NSW: "Secrets State"

Summer holiday blog

The Sydney Morning Herald has again labeled NSW "The Secrets State", giving a bit of summertime coverage to matters raised in the NSW Ombudsman Report released some months ago. Its all pretty true.

However given a separate report detailing how the NSW Police were unenthusiastic about the purchase of a water cannon to keep ruly citizens under control, it should be acknowledged that the one document relevant to a decision by its political masters to spend $750,000 was released in response to a Freedom of Information application - eventually. The document was released in December 2007. The FOI application was lodged in April 2006

You have to wonder though why it took so long, given the statutory deadline of 21 days, and whether disclosure might have been viewed as a good thing by the Police. It might have helped that the then minister, Carl Scully, is long gone from office.

"Secret State" still resonates. As the Herald comments today (Only blanks from this cannon):

"The episode says a lot about the Iemma Government's approach to its task. The announcement of the decision (to purchase the cannon), carefully leaked to favoured media outlets, got the tough-on-crime headlines it was seeking. Presumably then, the government believed the money was well spent. What the police or anyone else may think is irrelevant........ (The cannon) is ....a fitting monument to the collective of image-makers which NSW calls a State Government".

Disclosure can help achieve policy outcomes

Summer holiday blog

Most Australian governments continue to be over cautious about release of information concerning compliance by private sector bodies or government agencies with policies or standards that apply, or should apply, in the provision of goods or services that have public health or safety implications.

So congratulations to the Queensland Government for its plans to disclose compliance notices issued to day care centres that failed to comply with state standards. As the article recounts, recent attempts to access the list of centres under Freedom of Information failed - the business interests of the centres was said to outweigh any public interest in disclosure.

But another brick bat for the NSW Government for a decision to refuse access to the names of schools where the school canteen was found to have failed food hygiene standards.

The NSW Office of State Revenue recently decided to release details about fines imposed by local councils including $900 imposed by Hunters Hill Council on the owner of Cucinetta for placing two non approved pot plants on the pavement.

But no, the NSW Food Authority decided we shouldn't know which school canteens (or restaurant) sold food that led to a gastro outbreak, had mice dropping in pie ovens, cockroaches in sandwiches and dirty nappies changed near food! Geez.

Our regulatory policy buffs should do a bit more research and reading about the positive policy effects of disclosure of information about compliance with the law. They could start with "Full Disclosure: The Perils and Promises of Transparency" by researchers at Harvard University.

Rudd tells ministers actions must be open to public scrutiiny

Summer holiday Blog

The full text, of the Prime Minister's 'Standards of Ministerial Ethics', announced on 6 December, subsequently made it onto his department's website. (I know the PM has been busy and it is summertime, but it sure is taking time to get the new government websites fully up and running).

We mentioned at the time some of the Standard's key provisions. The detail about contact with lobbyists, conflict of interest and post ministerial employment is of particular significance.

What the Standard says about ministerial accountability is worth highlighting as the Rudd Government starts to get on with the job in 2008:

"Ministers must accept accountability for the exercise of the powers and functions of their office - that is, to ensure that their conduct, representations and decisions as Ministers, and the conduct, representations and decisions of those who act as their delegates or on their behalf - are open to public scrutiny and explanation". (1.3(iii)).

"Ministers are required to provide an honest and comprehensive account of their exercise of public office, and of the activities of the agencies within their portfolios, in response to any reasonable and bona fide enquiry by a member of the Parliament or a Parliamentary Committee" (4.4).

"Ministers are expected to conduct all official business on the basis that they may be expected to demonstrate publicly that their actions and decisions in conducting public business were taken with the sole objective of advancing the public interest".(6.1.)

"Advice (about any issue concerning implementation of the Standard) received by the Prime Minister from the Secretary of the Department of the Prime Minister and Cabinet may be made public by the Prime Minister, subject to proper considerations of privacy". (7.4).

We'll be watching in hopeful expectation that a new era of transparency is about to dawn.

Control and spin still in fashion?

Summer holiday blog

I doubt if news that this reported attempt to control media release justifies the gloom (or is that glee) from Andrew Bolt, in the Herald Sun, that it means the Government's commitment to changing the culture of secrecy accounts for little. It's probably (hopefully) transition stuff rather than a reversal of all those 'greater transparency' promises.

Seasons Greetings

Thanks to all our readers for continuing interest in Freedom of Information, privacy and related issues as they impact on us in Australia.
We are moving into summer holiday mode, so postings will be intermittent for the next couple of weeks.

Hope you all have a great holiday break
Cartoon by courtesy of Chris Slane

Sharing personal information, not joy: Christmas in the UK

They're not relaxed and comfortable in the UK about government handling of personal information - first 25million recipients of child care benefit records (including bank account details) went missing, then 3million records of UK 'learner drivers' disappear in Iowa where they had been sent for processing, and now 6500 pension details (this time not including bank account numbers) have disappeared.

Could happen anywhere I suppose. It's just we don't seem to hear much about it here. Que?

National Access Card binned

Due to other distractions, I missed this article in The Australian that says the Government has moved quickly to scrap the National Access Card project. After all the fuss over the last year, its demise was a strangely silent process. Can I hear in the distance the sound of lawyers arguing over cancelled contracts?

Much deserved self congratulation over at the Australian Privacy Foundation.

US Congress passes FOI reforms

The US Senate and House of Representatives have finally passed legislation to strengthen the Freedom of Information Act, after much negotiation to resolve differences in versions passed by each earlier this year. It's not clear yet whether President Bush who had problems with the earlier versions will sign, or whether the Act might come into force automatically as Congress has now adjourned for the year.

Some of the key features of the Openness Promotes Effectiveness in our National (OPEN) Government Act include a standard for disclosure unless harm would result; extension of the law to non proprietary information held by government contractors; creation of a system to enable each applicant to track the status of a request; establishment of an office of the ombudsman to investigate complaints; and a right to costs where an applicant is substantially successful in challenging an agency decision, including where an agency releases documents after a legal challenge has commenced.

The Bill shortens the statutory period for processing to 20 days (the Victorian Government is proposing to extend the deadline there from 30 days to 75 days in some circumstances!!) and provides that a failure to meet the deadline would result in a refund of charges. Independent journalists (including bloggers) are entitled to the already generous (by Australian standards) fee concessions available to media organisations.

Some of the US changes are highly relevant as we ponder next steps (says he hopefully) even though we have been a long way ahead with ombudsman involvement in complaint investigation.

A fuller summary of the changes is at the end of this article posted by All American Patriots.

US transparency reform should be emulated here

You might be reading a fair bit about Senator Barack Obama, but you may not know that he was a prime mover in getting a law through the US Congress in 2006 requiring greater transparency from the Federal Government.

The Federal Funding Accountability and Transparency Act required by January 2008 publication on a single searchable website information about Federal contracts, grants, loans, and direct payments of government money. The database developed by the Office of Management and Budget (OMB), is now up on the web ahead of the specified deadline as USASpending.gov

You can search by agency, state, electoral district or subject. It will be updated in real time, and members of the public can offer comments. Here are some other details.

Senator Obama said

"This site helps us to achieve.....a vision that, in a democracy people ought to know how their government is operating. This isn't Democratic vision or a Republican vision. It's a vision that rejects the idea that government actions should be kept secret".

The other co sponsor Senator Tom Coburn, said the Act was "the most important transparency measure passed by Congress since the Freedom of Information Act".

Let's hope those who have the ear of our new Special Minister of State, Senator Faulkner and the new Minister for Finance, Lindsay Tanner, alert them to what could be, if they are serious about improving transparency and accountability in our neck of the woods.

While they're at it, they should also bring to their attention some other handy innovations such as the OMB's ExpectMore.gov which shows information about what Federal Government programs perform well and fall short, and what's being done to improve performance next year. There are hundreds of programs listed where results have not been demonstrated and many where performance has been ineffective.

Minister Tanner's razor gang on our Federal expenditure commitments could take a leaf out of this book, and ensure that we are kept fully informed about Federal Government programs that survive the cut.

Minister out and off the hook following change of government

One result of a change of government, is that those who have lost office no longer need to explain discrepancies in what they had to say when they were calling the tune.

Senator Helen Coonan, former Minister for Communications, won't have to tell us how it was that government advertising for the NetAlert campaign said that a survey had shown that more than half of 11-15 year olds who chatted online were contacted by strangers, when the survey, now released in full, shows that only 14% chatted or messaged "a mixture of people including strangers". The inflated figure emerged from including 'friends of friends' and anyone (even those who parents approved) who they had not met in the physical world, as 'strangers'.

Peter Mares of ABC Radio National's "The National Interest" pursued this issue with Senator Coonan on-air, followed up the request using Freedom of Information, and finally was able to access the survey - conveniently (for Senator Coonan at least), just a few days after the election.

Another FOI case bound for High Court

The High Court of Australia has granted leave to Heather Osland to appeal a Victorian Court of Appeal decision that documents that formed the basis for refusal of her mercy petition, should not be disclosed to her under the Victorian Freedom of Information Act. Osland was jailed for nine years for the murder of her husband, while her son who delivered the blow that killed him, was acquitted.

The Victorian Attorney General claimed legal professional privilege for the documents. The Court of Appeal overruled the Victorian Civil and Administrative Tribunal, finding that the Tribunal had erred in law in deciding that the documents should be released on public interest grounds.

The right to know about climate change

With attention focused on climate change and the talks in Bali, the US House of Representatives Committee on Oversight and Government Reform, has released a report of a 16 month investigation into allegations of political interference with government climate change science. 27,000 documents were handed over by the White House Council on Environmental Quality and the Commerce Department.

The Committee says the evidence leads to one inescapable conclusion:

"The Bush Administration has engaged in a systematic effort to manipulate climate change science and mislead policy makers and the public about the dangers of global warming".

The White House called the findings "rehash and recycled rhetoric".

By by Philip good by

Sorry, didn't mean to frighten you (file photo from the ABC Insiders)

There was much less fanfare (in fact none) associated with the the release of the Federal FOI Annual Report for 2006-7. Understandably, no media release from the former Attorney General this year - a year ago Mr. Ruddock said the previous year's report showed the FOI Act was achieving its intended purpose.

This year, the report is left to speak for itself. Overall applications down 6% on last year; 87% seeking access to personal information; 95% granted in full or part.

A couple of other interesting statistics: requests for documents relating to policy and government decisions down from 4680 to 3879 - hardly testimony that FOI has led to greater participation in government affairs; 1000 of these requests took more than 60 days to process (over 650 took longer than 90 days, but exactly how long we don't know); applications for internal review in only 51% of cases saw the original determination affirmed, suggesting quite a lot of decisions wouldn't stand up to scrutiny.

The report says that figures provided by government agencies showed only 56 applications for review were lodged with the Administrative Decisions Tribunal, but the Tribunal reports 120.

There are real obstacles for any applicant who takes a matter to the Tribunal, wins, and seeks an order for costs. The criteria are tight, and the Tribunal powers are only to make a recommendation to the Attorney General that costs be paid. The Attorney General has a discretion to pay or not pay. A year ago, the Annual Report revealed that a total amount of $606 was paid for applicant's litigation costs. This year $85,821! No explanation in the report but some applicant(s) got lucky.

Agencies also spent an extra $800,000 on solicitor's costs ($2, 827,256).

The total estimate of costs associated with dealing with FOI in Federal Government agencies was around $25million including staff costs of $20million.

Just to put it in perspective - the Annual Report of the Department of Prime Minister and Cabinet showed that the Howard Government spent nearly $285 million on advertising in the year to 30 June. We all have a sense that a lot more was spent after that in the lead up to 24 November.

Victorian AG: FOI sets new bench marks

The Victorian Attorney General tabled in Parliament on 6 December the Annual Report on the operation of the Freedom of Information Act. In a media release, the Attorney General says a record number of requests were received and access granted in 97.4% of cases. "Victoria's FOI system is functioning well" said Mr. Hulls.

My guess is that this requires closer examination. The fine print usually provides further insights, but a week after the media release, the 2006/7 report is yet to be posted on the Department's website. The Age reports one in five internal review applications result in a change in decision and in half the matters that go to the Civil and Administrative Appeals Tribunal, result in a variation of the original decision.

Canadian turtles saved, public servant axed but rewarded

We aren't the only ones with unsatisfactory whistleblower protection legislation, but here's a good news story (sort of) from Vancouver Canada.

The Freedom of Information and Privacy Association and the Campaign for Open Government has given its 2007 Whistleblower Award to Gord McAdams, a former employee of the Ministry of Sustainable Resource Management, who on his last day before retirement after 34 years service, lodged documents in a court proceeding that exposed his then minister as having made an unauthorised exercise of statutory power. It turned the case against the government and
needless to say he was fired on the spot. He eventually reached an out of court settlement which appears to have saved his super.

He also saved a population of painted turtles that would have been wiped out if the minister's approved plan had gone ahead.

In Australia, Federal public servants commit a criminal offence if any fact or document acquired in the course of duty is disclosed without authorisation (Section 70(1) Crimes Act 1914). Allan Kessing, a former officer of the Australian Customs Service, in March 2007, was convicted of an offence for disclosing the contents of documents containing threat assessments and risk analyses of airport security in 2003. Kessing was sentenced to 9 months jail, suspended on entering a good behaviour bond, claims he did not disclose the documents, and intends to appeal.

The recent Independent Audit of Free Speech in Australia identified 335 pieces of legislation which contain secrecy provisions that prevent disclosure of government information. Go figure.

Federal Labor is committed to reform so here's hoping.......

Rudd urged to shake us out of complacency

Let's hope that in 12 months time we might see some better news in the UK press about Australia's human rights record, including Freedom of Information, than this dismal summary by Julian Burnside QC in today's Guardian. The comments by readers at the end of the article won't make any of us feel better either.

And what a contrast with reflections on what UK Labour has managed in this respect from Justice Minister Jack Straw - a government proud of its FOI record (Straw doesn't mention a couple of unsuccessful government attempts to water things down), as well as other accomplishments.

Political influence in FOI decision making

Kelvin Bissett in the Daily Telegraph 5 December - Pollies get say in FOI scrutiny - picked up a couple of points from my review of the NSW FOI Procedures Manual posted here a few weeks ago.

My review in full is here.

Bissett made quite a point about the manual's comment that ministers may need to be consulted prior to the making of a Freedom of Information determination in some instances.

Bissett said: "The policy will surprise many applicants who believe their FOI requests will be dealt with at arms length of the political process"

I'm afraid FOI applicants who have been labouring under this apprehension haven't picked up on some of the clues that suggest some responses to FOI applications have a significant input from ministers and ministers staff. And it's not just an issue in NSW.

The report on the Independent Audit into the State of Free Speech in Australia included a section in the Freedom of Information chapter about political influence on decision making. It said that while there was nothing untoward in ministers being made aware of FOI applications being processed, the practice of informing them prior to the making of a decision raised the potential for political influence in a direct or indirect way. The Commonwealth Ombudsman in 2005-06 reported that "Complaints to his office concerning applications for access to non-personal documents typically raised concern about the involvement of ministers and their staff in dealing with a particular application". Regular reports on FOI applications are submitted by some agencies to ministers - the Audit had evidence of this happening in Treasury and Defence.

Guidelines on processing applications for Victorian Government agencies issued by the Department of Justice suggest that a brief on any FOI application should be provided to the minister's office 5 days before finalisation.

Quirks in the Federal and Victorian FOI Acts give the minister discretion to decide any FOI application received by a government department. While there is no evidence that this authority is exercised often, if at all, it may provide the justification for bringing FOI matters to the attention of the minister.

In NSW, where the Act gives authority for public servants to decide on access to agency documents, ministers' offices are kept regularly informed about FOI applications on hand and the Premier's Department requires a fortnightly report on FOI work in progress. A NSW Auditor General's Performance Audit report in 2003 expressed concern about possible perceptions of interference in decision making, citing examples in the Ministry of Transport where the then CEO sought to influence determinations, and in the Department of Education and Training where a draft determination was altered following comments from staff of the then minister. These are probably tips of icebergs.

A more significant problem everywhere is that in some agencies public service responsiveness to the government of the day results in a tendency to act in the government's interests by refusing access to potentially controversial or embarrassing documents.

We are still a long way from routine disclosure of information sought by applicants under freedom of information laws.

FOI Editor's investigative journalism rewarded

Congratulations to Matthew Moore FOI Editor of the Sydney Morning Herald and Malcolm Knox who were awarded the 2007 Human Rights Print Media Award for the series of articles Dead Men Working.

The series exposed exploitation of workers who were too afraid of being sacked or sent home to speak about abuses to which they were being subjected.

"The judges felt that the ....Award should go to this series because it exemplified the contribution the print media can make to better awareness and protection of human rights in Australia. In writing these articles the journalists contributed to government action and increase in public demand for, the introduction of reforms to the temporary visa system that would better protect the rights of al people coming to Australia".

The full list of winners is here.

WA privacy and FOI bills "debated" and onto next stage

The Western Australian Information Privacy Bill, and Freedom of Information (Amendment) Bill, which have been sitting on the Notice Paper since March have made progress, both passing the Legislative Assembly, and now await action by the Legislative Council.

The standard of parliamentary debate on any subject varies enormously, but debate on these two bills was, to be polite, "ordinary". The speakers on the Information Privacy Bill (including on occasion the Attorney General who had introduced it) seemed to be scratching around for questions and answers. (The debate is in Legislative Assembly Hansard 27 November. Pages are not numbered. You can find it by reference to time.The debate commenced at 8.34pm and concluded at 10.22pm).

Throughout the almost two hours, no one mentioned the Australian Law Reform Commission inquiry into Australian privacy laws, and the many questions raised in the course of its work since early 2006 about the Federal and other state privacy laws that provide the model for WA. The WA bill will apply to the public and private sector in the handling of health information. The ALRC has pointed out that state laws of this kind overlap the Federal Privacy Act and are one of the causes of complexity and confusion that should be eliminated.

Having waited years for the WA Government to act on an election commitment to introduce privacy laws, it might have been sensible to hold off on this until the ALRC reports in March 2008.

The main point of debate about the Freedom of Information (Amendment) Bill was about the Government's proposal to remove the authority to decide whether a document is exempt from the Information Commissioner and give it to the state Administrative Tribunal. (The debate is in Legislative Assembly Hansard 28 November - in 2 tranches: 3.12pm to 4.03pm and 7.04pm to 7.48pm).

The Opposition took this issue up strongly, pointing out that it ran counter to the views of experts including Rick Snell of the University of Tasmania. The Attorney General said that Snell and others had been consulted about the proposal, but said the critics had wrongly assumed that the state Tribunal would be as legalistic as the Federal Administrative Appeals Tribunal.

I think time will prove the critics right. An Information Commissioner, properly resourced and with statutory clout, has every chance to provide speedy resolution of FOI matters, while the experience everywhere is that tribunals tend to be dominated by lawyers, and prove slow, costly and conservative in the interpretation and application of the law.

It's a stretch to label what transpired in the Assembly after the dinner break (in the 7.04pm - 7.48pm timeslot) as "debate". Those interested in whether WA is getting value for money from its politicians might read this and weep.

What's this - budget papers anyone could understand?

Most people who have ever tried to make much sense of the Federal Budget papers since the introduction of outputs/outcomes budgeting, will agree with the Minister for Finance Lindsay Tanner, that the details provided of what a Federal agency is going to spend our money on, is impenetrable. The Minister, in the course of an interview on Radio National's The National Interest:

"....(I)f you read... the portfolio budget statements... it's very difficult to connect them with the wider budget papers, it's very difficult to connect them with annual reports, and there is all kinds of basic information that a lot of people in the media - the community whatever - are entitled to have, which is just not accessible"

The Minister said he had asked retiring Democrat Senator Andrew Murray, who has a long standing interest in this issue, "to act as a bit of an auditor on these issues for us".

Senator Murray (whose credentials also include a detailed knowledge of Freedom of Information matters) will continue in the Senate until next July. In the course of a debate in the Senate in September, he expressed strong views about the need for greater disclosure of financial management issues, including removal of some discretionary authority of public service chiefs, and greater parliamentary oversight.

How things change, and it's not yet two weeks

"Transparency and accountability" were a leifmotif this week in Canberra. In so many ways, this government is using these issues to make it very clear that we have a new government with a different perspective. It beats walking around with a sign saying "We are not the Howard Government", and it's just as effective.

Special Minister of State, John Faulkner, said the Government would look at getting rid of the Howard Government $10,000 threshold for anonymous political donations.

"It's all about transparency in the political process. If you have a massive increase to the threshold (from $1500 to $10,000 in legislation passed by Parliament last year), the public has no knowledge of those donations at all. They remain secret. Our party has consistently argued that we oppose those increases in the disclosure threshold".

Of course the new Independent Senator Elect Xenophon was right to say that we need to do something more than this with regard to political donations. Xenophon says that political parties that take the available public funding should be subject to restrictions on private donations. And more immediate public disclosure of campaign donations is needed in this day and age. Information is only publicly available following annual returns lodged by political parties. Surely we should expect notification to the Electoral Commission and publication within weeks, particularly donations made during the course of the election campaign.

In the Ministerial Code of Conduct released yesterday, the Prime Minister has set high standards for ministers. (The boffins are obviously struggling at the moment - the Department of Prime Minister and Cabinet website as at the time of posting, hasn't managed to list anything about the Code). However, back to ministerial standards:

"The Australian people are entitled to expect the highest standards of behaviour from their elected representatives in general and ministers in particular".

The Code spells out requirements for disclosure of interests, and puts limits on post separation employment for ministers. It's still a bit hazy on a couple of issues such as ministerial advisers and whether they answer to parliament.

However the Government is to introduce an online public register listing lobbyists and who they represent, with an update every six months. Registration will be a prerequisite for contact with the Government. Again a query, why shouldn't we expect notification of new clients immediately? And who is a lobbyist for this purpose?

At least it's a start, although a long way short of best practice - here are a few thoughts from Marian Wilkinson earlier in the year.

As mentioned here previously, WA has a register, Victoria has talked about it, and surprise, surprise, NSW thinks it would be "too hard".

Victorian Government loses battle over big dollar project reports

This report in The Age provides a summary of a Victorian Court of Appeal decision that progress reports on major projects, prepared by government agencies to provide the basis for a subsequent report to a Cabinet Committee, are not exempt from disclosure under the Freedom of Information Act. The decision comes two and a half years after the documents were sought by the Deputy Leader of the Opposition.

In Secretary, Department of Infrastructure v Asher (2007) VSCA272, the Court dismissed the agency's appeal from a Civil and Administrative Tribunal decision that the documents did not qualify as Cabinet documents. The documents had not been prepared for submission to Cabinet, and would not disclose any deliberation or decision of Cabinet.

The Court found that even though the information contained in the departmental reports ended up in a submission to the Cabinet Expenditure Review Committee, and the evidence was that the matter was discussed by the Committee, the documents would not disclose any deliberation by ministers in the Cabinet room, or what was decided by them.

Importantly, the decision also gives weight to the objects of the Act and the description in Section 3 of exemptions as those "necessary for the protection of essential public interests".

Justice Buchanan (at 7) commented:

"I can readily understand that it is necessary for the protection of an essential public interest to prevent the disclosure of documents revealing views expressed by members of Cabinet as to a matter and the manner in which Cabinet treats and uses information placed before it. I am unable to see, however, that the disclosure of a document placed before Cabinet, without any indication that Cabinet even read the document, let alone how Cabinet dealt with the document, could jeopardise any public interest".

Today Reserve Bank, tomorrow who knows?

The announcement that the Reserve Bank will release minutes of board meetings, and a statement on its decisions including when there has been no change in interest rates, is another sign of changing times. It comes after a decade of discussion and debate about the issue with the Bank until now firmly against disclosure.

A Freedom of Information request in 2004 resulted in the issue of a conclusive certificate by the former Treasurer to exempt minutes on grounds that disclosure would be contrary to the public interest.

As the Australian Financial Review in an editorial today reminds us

"The changing of the guard in Canberra gives government and statutory agencies some breathing space for some overdue renovations".

Where this might take us who knows?

However the release this week of the United States National Intelligence Estimate on Iran's nuclear intentions and capabilities, is another reminder of scope for a more mature view about the benefits of transparency. The Estimate, based on the views of the US Intelligence community is that Iran abandoned its nuclear program some years ago. Although it acknowledges that Iran may have plans for the future, these findings have put the President on the back foot given his statements about Iran and nuclear weapons over the last few years.

Why was the report released? Here is an extract from the statement issued by the Principal Deputy Director:

"The decision to release unclassified conclusions from any NIE is based upon weighing the importance of the information to open discussions about our national security against the necessity to protect classified information and the sources and methods used to collect intelligence......The decision to release (this Estimate) was made when it was determined that doing so was in the interest of our nation's security. The Intelligence Community is on the record with numerous statements based on our 2005 assessment of Iran. Since our understanding or Iran's capabilities has changed, we thought it was important to release this information to ensure an accurate presentation is available".

Something our own Office of National Assessments (and other agencies) might aspire to.

FOI (and privacy) a responsibility of the Prime Minister

The new Administrative Arrangements Order that sets out responsibilities of federal government departments, and acts administered by ministers, issued after the appointment of the Rudd Government yesterday, lists privacy and freedom of information as matters for the Department of Prime Minister and Cabinet, and Prime Minister as the minister responsible for the Privacy Act and the Freedom of Information Act. (See page 33 of the Order PDF 184 KB )

The detail of how this all works out with the Special Minister of State, Senator Faulkner, remains to be seen. What is clear is that it should ensure a new and different perspective is brought to bear.

Both these functions have since inception been part of the Attorney General's portfolio. There is a chance at least that they will now be seen as matters of public management. FOI in particular has suffered in the Federal (and most state) jurisdictions because it has been primarily seen as a matter of administrative law. Lawyers have a role in all this but policy about how to make government more open and accountable and how to create and implement an FOI Act to achieve this purpose shouldn't be dominated by legal advice or lawyer considerations.

In NSW, this was recognised from the start, with Nick Greiner the then Premier, ensuring responsibility for FOI rested with him and his department. It gave FOI a good start, although legal perspectives almost inevitably soon emerged and assumed prime importance pretty quickly. There has also been a failure of leadership ever since to ensure that FOI acheives its objectives.

I'm sure Senator Faulkner recognises the opportunities and dangers in all this.

Privacy law reform - pushing uphill with a sharp stick

In this article in the Australian Financial Review "Kirby urges net privacy law overhaul", High Court judge Michael Kirby and federal privacy commissioner Karen Curtis have called for an overhaul of laws governing the internet and information technology, warning that the present regulatory framework has been overtaken by the rise of internet powerhouses like Google, Facebook and eBay.

The Australian Law Reform Commission is examining Australia's privacy laws - long out of date and designed before the arrival of these social networking sites.

As everyone has been warned, what goes up on the net is hard to retrieve. Some bright young things, happy to disclose all to their 'friends' may live to regret what a Google search might show when they seek a position in the work force in 10 or 15 years time.