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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. 

Truly.

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
Foley:
"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!"
Flickr
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

Related:
'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)
 
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.



Thursday, March 19, 2015

Australian angles arising from Hillary Clinton's private email escapade


Hillary Clinton may or may not have succeeded in hosing down the kerfuffle following revelations she used only a personal email account and never a government account while she served as secretary of state, now admitting this was a mistake.  She also ran a private mail server in her home during this period hosting her email at domain Clintonemail.com.

Clinton and the US don't have troubles in the newish technology space to themselves. Other government  and political figures there are caught up in issues concerning crossover points between information communicated through official and unofficial devices.  It's an issue that has cropped up elsewhere including the UK and Canada.

Beyond a few straws in the wind we know precious little about what goes on in Australia and existing laws aren't much help in working through the issues.

Clinton
Questions are still out there about Ms Clinton's system: whether federal guidelines were violated, state secrets left vulnerable and an offence committed under public records law. Then there's the adequacy of State Department responses over the years to congressional calls for documents and compliance with subpoenas and freedom of information requests. Not to mention the impact on Clinton's likely bid for the presidency in 2016.

The legal and political to one side, it is hard to defend the use of private email exclusively for messaging during your time as head of of a government agency, to then walk out the door with the lot and subsequently deciding in house with your lawyers that 55,000 pages of emails should be handed over to the government, and 30,000 ditched because they are personal.

As US FOI expert Daniel Metcalfe said if he had heard of a Cabinet member setting up a personal email system and deciding what gets deleted and what gets kept as government record, “I would’ve said, ‘You’ve gotta be kidding me.’”

Nine sitting US Cabinet Secretaries and the Attorney General were quick to confirm to Time magazine that they use a government email account for official business.

Not just Clinton
While not quite emulating Clinton's system other public figures in the US have run into private email problems including currently Republican presidential hopefuls Jeb Bush and Scott Walker. 

The George W Bush White House had an issue in 2007 when it was revealed some White House officials had conducted government business over private email accounts set up on a server through the Republican National Committee. 

Not just the US
See FOIMAN's account of the use of private email in the UK in 2012 when Education Secretary Michael Gove and some in his office used private email accounts to conduct business apparently to avoid potential disclosure through FOI. Both the Information Commissioner and the Cabinet office issued guidance on the subject in 2013.

The Vancouver Sun refers to a number of  instances where the issue has arisen in Canada but concludes Canadian laws are intended to avoid situations like the Clinton controversy. 

What about here?
The short answer is we don't know much about what goes on, the law isn't clear in some respects and oversight is thin on the ground.

For example in the wake of the Clinton fuss, IDM asked Australian and New Zealand government ministers about their email arrangements and then published two Australian responses, presumably the only responses received:
A Senior Media Adviser in the office of Australian Defence Minister Kevin Andrews confirmed “Minister Andrews uses a government email account to transact parliamentary and government business. “ A spokesperson for Finance Minister Senator Mathias Cormann said, “The Minister does not use a private email account for official government business.”
 On law and policy IDM asked other questions, but answers weren't entirely forthcoming:
In Australia, the Department of the Prime Minister and Cabinet is responsible for Commonwealth whole-of-government coordination and leadership for cyber policy issues. Nothing about the Ministerial Standards of Oath of Office requires adherence to any particular computing standards. IDM asked the Department whether it issued firm guidelines on the use of personal versus official government email accounts for official business, but is still waiting on response.The National Archives of Australia responded that “Federal government ministers’ documents are subject to the Archives Act if they are records of their work as a government minister. It isn’t against the Archives Act to use personal email for Commonwealth business, as long as there is a mechanism for records to be retained in accordance with the relevant records authority.“ Unauthorised destruction of a Commonwealth record is a potential breach of the Archives Act.
Sally Whyte in Crikey also looked for Australian angles following the Clinton expose. She refers to reports Communications Minister Malcolm Turnbull and his colleagues were using messaging apps such as Wickr -- a platform that allows users to send encrypted, self-destructing messages -- to discuss the leadership tensions recently. "While Turnbull hasn't confirmed what was said in the messages, he did tell reporters that he uses both Wickr and WhatsApp to send messages, as text messaging is not a secure form of communication."
When Crikey asked the Australian Information Commissioner John McMillan if federal MPs had been advised against using encrypted apps to communicate, he said he hadn't done so -- although that kind of advice would usually come from government archivists, he said. McMillan told Crikey that the commission hadn't looked closely at apps like Wickr, but most likely would if it continued to exist. McMillan's role and office was defunded by the government in last year's budget, and he was supposed to finish up last year. The bill to abolish the role has passed the House of Representatives but has not been introduced to the Senate.
From my notebook a few earlier Australian 'private email' episodes
Pretty thin pickings, perhaps just the tip of a a large, growing iceberg.

In Queensland in 2013 the Minister for Housing resigned after a series of integrity failings  including that the minister, his son and the minister's chief of staff were communicating on official matters using private email addresses; the minister's register of contact with lobbyists released during a Budget estimates committee hearing that he declared"very accurate" did not list extensive contact with his lobbyist son on a range of issues; and according to the opposition the minister's ministerial and electorate diary released under Right to Information laws had been doctored to hide the fact he was continuing as a GP to see patients. 

The then Queensland Attorney General "denied the use of private emails was a tactic to avoid having them released under the RTI Act, but said he used private email at home because he didn't have access to his work email. "I wouldn't envisage that's a systemic problem, no," he said. "Everyone should be careful what they put in writing no matter what communication you use."  

Tom Swann in July last year in the Saturday Paper wrote  about documents concerning the Federal Rudd government's 2013 asylum seeker advertising campaign to deter boat arrivals. It involved $6.5 million in public funds spent in the run up to the election. Documents released under FOI in 2014 revealed the controversial advertising campaign was developed and approved in less than a day and someone was calling the shots on Gmail:
The first email was sent at 8pm on Thursday, July 18, by the department’s head of communications, Sandi Logan. It contained the guidelines’ criteria for exempting a campaign from normal scrutiny, with the words “extreme urgency” underlined. Close to midnight someone in the prime minister’s office sent a media plan – “canvassed and locked-in” – to Burke’s media advisers and senior immigration bureaucrats. The sender’s name is redacted, but the email is described elsewhere as coming from “the Minister’s Gmail”.

 In November 2014 the South Australian Independent Commissioner Against Corruption (Annual Report pdf P57) expressed concern that some public officers, mainly ministerial staffers, use personal rather than government email accounts to conduct official business and sounded this warning:
"It has been suggested that the reason for doing so is to avoid the requirement to disclose those emails where an application is made under the Freedom of Information Act 1991(‘FOI Act’). If it is the case that public officers are engaging in this kind of conduct to avoid the consequences of the FOI Act, that conduct should cease immediately. It is a matter of concern that public officers would seek to circumvent a legislative scheme designed to enhance transparency in government decision making. Such conduct might, at the least, amount to misconduct in public administration and be the subject of investigation and potential disciplinary action. I am told that the FOI Act is often abused. If that is so that is a reason to address that Act. It is not a reason to frustrate the FOI Act. While it remains the law the spirit of the Act should be observed by all public officers. Presumably those emails are not maintained in accordance with the State Records Act 1997 (‘SR Act’) (where that Act applies). The conduct therefore might also amount to an offence against section 17 of the SR Act. An offence against that section by a public officer while acting in his or her capacity as a public officer would amount to corruption in public administration under the ICAC Act."
Comment 
It is highly unlikely that a minister or senior public servant would use a private email for government business exclusively as Clinton did. But it would be the height of naivety to think there isn't something going on that brings into question the adequacy of records, archives and information access laws. And the questions aren't all to do with new-fangled gadgetry.

Monday, March 16, 2015

Premier Baird gives Politicians' Pledge the brush: just trust us, please

In the second (and last) leaders debate in the NSW election campaign on Friday Chris Uhlmann asked only one question about trust and left it when both said a few things about political donation reform. 

Maybe Uhlmann hadn't heard of the Politicians' Pledge or didn't think commitment to the pledge was worth pursuing, let alone the smorgasbord of other integrity, transparency and accountability issues that deserve an airing in the interests of good, honest, clean government. 

Whatever, it was poor judgment in an election campaign where the electorate needs no reminder of the record of both major parties, and on trust the Premier is rated 5.5/10, the Opposition leader 4.3/10. (ABC Vote Compass)

On Saturday The Sydney Morning Herald reported Premier Baird declined to sign the pledge. 

Instead, the Premier said he and his Liberal team "will always act in your interests, and will do so in an ethical and democratic manner." (So too The Shooters and Fishers Party saying its MPs took an oath of office and their "honesty and integrity is beyond reproach.)

The general commitment to ethical and democratic values didn't deliver those goods from Liberal or Labor in the recent past. It's why candidates should be willing to provide  assurance by signing on the dotted line to a list of basic democratic values.

Opposition leader Foley told the Herald he would sign as would all Labor candidates. So far they aren't on the published list. Two of Premier Baird's Liberal team both sitting members have broken ranks and signed on as well as a growing number of others.

It's puzzling what Premier Baird finds difficult in the pledge.

Campbell Newman in Queensland similarly found it difficult to commit to the Fitzgerald principles until saying no proved indefensible during a leaders' debate there.

With less than two weeks to the election in NSW will Premier Baird come to the same realisation?

The Politicians' Pledge:

Friday, March 13, 2015

The search for supporters of democratic values in NSW election

The St James Ethics Centre and The Sydney Morning Herald have launched the Politicians Pledge campaign to coincide with the New South Wales 2015 State Election.They are encouraging all candidates  to consider taking the pledge – a copy of which is included below and here to download.
"Those contending for election will seek to distinguish themselves from their opponents by focusing on contentious issues of party, ideology and policy. Our aim will be to do what we can to draw community attention to those things held in common that underpin the quality of our democracy."
In the pursuit of power, I will:
  • Act in good conscience;
  • Enable informed decision-making by my fellow citizens;
  • Respect the intrinsic dignity of all;
  • Refrain from exploiting my rivals' private failings for political gain; and
  • Act so as to merit the trust and respect of the community.
In the exercise of power, I will:
  • Give effect to the ideals of democratic government and represent the interests of my electorate as a whole;
  • Abide by the letter and spirit of the Constitution and uphold the rule of law;
  • Advance the public interest before any personal, sectional or partisan interest;
  • Hold myself accountable for conduct for which I am responsible; and
  • Exercise the privileges and discharge the duties of public office with dignity, care and honour.
Like the Fizgerald Principles that received attention in Queensland, they appear remarkably unchallenging.

See the list (and the Moir cartoon) of those who have signed so far- mostly independents, Greens and one Liberal Party candidate.

Hopefully a companion piece soon listing those that refuse?

My local sitting member, and a champion for transparency Alex Greenwich (Sydney) has signed.

New low point for FOI as public service boss labels access rights law "pernicious."

Pernicious-"having a harmful effect, especially in a gradual or subtle way: damaging, detrimental, deleterious.
Very pernicious- extremely harmful, damaging, detrimental etc.

 Illustrating the lack of support at senior echelons of the public service for transparency and accountability Public Service Commissioner John Lloyd commented in talking to public servants at an event on Wednesday.:
One audience member suggested to Mr Lloyd that public servants were probably risk averse because of the penalties if they made an error of judgment. Mr Lloyd said this could be because of a large number of watchdogs and "very pernicious" freedom of information laws."[FOI laws] have gone a bit further than what they were intended to," Mr Lloyd said.
That audience member was right of course.

The Commissioner wasn't.

As former attorney general Senator Joe Ludwig said:
"It's unbelievable that the head of the Commonwealth public service would call the FOI laws 'pernicious' – he either has no understanding of the importance of FOI laws in a modern and transparent democracy or he is trying to undermine the legislation with his comments," Senator Ludwig said. "FOI laws simply provide a window into the decisions and process of government. If the Public Service Commissioner has confidence in the professionalism and integrity of public service staff, then he has nothing to fear from FOI laws."

He said the Abbott government had a track record of secrecy since it came to power.
This low point takes its place alongside the plan to abolish the Office of Australian Information Commissioner still in a bill before the Senate that Senator Brandis said reflects the Government's position. The FOI functions of the office have not been funded beyond 31 December 2014.   

Wednesday, March 11, 2015

With two weeks to the NSW election, integrity issues on the fringe, hardly center stage

Integrity issues so far are only on the edge of the NSW election campaign with just two weeks remaining. Maybe Friday night on ABC?

The Liberal and Labor websites are both skinny on policy in any event and 'how we intend to govern' doesn't rate a mention. Neither party has anything to match The Greens policy on Democratic Participation

With politicians low on the trust scale you'd hope how they plan to earn it back would get a full airing.

However to date no mention in the NSW campaign of the Fitzgerald principles that had some impact in Queensland. Hardly a challenge you would think:
1. Govern for the peace, welfare and good government of the State;
2.  Make all decisions and take all actions, including public appointments, in the public interest without regard to personal, party political or other immaterial considerations;
3.  Treat all people equally without permitting any person or corporation special access or influence; and
4.   Promptly and accurately inform the public of its reasons for all significant or potentially controversial decisions and actions.

No mention either of intention to nominate a minister with specific responsibility for integrity and accountability issues in line with newly elected governments in Victoria and Queensland.

The major parties aren't throwing mud from ICAC digs in recent times, presumably because they'll get as good as they give. 

The Greens John Kaye's commentary last July is a little dated but highlights ICAC recommendations from 2010 that both have let go through to the keeper.

Including on Lobbying. The Government introduced welcome reforms in 2014.This was my take on important elements missing.

 Labor in July 2014 said Labor ministers, their staff and departments would no longer be allowed to meet third-party lobbyists, who advocate on behalf of the private sector.  If it was likely to happen that would be a real test of lobbying skills and my guess is they would manage to head it off.

Political donations
NSW already has the most stringest rules in the country and the Schott report released on Christmas eve recommended many improvements in law and practice. Premier Baird has now committed to most recommendations but an editorial in The Sydney Morning Herald points out his failure to fully embrace real-time disclosure of donations to avoid long delays in reporting, and the recommendation for independent oversight of changes to electoral funding limits. Labor's views (last September in the name of current leader Foley's predecessor) were hardly big and bold apart from full public funding, an idea going nowhere. 

The SMH is right:
"If NSW is to have transparent democracy, it needs a world-class electoral funding system."
So too Federal and other state and territory systems that meet that standard.

All round we are a long way short.

Transparency, accountability
Hard to spot any references or commitments so far. The party leaders could be forgiven for not knowing, but seven months ago the Attorney General kicked off a required statutory review of the NSW FOI/RTI equivalent, the Government Information (Public Access) Act. Apart from a call for submissions, silence then and since. The Information Commissioner reports encouraging signs to June last year in the way agencies are implementing the act but "there is still work to be done to promote access to information and achieve the objects of the Act."

While NSW 2009 reforms were steps in the right direction, still plenty of room for improvement in my view. 

One welcome step since July 2014 is the publication of a version of  Ministers' Diaries,
but it hasn't been enacted in legislation.

As to other transparency initiatives?

Digital Age/Open data
Governing in the Digital Age sounds necessary and vital right now rather than a promise for the future. But just an example mind you, nearly every government agency in NSW only accepts snail mail GIPA applications and requires payment by cheque, or wait for it, Money Order.  Then there's "Service NSW.. set up in 2013 by the NSW Government to make it easier for NSW residents and businesses to transact with government." Related example, you can't make a GIPA application for information to any government agency using that facility.

NSW published data sets are said to be 'high value' but whether that's the way those outside government view them is another question; even whether agencies ask those likely to utilise them for accountability or commercial or social reasons. 

Too many data sets published are not in machine readable form, limiting the use of the data. 

The GIPA and Open Data worlds need to be linked not siloed as separate universes. 

Labor seems silent on these issues.

Parliament
Parliamentarians should be lining up to support transparency and accessibility of information in the Interest Register and concerning payment and use of entitlements. Alas.

Other issues such as ethical standards, whistleblowing, and post government employment of ministers are yet to surface either and ICAC supporters and those who support donation reform wait on wisdom from the High Court.

Meanwhile Queensland is acting on some of its integrity commitments as a high priority, so that's a welcome development.

Monday, March 09, 2015

Putting the NSW Parliament's Interest Register under scrutiny

With an election to be held on 28 March, Nick Evershed and Todd Moore at Guardian Australia are looking for help to create a searchable, machine-readable database of the NSW Parliament Interests Register. 

Surprised this sort of information isn't already up there in lights?

I've lost the link but made a note years ago that ICAC made this recommendation in a report in 2003:
 "That the register of pecuniary interests be established as an electronic database that can be accessed via the Internet by Members of Parliament and members of the public."
Disgraced former minister Eddie Obeid got away with a micro version of the real thing for a decade probably because the register, conveniently was available for inspection in Macquarie during business hours on weekdays by those who took the trouble and few bothered.

More eyeballs might make a difference.


As Evershed and Moore explain half "the pecuniary interests register in NSW has never been viewable online by the public, and the other half is hard to find. All of the declarations are only available as scanned PDFs, sometimes handwritten, which makes it difficult to properly scrutinise the register."

They provide the pdfs and want help transcribing the register and flagging entries that are worth investigating further.

As they say this "can be used in conjunction with other datasets, such as records of donations, contracts, and travel expenses to improve political transparency in NSW."

Parliamentarians expenses and entitlements largely go under the radar in NSW, with annual total spend reported at year end in an appendix in the Assembly (pdf page 60) and Council (pdf page104) annual reports.

NSW is not alone-things are much the same in the other states.





 

Monday, March 02, 2015

Australia 'positively inclined' to join Open Government Partnership but wait, more consideration needed

On the one hand it was heartening that Minister for Finance Cormann told Senate Estimates last week that the government is "positively inclined" to join the Open Government Partnership

On the other, somewhat disheartening that public servants are still "going through all of the considerations that need to be gone through before we make a final decision." 

With no end in sight apparently, Minister Cormann adding the "government will form a view as soon as possible and will take as long as necessary."

Australia was invited to join the OGP, the "international platform for domestic reformers committed to making their governments more open, accountable, and responsive to citizens" in August 2011. Sixty four other governments have joined or are in the process of doing so. Just the ticket for those interested in good government you would think.

It took the Rudd-Gillard governments 21 months to reach the decision in May 2013 to lodge a notice of intention to join the OGP. 

The Abbott government has now spent 17 months since coming to office 'considering' whether to proceed or not proceed to membership. 

Last November the committee was told Finance was doing 'quite a lot of work' on a national action plan (notably,without talking to anyone outside government about it) for completion in December.  

The Department wasn't forthcoming with a copy of whatever they were working on at that time and is yet to respond (meaningfully) to this specific request for the action plan or draft.

Back in November the OGP Support Unit, working on the reasonable assumption that Australia was committed to membership as a result of the May 2013 notice and presumably not having been informed otherwise, wrote to Finance (pdf) advising that the government has "acted contrary to the OGP process for this cycle of action plan development" in failing to lodge a national action plan by July last year. 

We don't know whether their request for clarification "in the near future" on Australia's participation yielded more or something different from what the committee was told last week.
  
At the estimates hearing Senator Lundy switched after three questions about the OGP to another topic, the announcement in January by the Prime Minister and Minister Turnbull about the establishment of the Digital Transformation Office. 

Secretary Halton told the committee the detail including what functions will transfer from Finance to Communications as a result is under 'active discussion.' (In Yes Minister speak I think this is a notch above the 'under consideration' tag attached to the OGP file. Sir Humphrey once explained one meant 'we've lost the file' the other 'we're trying to find it.')

Open data apparently is somewhere in the mix.

That draft OGP national action plan according to Finance "will take into account the Government’s e-government and digital economy agenda." Maybe Communications will end up with some OGP related functions if the positive inclination to join translates into a decision to do so.

There are no funds for the office in Communications Additional Estimates 2014-15.

However Secretary Halton told the committee it's all to happen as soon as possible.
 
So's a decision on the OGP according to the minister.

We live in hope.

The discussion of the OGP and the DTO at the committee hearing follows.

Friday, February 27, 2015

ALRC Freedoms Inquiry-no place for freedom of information

Submissions close today on the Issues Paper issued as part of the Freedoms Inquiry
by the Australian Law Reform Commission. 

Attorney General Brandis asked the ALRC to "review Commonwealth legislation to identify provisions that unreasonably encroach upon traditional rights, freedoms and privileges." 

The inquiry reflects a commitment made before the 2013 election. As noted at the time common law rights and freedoms are limited. Judges, rarely, 'find' new rights not previously uncovered.

Other rights (the FOI right to access government information and the right to privacy are two of many examples) find their way into law through statute and international instruments. You won't find this sort of thing in the Magna Carta. Legions of Sir Humphreys managed to ward off Freedom of Information legislation in the UK until it finally took effect in 2005. 
 

Thus while freedom of speech got a specific mention in the terms of reference list of traditional rights, and in the Issues Paper, freedom of information didn't. 

I dropped a short note to the commission:
While a fundamental right and freedom recognised in international law, the common law in Australia, drawing on British traditions, does not recognise a right to information. 

This freedom is not listed in the terms of reference for the inquiry. However freedom of information and Commonwealth laws that encroach on this right should not pass without comment in your report.

For example, Secrecy Laws and Open Government in Australia (ALRC Report 112) identified 506 secrecy provisions in 176 pieces of legislation and made 61 recommendations for reform. The report refers to the chilling effect this complex framework has on open government, transparency and the right to access information. The report was tabled in March 2010 and has not, as yet, been implemented.


Many aspects of the Freedom of Information Act fall short of emerging international standards.

The statutory review of the FOI act conducted by Dr Allan Hawke in 2012-13 recommended a comprehensive review of the kind he was unable to undertake. There has been no government response.

As to freedom of information and its place in the law,
UNESCO describes freedom of information as 
"an integral part of the fundamental right of freedom of expression, as recognized by Resolution 59 of the UN General Assembly adopted in 1946, as well as by Article 19 of the Universal Declaration of Human Rights (1948), which states that the fundamental right of freedom of expression encompasses the freedom to “to seek, receive and impart information and ideas through any media and regardless of frontiers”.

FOI has also been enshrined as a corollary of freedom of expression in other major international instruments, including the International Covenant on Civil and Political Rights (1966) and the American Convention on Human Rights (1969)."
The United Nations' Human Rights Committee (General Comment 34) states that freedom of information is integral to human rights under international law "essential for the promotion and protection of human rights." Access to government information, which the committee considers an element of freedom of expression, is an "indispensable condition for the full development of the person" and "the foundation stone for every free and democratic society."

The right of access to government information isn't absolute and must be balanced and adjusted over time to reflect other rights and public interests. 

But not taken away or without reason diminished. 

I didn't mention the potential encroachment on the enjoyment of the right arising from the Attorney General's intention to legislate the Office of Australian Information Commissioner out of existence. 

Maybe the Senate will stop that one.

Wednesday, February 25, 2015

AG Brandis not for turning on bid to abolish Office of Australian Information Commissioner

Senator Brandis at Senate Estimates late on Tuesday said he's still aiming to get rid of the independent statutory officer responsible for championing transparent government, an officer who undertakes other important functions including non litigious free review of agency decisions under the FOI act.

This despite the fact that votes from Labor, The Greens and the crossbenches to support the move weren't there last December and its difficult to discern any change in sentiment since. 

Just about everyone outside government who looks into the proposal thinks it's a bad move unsupported by evidence and out of step with trends in good practice thinking about open transparent government in Australia and internationally.

Monday and Tuesday were long days as the Senate Estimates hearing for the Attorney General's portfolio proceeded. 

The Australian Human Rights Commission with the president in the line of fire, proposed national security legislation and a myriad other issues were traversed in the course of many hours of Q and occasional A.

But at 9.48 pm on Tuesday the Office of Australian Information Commissioner finally got the call.

Interest in proceedings had diminished  by this time with Chair Senator McDonald, ALP Senator  Collins and Liberal Democrat Senator Leonhjelm the only committee members left standing. Well sitting to be more precise.

You can read the 24 minute hearing here.

Attorney General Brandis and Matt Minogue of the AGD made it clear that the the bill to abolish the Office of Australian Information Commissioner still before the Senate continues to reflect the government's position; that the office, funded in the 2014-15 budget until 31 December and now with whatever funds were left for general functions from that date and for privacy functions until 30 June must continue to do what it can to carry out its statutory FOI, privacy and digital information policy functions without supplementary funding; and things will stay that way until the bill comes on for consideration and its fate determined. 

When that might be Attorney General Brandis has no idea. It's "a matter for the Manager of Government Business."

The OAIC has closed the Canberra office, the Information Commissioner works from home and the office has seven staff working on FOI matters. A year ago it had 20.
"The office continues to receive inquiries, complaints and IC review applications under the FOI Act, and these are dealt with under arrangements that we have published on our website. FOI matters are currently being handled by a small team in the Sydney office under the supervision of the assistant commissioner for dispute resolution and the Information Commissioner. In summary, FOI complaints are being transferred to the Ombudsman's office; Information Commissioner reviews are being triaged by our office so that where we can expedite a matter we do so; and, for the more complex or voluminous ones, we work with the applicants for these to be referred to the AAT."
With the sword of Damocles hanging over the OAIC since the unexpected announcement in May 2014 of intention to close the office Acting Information Commissioner Pilgrim (the only member of the top echelon not working from home) saluted the staff that have battled on regardless:
in respect of all of our functions, I would personally like to take this opportunity to acknowledge the ongoing commitment and professionalism of the staff in our office, who have continued to work tirelessly during very uncertain times. And I will add that in my 31 years in the Public Service I have not seen a better demonstration of and upholding of the Public Service values.
As for the Attorney General it's nothing to do with him. It's all Labor's fault
if these are perceived to be problems, then these perceived problems would all disappear if the opposition would support the bill so it could be passed...
As I was saying, if the government had an indication from the opposition of what its position was, and if the opposition, which has had plenty of time to consider this, indicated its support for the bill, then the bill could be progressed through the Senate very soon.
Senator JACINTA COLLINS: I do not think there has been any uncertainty about the opposition's position here. I think the issue is—well, I will ask: is it true that the government has offered crossbenchers a comprehensive review of the FOI system if they support the bill? And why instead will you not conduct that review before you abolish the Information Commissioner?
Senator Brandis: Surely you would not expect me to reveal private conversations that the government might have had with individual Senators. Surely you would not expect that.
Senator JACINTA COLLINS: I would not be surprised by anything that you might do after today, Senator Brandis. I would not be surprised by anything.
If the government isn't prepared to bring the bill on for debate, maybe Labor, The Greens and the crossbenches should. 

If its voted down the government might finally be shamed into adequately funding our champion of open transparent government despite its distaste for such ideas.

In an answer tabled in response to Question 204 from Senator Collins taken on notice in December about funding for the OAIC beyond December, that didn't get a mention during the hearing, the Department  stated
"The cost implications from the continued operation of the Office of the Australian Information Commissioner beyond 1 January 2015 will be determined as part of the Government’s Budget processes."
In light of yesterday's testimony they can't mean 2014-15 budget processes.

AGD appears to be struggling with an answer to another Senator Collins question from last December - the other countries that have an independent FOI commissioner. Q57 remains one of few unanswered two months later. 

Last time I did some digging it was around the 40 mark, although with 100 countries now having an FOI act it might be much higher. 

Oh and they don't have to look far for local adherents to the idea: Queensland, NSW, Victoria, Western Australia, Northern Territory and the ACT have information or FOI/RTI commissioners. In Tasmania the Ombudsman carries the can while in South Australia the Ombudsman has the review function and the former ombudsman there now Queensland Integrity Commissioner recommended adoption of the FOI commissioner model.

It's clear who is out of step here.