, notwithstanding that they are exempt.....I consider that there is a strong public interest in members of the public being aware of policy initiatives and other issues that the agencies consider important to South Australia. In my view, access to such information would enhance public participation in discussions about South Australia’s future, and would be consistent with the objects of the FOI Act of promoting openness and accountability, as well as the principles of administration. I consider these public interest factors to be strongest with respect to generic documents, that is documents prepared with either a returning Labor or an incoming Liberal government in mind.
NSW next in line
With an election on 28 March it remains to be seen what transpires in NSW

In 2011 the door shut as a result of the cabinet document exemption, but the Information Commissioner took a look and recommended factual material at least could be released. 

Some interesting insights emerged as a result of a later follow up GIPA application regarding briefs to the Premier on the need for secrecy.

Parts of four volumes of the folders eventually appeared on the Premier's department Disclosure Log following release, with one observer commenting:
"So, what has now been released is an amalgam of mission statements, corporate plans, handbooks and guidelines along with a seeming dump of the combined contents of departmental Outlook Contacts and Appointments: more “Bland Books” than “Blue Books”.)
Not surprised by the headline in The Mandarin "Red and blue books best kept secret say mandarins."

Sir Humphrey lives on.

(Addendum: And in Queensland where another new government is settling in, Schedule 3, section 4 of the RTI Act provides this exemption but a minister or agency has a discretion to disclose. Let me know of developments there.
  • Information briefing incoming Minister
    • Information is exempt information for 10 years after the appointment of a Minister for a department if the information is brought into existence by the department to brief an incoming Minister about the department.

Friday, March 20, 2015

Sunshine Week in the US-loads of activism, a hint for the PM

It's that time of the year again with panel discussions, workshops and other events about using and understanding the latest developments in freedom of information resources.

Prime Minister Abbott, still scratching around to get going with that "good government starts today" plan of a month ago might find a clue in the subtheme:

Sunshine Week

March 15-21, 2015

Malcolm Fraser's proudest legacy: "Freedom of Information"

Timeshift9 at en.Wikipedia
Former Prime Minister Malcolm Fraser (1975-1983) who died this morning aged 84, when asked by Jack Waterford of The Canberra Times about the achievement of which he was most proud said Freedom of Information legislation. (Believe me even though the link to the article has disappeared-"A legacy the PM could recall fondly" The Canberra Times 26 March 2007. Update-Waterford in a recent article:
"Soon after his fall, Fraser was asked about his greatest achievements, and nominated, somewhat to my surprise, the passage of the FOI Act. Planned by Whitlam, its cause had languished through most of the Fraser years until it came into effect on the eve of his departure.")

Parliament passed Freedom of Information legislation and the act commenced in 1982 on Fraser's watch after a long drawn out battle that began with Gough Whitlam's election victory and commitment to introduce FOI in 1972. 

As later revealed in "Malcolm Fraser The Political Memoirs" by Fraser and Margaret Simons (The Megunyah Press) Fraser pushed on with FOI despite  strong resistance from within the government. These notes in 1977 for example from then Secretary of PM&C Geoff Yeend:
16 May. Note for Prime Minister from Secretary of PM&C:
"Freedom of Information legislation would result in administrative chaos.. departments keeping dual filing cabinets."

20 May. Handwritten note to Prime Minister from Secretary PM&C marked "not for file": "Were I not under threat of my advice being made public I would be questioning with you this whole legislation. It is a can of worms, political commitments notwithstanding."

The heads of Defence and Treasury are opposed to the legislation. Broader and in some cases blanket exemptions are necessary.

More delay, reconsideration and advice is needed.
In 1980 Yeend sent this note to the PM:
"What we've got here would go further than any other country with a similar system of government and is an "experimental step of major dimensions.. Whatever the politics of the decision it is certainly a gamble in the administrative sense."
Unfortunately there is no sign current Prime Minister Abbott shares Fraser's attachment to transparency and accountability. Attorney General Brandis remains intent on abolishing the Office of Australian Information Commissioner if he can get six crossbenchers to support a bill that has now been before the Senate since October. In the meantime the FOI functions of the office from 1 January and continuing are unfunded and it operates on a reduced basis with funds crimped from elsewhere.

And Yeend's sentiments live on. Current Public Service Commissioner John Lloyd recently described FOI laws as "very pernicious" and said they "have gone a bit further than what they were intended to." 

Vale Malcolm Fraser.

Fingers crossed for his legacy.