The Federal Crimes Act and Allan Kessing

Don't miss Allan Kessing tonight in the second program in the Law and Disorder series on SBS television at 8.30 PM (AEDT) , even if you are familiar with the story. It's likely to be uncomfortable but compelling viewing about Kessing's conviction for breach of Section 70 of the Crimes Act following a leak which brought to attention information about a matter of grave national significance. Kessing says the leak was not attributable to him. See what has and hasn't happened since.

FOI Reform statement-details to come...Update:legislation tomorrow

We know this last week of Parliament for the year is a stretch for all concerned, but Special Minister of State Senator Joe Ludwig managed to have a statement tabled yesterday on reforms to freedom of information policy. While the Hansard records this fact, it doesn't include the statement, and so far (12:30 PM the next day) no sign of it on the Minister's website or the Government's Freedom of Information Reform website. I'm sure it will turn up...

Update: Sean Parnell in today's Australian reports the Minister announced that the FOI Reform legislation will be introduced into Parliament tomorrow.. Bills introduced on the last day of sittings proves me wrong in my Fail Grade piece on Monday-but only just.

Parnell reports:

"The new regime comes with the promise of government proactively releasing more information, loosening its grip on historic but still relevant documents, and making it easier and cheaper for individuals to obtain information about their affairs. It remains unclear when the new regime will be in place. Senator Ludwig said last night the initial drafts had been "updated and improved" through consultation.

It is understood the government has altered the proposed avenues of appeal, allowing applicants to go straight to the Information Commissioner if dissatisfied with a decision, and requiring agencies to obtain the approval of an applicant to push back processing deadlines.

Senator Ludwig said the reforms would ensure the right to information was "limited only where a stronger public interest lies in withholding access to documents". "By introducing these bills to the parliament, the government is driving a cultural shift across government to free up access to government information and enhance accountability and transparency," he said.

Senator Ludwig said application fees, currently $30, would be scrapped, a period of processing time would be complimentary, and applications for a merits review by the commissioner would be free. Significantly, the scope of the FOI Act would also be extended to contracted service providers and subcontractors doing work for the commonwealth."

Victorian Tribunal equates public service advice with legal advice

On several occasions the approach taken in some Victorian court and Tribunal decisions when applying public interest considerations in Freedom of Information exemptions, particularly in respect to internal working documents, has been the subject of comment here, this post for example. In a recent decision ( Landes v Vicroads (General) [2009] VCAT 2403) Deputy President Macnamara of the Victorian Civil and Administrative Tribunal suggested there is a presumption against disclosure of high level advice on a sensitive matter, and gave things a new twist by equating the rationale for confidentiality of public service advice documents with client legal privilege:

47. In the present case I accept the submission that if the Minister has sought opinion, recommendation and advice from Vicroads through its Chief Executive on a highly sensitive and highly contentious issue this is significant as to where the public interest lies. If under the Freedom of Information Act it were generally possible for critics of a Government to trawl through the advice which a Minister received in those circumstances with a view to detecting consistencies or inconsistencies between what a Government has done and what advice it has received, or perhaps seeking support for some of the criticisms made in the advice which the Minister received, the ability of Ministers to obtain that sort of advice would be prejudiced. Either Ministers would be deterred from seeking it at all or they would seek it in some unwritten form so that it could not thereafter be canvassed following release under freedom of information legislation. The public interest rationale here is to some degree along the same lines as the rationale for the high value which the law attaches to client legal advice privilege.

The rationale for legal professional privilege is the importance attached to the administration of justice. The reasoning here seems to be that seeking and receiving high level advice in the administration of the state is analogous and should enjoy the same protection. I haven't seen this view advanced elsewhere- in fact the relevance of the high level of those involved and what amounts to protection to ensure frank and candid advice isn't automatically accepted, if at all.

The case has a number of interesting angles, and highlights [18] another familiar feature of contested FOI applications: the dribble effect. Vicroads initially identified 10 documents within the scope of the request granting access to one and refusing access to nine. On internal review, part of one of the documents claimed to be exempt was also released but the initial determination was otherwise affirmed. It's not clear whether the applicant soldiered arms on some of the other documents in dispute or the agency conceded, but by the time the proceeding came on for final hearing before the Tribunal the one document remaining in dispute was a memorandum from the Chief Executive of Vicroads to the Minister for Roads and Ports re ‘Advice on clearway hours.’ Access had been granted to the document with the exception of paragraphs 5 to 11.

Despite the talk, F for Fail on Federal FOI Reform by the end of 2009

The Prime Minister in his Garran Oration at the Australian Institute of Public Administration National Conference in Brisbane on Friday gave the Australian Public Service a "good but needs to do better assessment," citing the just released KPMG Benchmarking Report as evidence of areas of good and not so good performance. The speech includes many references to the impact of the internet on service delivery and on public expectations across a wide front, and the need for a more outward looking public service prepared to connect and engage with those outside government. On this, the Prime Minister said

"The report also found Australia's public service to be less adept than other nations at incorporating non-government expertise and the views of citizens into its policy development and service design process."

He went on to say:

"This is something that the Government has been addressing since we came to office through measures such as community cabinets, reforms to Freedom of Information laws, the 2020 Summit and the development of a Web 2.0 plan."

Of course it's true "the Government has been addressing since we came to office.... reforms to Freedom of Information laws." But it is also true that most of that consideration has been behind closed doors and that it has little to show for its efforts, other than legislation this year to abolish conclusive certificates. This was promised for 2008, and while a good and welcome move, should have been low-hanging fruit for a government serious about fundamental reform elected in November 2007.

It's also true but unacknowledged in the Prime Minister's speech that his government has failed to deliver on the commitment to introduce into Parliament in 2009, the more substantive FOI reforms canvassed in an Exposure Draft released with fanfare in March, followed by a submissions period that ended in May. The bills as distributed had the new regime , including the Office of Information Commissioner in place by January 2010.

Mike Steketee in The Weekend Australian in an account of the internal workings of bureaucracy in dealing with an FOI application for documents concerning climate change (that sounds distinctly old school and unchanged by all the talk of more open government), concludes (emphasis added)

"The email trail .. demonstrates how readily a bureaucracy is prepared to cut corners, including ignoring legal advice, in order to protect ministers. It makes you wonder how strongly the appetite within the government for FOI reform extends beyond Faulkner, who since has gone on to Defence.The main part of the legislation for the FOI reforms has yet to be introduced into parliament, meaning Faulkner's starting date of January 1 will not be met. It has been delayed because his successor Joe Ludwig still is considering submissions on the draft bill. In August he said that changing the culture of the public service was a work in progress. That may qualify as the understatement of the year."

Still considering submissions? Only 45 were published, and five months have now passed. Maybe there was a rush of late confidential ones? On 6 August the Minister Senator Ludwig said

Having considered the submissions, the Government intends to introduce into Parliament and seek passage of the Bills

This followed previous commitments by his predecessor Senator Faulkner to put legislation before Parliament this year.

Get ready to hear someone in Government say that FOI reform-and the culture change that obviously has yet to start in some places ( see Steketee's story and this from the ABC's Chris Uhlmann)- will be a high priority for next year. On the evidence so far you wouldn't bet on it.

Count this one as F, for fail to deliver on a very clear, very firm commitment. Add several layers of cynicism to an already large pile.

Climate change hack has an FOI angle

The publication of email exchanges between scientists following a cyberattack on researchers at the Climatic Research Unit at the University of East Anglia, England suggest attempts to skew the debate about aspects of the climate change debate, but also reveal attempts to keep unhelpful information from Freedom of Information requests in various parts of the world. According to The Wall Street Journal :

"More recent exchanges centered on requests by independent climate researchers for access to data used by British scientists for some of their papers. The hacked folder is labeled "FOIA," a reference to the Freedom of Information Act requests made by other scientists for access to raw data used to reach conclusions about global temperatures.

Many of the email exchanges discussed ways to decline such requests for information, on the grounds that the data was confidential or was intellectual property. In other email exchanges related to the FOIA requests, some U.K. researchers asked foreign scientists to delete all emails related to their work for the upcoming IPCC summary. In others, they discussed boycotting scientific journals that require them to make their data public."

NSW Committee proposes changes for lobbyists and political donations

A NSW Parliamentary Committee inquiring into land dealings and planning decisions released an interim report that recommends Government action on lobbyists and political donations. Some of the proposals regarding lobbyists, for example a ban on lobbying for a period after separation from government would bring NSW into line with other jurisdictions: the Committee recommmends (Recommendation 10) NSW review other Australian Lobbyist Codes of Conduct and report to Parliament on improvements.

However other recommendations would move NSW in the direction of Canada's more robust reporting and transparency requirements:

Recommendation 7
That the Premier strengthen the NSW Lobbyist Code of Conduct to require that each minister is informed at regular intervals of contact between government representatives and registered lobbyists.

Recommendation 8
That the Premier strengthen the NSW Lobbyist Code of Conduct by publishing a report on the internet at regular intervals detailing contact between government representatives and registered lobbyists. The report should include the name of the lobbyist, date of contact, meeting attendees (if applicable) and issues discussed.

Recommendation 9
That the Premier strengthen the NSW Lobbyist Code of Conduct by establishing protocols to be applied to all meetings between government representatives and registered lobbyists. At a minimum, the meeting protocols should contain guidelines regarding venues, properly recorded minutes and the requirement for the third party presence of at least one government representative.

On political donations, the Committee notes recent commitments to change by the Premier but recommends full adoption of 47 recommmendations made in a Committee Report in June 2008 2008, only 19 of which have been accepted by the Government to date:

Recommendation 11
That the Premier adopt the model for funding of the NSW electoral scheme proposed by the NSW Legislative Council Select Committee on Electoral and Political Party Funding, and implement the Committee’s recommendations in full. The key provisions of the model are to:
• ban political donations by corporations and other organisations
• cap individual donations
• cap election spending
• make disclosure of donations and election spending more timely and transparent
• introduce greater policing of the electoral funding scheme, and tougher penalties for
non-compliance.

Senate looking to muscle-up on refusal to answer

The recent debate in the Senate about commercial in confidence claims as reasons for refusal to provide information in response to questions led to this Senate Finance and Public Administration Committee inquiry into a process for determining public interest immunity claims. The Committee is seeking submissions by 27 November on a proposal that in the event of a stand-off an independent arbiter shall be appointed. Where commercial confidence is claimed the arbiter is to be the Auditor-General; in other cases an independent arbitrator appointed by resolution of the Senate.

"The independent arbitrator shall, as soon as practicable, report to the Senate on whether the reasons given for withholding the documents or information are justified. Where the independent arbitrator reports that reasons given for the withholding of information or documents are not justified, the documents or information shall be produced in accordance with the order of the Senate or the requirement of the committee, subject to any further order of the Senate."

While welcome a pity that this further step in enforcing accountability to the parliament comes just as Clerk of the Senate Harry Evans, a great upholder of the rights of the parliament, and a stickler for detailed reasons for any public interest immiunity claim, retires. Evans will be just another interested spectator when the Committee reports in February next year.

Parliamentarians interests officially online-soon-maybe

The House of Representatives Standing Committee on Privileges and Members' Interests is warming to the idea of online publication of details of interests in the next parliament. In a report Publication of details of Members' Interests on the Australian Parliament House website released yesterday, the Committee suggests how this could be done efficiently while preserving the integrity of the data and protecting wide dissemination of signatures, thought to be one area of concern.The Committee is interested in comments and suggestions.

All power to Open Australia for the ground-breaking initiative in getting a version of the Members and Senators registers up and on-line in February this year. Better things to follow.

Most state parliaments are yet to consider this 21st Century step up in transparency.

Automatic voter enrolment and related issues

The NSW Government's move to legislate for automatic voter enrolment not only attracted the attention of those at the Australian Privacy Foundation's Big Brother Awards, but Stephen Murray in New Matilda, Ben Eltham and Miriam Lyons in the Sydney Morning Herald, William Bowe at The Poll Bludger and others have all added useful and sometimes differing perspectives.

Here are a couple of points that may not have been picked up so far about aspects of the Parliamentary Electorates and Elections Amendment (Automatic Enrolment) Bill 2009. The bill was introduced by Parliamentary Secretary Penny Sharpe on behalf of the Attorney General in the NSW Legislative Council on 12 November. Other than the Second Reading speech, there has been no debate to date.

Was the Privacy Commissioner consulted, and to what effect?

The Second Reading Speech concludes:

"The Government has consulted extensively with the New South Wales Electoral Commission in relation to all aspects of the bill. I place on he record the thanks of the Government to the New South Wales Electoral Commissioner and his staff for their invaluable contribution to the preparation of this bill."

There was no mention of any other consultation including with the Privacy Commissioner. There are no published submissions on the Privacy Commissioner's website since November 2008. A perspective from the Commissioner would be helpful in assessing the claim in the speech that "(t)he provisions of the bill with respect to elector privacy are both fair and balanced..." and that protections will be enhanced by creating a new offence for the misuse of personal information acquired under the Act, carrying a maximum penalty of 50 penalty units, currently $5,500.

From my reading of the Bill, some of the privacy concerns, which need to be balanced against advantages of automatic enrolment are:

that the Electoral Commission(proposed Section 46) can for any purpose relating to the roll demand and must be provided with personal information relating to a person (including a person’s telephone and email contact details and any other information or code used to identify a person) for the purposes of determining whether the address for which the person is enrolled is the person’s real place of living, or if the person is not enrolled—whether the person is entitled to be enrolled for any district. There follows a list of those subject to this obligation including any public servant ( eg those at Births, Deaths and Marriages, the Roads and Traffic Authority, the Department of Health and Area Health Services, Education, Community Services etc,etc), a police officer, local council employee, Sydney Water Corporation, an electricity supplier, the public universities and last but not least, an elector or person entitled to be enrolled;

that regulations yet to be seen may make provision for or with respect to the collection of information by such persons, for example, for the Roads and Traffic Authority in its application forms to collect information such as mobile phone numbers and email addresses for the purposes of notifying electors they will be placed on the roll;

that the NSW Privacy and Personal Information Protection Act does not apply in relation to the disclosure of personal information to the extent that the personal information is provided to the Commission under proposed Section 47 by any of these persons or bodies. Does this mean simply in respect to disclosure or that they also aren't required to give notice of this disclosure at the time of collection? There is no opt out.

that the Electoral Commmission is not subject to the PPIP Act in the collection use and disclosure of information received in this way. It would still seem to be bound by the PPIP Act regarding reasonable safeguards for keeping the information secure.

Political parties and independents entitled to know who voted and where

What is the justification for this provision (proposed Section 138) and is there a precedent?:

(2) After an election, the Commission must ensure that: (a) each registered party that so requests, and (b) each member of Parliament who is not a member of a registered party and who makes a request in respect of the member’s district, is provided with electoral information containing the names and the addresses of electors who voted (other than silent electors and itinerant electors), whether they voted personally or by post and, if they voted at a polling place for the district for which the electors were enrolled, the location of that polling place.

(3) Electoral information provided under subsection (2) must only be used in connection with an election.

(4) A person must not use, or cause or permit the use of, electoral information provided under this section for any purpose other than in connection with an election. Maximum penalty: 1,000 penalty units.

How does the presumption of an overriding public interest against disclosure fit with a discretion to disclose?

Proposed Section 48 creates an offence for a person divulging information other than in the course of duties. With the ink barely dry and the Government Information (Public Access) Act yet to commence, a consequential amendment in Schedule 6 would add Section 48 to Schedule1 of the GIPA Act - creating a presumption of an overriding public interest against disclosure of information under GIPA. Such information is not to be published or disclosed. There is no other test.

Yet Section 48 contains these exceptions:

(2) Despite subsection (1), information may be divulged:(a) to a particular person or persons, if the Electoral Commissioner certifies that it is necessary in the public interest that the information be divulged to the person or persons, or (b) to a person who is expressly or impliedly authorised to obtain it by the person to whom the information relates.

Relationship with Freedom of Information Act

After 20 years and with the FOI Act on its last legs with the GIPA Act to replace it early in 2010, how has the Commission got by so far, and why is this (proposed Section 48) now necessary: (6) Any document that contains information provided to the Electoral Commissioner under this Division, and any database maintained by the Electoral Commissioner for the purposes of this Division, are not subject to the Freedom of Information Act 1989.

Big Brother 2009

If you haven't seen them, The Australian Privacy Foundation Big Brother Awards returned this month after a couple of years break. Now these results emerged from the combined wisdom of those who showed up at functions in Sydney and Canberra on the night. Nevertheless, Orwells for significant invasions or disregard for privacy went to: Automated Number Plate Recognition as implemented by Australian Police Forces in combination with CrimTrac; Google’s Street View; The Biometrics Institute; Telstra; and The National Electronic Health Transition Authority. A special “People’s Choice” award was given to the NSW Government for its proposal for automatic electoral enrolment based on the use of personal information collected for other unrelated purposes.

On a more positive note Carolyn Bond (of the Consumer Action Law Centre, Victoria) and Kathryn Lane (of the Consumer Credit Legal Service, NSW) were recognised for consistent advocacy for the privacy rights of consumers in relation to credit reporting.

Victorian FOI reform still a long way off

Victorian Opposition Leader Ted Baillieu announced yesterday plans to overhaul Freedom of Information if elected at next year's state election, with more proactive disclosure, an FOI Commissioner to be appointed to oversight and lead on standards and to undertake what is now internal review, etc. No change from the current 45 day processing time, which strikes many of us as some sort of bad joke. Overall skimpy on the detail, and I know what you are thinking- the de riguer general "I'm for change" position we hear from parties in opposition. According to The Age, the Government, still sticking to it's no fundamental change guns, could only manage this in response from the Attorney General:

''I'm not going to take advice from a bloke on issue of probity and the like who still refuses, as Leader of the Opposition, to put his very large share portfolio into a blind trust.'' Mr Baillieu said he had complied completely with disclosure requirements about his shareholdings.

You've got to love them!

As to Baillieu's chances of winning next year, you will currently get good odds.

FOI and two Ombudsman

Annual reports released recently by the Commonwealth and South Australian Ombudsman both include information about Freedom of Information matters. Review of FOI complaints is part of a broad range of Ombudsman responsibilities. However as the reports reveal, FOI looms larger in the workload in SA.

The Office of the Commonwealth Ombudsman Professor John McMillan received over 45000 approaches and complaints in total during the year, just over 200 or less than 0.5%, concerning FOI matters. 50% of the FOI work involved three agencies- Centrelink, Immigration and the Child Support Agency. Most complaints were about delay, fees and charges and poorly explained decisions.The report comments about failures to assist applicants and too literal reading of applications, both giving rise to avoidable user dissatisfaction. FOI rates one page (116) in the report. Unlike coverage of most other investigatory functions there are no case studies.

South Australian Ombudsman Richard Bingham reports his office considered 2543 cases in total, including 221 or about 8%, and more than his Commonwealth counterpart, concerning FOI. (The total number of approaches to the Office are estimated at around 12000). The FOI chapter of the report runs to 24 pages, consisting mainly of case studies and comments about matters investigated. These include an ongoing issue whether the Legal Practitioners Conduct Board is subject to the Act and whether Board documents attract legal professional privilege (an issue before the District Court); the status of information about contractual arrangements and work performance of a former chief executive of a rural health service; commercial in confidence information held by the Department of Health (also before the District Court); and several cases involving the Cabinet documents exemption including the Ombudsman's observation that Clause 1(1)(e) which exempts information concerning any deliberation or decision of Cabinet is too widely drawn. On this the Ombudsman says:

As a final comment, I note that interstate and Commonwealth FOI legislation apart from NSW, does not have such a broad exemption as clause 1(1)(e). I consider that an exemption worded to exempt access to documents revealing rather than concerning a decision or deliberation of Cabinet would be more appropriate, and would protect Cabinet confidentiality and also conform to the objectives of the FOI.

The NSW Government Information (Public Access) Act to commence early in 2010 contains a presumption of an overriding public interest against disclosure of a document prepared after a Cabinet deliberation or decision that would "reveal or tend to reveal information concerning any of those deliberations or decisions" (Clause 1 Schedule1). This is an improvement on Clause 1(1)(e) in Schedule 1 of the FOI Act. The exemption for disclosure of information concerning any deliberation or decision of Cabinet was interpreted by the NSW Administrative Decisions Tribunal as broad enough to cover a document that predated cabinet consideration of a matter, something the new formulation would rule out.

Boo, hiss....

From the newsletter of Sydney's terrific Gleebooks, a note from the historian and archivist Baiba Berzins:

"The National Archives of Australia has announced that it will be closing its regional offices in Darwin (in 2010), Adelaide (2011) and Hobart (repository 2010 and reading room 2012). It is proposed to relocate the records to Sydney and Melbourne. This is heartbreaking for Indigenous people in the Northern Territory because the NAA office in Darwin houses the records relating to the Territory's Stolen Generations. As well, the Adelaide office of NAA holds significant records relating to child migrants from the 1940s to 1960s – part of the ‘Remembered Children’ to whom the PM apologised on Monday (and promised to help with link-up networks). This move is disastrous for Indigenous people, archivists, librarians, genealogists, historians and many others in those localities and goes against all principles of equity in access to Commonwealth records. Please register your condemnation of this decision with your local MHR or Senator and/or with Senator Joe Ludwig, the Minister responsible for National Archives. Further information: baibapl@netspace.net.au

Tasmania FOI envy- in Michigan

We all have all heard stories about large Freedom of Information bills, but thanks to Rick Snell for this report of a $7 million charge by the Michigan Department of State Police for an FOI application by the Mackinak Centre for Public Policy. Just in passing, the Tasmanian Right to Information Act to commence on 1 July 2010 is an Australian first: no provision for processing charges, only an application fee.

Statutory legal professional privilege

A Queensland reader (thanks) has pointed out that the question of legal professional privilege for communication with NSW Parliamentary Counsel in the drafting of legislation-one of the issues in the Betfair/Sportsbet discovery litigation- wouldn't arise there because statutory legal professional privilege is conferred by Section 9A of the Legislative Standards Act:

9A Application of legal professional privilege to office

(1) This section applies to communications made in or for the performance of the office’s functions under section 7(a) to (i) or a function incidental to those functions. (Comment-in essence in drafting, and the provision of advice)

(2) Confidential communications between a client of the office, and the Parliamentary Counsel or any member of the office’s staff, are subject to legal professional privilege.

Examples of office’s clients—
1 a Minister to whom the office provides advice on the application of
fundamental legislative principles to proposed subordinate
legislation drafted by the office
2 a member who asks the Parliamentary Counsel to draft a Bill, an
amendment of a Bill or an instrument to be used in the Legislative
Assembly

(3) Without limiting subsection (2), the communications may not be disclosed by the Parliamentary Counsel or a member of the office’s staff without the client’s consent.

(4) This section has effect despite any other law.

As to other states?

My Queensland correspondent says the only other similar statutory privilege is conferred on communications with Legal Aid lawyers by the Legal Aid Act (Section 75)- I'd be surprised if this is uncommon around the country.

The boundaries for policy advice

The post "Marginal seat impacts not a matter for public service advice" earlier in the week turned into this letter published in the Sydney Morning Herald today. The problem is public servants assessing political benefits or detriments for the Government of decisions on big ticket expenditure-or anything else for that matter.

Political advice is part of the problem

Draft advice prepared by a senior public servant told the Government the Tillegra Dam was in the wrong place and would not be needed for 30 years ("A dam or a smokescreen'', November 17). It also revealed the blurring of the important distinction between policy and political advice.

The briefing note included this observation: ''Newcastle is a marginal seat after the last election and many of the people I talk to would vote for an independent who opposed the dam. I can't see what political benefit there is to the Government in the dam.'' Marginal seat impacts and political benefit one way or another should not feature in professional policy advice.

NSW lacks a body to set, lead and encourage professional and ethical standards for the public service, and to protect public servants who act properly in accordance with those standards. The results are self-evident.

Peter Timmins Potts Point

Documentary on whistleblowers

"Law and Disorder" tonight on SBS television at 8.30 starts a three part documentary series exploring the dark world of the whistleblower in Australia. The first, on Andrew Wilkie and his disclosures about the intelligence concerning those weapons of mass destruction. Next week former Customs official, Allan Kessing, who features in the preview saying no government wants freedom of information, because it discloses incompetence or corruption. Particularly interesting on the day that Transparency International's latest Corruption Perceptions Index has Australia 8th on the least corrupt list, up one slot, but our whistleblower protection score couldn't be good.

New Zealand No 1- take a bow.

Bets all round in discovery and disclosure in Federal Court

In this judgment of the Full Court of the Federal Court of Australia concerning Betfair there was no challenge to the decision, the subject of a recent post, by Justice Jagot rejecting claims by the State of NSW for public interest immunity over documents discovered by Racing NSW and Harness Racing NSW. However the Full Court overturned her decision that instructions to Parliamentary Counsel to draft legislation do not constitute a request for legal advice, and that documents of this kind are not subject to legal professional privilege. The Full Court 's observations have application in the Freedom of Information/Government Information (Public Access ) Act context as well, should the issue of access to this type of information arise.

The Court stated [21] that when preparing draft legislation, either in the form of an Act of Parliament or a regulation:

"Parliamentary Counsel do not merely type or format the legislation. Parliamentary Counsel apply legal skill and knowledge to give written expression to the policy underlying the proposed legislation. Parliamentary Counsel would be expected, and perhaps under a duty, to advise upon the legality or effectiveness of the legislation being sought by the instructors. In the case of subordinate legislation, if regarded as beyond power, Parliamentary Counsel would presumably advise of this view. Similarly, if an Act of Parliament was considered unconstitutional, or inconsistent with another Act of Parliament, this is a matter Parliamentary Counsel would be expected to advise upon, even if the only express instruction was to draft the legislation.

22 Where no problem of this kind arises, Parliamentary Counsel, in drafting the legislation and presenting the draft to the government agency, is in effect advising that the draft legislation is in accordance with the instructions given and gives legal effect to those instructions. The draft itself is not the legal advice, but the communication in providing the draft legislation contains implicitly the advice of Parliamentary Counsel endorsing the draft legislation as being effective and valid.

23 It is impossible to disentangle the creation of the draft legislation and the giving of advice in these circumstances. It is not a matter of there being multiple concurrent purposes. Undoubtedly if there were purposes of equal weight, then neither would be dominant, and a claim for privilege would fail. However, there is only one purpose here – to obtain the advice of Parliamentary Counsel, and the communicating of that advice is given in the form of draft legislation."

The Full Court decision includes consideration of the status of third party communication undertaken for the dominant purpose of enabling the Office of Liquor Gaming and Racing to seek legal advice ( following the Full Court in Pratt) [25-41] and whether privilege in some documents had been waived because they were dealt with in a manner that destroyed the State’s capacity to control further dissemination of the document [42-59}, finding privilege applied in both circumstances.

Meanwhile in separate proceedings brought by Sportsbet in which the State of NSW is a party not just an intervener, Justice Jagot considered similar claims of public interest immunity and legal privilege, and a new head for a claim to deny access to discovered documents-parliamentary privilege-which the State argued protected documents in three categories: (i) documents constituting or recording communications with Parliamentary Counsel for the purpose of preparing a draft bill, (ii) documents created for the purpose of a Minister’s use in Parliament, and (iii) documents relating to the preparation of a draft bill.Justice Jagot considered authorities back to 1688 before deciding [21] that with two exceptions she was

"not satisfied that the discovery or use of the material in question would infringe parliamentary privilege. I do not accept the State’s proposition that every document concerning the preparation of draft legislation is protected by parliamentary privilege because of the fact that, ultimately, Parliament makes legislation. The proposition depends on a connection with the business of Parliament far more distant and tenuous than that accepted as founding the privilege in Rowley v O’Chee."

The consideration of public interest immunity claims [23-63] covers similar ground to Justice Jagot's decision in Betfair. In balancing public interest considerations Justice Jagot found that the public interest in the proper administration of justice and the conduct of the litigation outweighed the public interest against disclosure of the documents to Sportsbet, in most instances except for a small number of documents that could be categorised as Cabinet related. Relevant considerations included that the matter at issue-wagering on horse racing- was not a high matter of state deserving the same degree of protection as matters of national security; that disclosure of the documents was unlikely to lead to a lack of candour or inhibition in the future by any of those involved including Parliamentary Counsel; that disclosure of any inter-State dealings would be highly unlikely to have any material impact on the workings of the Australian Racing Ministers' Conference or the officials and officers involved; and that the legislative process was complete, meaning little weight should be given to claims that disclosure posed the risk of premature, distracting, ill informed or misdirected public comment.

The State of NSW has to date generally been on the losing side in arguing the case for non-disclosure of documents in these proceedings.

Minister Ludwig confident at Australian Privacy Awards 2009

Dr Roger Clarke recipient of the Australian Privacy Medal 2009.

Cabinet Secretary and Special Minister of State Senator Joe Ludwig spoke on "Confidence in a Digital Age"at the Australian Privacy Awards Dinner last week, primarily about three areas of the proposed privacy reforms that he says will contribute to confidence: the Openness Principle, one of several new Privacy Principles; meeting the challenge of new and emerging technologies; and strengthening the Office of the Privacy Commissioner.

But no mention of issues raised recently by Professor Graham Greenleaf of the University of NSW in Australian IT that the Government's proposals for safeguards for the transfer of personal information outside Australia exposed us to Nigerian scammers, American spammers and Russian mafia-hardly a confidence booster. Greenleaf is supported by Galexia privacy law expert Chris Connolly who in this earlier Australian IT report said all of the positive reforms were "completely overwhelmed by the failure to protect data when it is sent offshore". Former Federal Privacy Commissioner Malcolm Crompton in the same article thought these concerns were overstated.

Congratulations to award winners. The Victorian Department of Justice was the Grand Award winner ( a standout for this range of initiatives). Other winners were: Australian Customs and Border Protection Service (Symantec Government Award), Australian Health Management (Large Business Award), Loyalty Pacific - FlyBuys (Small-Medium Business Award), and the Association of Market and Social Research Organisations (Community and NGO Award). Privacy advocate Dr Roger Clarke was named as the recipient of the Australian Privacy Medal 2009.

NSW announces clean-up on donations, lobbyists

NSW Premier Nathan Rees had a big weekend, winning on some important issues at the State ALP Conference and announcing an immediate ban on donations to the Labor Party by developers, a ban on the appointment of lobbyists to all public boards and committees, and guidelines to be developed by the Minister for Planning to govern meetings between public servants, lobbyists and other parties. As Anonymous rightly commented on the previous post, announcements are one thing, implementation another. And there is plenty of scope to do more on the lobbyist front. But these are moves in the right direction.

More transparency for NSW government contractors

The NSW Minister for Industrial Relations has announced a new website will publish information revealing the industrial practices of all government contractors from next year, as part of its revamped policy on procurement.

“We want to make sure that the work practices of all government suppliers are fair and open to public scrutiny,” Mr Hatzistergos said. “In the interests of open and transparent government, we have committed from next year to disclose details of the industrial relations practices of all our suppliers.”

The website will publish comprehensive information on the industrial relations practices of suppliers including: Names of each government contractor and subcontractors including ABN and ACN; Work undertaken as part of the contract; Industrial instruments (awards etc) that apply; Locations of work; Details of former breaches of employment laws by the contractors.
Published information will not include details that are commercial in confidence, risk safety or security, compromise other Government contracts or are prohibited by law.

Sounds a good move and may be an Australian first?

Contractors to NSW government agencies are facing other transparency changes. Those who provide services to the public on behalf of an agency will find contracts entered into after the Government Information (Public Access) Act due to commence early in 2010, will include a provision requiring certain information to be provided to the agency immediately , if it has been requested by an applicant. Contracts entered into by NSW local authorities with private sector providers for $150,000 or more will be subject to disclosure requirements for the first time under the GIPA Act. Local councils and other agencies will be required to publish online a register of contracts. A link between contract details and the industrial relations disclosures-if this is to be a separate site- would be handy.

Searchability will be an important issue in the new era of proactive publication of government information

Marginal seat impacts not a matter for public service advice

I have no idea about the merits or otherwise of a $450 million NSW Government investment in the Tillega dam in the Hunter Valley, now subject to a Legislative Council inquiry. But the Sydney Morning Herald report of disclosure of documents including a draft briefing note to the Minister from the principal policy officer in the Department of Water and Energy, confirms other anecdotal evidence that the distinction between policy and political advice in the NSW system is long gone. And of the absence of clear professional standards to be observed by the public service in carrying out their duties. The briefing note from a senior public servant included this comment:

''Newcastle is a marginal seat after the last election and many of the people I talk to would vote for an independent who opposed the dam. I can't see what political benefit there is to the Government in the dam.''

Beyond the station of an apolitical, professional public service to my mind. And a bit like like the following disclosure in the Ombudsman's Annual report concerning the NSW Roads and Traffic Authority's Freedom of Information practices - now said to have stopped:

"Our investigation revealed that the RTA had a longstanding practice of sending draft FOI determinations to the Minister’s office and then waiting for their endorsement. RTA staff felt unable to finalise applications without this endorsement. They were also not inclined to make determinations that might be contrary to the views they understood the Minister’s office to hold, whether or not those views were directly communicated by the Minister’s staff or indirectly intimated....

The appropriateness of involving the Minister’s office in agency FOI applications is of relevance to the entire public sector. For this reason, we recommended that the Department of Premier and Cabinet develop a Code of Conduct to clarify the role and relationship of a Minister’s staff with agency staff. A draft Code of Conduct has been prepared, but not yet finalised.'

NSW Information Commissioner

This answer by Attorney General Hatzistergos in response to a "Dorothy Dix" question in the NSW Legislative Council summarised the state of play on the establishment of the Office of Information Commissioner. "Early 2010" is still the position on a start date for the Government Information (Public Access) Act. No mention of any planned use of regulatory powers, for example to mandate additional categories of information to be published by state government agencies. These requirements (Section 18) are modest extensions of what is currently published and won't on their own deliver the promise of the new "push" model. All a marked contrast to the extensive obligations for online publication imposed on local authorities by Schedule 5 .

An offence to publish published information!!!

Only in NSW: in a class of its own as a result of an unholy alliance between the Opposition and The Greens that makes it an offence for a newspaper or magazine to publish comparative information about school performance. The Sydney Morning Herald breaks this absurd law today by publishing information comparing three schools - drawn from annual reports - and asserts "Publish and be damned".

Alice in Wonderland-not Julia Gillard- alive and well

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

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

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

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

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

Queensland shapes up for more reform

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

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

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

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

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

Require all statutory office holders to declare their pecuniary interests.

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

Reform the Whistleblowers Protection Act 1994.

Hold regular People’s Question Time.

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

Ensure publication of contracts over $10 million.

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

Publicly avaiailable information isn't always old hat

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

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

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

ABC lifts FOI game-50% refusal rate

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

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

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

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

Business on both sides of FOI battle

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

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

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

Yes, we should rethink everything

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

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

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

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

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

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

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

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

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

Tasmanian Parliament hiding bold step under a bushel

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

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

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

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

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

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

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

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

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

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

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

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

Will other jurisdictions follow this important Tasmanian lead?

Tasmanian Parliament delivers RTI package

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

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

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

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

Mash-up could show lobbyists in new light

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

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

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

"There should be a law against it"

Paul Keating- photo James Alcock and SMH

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

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

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

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

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

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

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

Senate Committee to open up Government claims of commercial in confidence

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

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

Senator Brown went on to say

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

Thanks to Open Australia for the Hansard link.

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

Kessing and s70 of the Crimes Act

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

Auditor General calls for more transparency from Queensland GOCs

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

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

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

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

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

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

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

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

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

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

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

Federal Court foray into public interest immunity

(Update: A reader-thanks James- says the Full Court allowed an appeal by the State against this decision last Friday, that reasons have not been published yet, but the orders are available online. They relate only to parts of the decision by Justice Jagot concerning some documents claimed to be subject to legal professional privilege and do not refer to the public interest immunity aspects of the decision. As at 2 November no written judgments have been published but will flag any observations relevant to that issue when they appear. This in the Sydney Morning Herald on 13 November, and today 17 November an analysis of the Full Court decision, particularly relevant to the point in the post below, about privilege and instructions to Parliamentary Counsel.)

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

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

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

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

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

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

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

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

Justice Jagot stated [24]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Breaking down the barriers to open government

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

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

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

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

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

On the culture change challenge the Minister said:

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

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

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

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

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

UK DPP Keir Starmer QC- read on.

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

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

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

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

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

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

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

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

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

And Article 14:

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

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

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

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

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

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

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

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

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

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

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

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

NSW Ombudsman sees a glimmer, but big job ahead.

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

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

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

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

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

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

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

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

On with the culture change.

Last minute rush on secrecy laws.

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

Battlelines for public interest immunity established again in Senate Estimates

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

"Public interest immunity claims

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

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

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

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

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

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

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

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

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

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

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

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

Victorian FOI precedents support sticking to "confusion" line

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

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

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

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

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

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

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

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

The Law Report

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

Estimates questions and answers.

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

FOI on the airwaves tomorrow

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

Ministers not so high on the hog

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

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

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

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

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

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

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

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

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

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

New chairs at the seat of power

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

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