Rough public service justice.

Almost no media reporting of this decision just prior to Christmas by the NSW Court of Criminal Appeal dismissing an appeal by Allan Kessing against his conviction for breaching Section 70 of the Crimes Act in disclosing government information without authorisation.

The details of the case are well known- Kessing, who pleaded not guilty, was charged, convicted and given a nine month suspended sentence in 2007 after The Australian reported on serious security failings at Sydney Airport, drawing on internal reports prepared in Customs that had not been acted upon for years. After the publicity the Government moved promptly to action stations and spent a couple of hundred million dollars to fix problems some insiders knew about, but of which millions of travellers had previously been blissfully unaware.

The unanimous decision handed down by Justice Bell (to be installed on the High Court of Australia next week) saw the Court of Criminal Appeal reject arguments that the verdict in all the circumstances was unreasonable or could not be supported by the evidence. Nine errors by the trial judge were cited [at 11]. The Court agreed that only one error had occurred when the trial judge wrongly answered two questions from the jury [58-64], but decided no substantial miscarriage of justice actually occurred.

I understand Kessing and his advisers were dismayed at what they see as clear failures to prove the case against him, and errors in the Court of Appeal decision, and Kessing has lodged an application for special leave to appeal to the High Court.

Courts examine evidence, reach conclusions and apply the law. A major problem highlighted by the Kessing case however, is the law itself: the general prohibition in Section 70 against unauthorised disclosure of official information by current or former Commonwealth officers. There are no available defences regardless of the triviality of the information disclosed or, at the other end of the scale, the public interest in disclosure. A version of this law has been on the statute book since the enlightened days of 1914, based on a Queensland act of... 1899! The substance of the current formulation is basically unchanged from that enacted in 1960.

Australia's secrecy laws in general are a problem, so much so that the Australian Law Reform Commission has been asked to undertake a review. Nine days before the Court of Criminal Appeal handed down its decision in Kessing, the Commission released an Issues Paper on the subject. ALRC President, Professor David Weisbrot stated

“The federal statute book has become riddled with secrecy provisions, which make unauthorised disclosure of government information a criminal offence. So far the ALRC has identified over 370 distinct secrecy provisions scattered across 166 pieces of legislation—many more than we expected to find.... A threshold question is whether we should ever charge someone with a crime for disclosing information that a citizen has the right to obtain under Freedom of Information laws? And how do we reconcile the increasing need of public officials to share information with each other and with the private sector to tackle the big issues facing us, such as terrorism, climate change and dealing with the global financial crisis? We seem to be caught in a time warp, between an old culture of secrecy in government and more modern ideas about the fundamental importance to democracy of ensuring openness and accountability.”

Chapter 2 of the Issues Paper includes a discussion of Section 70. The Paper identifies problems in the ambiguity and broad nature of the provision, and lists the numerous bodies and government inquiries, going back years, that have recommended it be reformed, all to no avail so far: a Senate Committee in 1979 when Freedom of Information legislation was under consideration; the Human Rights Commission in 1983 which thought the section could be inconsistent with the International Covenant on Civil and Political Rights; an inquiry in 1991 headed by former Chief Justice of the High Court Sir Harry Gibbs; and in 1994 another Senate Committee that recommended the Act be amended to allow disclosure in the public interest as a defence.

So maybe movement at the station sometime down the track to ensure a proper balance in the current era between the need for secrecy and the public interest in disclosure. None of this will be of assistance to Allan Kessing.

However there are still some highly influential players who are not convinced we- and that means all of us- have a problem. In appearing before the House Committee inquiry into Whistleblowers in November , the relatively new Secretary of the Attorney General's Department Roger Wilkins, fresh from years of experience in the upper echelons of the NSW Premier's Department, said he was mightily impressed by the sensitivity of the information that crossed his new desk, compared to ( my words) the dross back at the state government level. So much so that he expressed this personal opinion (page three of the transcript Thursday 27 November 2008 (PDF 192KB)

"Mr. Wilkins - This is my personal view. I am not sure of the government's view on this. My personal view would be that you should not interfere with section 70 of the Crimes Act. That should remain intact".

If that view remains unchanged Kessing won't be the last to suffer as a result of a law that pays no regard to the public right to know even where government's failure to disclose could seriously endanger the life and safety of the rest of us. Maybe the Russians are onto something in putting the boot on the other foot- criminal penalties for those who fail to disclose in these circumstances.

Public Service Medal for delivering greater transparency.

Verona Burgess in today's Financial Review shows she did a better job than me in scanning the Australia Day Honours list, to find the award of the Public Service Medal to Jennie Granger, Second Commissioner Australian Taxation Office (pictured here), " for delivering greater transparency and openness to the ATO's activities."

Hopefully those who follow ATO affairs closely are enjoying the benefits of her work, and good to see those leading progress in this direction are receiving proper recognition.

UK Committee recommends 15 instead of 30 years for automatic disclosure

Paul Dacre, editor Daily Mail.

The Dacre Committee report on the UK 30 year rule was released this week, and as predicted in The Independent, recommended automatic release of government records after 15 years, and a phasing in of the new rule by releasing an additional year's records each year till catch-up is achieved.

The final report provides a valuable overview of the issues, including international comparisons of archives and Freedom of Information laws, all highly relevant to Australia. Our governments should similarly be reflecting on a rule Dacre describes as "anachronistic and unsustainable" and a"relic from a different age."

The evidence before the Committee:[ 6.1]

"The majority of evidence we have received and heard strengthens our preliminary view that the maintenance of the present 30 year rule is anachronistic and unsustainable. Indeed the case for reduction is very powerful: internationally and domestically, that is the direction in which both government practice and public expectation are moving; the passing of the Freedom of Information [FoI] Act has decisively and irreversibly enhanced the right of the public to have greater access to much more recent official information; and a rule that allows records to remain closed for 30 years, unless access is requested under FoI, thus appears to be an unenforceable relic from a different age."

The Committee's conclusion[6.18-19]

"The drawbacks of instant or premature disclosure of official records, both in terms of collective responsibility and effective government, and also in undermining the orderly and scheduled transfer of official records to The National Archives, mean that there must be some rule. But we do not believe that earlier general access, which would be made possible by a significant reduction in the 30 year rule, would be detrimental to good government. On the contrary, we consider it to be desirable in the public interest. Accordingly, we conclude that the 30 year rule is no longer appropriate in the current climate of public opinion and expectation, and with a functioning FoI Act which allows access to many official records at much earlier dates."

More submissions to Senate Committee on FOI certificates

Senator Helen Polley, ALP- Tasmania, Chair Senate Committee Finance and Public Administration

Submissions to the Senate Committee on the inquiry concerning the bill to abolish conclusive certificates jumped from four to eight this week with Rick Snell, Michael McKinnon, Moira Paterson and myself all rising, if somewhat late, to the occasion. All eight submissions are now posted on the Committee site.

None of the submitters have any concerns about abolishing certificates. Are there any defenders of the status quo prepared to publicly mount the argument against change? Has there been any advance on the Opposition's position in December that it didn't have a view?

Snell and I both comment on the slow and inelegant two stage process of FOI reform underway and each make some observations about aspects of the bill and related matters concerning Archives.Paterson is concerned about changes to Tribunal procedures. She and Snell (as PIAC and the APC had earlier) both query the attempt to fix what is claimed to be a loophole to give blanket protection to documents received by a minister from specified national security agencies. (This has nothing to do with certificates but for some reason has been given priority in this first stage bill while many possible disclosure improvements must wait for another day.) Paterson also points out some problems with another change unrelated to the abolition of certificates-a proposed qualification to third party notification requirements.

McKinnon goes into some detail about why certificates should go, illustrating the lack of fairness in the review process and the contentious public interest arguments (usually not supported by evidence) put forward in defence of non-disclosure. As McKinnon was on the receiving end of many of the 14 or so certificates issued during the Howard years, particularly by Treasury, he is well placed to comment:

"... the basis for Treasury’s certificate issue is not the claim of some higher public interest determined by a conscientious politician in the national good. Instead it is the protection of political interests on issues that would be revealed under a more rigorous and fair FOI system. Treasury’s motive for issuing certificates is to prevent apparent “embarrassment’’ to the government. It is axiomatic that no government would be embarrassed by good policy or programs. Instead, it is policy and program failures, flawed administration or management, corruption or waste that are embarrassing to governments because of the impact on voter support and judgement about the government’s performance. Effectively,( Treasury Secretary) Dr Henry argues failings should be kept secret, and indeed, can be kept secret, by the use of conclusive certificates. The attitude reflects a fundamental contempt for the electorate’s right to be informed and is only possible because of the existence of conclusive certificates."

Readers will be aware of my views about Treasury and transparency, most recently on show in the Fisse case.

McKinnon also reminds the Committee of his application for access to the incoming government brief prepared for the Rudd Government in November 2007 and what emerged about Treasury's views on certificates:

"This FOI application is before the AAT at the moment but the documents already
released show Treasury provided advice to the incoming Rudd Government on why it
should break its election commitment to remove certificates from the FOI Act. The brief advises: “We are concerned that the abolition of conclusive certificates, without
a new and transparent safeguard, will adversely impact on the provision of advice to
government….While conclusive certificates should only be used in exceptional
circumstances, they play a valuable role in cases where the material in question is of
extreme sensitivity for the workings of government. Reliance on conclusive certificates has in part occurred because the exemption for deliberative documents under the FOI Act does not expressly exempt documents on the grounds of frank and fearless advice to the government.’’

McKinnon speaks for many in suggesting another perspective:

"The release of documents to the public on policy issues and options improves debate, informs voters and provides context for judgements about government decisions. This information is not only immensely beneficial to our political system but is a right. Deputy President Forgie questioned the government’s claims in the judgement in McKinnon v Dept PM & Cabinet V2005/1033: “Why is it that the APS can only behave as a professional apolitical body if its work in giving high level advice is kept out of the public arena?’’

McKinnon highlights the energy and resources that agencies are prepared to use in protecting what they regard as sensitive information with the example of the Reserve Bank spending over $300,000 to protect Reserve Bank minutes with a certificate in 2004 and fend off a challenge.Last year the Bank decided more transparency about monetary policy would be a good thing, agreeing that a version of the minutes would be publicly released some weeks after each meeting. The earth still turns...

Serious need to know more

I guess you would expect some important Freedom of Information applications to follow when you open up vaults tightly locked for years and full of dark secrets. Writing in the Kyiv Post Jed Sunden's interest in the Holodomor (the death by starvation of between two and 10 million Ukrainians during a famine in the 1930s that Soviet authorities denied through the 1980's) led him to the FOI Act, and now to apply for documents about why the State Security Service declared him persona non grata from Ukraine in 2000. All a touch more important even than ministers' expenses....

While in that part of the world the Russian Duma passed the Freedom of Information Act last week. More details here.

UK and Australia cabinet documents in stark comparison.

The contrast with Australia is marked- for all the preciousness here about the need for cabinet documents to be virtually inaccessible for 30 years, the UK Information Tribunal has upheld a decision by the Information Commissioner that cabinet minutes of the decision to commit troops to the war in Iraq, particularly the legal advice from the Attorney General, were not exempt and should be released in response to a Freedom of Information application. As mentioned previously the UK Freedom of Information Act contains no specific "cabinet document " exemption and the test required an assessment of the public interest in disclosure or non-disclosure.

See Martin Rosenbaum and Nick Robinson's Blog for neat summaries and a link to the decision. But it may not be over yet- an appeal or a ministerial veto/ certificate (never previously used in the UK) may still be in the offing.

Unless the system changes in the meantime similar Australian documents about the decision to commit to the war in Iraq are likely to surface in .... 2033

Faulkner, maybe a gong in a year's time?

John White Rippa Collection

No gongs this year in the Australia Day Honours for Freedom of Information and privacy advocates or practitioners (although nice to see Julian Burnside and Marion Le recognised for their advocacy of important causes) but Ross Fitzgerald in The Australian today paints a picture of Minister Faulkner's long and somewhat lonely battle for Federal FOI and electoral reform that almost suggests he's due for public recognition for diligence, persistence and political courage:

"In his quest to restore trust, this year Faulkner not only intends to rewrite the Freedom of Information Act to free up government information, he has indicated that he also wants to change key elements of Australia's electoral system. It's difficult to tell which is the tougher task. Fundamental FOI reform will change the modus operandi of bureaucracy and media. Electoral reform will change the way our democracy operates. Resistance to these reforms will almost certainly be strong and often subterranean. While we are unlikely to see anyone bagging transparency and accountability in public, behind the scenes there will be considerable resistance."

There's more along these lines.

Fitzgerald managed all this without once mentioning the slow pace of reform on FOI, originally said to be a high government priority, but still largely just being talked about 14 months later. Or mentioning the considerable slippage that has occurred in Minister Faulkner's second stage reforms with the FOI Discussion Paper and draft FOI Bill to be released for public comment, according to Fitzgerald, "in the first half of this year." Or making any comparisons with President Obama who set a new tone on transparency in government from Day One in office....

With Australia Day behind us may the 2009 show begin.

NSW Lobbyist Register generally in line with Australian precedents but that's about it.

This editorial in the Sydney Morning Herald is right in welcoming the NSW Government's Register of Lobbyists and in pointing out a major weakness: that it only applies to those who for a fee represent the interests of others, not those who seek to influence government on their own behalf.

In this respect NSW is simply following the lead of the Federal Government whose scheme has the same deficiencies.The Feds followed Western Australia where the Government is at least now in post election mode talking of legislation for a proper register- whatever that might mean.

As Professor John Warhurst of ANU and author of Behind Closed Doors: Politics, Scandals and the Lobbying Industry UNSW Press 2007) pointed out in Eureka Street in November the distinction between representatives engaged to lobby (who are subject to some regulation) and an organisation that employs staff to do the same thing directly (who aren't subject to any) is untenable.

"What applies to one should apply to the other if the public are to have confidence in a relatively transparent level playing field in dealings with government."

Warhurst was commenting about the move by David Epstein last year from a position as the Prime Minister's closest adviser to head of government relations for Qantas:

"The appointment breaches the spirit if not the letter of the Lobbying Code of Conduct and makes a mockery of the intentions of the scheme to calm popular concerns after the squalid Burke affair in Western Australia. It clearly allows a situation where big corporate money is allowed to buy special access to government. Epstein has not been offered this job because of his 'good looks' or even his undoubted generic skills and broad experience, but because he is an insider. He not only knows how the Rudd government works at the highest level but also how the levers of government can be pulled. The unfortunate consequence is to reinforce once again the widespread popular belief that Australian democracy is not played on a level field."

Epstein was a lobbyist in the "hired gun" sense before he joined Rudd's team and in the US would now fall foul of a new Obama order both in coming in, and going out of government:

"If you are a lobbyist entering my administration, you will not be able to work on matters you lobbied on or in the agencies you lobbied during the previous two years. When you leave government, you will not be able to lobby my administration for as long as I am president."

Registration of lobbyists-even a comprehensive scheme- is a small step forward (30,000 are registered in Washington and that doesn't seem to have fixed much), but in many areas associated with guarding against undue or improper influence, we're miles behind best practice standards such as publicly available information about what contacts lobbyists have with government, bans on gifts and political donations, and post separation employment. In NSW despite an ICAC recommendation in 2004 there is still no cooling-off period when a minister leaves office- resigning Premier Bob Carr's almost immediate move to Macquarie Bank setting the bar at a depressingly low but still within the law level.

'Follow Obama's lead on transparency, PM told"

Information Commissioner Robert Marleau

So says a headline in the Toronto Globe and Mail, not any of our locals, I'm afraid.

And it's not any old Peter, Paul or Mary speaking, it's the Canadian Information Commissioner, Robert Marleau. Although none appear to have bobbed up publicly in the last day or so, you hope that our own watchdogs and policy heavyweights are telling Federal, state and territory leaders, again if necessary, about the vital role they must play in this:

"I am thrilled to see that Mr. Obama is taking such a forceful position in the context of transparency," Mr. Marleau said. "I'm jealous, yes. Given that the President will meet Mr. Harper in the near future, I hope that they will talk about it and that the President of the United States can be an example for our own political leader."

The Commissioner was referring to President Obama"s comments yesterday, as quoted in The Globe and Mail, elaborating on the written instructions issued to government agencies:

"Starting today, every agency and department should know that this administration stands on the side not of those who seek to withhold information, but those who seek to make it known," Mr. Obama said Wednesday. Mr. Obama said he still wants his government to protect national security and personal information, but that the rules should favour those who are seeking information. "The mere fact that you have the legal power to keep something secret does (not) mean you should always use it," he said. "The Freedom of Information Act is perhaps the most powerful instrument we have for making our government honest and transparent, and of holding it accountable. And I expect members of my administration not simply to live up to the letter but also the spirit of this law." Mr. Obama said "transparency and the rule of law will be the touchstones of this presidency."

Getting the 'we're different" message" out there.

Kevin Rudd, Nathan Rees, Anna Bligh, David Bartlett, Jon Stanhope, Colin Barnett, even John Brumby- Australian government leaders all- came to office with, or thereafter embraced plans over the last 18 months or so, to do something to promote greater openness and transparency, in particular to change the way Freedom of Information laws work in practice.

Some have made a little progress- Bligh has a mostly reasonable "new era" bill on the table. Most are still at the thinking and good intentions stage.

None issued instructions about how things were to be done differently on Day One, Day 30 or Day 100. In the Federal Government's case nothing to this effect has been issued after 400 days in office.While waiting for discussion papers to be prepared, consultations to occur, review reports to be finalised, or bills to be drafted and enacted, in practice things have continued much as before.

Well there are other ways to indicate new and different times. President Obama managed a reference in the Inauguration address to doing business "in the light of day" as necessary to restore trust in government.( It wasn't quite the same, but Kevin Rudd said something similar in talking to Kerry O'Brien three days after being elected 14 months ago.)

But within hours of taking office President Obama, with plenty on his plate, issued not one but two Presidential memorandum on the subject of openness and transparency. One directed agencies to adopt a presumption in favour of disclosure when dealing with Freedom of Information applications,to take steps to publish information and for new FOI guidelines to be issued within 120 days. The other set the same deadline for an Open Government Directive, to be issued by the Director of the White House Office of Management and Budget, that instructs executive departments and agencies and independent government agencies to take specific actions to implement principles befitting transparent, participatory and collaborative government.

The text of both is here.

The specific instruction about FOI reads:

" The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve. In responding to requests under the FOIA, executive branch agencies (agencies) should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public. All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government. The presumption of disclosure should be applied to all decisions involving FOIA. The presumption of disclosure also means that agencies should take affirmative steps to make information public. They should not wait for specific requests from the public. All agencies should use modern technology to inform citizens about what is known and done by their Government. Disclosure should be timely."

C'mon our team, still not too late to take this lead on how to be different.

Brown averts showdown on FOI

The UK Government has backed off-for the moment at least- on the move to put MPs expenses and allowances outside the scope of the Freedom of Information Act, after FOI campaigners shifted into top gear, and Opposition support for the initiative evaporated. Meanwhile nothing happened in Australia to change the situation that similar information is not accessible here.

New and old Russia.

Not inspired by Obama, but good news nevertheless from today's Moscow Times:

"The State Duma on Wednesday is to consider in a third and final reading a bill spelling out citizens' right to gain access to government documents and outlining punishments for officials who do not comply."

The legislation doesn't sound leading edge in some respects, but it's progress. Up to five years in the slammer for officials withholding information in some circumstances might sound extreme, but hard to argue with the example given of the Chernobyl disaster in 1986, when Soviet authorities waited several days to release the news of the explosion at the nuclear power plant, exposing people to radiation.

All this would have sounded more encouraging if we hadn't heard out of Moscow the same day that a prominent human rights lawyer and a journalist were shot dead in the street after the lawyer held a news conference to protest early release of an army colonel convicted of killing a woman in Chechnya.

Restore trust by doing business in the light of day.

He carries the hopes of people everywhere keen to see the US return to a position as a force for good.. and people of goodwill everywhere wish him well.

A great speech by a great wordsmith and incredible orator who was inspiring and inclusive, if just a touch "preachy" in style here and there for this Australian audience of one. It included this commitment in case you missed it:

"The question we ask today is not whether our government is too big or too small, but whether it works - whether it helps families find jobs at a decent wage, care they can afford, a retirement that is dignified. Where the answer is yes, we intend to move forward. Where the answer is no, programs will end. And those of us who manage the public’s dollars will be held to account - to spend wisely, reform bad habits, and do our business in the light of day - because only then can we restore the vital trust between a people and their government."

There will be plenty watching for a new approach to doing business in the light of day. According to the Obamameter there are 510 pre-election promises.

What a load to carry!

Public affairs junkies' cups runneth over.

www.futureofthebook.org
A-Span has now become A-Pac- Australia's Public Affairs Channel- and is up and running from today at Channel 607 on Foxtel and Austar, or your digital set (in Sydney at least), and (soon) on-line here.

But wait.. there's more. In Crikey today Margaret Simons writes that the A-Pac launch seeks to steal a march on the ABC:

"The ABC and pay television are going head to head in a battle for access to that most valuable of natural resources, the broadcasting spectrum. It’s a stoush that goes to the heart of the ABC’s claim to a unique position in the Australian media, and its claim on the taxpayer’s purse. Today pay television providers Foxtel and Austar launch A-pac, a new public affairs channel. They claim they want to provide it free to air to all digital television viewers -- not only their subscribers. The ABC also has plans for a digital public affairs channel. But the truth is that neither Foxtel nor the ABC presently have the spectrum to do what they say they will do. Both are lobbying Communications Minister Stephen Conroy for access to existing free spectrum, plus the rights to use that which will become available when the analogue television signal is switched off. The Government is giving no clues about which of them it will favour. The ABC has every reason to be worried."

MPs and our money still an issue.

B..i..i..i..g fuss in the UK over this move to take MPs expense and allowance payments outside the scope of the Freedom of Information Act, even though the intention is that information about expenditure by each, broken down by sub-heading, will be published in a report by the houses of parliament each year. In the light of past scandals, the concern is over the secrecy that will surround individual items of expenditure. The Campaign for Freedom of Information and others are on the job to try to head this off at the pass.

No big fuss here that the parliament in every Australian jurisdiction- and as a result, all parliament-managed payments to MPs- remain, as they always have, outside the scope of freedom of information legislation.In the Federal arena, this situation continues despite the fact that the Australian Law Reform Commission recommended otherwise in 1995. Doing something about this in Queensland, our most recent and most comprehensive FOI reform, didn't make the cut either.

In NSW only The Greens MP Lee Rhiannon seemed concerned that a wonderfully timed announcement on 22 December by the presiding officers that changes including increased audit of the allowance scheme for MPs won't extend to publication in the annual report of the allowances paid to each member, despite the recommendation in an ICAC sponsored report.

Rhiannon is right to say:

“The key solution to cleaning up MPs allowances is to introduce full transparency. Details of how much public money MPs spend and what they spend it on should be available on the NSW parliamentary website"

By the way in looking at some material on the ICAC website I came across this recommendation in a 2003 report which along with others has not been acted upon:

"That the register of pecuniary interests be established as an electronic database that can be accessed via the Internet by Members of Parliament and members of the public."

It's a long march..

Senate Committee not deluged by submissions on FOI.

Only four submissions have been received to date (the deadline was 7 January) by the Senate Committee on Public Finance and Administration in connection with its examination of the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008. Holidays and all that, and the general feeling that abolishing conclusive certificates is so self-evidently sensible there isn't much to be said probably explain this low level of interest or concern.

Unsurprisingly, Australia's Right to Know (PDF 111KB) and the Australian Press Council (PDF 249KB) want more reform than the Government is proposing. ARTK suggests a public interest override power for the Administrative Appeals Tribunal. The APC is critical of the blanket exemption for documents received by a minister from specified security agencies and wants more wholesale changes to the exemption provisions generally, and changes to fees.

The Public Interest Advocacy Centre (PDF 202KB) also questions the lack of any harm test for the exemption of documents received by a minister from security agencies (Haneef a case in point) and why the Inspector General of Intelligence and Security should be required to give evidence in the AAT before any finding that disclosure of a document would not harm international relations:

"While the Inspector-General.. may be qualified to provide expert and
independent evidence in respect of national security or defence documents, PIAC is not convinced that the Inspector-General .. is qualified to give evidence in answer to
questions of whether disclosure would affect international relations, nor with general questions of confidentiality."

The Federal Privacy Commissioner (PDF 43KB) sees a small privacy issue but is prepared to overlook it.

(If you have trouble opening the pdf files-as I did initially- try accessing them through the Senate Committee link referred to above.)

I doubt if the Government will be much interested in going any further at the moment than what is proposed in the bill (more's the pity). The points made in the submissions are mostly reasonable, but roll on the bigger reform picture- at least the discussion paper "as soon as practicable in 2009", promised by Minister Faulkner.

NSW ADT to decide whether an agent helps or hinders a client

One unheralded change in the operation of the NSW Administrative Decisions Tribunal that came into force on 1 January as a result of the Administrative Decisions Tribunal Amendment Act 2008 No 77 is that the Tribunal now has powers (Schedule 1 Clause 20) to disallow an application by a a non-lawyer to represent a party in proceedings.The explanation given to the Parliament for the change was as follows:

"The Administrative Decisions Tribunal Act currently allows a party to be represented by an agent. The tribunal has advised that on occasions certain repeat applicants before the tribunal have sought to appear on behalf of other applicants. The tribunal has advised that these agents do not always have the same degree of professional detachment or restraint that may usually be expected of representatives appearing on behalf of others in the tribunal and, as such, the representation may not be in the best interests of the applicant. The bill therefore provides that representatives may appear only on behalf of parties in proceedings if the tribunal grants leave to do so. An application to act as a party's representative may be made for any part of the proceedings. Legal practitioners who are suitably qualified and have fiduciary obligations to their clients may continue to appear as of right. This amendment is not designed to deprive applicants of representation in circumstances where it is required; rather, the purpose is to ensure that applicants are not placed at a disadvantage. The bill provides for the making of rules to guide the tribunal and prospective representatives as to the criteria to be considered when the tribunal is deciding whether to grant leave. It is anticipated that the procedure set out in the Consumer, Trader and Tenancy Tribunal Regulation 2002 for the appointment of agents in the jurisdiction will be used by the tribunal as a reference point when drafting its rules on this issue.

Relevant criteria included in the Consumer, Trader and Tenancy Tribunal Regulation include the tribunal being satisfied that the representative is competent to represent the party. In particular, the tribunal will need to be satisfied that the representative has sufficient knowledge of the issues in dispute to enable the party's case to be effectively represented in the tribunal, and that they are vested with sufficient authority to bind the applicant. Other matters set out in the Consumer, Trader and Tenancy Tribunal Regulation may also inform the making of rules in the Administrative Decisions Tribunal concerning representation by agents, including the tribunal considering whether the party will be placed at a disadvantage if not represented by an agent, and the complexity of the issues. That is a relevant and appropriate amendment to make to the Act because there are times when people appearing as agents, although well intentioned, do not represent the best interests of the party. The tribunal then is forced to make a decision in the best interests of the party. These productive and appropriate amendments will ensure that there is full transparency when dealing with matters involving public administrators. For those reasons I commend the bill to the House."

I've no idea how big a problem the Tribunal has with agents who don't show proper professional detatchment and restraint, or who are said to have hindered rather than helped the applicant they represent.
(Disclosure- I have and continue to represent parties in the Tribunal).

But it's worth noting that the Amendment Act does little to address what some would consider higher priorities, for example to fix all sorts of problems and uncertainties that have cropped up in the Freedom of Information and privacy areas which have seen a decade of cases and large amounts of public money spent on jurisdictional issues and arguments.

Only one speaker raised any concerns about the new Tribunal powers: The Greens Lee Rhiannon on 21 October in the Legislative Council:

"The Greens are concerned about the proposed amendment that requires agents who are not legal practitioners to obtain leave from the Administrative Decisions Tribunal to represent a party. People should have the freedom to choose their own legal representation, even if the representative is not a lawyer. Indeed, many people cannot choose to be represented by a lawyer for the simple reason that they cannot afford one. What does the Government propose for people who do not have the money to engage a lawyer and do not have the confidence or the English skills to represent themselves? The Attorney General, in his second reading speech, stated that this amendment will redress concerns that some classes of agents who are appearing in the tribunal are not necessarily able to act in the professionally detached manner that is required in order to represent another's interests effectively. Is it not up to individuals to decide who should act for them, not for the tribunal to decide whether a representative is acting in an individual's best interests? The Greens strongly believe that the starting point should be that individuals have a right to choose their own legal representation. If a number of so-called vexatious agents are abusing the court process and not acting in a party's best interests, then a more reasonable amendment would be that the tribunal has the discretion to disallow an agent if that agent does not meet a set of prescribed standards. The express purpose of tribunals is to be an independent, accessible and cost-effective forum for individuals to seek justice. This amendment appears to take the Administrative Decisions Tribunal in the opposite direction. I want to put the Greens' concerns on the record and indicate that we will continue to monitor this area. Making the tribunal less accessible and potentially less cost-effective will not help the people who turn to this court. An amendment that takes away the presumption that people can choose their own legal representation will not approach being acceptable until the Government coughs up the funding for a community legal service that can meet demand and provide free advice and representation to clients when needed. Clearly, such a service is required in the wider community and would help to ensure the overall effectiveness of this legislation."

No sign to date on the ADT website of any rules or criteria but expect a few noses to be out of joint when the new powers are in play.

Long lost review sort of surfaces, four years late.

A little reflection over the weekend led to a few additions to this item first posted last Friday.

You have to hand it to the NSW Attorney General and his Department when it comes to leaving few footprints in the exercise of some statutory responsibilities. Alerted by a comment in the Administrative Decisions Tribunal Annual Report 2007-2008, that the Government was expected to finally publish and act in spring 2008 on a review of the Tribunal's Act, mandated for 2004, the following emerged after quite a bit of digging.

If you happened across the details of documents tabled in Parliament you find the parliamentary records state the statutory review was dated June 2007 and tabled in Parliament on 3 June 2008. ( For some reason can't get the link working but it says it was tabled in the Legislative Council by Mr Roozendaal on that date).This was news to me and clearly to President O'Connor of the Tribunal who had a major interest. On 19 October 2008 he had signed off on his annual report with this comment about the review:

"The second review (under s 147) was imposed on the Minister. The Act fixed the commencement date as 2002 and the report date as 2003. On behalf of the Minister, the Department commenced the review in 2003. The public submissions process ended in 2004. That report is now expected to be delivered in the Spring Session, 2008 ( emphasis added) in conjunction with a bill making a number of amendments to the ADT Act."

The 2007 date on the report provides no clue that it should have been completed and tabled in 2004. But we know it took three years to complete and a further year for the Attorney General to table it in Parliament.

Given his comment in the annual report it would have been news also for President O'Connor on 19 October that the Attorney General had introduced the Administrative Decisions Tribunal Amendment Bill 2008 on 24 September 2008. In his second reading speech the Attorney General said:

"Members will be aware of the recently tabled statutory review of the Administrative Decisions Tribunal Act. The review concluded that the policy objectives of the Act remain valid. The review also made recommendations for amendments to the Act with the intention of improving the tribunal's operational efficiency. This bill gives effect to the recommended legislative changes in the statutory review as well as making other amendments to enhance the operational efficiency of the tribunal."

In his speech the Attorney General made no mention of the fact that the review report was years late.

Parliamentary debate followed in October with seven speakers in total in the two houses of parliament but it was pretty clear that few had paid much attention to the issues. None including the shadow Attorney General DPP Greg Smith said a word about the timing of the report.(Legislative Council debate on 21 October( see time indicator 3.19 pm); Legislative Assembly debate on 22 October (time indicator 5.22 pm)). The Legislation Review Committee in its report on the Bill made no comment about the Attorney General's failure to comply with a statutory duty.

As to the review report itself, it's still not published on the web and the Attorney hasn't said anything about it in media releases on the Attorney General's website.There is no sign of the report where you might expect to find it, on the Legislation and Policy Division pages of the Department's website.It's all a like the review of privacy legislation which was years late and only published last year after some observers pressured the Department to do so.

How many other parliamentary mandated reviews like these just don't get done or acted upon by NSW ministers, as stipulated? If the ADT Act review is any guide no-one in Parliament pays any attention to such matters.

As to public availability of such reports, the Rees Government's commitment to pro-active publication doesn't appear to have quite got through to AGs.

Smart lawyering can't undo the facts about privacy complaint after the event.

Two recent decisions by the NSW Administrative Decisions Tribunal involving local councils have both confirmed that a complaint about an alleged breach of privacy received by an agency outside the six month deadline, but acted upon, at least in a preliminary fashion, cannot later be claimed to have been invalid because it was a late application.In both cases, the issue arose in a challenge to jurisdiction when the complainant lodged a subsequent application for review by the Tribunal.

In JW v Pittwater Council[2009] NSWADT 4 the applicant for review claimed there had been a breach of NSW privacy law by the council in releasing details of a complaint made by JW about a third party when council had incuded identifying details when responding to an application for documents under Section 12 of the Local Government Act.

The preliminary issue for decision by the Tribunal was whether it had jurisdiction to hear the matter, which turned on whether JW had sought internal review within six months of becoming aware of the alleged breach, or alternatively, whether the council had allowed extra time for the lodging of the application. The problem for the council was that in response to what the Tribunal found to be a late application, the General Manager had written to JW accepting the application and indicating he had asked a senior officer to investigate, and had notified the Privacy Commissioner of receipt of the complaint as required by the Act. The Council had only raised lateness subsequently, after it had sought legal advice.

Judicial Member Higgins stated:

31 In my opinion, on the basis of the contents of the letters from Mr Ferguson to JW (21 May 2008) and the Privacy Commissioner (22 May 2008), from the time the respondent received JW’s application for an investigation into its conduct in releasing JW’s complaint to the third party it accepted the application and dealt with it in accordance with the internal review provisions of the PPIP Act. That is, by inference from the manner in which it initially dealt with the application it allowed JW to lodge her application at the later date it was in fact received.

32 Paragraph 53(3)(d) of the PPIP Act does not contain any formal requirements that must be met by an agency before it can be found to have allowed an applicant for internal review to lodge his/her application outside the prescribed time. As the PPIP Act is beneficial legislation, in my opinion, whether an agency has allowed an applicant for review to lodge his/her application outside the time prescribed can be inferred from its conduct after the agency has received an application for review.

33 In this case, JW’s application was accepted by the most senior employed officer of the respondent, the General Manager. It was at all times open to him to refuse to accept the application on the basis that it was or may be out of time. This he did not do. Instead he nominated the officer who would be responsible for ‘dealing’ with her application for review and advised JW that her application for review would be dealt within a specified period of time and if it was not dealt with within the 60 day period she had a right of review to the Tribunal.

The Tribunal remitted the substantive issues to the Council for reconsideration. The facts of the case are yet another reminder to councils in NSW about the complex relationship between the various acts that apply, and the need for clear and legally accurate guidance for staff who deal with applications for access to documents.

In JR v Snow(sic) River Shire Council [2009] NSWADT 3 Judicial Member Montgomery had reached a similar conclusion about another council's actions in dealing with a late application, although the facts in this case were even more compelling:

32 I have examined the notice sent from the Respondent to the Second Applicant by letter dated 12 September 2008. While I accept that the attachment to the notice states that the internal review application was out of time, in my view it is clear that the Respondent nevertheless undertook the review. The letter clearly states that the Respondent "has undertaken an internal review". It can be implied that the Respondent must have exercised its discretion to accept the application outside the timeframe imposed under the Act. The Respondent could have easily stated that it refused to undertake an internal review because the application was out of time, but it did not do so.

33 I find as a fact that the Respondent exercised its discretion to accept the Second Applicant’s application for review outside the timeframe imposed under the Act and that the Respondent undertook the review.

In this case the Tribunal confirmed that if the Council had exercised its discretion to refuse a late application for review, the Tribunal would have had no jurisdiction to later consider the matter.

State of the print media 2008

The Australian Press Council has published the 2008 edition of State of the News Print Media which summarises developments in a wide range of relevant fields over the last 12 months. Its assessment is that the trend of several years of erosion of free speech has now been arrested to some degree.

In the chapter (Seven) on Freedom of Information Rick Snell, Johan Lidberg and I provide a snapshot of what happened in the lead up to the 2007 Federal election and after, concluding:

"Developments since have kept reform on the agenda, but serve as a reminder that government, left to its own devices, will not approach change with speed or enthusiasm."

The chapter also covers the generally positive developments in the states, at least to the extent of reexamining legislation and the way it has been implemented.

The headnote to chapter 7 describes me as from the University of Tasmania- nice place that it is, I'm still in Sydney, with no connection with that or any other august institution of higher learning.

Tester for NSW Premier's commitment to end culture of secrecy

NSW Treasurer Eric Roozendaal MLC

The Daily Telegraph today reports that the NSW Ombudsman has brought to the attention of the Premier and the Independent Commission Against Corruption issues arising from an investigation into handling of a Freedom of Information application by the Roads and Traffic Authority, said to involve a former staffer of the then Minister for Roads, now Treasurer Eric Roozendaal, attempting to pressure a senior public servant to stop the release of the information which could have been potentially embarrassing for the Government.

The Telegraph, the complainant in the matter, quotes from a letter received from the Ombudsman:

"Some of the issues raised by the investigation have relevance to the entire public sector and for this reason I have proposed provisional recommendations which would require action from the Premier and the Department of Premier and Cabinet."

Should make for interesting reading.

A reasonable period of cabinet secrecy.

Just on that 30 year rule which keeps Federal cabinet documents out of the public domain for longer than good governance requires, The Independent speculated over the weekend that the UK inquiry into the situation there is likely to result in a recommendation that it be reduced to 15 years. The report is to be released later this month.Hopefully food for thought for our policy makers. The Governance group at the 2020 Summit earlier this year apparently was thinking of recommending 10 years until Minister Faulkner entered the discussion resulting in a recommendation of 15 years. As I mentioned in the original post some state legislation gives most documents that could be described as cabinet documents exempt status under freedom of information laws for a shorter period than 30 years. In Queensland the last state to re-examine the issue the Government opted for 20 years despite the Solomon review recommending 10.

Not all smiles at NSW ADT

NSW Attorney General John Hatzistergos MLC

In his overview of the first decade of operations of the NSW Administrative Decisions Tribunal, in the Tribunal's Annual Report 2007-2008, President Judge O'Connor, in wonderfully polite annual report language, highlighted for the Attorney General a few causes of concern:

The apparent absence of policy and principle for what administrative decisions in NSW are subject to review:

In introducing legislation to establish the Tribunal 10 years ago, the then Attorney General

"expressed a broad view as to the administrative decisions that citizens could look forward to seeing reviewed by the ADT. As it has transpired a much narrower range of decisions has been made reviewable. Giving affected persons a right to seek external review remains a choice, in the first instance, for the various portfolios of Government and, ultimately, Cabinet. So far as I am aware, there is no transparent discipline or policy governing the matter. The Tribunal has frequently encountered situations where, within the one Act, there is seemingly inexplicable variation as between the administrative decisions that may be the subject of an application to the Tribunal, and those which may not be. There have been some instances where the review jurisdiction has been removed or reduced by amending legislation, without any public explanation, soon after decisions have gone against an agency."

The failure in NSW to address the issue of further consolidation of existing tribunals:

"While some existing State tribunals were merged into the new ADT, the Attorney noted that as many as 21 State tribunals remained outside its structure. He referred to the values served by consolidation: greater coherence for the public, greater transparency and professionalism, greater ability to introduce good procedures and practices, better use of public resources, avoidance of duplication of similar structures, and the avoidance of perception of conflict of interest where the portfolio department has a substantial involvement in proceedings in a portfolio tribunal. As I have noted in previous annual reports, major reforms reflecting these values have occurred since 1997 in the United Kingdom, Victoria and Western Australia. The Queensland government has announced the creation of a new merged tribunal for that State, commencing March 2009. The one somewhat similar development in NSW since 1997 has been the creation in 2002 of a Consumer, Trader and Tenancy Tribunal, merging three fair trading tribunals."

The matter of the long overdue statutory review of the Act which President O'Connor hoped a year ago was soon to appear.

"The original ADT Act provided for two statutory reviews after a period of experience of its operation. The first was to concern the operation of the Tribunal itself. The second was to concern the operation of the Act as a whole. The first review (under s 146) was undertaken by a Parliamentary Committee from 2000 and 2002, with a final report late in 2002. The second review (under s 147) was imposed on the Minister. The Act fixed the commencement date as 2002 and the report date as 2003. On behalf of the Minister, the Department commenced the review in 2003. The public submissions process ended in 2004. That report is now expected to be delivered in the Spring Session, 2008 in conjunction with a bill making a number of amendments to the ADT Act."

Accommodation and rates of pay for Tribunal members need urgent attention:

"I referred in last year’s annual report to the increasingly unsatisfactory level of accommodation and administrative support for Members. No progress has been achieved. Similarly, there has been no adjustment to their remuneration for several years despite adjustments having occurred regularly in the usual way to the remuneration of full-time judicial officers and full-time State tribunal members doing comparable work."

Support services haven't been too flash either:

"Between 19 December 2007 and 10 January 2008 the Tribunal saw the collapse of the internet and email services supplied by the Department. They returned intermittently during the period, and were fully restored on 11 January 2008. As the Tribunal, unlike the Courts, stays open on a usual basis at this time of the year, this was a major disruption to services."

A couple of FOI/privacy related issues from the report:

Applications for review in the ‘Information Law’ category -Freedom of Information 117, and privacy 36, account for about 40% of the workload of the General Division the same as other recent years. After increasing markedly four years ago, it had since stayed at that level. The President is still keen to see action on serial appellants and intends to make a general submission to the Ombudsman's review of the FOI Act.

Generally time to resolve reviews is slowing :

"As at the end of the current year, the average time from filing to disposal of primary applications in the Tribunal was 0.65 of a year (i.e. 7.8 months). The average time from filing to disposal in the case of an appeal was 0.55 of a year (i.e. 6.7 months). The collective average was 0.64 (i.e. 7.7 months). There has been a decline in the speed of disposal, as compared to five years ago, when the figures were 0.54 for primary applications, 0.31 for appeals, and collectively 0.52 (i.e. 6.3 months). The collective average has now been slowing incrementally each year. The Divisional Heads have been asked to suggest ways in which the turnaround time can be improved."

Tasmanian FOI issues identified?

The Tasmanian review of the Freedom of Information Act proceeds, with the publication of the Issues Identification Forum Report on the Forum organised by the Department of Justice Review Team in Hobart on 10 December.

David Solomon and Rick Snell both spoke to participants, who then discussed the good, bad and indifferent aspects of the current regime. I'm sure the Report faithfully reflects the results, but there is a fair bit of emphasis on improving things for administrators, not necessarily for users. For me it raised a question whether the Forum succeeded in its stated aim of bringing "together key people who respond to requests for information with people who routinely seek access to information using the FOI legislation.."

From the published Participant List of 47 attendees the only users of the Act who were there (apart from Rick Snell who I know has used it from time to time) appear to have been a Greens Member of Parliament and someone from the Environmental Defenders Office; 38 others on the list appear to be representatives of agencies that deal with applications. Maybe user sentiment was heard loud and clear, and there were reasons why media users, interest or professional groups, or interested citizens with experience in using the Act were not invited, uninterested or unable to attend. Maybe FOI indeed is in good shape in Tasmania, albeit with the need, according to participants, for more and better training, awareness and leadership.

But the make-up of the group may explain some of the expressed satisfaction "that the current features of the FOI Act are fundamentally sound and that any suggestions for change are at the margins". And the need even for more rather than less exemptions to protect information received from other governments, state security, and commercial trading and assets of government agencies.

The Review is a public process- submissions close next month- so it will be interesting to see what other users think about FOI in Tassie and how things might be improved.

30 years on some documents still too sensitive for the public domain.

Malcolm Fraser Prime Minister 1975-1983

The annual release by National Archives of 30 year old Federal cabinet documents on 1 January led to quite a bit of media coverage of the big decisions of 1978, but two questions: is the 30 year rule still justified and are there reasonable grounds for still withholding some documents or parts of documents from public disclosure even after that time?

The 30 year secrecy regime for cabinet documents is completely arbitrary. Of course it's better than locking public records up for 50 years or so (still the rule for cabinet notebooks) but is it in the interests of good government, accountability and the broader public interest to keep virtually all cabinet documents from public scrutiny for this long?

Sure, some intelligence, national security, defence and international relations, and other considerations such as danger to life or safety should come into play.But most issues that go to cabinet don't involve matters of continuing sensitivity of this kind and disclosure wouldn't compromise those interests.The Freedom of Information Act provides very broad protection for documents prepared for submission to cabinet and cabinet decisions regardless of content or sensitivity, so the current system means we wait for 30 years to pass before public access to the detail of what cabinet considered and decided on the most important issues of the day. Over 0ne thousand submissions and almost three thousand decisions taken in 1978 were released on 1 January.Most could or should have been in the public domain years ago. I'm with the Canberra Times- "Time to open archives earlier"- on this one.

The Commonwealth FOI Act has no time limit on the cabinet document exemption and badly lags some of the states where the corresponding act protects cabinet documents as such for a shorter time (10 years in the case of NSW), although other exemptions may still apply to those documents thereafter.

Our 30 year rule is a holdover from the days of empire but even the Brits are having a look at whether it still makes sense- Prime Minister Gordon Brown initiated an inquiry into the matter in 2007. Nothing has emerged publicly since, but our policy makers should be giving some thought to whether the 30 year rule is consistent with the principle of open government.

On the second matter of information still not released after 30 years in accordance with exemptions in Section 33 of the Archives Act, many more documents or parts of documents than previous years were not disclosed this year according to National Archives.The reasons given were that there were significantly more records created in 1978 and "matters being considered by Cabinet from the mid 1970s tend to be more sensitive than those considered in earlier years."

About 30 submissions or decisions were not released in whole or part mainly because Archives decided "disclosure could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth". Two submissions and decisions taken on them are said to be so sensitive everything including the subject, date and ministerial proponent have been claimed exempt.In another lodged by the Foreign Minister Andrew Peacock everything is blacked out except his name, the date and the partial title "[blacked out] of Indo-Chinese Refugees."What could [blacked out] have been?

It's not possible for those on the outside to make any judgment on what hasn't been disclosed but you have to wonder why parts of the following 30 year old documents would endanger any current Australian interest: a submission and decision on the status and salary of Director, Australian Secret Intelligence Service; Forward Estimates for the Defence Budget 1978/9; and various papers and decisions on foreign policy issues including Australian policy on the Law of the Sea and relations with PNG Indonesia and East Timor.

The stand-outs however are claims of legal professional privilege and contrary to the public interest for parts of nine documents regarding the establishment of the Uranium Marketing Authority- from a quick search, it doesn't appear to have ever been established and in any event doesn't exist in 2009. Quite apart from the mystery of the basis for this claim, it's worth noting that a Senate Committee 30 years ago, and the Australian Law Reform Commission 10 years ago, recommended against exemption for documents held by Archives on legal professional privilege grounds, but succesive governments have ignored this (and other ALRC recommendations on the Archives Act despite Minister Faulkner's claims.)

Thanks to Elizabeth Masters of National Archives for the prompt response to a request for a hard copy of the media kit which provided information about the release- but a suggestion: put this type of information up on the web. There is a broader interested audience than "accredited journalists" who make it to Canberra for the media briefing.

What bad news did governments successfully bury over the holiday season?

Sure to be quite a bit according to this editorial in the Canberra Times which obseved that this is a great time to get bad news and dodgy reports out there when no-one is listening. Such as the independent report into the Haneef affair:

"Three days before Christmas a 350-page report was dropped to the media, a hasty press conference called immediately afterwards giving no one time to read the document, and we learned of a grave injustice to a resident of Australia.The much anticipated inquiry found Andrews was cleared of any wrong doing, but that his reason for cancelling Haneef's visa was ''mystifying'', and that he had failed to analyse the conflicting reports from ASIO and the Australian Federal Police on Haneef's alleged security threat.

The police were rapped over the knuckles for their ''rambling brief'''. And AFP commander Ramzi Jabbour and the Brisbane-based representative of the Commonwealth Director of Public Prosecutions, Clive Porritt, were singled out for the most, but qualified criticism. Recommendations called for obvious terror law/procedure reviews, but reactions to one of the most headline-making stories of the year were few and not long lasting. In fairness, the report was delayed because of a request by British authorities, but the delay nevertheless highlights the way in which a mood, an event, or a season, can be used in a strategic manner to dampen the bigger-picture inquiry this story should have. It might be the time of year when funny, quirky events steal the show in the media, but the world still turns, the financial crisis is not over, international human rights abuses will not disappear and governments will continue to govern. And we should all keep watching."

It's worth noting, as Dr Susan Rimmer comments elsewhere in the Canberra Times, that the Clarke report didn't have a lot to say about what the whole episode says about attitudes in the Department of Immigration to detention, and that what we can deduce came by way of documents forced out of Immigration through use of the Freedom of Information Act:

"As Haneef's barrister, Stephen Keim, said at a human rights conference in regard to submissions to the Clarke inquiry, ''The picture that emerges then from the FOI documents is one where immigration detention is regarded by law-enforcement officers as another detention option when they are unable to produce the evidence required by the law to detain a person under any true law-enforcement option. This conduct on their part does not appear to receive any significant opposition from the immigration department or its minister.''

Dr Rimmer concludes"In my book, that is a ''bungle'' that deserves attention and structural reform."So does the way the FOI applications were handled. This from a post here last July:

"This decision last week by the Administrative Appeals Tribunal concerning documents sought by Dr Haneef provides an insight into decision making in the Department when dealing with an application for documents about the decision making process. The Department originally claimed 282 documents were exempt. After subsequent concessions, the removal of 73 duplicates, and the Tribunal's decision on six remaining documents, one was found to be exempt. It's worth noting that the original decision was made five months after the coming to office of the Rudd Government, with its many pre-election commitments to change the culture in government in the direction of greater openness and transparency."

Too many old secrets in SA.

South Australia has been mentioned here before as one state that has shown little interest in change to promote more transparency in government. In this editorial The Sunday Mail suggests that the Government's claim that cabinet documents are released after 20 years in SA is not supported by its experience in trying to access some records. For example

"Last year, the Sunday Mail went through the painful process of requesting Cabinet documents related to the 1978 sacking of then police commissioner Harold Salisbury by former Premier Don Dunstan, and the subsequent Royal Commission headed by Dame Roma Mitchell. We wanted to see what documents Cabinet and the Premier used to make these decisions and inform their debate. Our request required an application under Freedom of Information. It was denied. An appeal against this ruling would have cost some $20,000 and it was made clear from the outset the documents would never be released....

All the Sunday Mail received on the Salisbury sacking was the basic two-page executive order signed by the Governor, Premier and some chief bureaucrat. All other documents were refused by the FoI officer for the Premier's department, Warren McCann – also its CEO. The oddity, later discovered, was that some of the very same documents could in fact be found among the personal papers of Dame Roma, donated to the State Library."

The Sunday Mail comments:

"Successive governments have shown no will to change; their natural inclination is to do their business in secret. Just last week, Premier Mike Rann showed his disdain for FoI, saying mounting claims by the Opposition in particular "chew up a huge amount of time". SA can be an exemplar of change only by moving to replace this inbred concealment with a default right to access information. If there was greater political will, there would be no FoI backlog."

WA report on first 100 days

WA Premier Colin Barnett has reported on what has been done to deliver on commitments made in his plan for the first 100 days in office, including this on accountability, and the very modest promises on Freedom of Information:

"Release all information into the Varanus Island Gas Explosion
Mines and Petroleum Minister released the final report into the Varanus Island offshore gas pipeline incident on 10 October.

Introduce legislation for fixed parliamentary terms
Approved by Cabinet and announced by the Premier on 1 December. Legislation will be introduced early in 2009.

Restore an independent Freedom of information Commissioner
Issue has been before Cabinet. The position has been advertised (closed 18 December) and an appointment will be made in the new year.

Legislate for a proper register of political lobbyists Legislation is being prepared by the Public Sector Commissioner.

Appoint an independent Public Sector Management and Standards Commissioner
The Premier/Minister for Public Sector Management announced Mr Mal Wauchope as the first Public Sector Commissioner on 30 September."

A-Span on our doorstep but 2020 Summit response now in the New Year.

Co-chairs of the 2020 Governance group John Hartigan and Maxine McKew

I thought maybe my memory was playing tricks, but no, the Prime Minister had committed in this media release on 31 May to a response to the Final Report of the 2020 Summit, held last April, by the end of 2008. So I had one eye out for this over the break. Not a thing, only to find this now on the 2020 website:

"The Government is considering all of the recommendations in the Final Report and will provide a response in the New Year."

But good news on one of the recommendations of the Summit Governance group that an Australian version of C-Span be established. A-SPAN- Australian public affairs television- will commence operations on pay tv and on-line on 20 January.The Prime Minister in launching A-Span in early December had some good things to say about the need to improve the way our democracy works:

".. A-Span will also be valuable for the wider public – students, for educators, for people following a particular policy debate, and for all Australians who want to understand more about how democracy works and how they could become more involved in it. A-Span is therefore good for Australian democracy. I think one of the charges we all face as those who participate in the workings and life of this great democratic institution is thinking of the generation ahead – how do you breathe life into it again? How do you actually sustain the arteries and the life force of a democracy? The debate about right to know, which John has been so intimately involved in, the debate about how we bring more meaningfully the deliberations of this place and the other legislatures of Australia, into the lives of Australians. I think each generation of politicians has a responsibility to make sure that the institutions are kept not just alive and well but reformed, reshaped, transmitted to those who come after us....

Australians will be able to see and understand our parliamentary processes more easily than ever before. A-Span will not just be a one-way process between Government and the Australian people, it will also give voice to many others in the public debate through its coverage of significant meetings held by major private institutions. That means a better educated public, a more informed public debate and stronger democracy. The Australian Government strongly supports new steps to strengthen our way of governing and to constantly reinvent the way in which the country is governed."

We'll all raise a glass to that.