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Wednesday, September 02, 2015

"Expecting the attorney-general to act as a champion of open government is asking the fox to act as the defender of hens."

Emeritus Professor Richard Mulgan in The Canberra Times The slow death of the Office of Australian Information Commissioner recites the history of the government's (to date) failed attempt to abolish the office suggesting the government's cut in funding the FOI functions when the will of parliament is to maintain the office "rests on a strict, and distinctly "tricky", interpretation of the law."
More significant is what happens to the information commissioner's function to report generally on government policies in relation to information, including the disclosure and accessibility of government information. This function casts the commissioner in the role of public champion of open government, a role which McMillan performed, for example, by monitoring agencies' administration of FOI and generally advocating a more proactive approach to disclosing information. The claim that the Attorney-General's Department can adequately cover for this function is disingenuous. Expecting the attorney-general to act as a champion of open government is asking the fox to act as the defender of hens.
Professor Mulgan wrote "How the FoI watchdog was starved to death in June last year.

Tuesday, September 01, 2015

Litany of problems revealed in office of Victorian FOI Commissioner

Farrah Tomazin in The Sunday Age summarises the report commissioned in April by the Department of Premier and Cabinet into the office of Victorian FOI commissioner Lynne Bertolini​ that exposes "a litany of problems, including "unusual" procurement practices, unmet targets, and "poor conduct" towards some staff."
"The final report, now with Parliament's joint accountability and oversight committee, paints the picture of a dysfunctional office, with "poor conduct" towards the two assistant commissioners; a backlog of reviews and complaints by people seeking FOI documents; and favouritism towards some staff, with "considerable anxiety and stress" among others. It also reveals:
  • Since December 2012 the FOI office spent $825,946 on contracts with two selected legal service providers when equivalent organisations in NSW, Queensland and the federal sphere use little or no external legal advice.
  • A further $55,000 was spent to hire the Agenda Group for three days of work, including a former executive and colleague from the gambling regulator.
  • The average time taken to complete an FOI review was 90.4 days – well in excess of the government's 30-day target. Ms Bertolini completed 130 reviews between last October and April this year, but her assistant commissioners Michael Ison​ and Rachel Westaway​ had only been assigned a combined 19 reviews over the same period."
Ms Bertolini announced her intention to stand down three weeks ago, effective last Saturday.

Legislation to create the Andrews government answer, a new Office of the Public Access Counsellor, is expected early next year.

Friday, August 28, 2015

Considering options while confirming plan to abolish Information Commissioner?

In a Media Release last Friday Attorney General Brandis said
"Timothy Pilgrim was appointed acting Australian Information Commissioner for a three month period in July 2015 while the Government considers options for the future of the Information Commissioner position."
 Today Jane Lee in Fairfax reports a spokesman for the Attorney General as saying 

"The government remains committed to its budget savings measure to abolish the OAIC...
The bill before the Senate to abolish the OAIC would abolish the positions of Australian Information Commissioner and Freedom of Information Commissioner. 

'Considers options for the future' - "thinks carefully about choices before making a decision."

Hmm...

Public sector corruption survey

Transparency International Australia (TIA) is supporting the TIA Queensland Regional Committee in conducting a pilot Survey in relation to public sector corruption in Australian states.  If you have the time help by completing the Survey today.

"We're the government and we're here to protect your privacy"

Not... 

as two experts outline years of failure to pay attention to privacy protection.

Dr Roger Clarke in a detailed working paper examines the last 15 years' incursions into human rights based on 'the terrorist threat' and highlights the limited attention paid to privacy impact assessment:
Democracy in Australia is gravely threatened by a flood of measures harmful to human rights that have been introduced since 2001, and a large proportion of which are unjustified and not subject to effective controls. The passage of these measures through the Parliament has been achieved on the basis of their proponents' assertions and without appropriate scrutiny. Parliament had available to it various forms of impact assessment techniques, but failed to require that such methods be applied. The study reported here found that one particular form of evaluation, Privacy Impact Assessment (PIA), should have been performed, but was seldom applied, and where it was applied the process and report were in almost all cases seriously deficient. Survival of democracy is dependent on the Parliament standing up to the national security extremism that has taken hold of the Attorney-General's Department. Ministers and Parliamentary Committees must demand prior evaluation of proposals that restrict civil freedoms, must ensure transparency in relation to the proposals and their justification, and must require effective controls over, and mitigation features within, those measures that survive the evaluation process.
Reminder: the Office of Australian Information Commissioner that includes the Privacy Commissioner has operated under threat of extinction for 15 months. Currently one commissioner is responsible for the functions of three commissioners envisaged by parliament in establishing the office. A Privacy Commissioner will be in place for 12 months from 19 October.

.......................
Anna Johnston of Salinger Privacy responds to a NSW parliamentary committee call for submissions on a statutory cause of action for serious invasions of privacy by providing chapter and verse of failure to address other well known weaknesses in privacy law and enforcement. 

Johnston lists the black holes where privacy laws don't apply and loopholes unique to NSW "so wide you could drive a truck full of privacy-invaders through them, and still have room for a parade of dancing elephants on either side." For example State Owned Corporations are not subject to privacy legislation, a NSW agency can pass any personal information to a person or body outside the state and not breach the Privacy and Personal Information Protection Act, and an agency is not responsible for privacy invasive conduct of an employee malicious or otherwise if the person wasn't really acting as an employee at the time.

Reminder: as Johnston notes, "NSW has only a part-time Privacy Commissioner, who does not have enough staff or an independent budget, let alone any powers to levy fines or compel privacy-invaders to do anything."

Monday, August 24, 2015

Brandis considering options for future of Australian Information Commissioner

It's the first indication in 15 months that a rethink of sorts is underway about plans to abolish the Office of Australian Information Commissioner.

In his announcement that Timothy Pilgrim has been appointed Australian Privacy Commissioner for a period of twelve months commencing 19 October 2015, Attorney General Brandis said Pilgrim's current three month appointment as Acting Australian Information Commissioner is 
"while the Government considers options for the future of the Information Commissioner position."
Options haven't been mentioned previously as the government single mindedly pursued abolition of the OAIC. Legislation before the Senate would eliminate both the information commissioner and FOI commissioner positions and a whole range of FOI oversight and information policy functions.There is no majority in support of the bill in the Senate.

Faced with this reality it's clearly time for a rethink.

Back in May 2014 Attorney General Brandis said abolition of the office was about savings, about simplifying, streamlining and improving efficiency and effectiveness in the conduct of FOI merit reviews, and reducing the burden on FOI applicants.

If the government sticks with those objectives there are plenty of options short of abolishing the office, a course of action that should never have made it to first base.

The better option however is withdraw the bill and look to ways to simplify, streamline and improve efficiency and effectiveness in provision of access to government information.

I was no fan of the limited Hawke FOI review process conducted in 2012-13 but that report has been sitting in Attorney General Brandis' in-tray since he took office two years ago. 

Dr Hawke's first recommendation was "..that a comprehensive review of the FOI Act be undertaken" and his concluding comment "I believe a complete rewrite of the FOI Act in plain language is now necessary, so that it is readily accessible and easily understood." 

If come 19 October when Pilgrim changes hats again things are no further advanced, the position of information commissioner will need to be filled one way or another.The commissioner is head of agency and as such the accountable authority responsible for governance functions under the Public Governance, Performance and Accountability Act. 

Friday, August 21, 2015

Certifying entitlement claims too much for busy parliamentarians particularly Bob Katter

ABC picks up on Senator Conroy and Bob Katter not certifying Department of Finance entitlement expenditure for years-noted here four weeks ago. 

Senator Conroy could hear feet in the corridor and has now signed for expenditure back to 2011.

Bob Katter's defence amounts to are you kidding, I run two offices you know....

"More than 100 other MPs have failed to sign their half-yearly certification at least once."

Certification details are listed for each reporting period.

Thursday, August 20, 2015

Deep breaths needed instead of talk about binning Big Tobacco access rights

The Nick Baker - Richard McKenzie piece in Fairfax Media on the two pronged attempt to utilise freedom of information laws to obtain data from surveys on smoking has raised some interesting issues. 

However some reactions - that the applicant shouldn't be able to exercise the right to seek access to government information, that this sort of thing may frustrate public health research and may even warrant legislative amendment - seem way over the top. 

(Addendum- an opinion piece from the Los Angeles Times on the right to access scientific research undertaken at public expense-within limits. And more pertinently this on "Big Tobacco' FOI rights on The Conversation UK and this on The Conversation Australian version. I'm with Nola Ries of University of Newcastle-tobacco companies should be free to use FOI laws even if we don't like it.)

Without seeing the detail of what was sought, what was released in NSW and what reasons were given for refusal of access in Victoria it's difficult to muster the outrage running in some commentary, or be concerned the laws don't adequately protect sensitive information and data.

Baker and McKenzie report a lawyer acting for American Tobacco obtained Cancer Institute NSW research into adults' attitudes to smoking through an application under the Government Information (Public Access) Act. But the Victorian Cancer Council "is spending thousands of dollars" fighting an FOI application from the same lawyer in the Civil and Administrative Tribunal "for data from surveys by thousands of Victorian school children and teenagers that reveal their attitudes to smoking and alcohol."

Just what was sought and obtained from the Cancer Institute NSW is unknown. The Chief Cancer Officer, Professor David Currow said "The Cancer Institute NSW was compelled" to provide tobacco survey data requested under the GIPA act.There are plenty of public interest considerations designed to safeguard sensitive information from disclosure but not possible to comment on the decision without more detail.

The GIPA act differs in many respects from Victoria's FOI act.

There, the yet to appear VCAT decision will throw light on the exemption claims in due course.
Both Victorian Cancer Council Director Todd Harper and Professor of Health Policy at Curtin University Mike Daube (see below) are outraged but whether their concerns about release of de-identified data amount to valid exemption claims is yet to be seen.

FOI is no stranger to Big Tobacco but the idea of a 'block tobacco' FOI amendment is just plain silly.

Monday, August 17, 2015

International Commission of Jurists remind that Parliament not Executive fiat decides the fate of OAIC

Bernard Keane in Crikey today on the FOI rollback campaign that includes the unsuccessful push to legislate to abolish the Office of Australian Information Commissioner, and in the meantime crimp its capacity to undertake its full range of functions, coinciding with public service leaders now speaking of how they thwart the law of the land.

On the same subject former NSW Attorney General John Dowd in his capacity as president of the Australian section of the International Commission of Jurists (ICJ) writes to Attorney General Brandis, as reported in The Guardian Australia, reminding that the rule of law involves the ongoing effective discharge of the functions of a statutory body such as the OAIC until such time as parliament no longer requires:
... the government is seeking to achieve executively what it cannot achieve legislatively,” Dowd said in the letter to Brandis. “This is of profound concern to the ICJ which has the responsibility of defending the rule of law. “The rule of law is not a nebulous concept but does have some very specific components, one of which is the doctrine of the separation of powers … It is disappointing that we have to draw this simple principle to your attention.”

When a government was seen to be doing executively what it was unable to do by legislation, Dowd wrote, concerns about “insults to rule of law and the doctrine of separation of powers are understandably aroused”.
“When this executive function has the effective result of emasculating a statutory body, which can only be abolished by statute, there can be no doubt that the wall of protection separating the executive from the legislature has been breached,” he said.
Dowd told Brandis a government should not prevent the ongoing effective discharge of the functions of a statutory body that the law required to continue, otherwise “the consequences in a civilised society such as ours would be too disastrous to contemplate”. He said if that were the case, a government could emasculate any statutory body that caused it displeasure.
(Addendum: John Dowd on ABC AM Tuesday morning.)

The bill to abolish the OAIC has been before the Senate since October 2014 and not once brought on for a vote. Meanwhile because of failure to fund and fill positions one commissioner carries the functions of the three positions Parliament established.

Wednesday, August 12, 2015

Open Government Partnership: Australia on notice to follow through on membership

Toby McIntosh on Freedominfo.org in Washington DC did some sleuthing to identify the unnamed country referred to in the Open Government Steering Committee minutes of its July meeting- and it's Australia
Australia’s lack of action as a member of the Open Government Partnership is “particularly concerning,” the OGP Steering Committee decided at a recent meeting.
The Steering Committee set a new deadline for Australia “to recommit to OGP,” according to recently released minutes of the July 22-23 meeting. (See this page on the OGP website, scroll down.)
After two years as a member, Australia has yet to prepare a National Action Plan, the key component of participation in the OGP in which members make specific commitments on how to advance open government.
Australia, which joined in May of 2013, should have created its first action plan by May of 2014, according to an OGP chart. The submission of a plan is followed by other steps, including a one-year self-evaluation and then an assessment through the OGP Independent Review Mechanism.
Australia was given until the upcoming October OGP Global Summit meeting in Mexico to “recommit.”
The Australian version of course is that the Abbott Government is still 'considering' whether to proceed with Labor's announcement in May 2013 that it intended to join. 

This letter in  August 2014 to the Minister for Finance made it clear the Prime Minister is a key part of the decision tree, instructing that no announcement of Australia's position should be made "until a draft national action plan is submitted for my consideration..."   

A year on in the public domain at least, silence.

Russia is the only country to withdraw from the OGP. Sixty five others are members including all we usually cite as the peer group - USA, UK, Canada, NZ- every country ranked ahead of Australia on the Worldwide Web Foundation Open Government Index, and in our region the current co-chair Indonesia, along with Korea and the Philippines.

McIntosh provides this further background on the laggards
Lithuania, Malta and Turkey were the first members to get a notice about missed deadlines. In February of 2014, the OGP issuing a public statement saying that  reports that there was “little evidence” that the countries’ action plan commitments were being fulfilled. (See previous FreedomInfo.org report.)
Under a revised OGP policy approved in March of 2014, two warnings in a row would trigger a discussion about continued OGP membership – the sanction that the organization, founded on inclusion, voluntary goal-setting and mutual support, hopes to avoid. A country will be in breach if it does not publish a NAP within 4 months of the due date. (See previous FreedomInfo.org article.)
The OGP in August of 2014 has made public 11 letters sent in April informing member governments they were not in compliance with their OGP commitments. (See previous FreedomInfo.org.)
In December of 2014 the OGP cautioned 12 governments that they were falling behind on their OGP responsibilities, announcing the action in a blog post with links to the letters). (See FreedomInfo.org report.)



Monday, August 10, 2015

Open season on information commissioners?

Victoria's plan to enhance FOI watchdog powers stands in sharp contrast to the Federal Government's tenacity in clinging to its plan to abolish the Office of Australian Information Commissioner one way or the other and in the meantime leaving the office with one acting commissioner instead of the three positions parliament established.

Freedom of Information Commissioner Lynne Bertolini issued this Media Statement on Friday that she will step down on 5 September citing the government's intention to  create a new position of Public Access Counsellor. 

Farrah Tomazin in The Age suggests other factors may have contributed, and reports Special Minister of State Gavin Jennings providing this general update on reforms:
Mr Jennings did not go into details of the review, other than to say the government had identified "significant opportunities to reform the FOI system", improve oversight and make it easier for Victorians to access information. He said the new Office of the Public Access Counsellor would have extra powers, including the ability to review decisions to withhold documents based on cabinet-in-confidence exemptions. Mr Jennings said the government changes would include requiring agencies to progress and respond to FOI requests more quickly. A bill to establish the new office will be introduced to Parliament in the first half of next year.
Victoria's Freedom of Information Act represents, well, the finest thinking of the nineteen eighties. 

Hopefully those outside government will be given an opportunity to point towards contemporary good practice before 'significant reforms' are locked in.



Thursday, August 06, 2015

Acting Australian Information Commissioner on OAIC performance:'managing effectively within available resources.'

The post Impact of cutbacks at OAIC attracted a response from Acting Australian Information Commissioner Timothy Pilgrim who in a letter pointed out correctly that I did not provide a complete picture of how the OAIC is managing its workload. 

The Acting Commissioner said the OAIC seeks to provide
"timely case management processes within the resources we have been allocated for each of our functions.We have been managing both (Freedom of Information and Privacy) jurisdictions effectively within those available resources and the matters you refer to reflect the OAIC’s focus on finalising older matters while also providing a prompt and efficient response to recent matters."
Fair enough. 

And I accept Mr Pilgrim's point about the professionalism and commitment of staff  "who have been working hard to ensure the provision of an effective and efficient service in the current circumstances." 

But the statistics he cites show IC FOI reviews received and finalised in the last 12 months on average were finalised within 3 months of receipt leaving plenty that weren't; 10% (22 of 220) on hand are more than 12 months old; and 13% (61) finalised in the last year were closed with the applicant authorised to head off to the AAT ($861 for those who don't qualify for a concession) because of a finding that the "interests of the administration of this Act make it desirable.."

"(M)anaging.. within.. available resources" and "working hard.. in the current circumstances" suggest to me doing the best the OAIC can in light of the ongoing attempt by the government to abolish the office and the resulting uncertainty and effect on staff, and reduced funding for FOI functions in particular.

The events of the last 15 months must have impacted on OAIC capacity to carry out fully and in a timely fashion all statutory information policy, freedom of information and privacy functions assigned to the office.

The main purpose of the post in question was not to run the ruler over the OAIC in any detailed fashion but to encourage those who have had matters before the office that may have been impacted by the resource constraints and the failure to fill commissioner positions to contact me about the experience. 

That invitation still stands: peter.timmins100@gmail.com

Mr Pilgrim's letter (Email 5 August) follows:

Tuesday, August 04, 2015

Impact of cutbacks at OAIC: Open and Shut interested in your story

With the functions of the three commissioners that make up the Office of Australian Information Commissioner now in the hands of a single acting commissioner, Timothy Pilgrim's 'in folder' will be heavily loaded with important matters. 

None more so than files concerning non delegable functions that the commissioner only can exercise such as freedom of information review decisions, and determinations on privacy complaints not resolved by conciliation.

The latest published FOI review decision is on a matter lodged with the OAIC in April 2014. The latest published privacy determination is on an application lodged in August 2013.

How many applications remain in the queue and how long they have been there is not known. 

The latest Quarterly Statistics about Freedom of Information and Privacy complaints and reviews published by the Office are for the period April - June 2014, before the cutbacks on funding announced as the government launched its initiative to abolish the office through legislation that is still to pass.

More FOI review applications are likely to be waved off in the direction of the Administrative Appeals Tribunal where the commissioner "is satisfied that the interests of the administration of this Act make it desirable." Quite a few with legitimate grievances but not eligible for a concession will balk at taking the matter further given the AAT application fee is $861.In the absence of a determination, privacy complainants appear to have nowhere else to go.

If you have had an FOI or privacy matter before the OAIC and the resource constraints and contraction of commissioners from three to two in December and to one since 19 July seem to have added to your woes, Open and Shut is interested in hearing your story.  

May not be able to do more than listen but email me: peter.timmins100@gmail.com







Sunday, August 02, 2015

Deja vu: Government announces comprehensive review of parliamentary entitlements

Six years ago the then government announced a 'root and branch review' of parliamentary entitlements following critical findings by the Auditor General

The committee chaired by Barbara Belcher reported in April 2010. The government sat on the report for a year before releasing it.

As recounted here the Auditor General six weeks ago reported something had been done on 17 of the committee's 39 recommendations. But
"there has been no formal government response to the recommendations of the CROPE (Belcher) report, or subsequent Remuneration Tribunal report, in relation to fundamental reform of the legislative and administrative framework underpinning the provision of Parliamentarians’ ‘tools of trade’." 
Today the Prime Minister announced
The rules governing the parliamentary entitlements system need reform....The rules lack clarity and lack transparency. We need a system that is simple, effective and clear. We need a system that more independently sets and monitors parliamentary entitlements, working with the Department of Finance and the independent Remuneration Tribunal. We need a system that enables parliamentarians, their staff, and the public, to operate inside the rules with confidence and for those rules to meet the expectations of the community. We need a system that supports the work and activities of current day politicians, from diverse electorates, and helps them to serve their constituencies, parties and the Parliament. The Government has asked former Secretary of the Department of Finance, Mr David Tune AO PSM, and Chair of the Remuneration Tribunal, Mr John Conde AO, to co-chair a committee to examine how best to deliver a more independent system.This committee starts with a blank sheet of paper to provide options on a system that is truly independent.
I'm sure they're serious this time. 

 

Friday, July 31, 2015

Australia going backwards on protection of privacy and information access

At a time when threats to privacy abound including from a federal government that lays claim to a watchdog role to safeguard our right to privacy, a government whose leader before the 2013 election committed to increasing government transparency and accountablity, Australia today has no permanent federal information commissioner, no federal privacy commissioner, and no federal freedom of information commissioner. 

The Office of Australian Information Commissioner established in 2010 to enable the commissioners to carry out their functions with an initial estimate of staff required of 100, now has around 65.

Attorney General Brandis is presiding over the erosion of protections put in place to safeguard the right to privacy and promote and oversight the exercise of the right to access  government information. 
 


Australian Information Commissioner Professor John McMillan resigned today to become NSW Ombudsman.

(Open and Shut joins the OAIC in expressing thanks for his many years of service to FOI and other causes, in and outside government.)




Freedom of Information Commissioner Dr James Popple departed in December 2014 to take up an appointment to the Administrative Appeals Tribunal and was not replaced.

Privacy Commissioner Timothy Pilgrim's five year appointment expired on 19 July. No one has been appointed to fill the position. Pilgrim was appointed Acting Australian Information Commissioner for three months.

As passed by Parliament, the Australian Information Commissioner Act established the OAIC consisting of three information officers: the Information Commissioner, the Freedom of Information Commissioner and the Privacy Commissioner. The functions of the commissioners are set out in sections 7, 8 and 9, and reproduced below.


Something Some - many- things functions cannot be carried out by one commissioner instead of the three legislated by parliament in an office with a reduced staff compliment as a result of budget allocations in the last two years.
Parliament has not passed the government's bill to abolish the OAIC.

The bill has been before the Senate since October 2014 and not brought on for a vote because there is no majority in favour.

Tim Smith QC of Accountability Roundtable and a former judge of the Victorian Supreme Court in correspondence with Attorney General Brandis about the FOI cutbacks submits the government is seeking to achieve its goal through non legislative means, ignoring its obligation to give effect to the law as it exists, a duty that remains until such time as Parliament rescinds the Australian Information Commissioner Act:
not only are the OAIC’s major statutory functions not being performed as intended and legislated by the previous Parliament but the statutory office created by that Parliament can no longer be described as existing. In particular, the evidence available points to the deliberate removal of the funds needed by the OAIC to discharge its statutory FOI functions including its central and critical overarching statutory responsibility to independently monitoring, supervising and guiding the FOI system, and advising the government,  Further, the Government has chosen to pass those responsibilities to one of its Departments.
If one accepts that analysis, why does it not follow that the Government’s actions are a repudiation of its duty? Why does it also not follow that the Executive Branch of our Government is repudiating its obligations to respect, carry out and maintain the laws of the Parliament, the Constitution, the Rule of Law and the Separation of Powers?
The same points could be made about the reduced capacity to conduct the information and privacy functions of the office.

Even broad shouldered Timothy Pilgrim cannot carry out the statutory functions in addition to those that fall to him as chief executive of the office. 

You, me and citizens generally are the losers.

Wednesday, July 29, 2015

ANZSOG Conference 'Opening Government' a real steal

Registration closes Friday for The Australian New Zealand School of Government (ANZSOG) Conference 2015 in Melbourne next month:
Opening Government Transparency and Engagement in the Information Age-40 speakers 2 days The 1 Event You Can't Afford to Miss" 
Sounds great. 

If you (or your employer) can afford it.

$2395 for the full package, whew! 

The program is jam packed with public servants, former public servants now consultants and academics but few if any sign of citizens, journalists and others who sit on the other side of the open government, transparency and engagement tables. Whether the eventual audience made up of those who can afford it will be more diverse, who knows.

I'd love to be a fly on the wall for
Too much information?’: FOI’s defenders meet its critics chaired by Senator The Hon Scott Ryan, Parliamentary Secretary to the Minister for Education & Training, featuring Andrew Metcalfe a long time one time Secretary of the Department of Immigration and Dr Suelette Dreyfus: How important is the right to know what is happening inside our governments? Has freedom of information gone too far or should new information technologies be seized on as an opportunity to do more? Speakers in this session will offer different views about the flow of information between governments and citizens;

The open data sessions.

And the final wrap featuring Jane Halton Secretary of the Commonwealth Department of Finance and Blair Comley Secretary of NSW Premier's: Transparency and Engagement in the Information Age - Implications for public servants Senior public sector leaders discuss how administrations across Australia and New Zealand are adapting to the information age. How well are we preparing for and leading our public servants into the new world of open government?

Terrific if people are talking about such things. But alas, I'm living in a new age of limited entitlements. 



Tuesday, July 28, 2015

Challenge to refusal to release incoming government brief will see "Frank and Candid" put to the test

In a Freedom of Information review application in the Administrative Appeals Tribunal today, Shadow Attorney General Mark Dreyfus QC challenged the Government's refusal to release the Incoming Government Brief Attorney-General Senator Brandis received from his department on taking office in 2013.

The AAT challenge comes 12 months after Australian Information Commissioner Professor John McMillan substantially upheld the AGD decision to refuse access to the brief (Parnell &  Dreyfus). At the time he used similar reasoning (Crowe) to refuse access to unreleased parts of the brief prepared in 2010 for then incoming Prime Minister Gillard. 

It's an important opportunity to test the public interest arguments accepted in those decisions - see my comments at the time - as "Frank and Candid" have since become some FOI decision makers' best friend.  

Attorney General's in this example managed to soak up sixteen months with "Frank and Candid" arguments before releasing most of the document when challenged. By that time it was three years old. There are plenty of others.

 Justice Annabelle Bennett, Deputy President of the AAT, is hearing the application.

I'm sure Deputy President Forgie's monumental decision (in pre 2010 reform days) and sceptical examination of "Frank and Candid" in McKinnon v Secretary Prime Minister and Cabinet [2007] AATA 1969 won't escape attention.

The Media Release from Mr Dreyfus says:
"(Incoming Government Briefs) set out the policy challenges faced by a new government and advise on how the government can go about implementing its agenda. These briefs provide an important overview of the state of the nation at the time the new government takes office and help inform public policy debate", said Mr Dreyfus.

"Labor published IGBs from a range of agencies after the 2010 election and also released incoming Attorney-General’s briefs in 2012 and 2013. Public debate should be informed by the expert advice of government agencies which their taxes pay for. Honest governments have nothing to hide."

The Abbott Government refused Mr Dreyfus' FOI request for the Attorney-General's Department's IGB. It continued to resist disclosure through a review conducted by the Information Commissioner, forcing Mr Dreyfus to go all the way to a contested hearing in the AAT.

The principle of open government the FOI Act upholds was reinforced by amendments made in 2010. These reforms should be respected by the current Government as an important part of upholding the rule of law."said Mr Ben Slade, partner at Maurice Blackburn, whose firm represented Mr Dreyfus in the AAT.

"Unfortunately, Senator Brandis is openly hostile to FOI laws", said Mr Dreyfus.In Senate Estimates in November 2013 the Secretary of his Department admitted that the Government was taking a "hardball" approach to disclosure. Senator Brandis has also sought to abolish Australia's independent FOI watchdog, the Office of the Australian Information Commissioner. Though the necessary legislation has stalled in the Senate, Senator Brandis has imposed harsh budget cuts on the body and refused to appoint new statutory office-holders to the Office, which will soon be completely vacant.



Sunday, July 26, 2015

ALP National Conference 2015: Open and Accountable Government

Extracts below from the Draft National Policy (Chapter 10 Strong Democracy and Effective Government) that went to the 2015 National Conference in Melbourne in recent days, 

The draft includes a commitment to develop and implement a national anti-corruption plan but settles for a review rather than the establishment of a Federal anti-corruption commission; introduce private sector whistleblower protection; preserve and strengthen the Office of Australian Information Commissioner; fulfil Australia’s commitment to join and participate in the Open Government Partnership; and review the operation of Freedom of Information. 

Not much on political donations beyond generalities and requiring disclosure over $1000,even less on the hot topic of privacy and nothing I can see on other subjects of interest such as open data, lobbying or parliamentarians' entitlements. 

On the last mentioned couldn't help but be amused/alarmed/appalled that former minister responsible for such things in ALP governments Gary Gray is reported to have said the system isn't broken. While warranting a tick for some reforms during his time in charge, a pity he wasn't asked about the Belcher Committee recommendations and his contribution to sidelining the important ones for years. Gray while special minister of state in 2011 thought that lobbying rules were just fine and dandy as well!

Yet to see what came out the other end of national conference deliberations.
(Update 29 July: I understand there were no changes to the extracts from Chapter 10 below but the final document is yet to appear.)

Let's hope Labor support for specified sensible steps in the right direction doesn't have the effect of reinforcing Liberal/ National party opposition while they run the show.

Friday, July 24, 2015

Australian Information commissioners: names should be put to faceless public servants

Only Silence-Wikimedia Commons
Decisions by the Australian information commissioners should bring to a halt the widespread agency practice of deleting as irrelevant (s 22) names of public servants below Senior Executive Service rank contained in documents to be released in response to a Freedom of Information application; and deletion of the name regardless of rank on the basis of the personal privacy exemption (S 47F) where it identifies an officer simply carrying out public duties. 

Then again as public servants observe the government's two pronged ongoing attempt to force closure of the office and return the FOI guidance function to the Attorney General's Department, I wouldn't bank on it.

In April in ‘FM’ and Department of Foreign Affairs and Trade [2015] AICmr 31, an attempt on behalf of David Hicks to obtain documents relating to an aspect of his confinement at Guantanamo, Australian Information Commissioner Professor John McMillan said [14]:
There is no apparent logical basis for treating the names of SES officials as being within the scope of a request but of other officials as being irrelevant to the request. Nor, as I have noted in the Guidelines (6.138-141) will the disclosure of the name of an official performing their public duties usually be regarded as an unreasonable disclosure of personal information under s 47F.
    In GF’ and Department of the Treasury [2015] AICmr 47(7 July 2015) Privacy Commissioner Pilgrim recounts that Treasury decided to treat the names, email addresses and other contact details of public service officers as irrelevant to the request,informing the applicant[10]:
    "We will provide you with the designations (for example, Analyst, Senior Adviser, Manager) of authors and addressees of documents in the schedule of documents accompanying the decision letter so that their relative seniority is known.
    Commissioner Pilgrim said

    1. In my view, there is nothing in the request that indicates the applicant considers the names and contact information of public service officers irrelevant to the request. Rather, it appears that the Department simply decided that it will release the designation of officers, but not their names and contact details. 
    He went on to cite the FM decision.

    Treasury in addition claimed as exempt on personal privacy grounds the name of the Australian Government Solicitor Special Counsel Litigation. Commissioner Pilgrim said
    35. ..the Department have not submitted any specific reason why it would be unreasonable to disclose this information. Further, the AGS website provides key information, including photographs and telephone numbers for a number of its Special Counsel and other officers. Consistent with the Australian Information Commissioner’s views expressed in ‘FM’ and which I discussed above at [12], and the absence of any specific submissions from the Department giving reasons why disclosure of the Special Counsel’s name would be unreasonable, I am satisfied that the Department has not met its onus under s 55D of the FOI Act of establishing that document 2 is exempt under s 47F.
    As mentioned in this gripe last year the usual practice in many agencies is to advise the applicant before processing the application that the names of non SES officers in documents will be treated as irrelevant, and seek the applicant's agreement. Usually most applicants will shrug at this point and say yes in the often forlorn hope this will reduce bones of contention. I cited personal experience where the government's preferred guidance setters on FOI, the Attorney General's Department, deleted names with absurd results that those who have carriage of important public policy matters are protected from disclosure for no reason at all.

    In the usual case the names of public servants carrying out public duties should be disclosed when sought although intimidation, harassment or threat to life and safety understandably change the situation. 

    If we need legislative change to get the message through, the Western Australian Freedom of Information Act (Schedule 1 Clause 3) provides a starting point:

    The act provides specifically that matter is not exempt for the purposes of the personal information exemption merely because its disclosure would reveal, in relation to a current or past  officer of an agency, prescribed details relating to the person; the person’s position or functions as an officer; or things done by the person in the course of performing functions as an officer. 

    Prescribed information (Freedom of Information Regulations Clause 9) includes details of the person’s name; any qualifications held by the person relevant to the person’s position in the agency; the position held by the person in the agency; the functions and duties of the person, as described in any job description document for the position held by the person; or anything done by the person in the course of performing or purporting to perform the person’s functions or duties as an officer as described in any job description document for the position held by the person.

    Tuesday, July 21, 2015

    Parliamentarians entitlements-calls for "root and branch review" take us back to the future

    Lots of talk about a"root and branch" review of parliamentarians' entitlements, including on Q&A last night with former Deputy PM Tim Fisher defining the problem as lack of clarity about what is and isn't within entitlement. 

    That's just one of many problems but as the heat hurts and levels of trust and confidence go through the floor politicians can blame themselves and their leaders for not sorting this out years ago.

    The history of the last such review is set out in the Auditor General's Report on travel entitlements (Chapter 2) tabled in June as Parliament rose for the winter break. 

    It's a long sad story of delay and failure by successive governments and parliaments to step up to the plate on recommended reforms to the system.

    Pass the parce
    Four years ago I described it as a case study in slow motion and it hasn't picked up speed since.

    The Auditor General raised a red flag about the system as long ago as 2001-02. There were more red flags in a report in 2009 that led/forced the government in September that year to commission you guessed it, a "root and branch review." 

    The resulting Belcher Inquiry and Report was the first comprehensive review of federal parliamentary entitlements in over 35 years.

    The Labor government received the report in April 2010, held it for a year before releasing it, then acted on two of the 37 recommendations with minister Gary Gray sending the rest off to the Remuneration Tribunal. 

    Fundamental reform ignored
    Five years on according to the Auditor General something, not always what was recommended, has been done with regard to 17 of the 39 recommendations. But 
    "there has been no formal government response to the recommendations of the CROPE (Belcher) report, or subsequent Remuneration Tribunal report, in relation to fundamental reform of the legislative and administrative framework underpinning the provision of Parliamentarians’ ‘tools of trade’." 
    That applies to the Parliamentary Entitlements Amendment Bill 2014 , a bill in the Senate since October 2014 and the subject of this Senate Committee report. The Auditor General said  
    "the measures included in the Bill do not address the overarching structural inadequacies of the existing non‐remuneration entitlements framework that have been consistently highlighted in independent reviews and commentary."
    Proposals in the 2015–16 Budget for further amendment to existing entitlements, yet to be further advanced, don't do it either. The Auditor General:
    "The Budget proposals in themselves do not address the need for the more extensive reform that has been highlighted by earlier independent reviews. In the absence of such reform, Parliamentarians’ entitlements will continue to be provided through a patchwork framework that has been the subject of only limited enhancements. As a consequence, there will continue to be:
    • a lack of transparency as to the particular purposes for which entitlements have been accessed, which can be expected to give rise to continued concerns that the framework is providing greater latitude to Parliamentarians in their use of public money than might be expected in the public interest; and
    • a heightened risk of Parliamentarians being criticised for the judgements they individually make in relation to whether a particular use of publically funded resources was within the terms of the relevant entitlement and represented an efficient, effective, economical and ethical use of public resources."
    Public service advice
    It's not for want of trying by the public servants involved.

    The Auditor General reports the Department of Finance has run the issue up to incumbent special ministers of state to no avail, first in September 2011 and most recently in November 2013 in briefs that presented a proposed legislative framework reflecting the Belcher committee's recommendations. Ministers didn't buy in. 

    Other weaknesses and gaps
    Apart from the absence of "a consistent, simple and transparent framework for providing Parliamentarians with the ‘tools of trade’ required to undertake their respective duties"
    other weaknesses and gaps in the system include:
    • none of the Belcher "recommended additional measures to further enhance the public disclosure of entitlements expenditure have been implemented." "A November 2013 departmental proposal to the (Special Minister of State Ronaldson) that there would be merit in providing more timely, and potentially more detailed, public reporting on entitlements expenditure has also not been actioned." (Katherine Murphy in The Guardian on why its time to get serious about disclosure for political donations, lobbying activity and the use of parliamentary entitlements:"Corporations are required to operate in a system of continuous disclosure. So should politics." Amen to that.)
    • payments by the parliamentary departments, not Finance, to for or on behalf of senators and members are not published and parliamentarians voted to exclude the parliamentary departments from the FOI act (My gripe, not Belcher or the AG);
    • there is no link between public declarations of interests and travel and other use of entitlements, and no single site searchable database of all we should know about our parliamentarians (ditto);
    • the expenditure by departments in support of members of parliament who are ministers is not published (ditto);
    • certification of all usage in a given six month period that expenditure was in accordance with the entitlement "remains a voluntary process with variable levels of adherence by Parliamentarians." The Auditor General doesn't name two parliamentarians who haven't certified expenditure for any of the five six month periods since the requirement was introduced. (The published lists reveal a blank for every period against the names Senator Stephen Conroy and Senator Bob Katter.)
    • the scope of eligible entitlements and what would and would not be publicly funded is yet to be clarified; 
    • definitive advice isn't available about the terms "parliamentary, electorate and official business" that are are used as eligibility criteria for over 50 entitlements. Finance does provide some advice when sought by parliamentarians and staff. However ASKMAPS, an advisory service commenced operations in August 2011. According to the Auditor General, as a result of low uptake Finance decided to cease the service in October 2012 as a savings measure.
    • some entitlements including travel are subject to ‘conventions' that have no legal basis for example publicly funded travel by incumbents during election campaigns up to the point (usually at the end of the campaign) of the leader's policy launch.

    Bronwyn Bishop's charter charges are now being investigated by the Department of Finance in accordance with the Minchin Protocol. The Protocol remains as drafted in 1998. 

    The Auditor General notes it "has been long recognised that the document itself would benefit from amendment to ensure its terms transparently reflect actual practice in dealing with allegations of entitlements misuse, which is not currently the case; and enhance its efficacy as an accountability governance document."

    What odds an announcement soon of another root and branch review?