MPs and opaque arrangements about expenditure of public money

The NSW Remuneration Tribunal last week issued the 2009 Annual Report and Determination of Additional Entitlements for Members of the Parliament of NSW. I'm all in favour of paying parliamentarians properly as recommended by an independent body but we badly need more sunshine about what goes here, despite the Tribunal's commendation of some recent initiatives to improve accountability.

For example how much of the electoral allowance (now ranging from $39950 to$82095 depending on the size of the electorate) each member spends, on what. NSW parliamentarians, like their Federal counterparts may pocket any unspent electoral allowance with the only issue one between the member and the Australian Taxation Office.The Determination tells us one submission received by the Tribunal suggested any unspent portion of the allowance should be returned to the Consolidated Fund rather than being retained by Members, but alas any such change, the Tribunal says, would be outside its powers and require legislative change.

Payments to members are subject to audit but no information about the expenditure of this or other allowances paid to individual members- Logistic Support Allocation, Electorate Charter Transport reimbursement, Committee Allowance, Electoral Mailout Allowance- or expenditure on other entitlements is publicly available from the Parliament. Not even the rule book that Parliamentary Joint Services uses for payments is on Parliament's website. But you can glean a little from the Tribunal Determination.

The Tribunal, at the request of the Presiding Officers, ruled out the use of the LSA to purchase promotional products for constituents such as "fridge magnets, notepads, shopping lists, key rings and pens." No moat cleaning revealed here, but what else is claimed only the Tax office will ever know.

Then there is the Sydney Allowance for members whose nominated place of residence is outside Sydney. It has been modestly increased (by $6) to $246 per night. The Determination tells us that everyone from a backbencher to a minister eligible for the allowance can choose to receive pay as you go payments or a lump sum, in the case of a minister and a few others, 180 nights worth ($44280). Members are to retain some proof they stayed overnight, but no details of expenditure are required. If they choose pay as you go they are entitled to additional payments over the limit on proof of expenditure. The Determination says the payments are meant to provide for long-term accommodation and I wouldn't want to condemn these worthy souls to life in a hotel room but the quid pro quo for nice round sums like $44000 should be publicly available details of where and on what the money goes.

Members of parliament also get money in the LSA to directly employ two or three people in their electoral office at public expense.The Determination even refers to payments to an approved relative. But nothing is publicly available about who is on each of their payrolls.

Is Tasmania unique where newly appointed parliamentary secretary Allison Ritchie resigned from that position and parliament last week after it was revealed she employed her mother, two sisters and her brother-in-law in her office, touching off debate there about the need for some rules about all this?

The legislative branch of government in NSW (which will spend over$100 million on Members Support this year) and everywhere else in the country drags the chain when it comes to open and transparent government. All are outside the scope of freedom of information laws and the parliamentarians themselves, with a few notable exceptions such as The NSW Greens' Lee Rhiannon show no interest in lifting the game on their own volition.

Secrecy on emergency readiness hinders not helps preparedness

From ABC online

Dr Anthony Bergin the Director of Research Programs at the Australian Strategic Policy Institute and David Templeman the former director-general of Emergency Management Australia on excessive and damaging secrecy about national preparedness for large scale emergencies:

"Terrorists already know where our soft spots exist. Sweeping vulnerabilities under the carpet results in our elected representatives having less incentive to fix the problems. When it comes to releasing information about the risks we face, governments should cease treating the public like helpless children that require protection"

Lobbyists register one year on

This discussion on Radio National's the National Interest suggests two prominent lobbyists think the registration scheme, now a year on, has had little or no impact on their operations. Robin Banks of the Public Interest Advocacy Center points out that registration, in the absence of regular reporting on contacts, and a scheme that doesn't extend to those who represent themselves, or to the lobbying of members of parliament, fails to deliver the transparency we should expect concerning influence peddling.

Media organisations clash over FOI reform

Mark Day in The Australian reports on a power struggle within the Australian Press Council partly prompted by a clash over the APC's role and the belief by publishers that it was straying from its mission:

"that increasing resources were being spent on annual state-of-the-media reports and developing policy on issues such as privacy, freedom of information and government secrecy. When the APC and the publishers' new lobbying group The Right to Know clashed on recent government proposals for FoI reform, RTK welcomed the moves, the APC said they did not go far enough and government officials asked which industry voice they should listen to."

They're both right- the Federal reforms were welcome but didn't go far (or fast) enough. On NSW reforms ARTK appears not to have made a submission but the APC managed a view or two. In Queensland on the other hand ARTK was busy- the Premier made a special point in Parliament of singling them out for mention for their contribution.

Gov 2.0 in the news

The Gov.2.0 initiative, about disclosure of useful government information of potential benefit to the community, is running - Minister Lindsay Tanner is blogging away strongly about what he says the Federal Government is on about, which sounds great but has provoked a string of mostly sceptical comment; in the US state information officials are going to work with the White House to develop national standards on disclosure of government data but here is a view that being too open may be problematic; the UK Opposion Leader is talking about "letting data free" if he wins the next election; and the Victorian Parliament Economic Development and Infrastructure Committee reported last week on Improving Access to Victorian Public Sector Information and Data.

All grist for the mill for the Government 2.0 Taskforce.

Alice in Wonderland: Alice wants to know about school.

The NSW Parliament yesterday also finalised the Education Amendment (Publication of School Results) Bill with an amendment forced on the Government by The Greens and the Opposition in the Upper House and accepted by the Assembly (Hansard page 4).

Although it accepted the amendment with teeth gritted, I'm struggling to understand the Government's position on league tables, plain, simplistic or crude, or why those who pushed this think there should be restriction on media treatment of publicly available information. The effect of the amendment that The Greens and the Opposition have won in any event seems absurd, given the fact that anyone on-line or outside NSW will not be restrained by the prohibition on publication. But The Greens are trying to solve that problem too. Next they will be off to the UN.

And this in a law that is otherwise promoting more transparency for information about school performance.

(4) A person must not, in a newspaper or other document that is publicly available in this State:
(a) publish any ranking or other comparison of particular schools according to school results, except with the permission of the principals of the schools involved, or

(b) identify a school as being in a percentile of less than 90 per cent in relation to school results, except with the permission of the principal of the school.

Maximum penalty: 50 penalty units in the case of an individual and 500 penalty units in any other case.


(5) Nothing in subsection (4) prohibits:


(a) anything authorised to be done by or under a relevant national agreement, or

(b) the publication of the ranking of the schools in the top 10 per cent in relation to the results of Higher School Certificate examinations and related assessments so long as the information used to determine that ranking is information as to the results of students that may be publicly revealed under subsection (6) (c).

Today's Fairfax papers on the subject, and this Sydney Morning Herald editorial which concludes:

"Unamended, the bill was a grudging concession to Canberra's demands, allowing school results to be published but in as vague a form as possible. Thanks to the Greens and the Coalition, though, it is now an insult to the public. A Greens amendment bans newspapers and magazines - alone - from publishing school league tables. This attempt at suppression is as offensive as it is futile in the internet age. Its only positive achievement is to expose the Greens' fundamentalist and authoritarian streak. Worse, though, is the Coalition, for whom school league tables were once an article of faith. On Wednesday night it sided with the Greens, hoping to placate vociferous teacher unions and pursue votes by abandoning its own principles. The losers from this extraordinary betrayal are the public, sold out to special interests by the people who should defend them. Schools in NSW should be run not for teachers or bureaucrats, but for the children who attend them."

NSW Government Information Act now law waiting for commencement

The NSW Legislative Assembly yesterday accepted the minor amendments to the Government Information (Public Access) Bill passed by the Legislative Council, so the new law is done and dusted, save for a commencement date. The Act as passed by Parliament is the Bill as introduced with the amendments referred to in this Hansard extract of Assembly debate:

Consideration of the Legislative Council amendments.

Schedule of amendments referred to in message of Thursday 25 June 2009

No. 1 Page 26, clause 53 (2), line 10. Insert "The agency's searches must be conducted using the most efficient means reasonably available to the agency." after "received.".

No. 2 Page 33, clause 64 (2), line 17. Insert "that is necessary" after "amount of time".

No. 3 Page 33, clause 64 (2) (a), line 19. Insert "efficiently" after "dealing".

Mr BARRY COLLIER (Miranda—Parliamentary Secretary) [10.50 a.m.], on behalf of the Hon. Nathan Rees: I move:

That the House agree to the Legislative Council amendments.

Mr CHRIS HARTCHER (Terrigal) [10.50 a.m.]: The Government Information (Public Access) Bill 2009 was introduced by the Premier earlier this week. It was forwarded to the Legislative Council last night where a series of amendments were moved by the Greens and carried by that House. It is not without significance that the bill is being considered in this place today when the news media carries a story that for the first time a report by the Bureau of Crime Statistics and Research prepared by Dr Don Weatherburn has been suppressed by the Government as it relates to juvenile crime figures. The extraordinary situation we have is that, on the one hand, the Premier tells Parliament that he will widen the areas the public are entitled to access to obtain government information and, on the other hand, his Cabinet suppresses for the first time since the bureau was established in 1988 a report on juvenile crime. Dr Weatherburn is quoted in the newspaper this morning as saying, "This is the first time this has ever happened."

That juxtaposition must be considered a test of the Government's sincerity. Notwithstanding that and the comments of the Leader of the Opposition, who led for the New South Wales Liberals-Nationals in debate on the bill, the Coalition accepts and supports these amendments. The amendments are designed partially to try to obtain some degree of coherence and efficiency in the extraordinary billing system that government departments use to respond to freedom of information requests. Requests for information are repeatedly responded to with a letter stating that the information will take so many hundreds of hours to collect and will cost so much per hour, and therefore the applicant can forward thousands of dollars on account—and if more money is required the department will debit the applicant further. In many cases there is every reason to suspect that the response is sent simply because freedom of information officers are looking for a means to frustrate the application. Being unable to frustrate the request on statutory grounds, as outlined in the Freedom of Information Act, the officers seek to frustrate the process by making it cost prohibitive. The amendments moved by the Greens are an attempt to remove as far as possible the tactic of making applications cost prohibitive. The first amendment is to clause 53 (2), line 10 on page 26 of the bill. The amendment states:

Insert "The agency's searches must be conducted using the most efficient means reasonably available to the agency." after "received.

This amendment requires the agency to provide the information efficiently. If the agency's files are structured so that certain words can be entered into the computer system and the files are located, it should take 10 to 15 minutes. It should not require a manual search of the entire filing system. Yet many agency billing accounts refer to an exhaustive manual search of an entire filing system, not just the specialised system relating to the application. The second amendment is to clause 64 (2), line 17 on page 33 of the bill. It states:

Insert "that is necessary" after "amount of time".

With respect to this amendment, the officer cannot just say that the search will take a certain amount of time; he or she must be able to establish that the time frame is necessary. The onus is on the officer to demonstrate a pre-requisite reason for the time taken. The officer cannot just assert that it will take a certain amount of time and therefore demand a large payment, at $30 or $35 an hour. The third amendment is to clause 64 (2) (a), line 19 on page 33. It states:

Insert "efficiently" after "dealing".

Again, this amendment goes to the crux of the matter. Clause 64 refers to an officer in an agency dealing with the application. The specific purpose of this amendment is to insert the word "efficiently". The officer must deal with the request efficiently, not in a long, drawn-out, lackadaisical manner that, once again, sends costs soaring. Over the past 15 years of this Government applications for freedom of information have repeatedly been met with not a denial but a huge account bill. The process of freedom of information requests has been frustrated and distorted by enormous billing accounts. Certain news media organisations may be able to afford to pay tens of thousands of dollars for freedom of information requests, but of course ordinary citizens cannot afford to pay those amounts—and nor can the New South Wales Liberals-Nationals. The Opposition and the citizenry are stymied by the current process. Perhaps news media organisations are not stymied, but even they complain validly about the costs of freedom of information applications. At last we have an attempt to bring the freedom of information application costing system under control. Accordingly, the New South Wales Liberals-Nationals support the amendments. As the Leader of the Opposition outlined in the agreement in principle debate, further matters about accessing government information need to be addressed, but now is not the appropriate time to do so.

Mr BARRY COLLIER (Miranda—Parliamentary Secretary) [10.57 a.m.], in reply: The Government agrees with the amendments. Despite the rant by the Leader of the Opposition in this House during the debate on the Government Information (Public Access) Bill 2009, the amendments were moved by the Greens and not the Opposition. The whole purpose of his rant was to tell us that he "expects to win the 2011 election"—he probably expected to win the 2007 election, but that did not happen. Such is the arrogance of the Leader of the Opposition and also the member for Terrigal, judging from his recent outburst in the House. This is landmark legislation. The upper House in performing its scrutiny function has arrived at amendments that are acceptable to the Government. I commend the amendments to the House.

Question—That the motion be agreed to—put and resolved in the affirmative.

Motion agreed to.

Legislative Council amendments agreed to.

Message sent to the Legislative Council advising it of the resolution

Federal MPs travel details on-line.

Special Minister of State Joe Ludwig yesterday tabled in Federal Parliament the six monthly reports on travel and related expenses paid by the Department of Finance and Deregulation for members of parliament and former members, and overseas study travel reports submitted by members.

Two welcome firsts: for the first time information about airline loyalty points and their use is included. And the reports are also posted on the Department's website.

The information on parliamentarians (537 pages!!) and former parliamentarians comprises: aggregate information on travel entitlements for all Senators and Members; summary information particular to each Senator and Member on costs incurred and any repayments to Finance in the various categories of travel entitlements for two seperate reporting periods:travel paid between 1 July and 31 December 2008 and undertaken on or after 1 July 2008; travel paid between 1 July and 31 December 2008 and undertaken prior to 1 July 2008; and details of payments of Travelling Allowance made by Finance and of any repayments.

Some Fairfax newspapers yesterday reported on the latest details from the Register of Interests for senators and members of Federal Parliament also just tabled, (touching off this debate in the Senate) but we haven't got to the point yet where that sort of information in searchable form is posted on Parliament's website, although hat tip to Open Australia for their manual attempts to publish an "unofficial" version. And also alas, nothing on the web about the significant payments and expenditure of money to and for parliamentarians, including electorate and other allowances administered not by Finance but by Parliament itself.

So at the Federal level some welcome progress. In NSW as we heard from the Attorney General during debate the other night on an unsuccessful move to have the Government Information legislation extend to Parliament itself, those interested in this stuff must be voyeurs.

What to make of leak week?

There are currently over 300 media reports on Google Search about leaks and alleged leakers arising from events of the past week in Canberra and the mystery surrounding Treasury official Godwin Grech.

However The Sydney Morning Herald editorial is right to express a note of concern if the investigation of a forged email "signalled a new crackdown on information flows from the public service and a return to the climate of intimidation enforced under the Howard government. A neutral bureaucracy, biased towards openness, and questioning Senate committees are vital parts of our democracy."

Because forged documents and leaks against the government for political reasons designed to assist the Opposition are one thing, greater transparency about the workings of government are another. This from a post here in June 2008 following controversy about the leak of advice the Government received on Fuelwatch:

"Every organisation must have rules about who can disclose what about its internal workings , but given its role and the nature of the information it holds, special rules should apply to access to government information. We should be entitled to know through designated procedures(not leaks at the whim of someone in the system) what government knows unless some harm to essential public interests would result. Governments need thinking space to weigh advice and make a decision, then choose to act on the advice of this expert or that, or not at all, and to explain itself. However a government serious about transparency should not be trying to limit what we know about the views of its experts by locking the papers up for 30 years when they will be released into open access. Disclosure of the assessments of government advisers, no matter how this occurs, should not endanger the prospect of frank and candid advice in future. The Government should be demanding this sort of advice from its public servants on an ongoing basis. Leakers are not necessarily whistleblowers who deserve sympathy or protection but not all leaks are matters of great national signifigance. Currently unauthorised disclosure of any fact or knowledge acquired in the course of duties by a federal government official is a one size fits all criminal offence under the Crimes Act, for which there is no public interest or other defence. Whistleblowers who act in accordance with established rules to bring to the attention of proper authorities, maladministration, corrupt conduct or the misuse of public money deserve special protection."

The Government needs to keep moving on greater transparency, whistleblower protection, and when finalised, what emerges from the Australian Law Reform Commission examination of secrecy provisions in Commonwealth laws, particularly the draconian Section 70 of the Crimes Act.

Portrait of a busy man

courier mail.com.au
Congratulations to Queensland Freedom of Information review chair David Solomon, who following his appointment earlier in the week to the Federal Government's Government 2.0 Taskforce has been appointed Queensland Integrity Commissioner to give ethical advice to politicians and senior public servants on how to avoid conflicts of interest.

NSW Government Information Bill debate in all the gory detail.

Just on the off-chance that you have a little time on your hands or an overwhelming thirst for the detail, I've put together here the various extracts from Hansard of debate in both Houses of NSW Parliament on the Government Information (Public Access) Bill and related legislation. It runs to 90 pages, starting with the Premier's statement on 17 June, two hours of speeches in the Legislative Assembly on 23 June, and three separate discussions in the Legislative Council on 24 June including consideration of The Greens' amendments around the witching hour. Some of the point-scoring dismissive rejection by the Attorney General of sensible amendments doesn't instil confidence that there was an interest in the best possible outcome.

The two relatively minor amendments accepted by the Government and passed by the Council need to be run by the Assembly of course. That will be routine, today or tomorrow, before Parliament rises to return in September. Haven't seen anything regarding commencement date.

It wasn't a good look on the day of this generally great leap forward to have a report from the Bureau of Crime Statistics suppressed from publication on "Cabinet-in Confidence" grounds. The Attorney General says it will be released in two weeks. By the way under neither the existing FOI Act nor new legislation is there a "Cabinet-in Confidence" exemption that would apply to a report such as this unless it could be shown it was prepared for the purpose of submission to Cabinet ("dominant purpose" in the new world).

NSW Government Information Bill passed by both Houses

The NSW Government Information (Public Access) Bill passed the Assembly on Tuesday and the Legislative Council around 12.30 this morning . The Greens' Lee Rhiannon moved 26 amendments in the Council. All but two related amendments failed as the Opposition sided with the Government on the Bill as introduced, claiming they didn't have sufficient time to consider them properly.

Rejected amendments included an attempt to have Parliament itself brought within the scope of the Act, particularly to ensure scutiny of $100 million allocated for Members' Support including payments to, and expenditures by, members. Attorney General Hatzistergos at one point claimed this information was already publicly available, and on another that what was being proposed " sounded like voyeurism." Ms Rhiannon says the failure to accept the Ombudsman's recommendations in this regard and the lead of countries such as the UK, Ireland, Scotland, India and South Africa tarnishes an otherwise good effort:

"Premier Nathan Rees says he wants to open up his government but he has locked the gate at Macquarie Street, ruining what should be a good news story," Ms Rhiannon said. "The public will still be barred from scrutinising how the $123 million annual budget for NSW Parliament is spent. "The Premier hoped these new FOI laws would signal a new era of openness but the exclusion of NSW Parliament signals that NSW Labor's love affair with secrecy continues. "MPs' pay and how they spend their generous perks and travel allowances will remain a state secret, despite the Premier's claims that 'the days of a secret state are over'.

I'm still looking at the Hansard. The Greens one success was to gain Government support for amendments to ensure searches for documents are conducted efficiently, for example information is retrieved electronically not through papers searches, to reduce the potential costs to applicants- an issue raised in my submission on the Consultation Draft. Unsuccessful amendments sought to:

· strengthen the Act's objects clause

· subject information now caught by a blanket FOI exemption to a
public interest test

· narrow the government's broad definition of cabinet documents
excluded from FOI

· reduce the new lengthier time frames for dealing with FOI
requests

· allow the Information Commissioner to ensure government agencies
comply with the Act.

Let the new era begin!!

Court rules re-litigation of FOI exemption claim an abuse of process

A recent NSW Supreme Court decision (Howell v O'Brien) to dismiss a defamation action brought against the in-house solicitor for Macquarie University involved a number of Freedom of Information aspects including a decision to not allow re-litigation of earlier Tribunal and Court findings that documents were exempt under the NSW Freedom of Information Act.

The plaintiff Sally Howell and the University had been parties to a number of Administrative Decisions Tribunal and Supreme Court cases ( some relevant posts here) concerning documents relating to the investigation of a complaint made against her as Deputy Principal of the Macquarie University Special Education Centre School.In those cases some documents had been found exempt, others were ordered to be disclosed . The defendant, Jenny O'Brien had advised the University about aspects of the complaint investigation conducted by a person engaged by the University for this purpose, and oversighted by the Ombudsman.

The main FOI related issue was whether in these proceedings the plaintiff could seek by subpoena documents held by the University previously found to be exempt by the Tribunal under the FOI Act on grounds of legal professional privilege. Both the Defendant and the University ( which appeared and made submissions but was not a party to the proceedings) asserted that the subpoena should be set aside, either because the Plaintiff was prevented by issue estoppel from challenging the claim of privilege, or because the subpoena constituted an abuse of the court’s process. Justice Patten discussed the relevant FOI history [25-49]), before considering estoppel:

"50 A long line of authority establishes the principle of issue estoppel defined thus by Dixon J in Blair v Curran[1939]

“A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies.”[531]

51 In my opinion, the very issue debated before me upon the subpoena motion was decided adversely to Mrs Howell by the ADT the issue being that the subpoena documents were subject to legal professional privilege of the University.."

However, Justice Patten concluded that estoppel was not available as the University was not a party to the case before him and the Defendant was not a privy of the University, on this point citing [52] the following from the leading text on the subject:

“Res Judicata estoppels operate for, or against, not only the parties, but those who are privy to them in blood, title or interest. Privies includes any person who succeeds to the rights or liabilities of the party upon death or insolvency, or who is otherwise identified in estate or interest. It is essential that the party to be estopped by privity must have some kind of interest, legal or beneficial, in the previous litigation or its subject matter. Privity was described by the US Supreme Court as a mutual or successive relationship to the same right of property, although this cannot be exhaustive. Hence assignees will be bound as privies of the assignor."

However he found for the Defendant on the claim that the issue of a subpoena would involve re-litigation and constitute an abuse of process, citing the following from a decision of the NSW Court of Appeal [53]:

"The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice, and amongst the matters to which regard may be had are -

(a) the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or ultimate issue;

(b) the opportunity available and taken to fully litigate the issue;

(c) the terms and finality of the finding as to the issue;

(d) the identity between the relevant issues in the two proceedings;

(e) any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; ...

(f) the extent of the oppression and unfairness to the other party if the issue was relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and

(g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process". “

Justice Patten rejected the Plaintiff's submission that new evidence had come to light since the ADT decision on the applicability of the FOI exemption that evidenced improper motive on the part of the Defendant, and that this brought into question the privilege claim.[61]

The subpoena was set aside. Justice Patten then dismissed the defamation action on the basis that it was bound to fail because the alleged defamatory publication attracted absolute privilege by virtue of section 25H(2) of the Ombudsman Act. In the course of the decision he rejected a submission that the Defendant also enjoyed the benefit of clause 5 of Schedule 1 of the Macquarie University Act for limitation of liability for any person acting under the direction of the University or the Council in carrying out duties in good faith, because she as the University's employed solicitor, was not in any real sense acting under direction.

Norfolk Island "back from the brink?"

It was no doubt of interest to the 1800 who live out there in the Pacific when the then Minister for Home Affairs announced in May a package of governance and accountability reforms for the Australian external territory of Norfolk Island. According to Islands Business the Minister last year had said the Territory was on the brink of becoming a failed state.

The Member for Canberra, proud to represent those who choose to vote in Federal elections (who said voting in Australia was compulsory everywhere?), elaborated yesterday in Parliament on the Government's plans to:

• Provide access to the Commonwealth Ombudsman to review Norfolk Island Government decisions.
• Provide residents with access to Norfolk Island Government records under Commonwealth freedom of information laws.
• Protect the privacy of residents under the jurisdiction of the Commonwealth Privacy Commissioner for records held by the Norfolk Island Administration.
• Allow residents to appeal to the Commonwealth Administrative Appeals Tribunal against a range of decisions made by the Norfolk Island Government and the Administration.
• Implement a framework for public financial management and reporting more closely aligned to the framework used by the Commonwealth including allowing the Commonwealth Auditor General to conduct audits of the Administration’s financial statements.
• Establish benchmark standards of conduct for Members of the Assembly consistent to those that apply in the States and the Commonwealth.

Thanks to Open Australia for the Hansard link.

Tasmania moving forward on reform inititiatives

The Tasmanian Attorney General says "strong progress had been made on the review of Tasmania’s Freedom of Information and Public Interest Disclosures laws." Tassie is opting for "Right to Information", following the Queensland lead, as the title of the FOI rewrite, due to go to Cabinet shortly. NSW's preference - Government Information (Public Access) - some might say predictably in light of the Attorney General's views about such things, steers clear of "rights."

Only four submissions have been received by the Government so far on Tasmanian whistlebowers' protections, with the close off date this week. Maybe most of those interested might say simply read what they had to say in 71 submissions and 17 supplementary submissions to the Federal House of Representatives Committee Inquiry.

Meanwhile still no hint of any FOI reform interest in Victoria, WA or SA. In SA, this Advertiser report that a response to an application for information about seatbelts in school buses took three years has prompted the Minister for Education to at least ask the Department for an explanation.

Full Court of Federal Court turns pages back to FOI 101

The right to your day in court is a central element of our legal system that must be preserved. But the patience of those involved must be sorely tested in cases, such as Luck v University of Southern Queensland involving a frequent litigant, including on Commonwealth Freedom of Information matters. The Full Bench of the Federal Court spent time and resources (a decision running to 124 paragraphs in three separate but unanimous judgments) in considering and dismissing an appeal, essentially over whether the University of Southern Queensland is an agency for the purposes of the Commonwealth FOI Act. (There were a few other issues including the decision of the hearing judge's refusal to disqualify himself on grounds of bias.)

It isn't and never has been.The University was established by a Queensland act and is an agency subject to the Queensland Freedom of Information Act.Review processes under the state act involve state bodies not the Federal Administrative Appeals Tribunal, or the Federal Court. The applicant pressed the wrong button way back in the process, but pursued the matter doggedly through the Tribunal, a hearing by a single judge and finally the Full Court. While costs were awarded to the University, you can only wonder about the cost to the taxpayer for a matter that was clearly in the wrong jurisdiction. Along the way the applicant who was self-represented, dispensed with the services of two pro-bono legal representatives assigned under Court Order, who according to Justice Rares "failed to win her confidence." I assume they commented about the chances of success.

"The wisdom of the crowd"

When ministers start talking this way, we are moving in the right direction. But I can imagine head-scratching in some public service circles.

Cheney interview off limits-too good comic material.

At least no-one here has justified a Freedom of Information knock-back, on the basis of what the Chasers could do with it. According to AP:

"(US) Justice Department lawyers told the judge that future presidents and vice presidents may not cooperate with criminal investigations if they know what they say could become available to their political opponents and late-night comics who would ridicule them. "If we become a fact-finder for political enemies, they aren't going to cooperate," Justice Department attorney Jeffrey Smith said during a 90-minute hearing. "I don't want a future vice president to say, `I'm not going to cooperate with you because I don't want to be fodder for 'The Daily Show.'"

It didn't wash with the Judge, who wants better reasons.

Wait a moment-where did those script ideas for the Hollowmen come from?

Government 2.0: from words to some action.

The joint ministerial announcement today by Ministers Tanner and Ludwig was the establishment of a Government 2.0 Taskforce (with instant website) to provide advice and assistance to the Government as it moves further into the brave new information world. This sounds a good step that should ensure a broader perspective replaces the Administrative Law framework that has dominated thinking on access to information issues in the Federal Government for too long.

"(The Taskforce) work falls into two streams. The first relates to increasing the openness of government through making public sector information more widely available to promote transparency, innovation and value adding to government information.The second stream is concerned with encouraging online engagement with the aim of drawing in the information, knowledge, perspectives, resources and even, where possible, the active collaboration of anyone wishing to contribute to public life. Importantly, the Taskforce will not just provide advice. It will be able to fund initiatives and incentives( to $2.45 million) which may achieve or demonstrate how to accomplish government 2.0 objectives."

The Taskforce of 15 policy and technical experts and entrepreneurs from government, business, academia, and cultural institutions will be chaired by Nicholas Gruen (I'm a fan of his writings for example this in May last year) and includes Google and Microsoft execs and the respected Queensland Freedom of Information review chair, David Solomon.

There are other tie-ins with FOI Reform, particularly with the proposed pro-active publication commitment, which to my mind is too non-specific at this stage: the Taskforce is to also identify policies and frameworks to assist the Information Commissioner and other agencies in:

• developing and managing a whole of government information publication scheme to encourage greater disclosure of public sector information;
• extending opportunities for the reuse of government information, and considering the terms of that use, to maximise the beneficial flow of that information and facilitate productive applications of government information to the greatest possible extent;
• encouraging effective online innovation, consultation and engagement by government, including by drawing on the lessons of the Government’s online consultation trials and any initiatives undertaken by the Taskforce.

It's going to be busy- a final report and the group disbands by the end of 2009. The Information Commissioner is supposed to start operations in January 2010 so the report should be in the intray-if and when that reform bill that creates the position gets into and through the Parliament.

NSW acts on disclosure of school performance information

I'll leave it to the experts to make what they can of the NSW move ( presumably in line with what is happening in all states and territories) to legislate for the publication of information about school performance. Here is what Education Minister Verity Firth had to say in Parliament last week, making it sound like a big step forward, then claiming NSW has been publishing this sort of stuff for years; in any event amending legislation to permit disclosure of performance information to a national body and subsequent publication by others; and still retaining in the Freedom of Information Act for the time being, and in the proposed Government Information Act, an exemption to protect some information of this kind, and a provision that excludes information relating to relevant functions of the Department and the universities in processing this informtion from the legislation entirely.

On this last point, I raised the breadth of this exclusion, going far beyond the need to afford privacy to individuals, in my submission on the new bill, but vacate the space to James King who set out a strong and detailed case for change. King didn't get anywhere but the Government response to submissions acknowledged the strength of his argument.

Anne Patty in the Sydney Morning Herald says the NSW bill will " lift (the) 10-year ban on the creation of school league tables" but whatever else you make of the Minister's statement she sure didn't say that. The Minister again:

"All State and Territory Ministers have endorsed the important principle that public reporting should not be by way of crude league tables. Instead, the national agreement replicates the best features of the system we have developed in New South Wales—individual reports for each school, with rich information, rather than a single numeral. The protocols agreed by MCEETYA Ministers on 12 June specifically state:Governments will not publish simplistic league tables or rankings, and will put in place strategies to manage the risk that third parties may seek to produce such tables or rankings."

Maybe there is a distinction to be made between league tables and crude and simplistic league tables?

Transparency for government borrowings-why didn't the Government think of that?

That's the only question for a government that keeps talking about the importance of transparency. Bernard Keane writing for crikey.com:

"Joe Hockey’s successful amendment to the Guarantee of State and Territory Borrowing Appropriation Bill 2009 yesterday to establish a Public Register of Government Borrowings is good policy, the fact that some investors have warned that it will reduce demand for government bonds proves it. Yesterday the Government accepted the amendment, which requires the Australian Office of Financial Management to provide a web-based register, updated quarterly, of who owns government bonds. Given the numbers in the Senate, it didn’t have much choice.

The proposal is flawed, sure -- much of the information will become out-of-date quickly as bonds are resold and company structures alter. But more disclosure, rather than less, never hurt anyone with honest intentions. Not that the Opposition has particularly honest intentions in this matter itself. The Register is part of their ongoing campaign on government debt. And there’s a distinctly Sinophobic element to it as well. Joe Hockey made a point of referring to the potential for the Chinese Government to use its ownership of Australian Government debt to seek to wield influence. Pressed on an example of such behaviour at his press conference yesterday, he could only repeat that the Chinese Government had expressed concern about its exposure to US debt, which he called “a significant moment”.

Nevertheless, if you ruled out everything done from impure motives round this place, there wouldn’t be a lot happening. The reaction from the bond market, as conveyed via the AFR today, was to suggest greater transparency would be a turn-off for investors and the Register would “add a couple of basis points for sure”.

Clearly the lessons of the financial crisis, if they were ever learned in the first place, have been quickly forgotten. Lack of transparency -- to governments and regulators, to customers, even to ratings agencies -- was a critical component in the construction of the house of cards that was CDOs and sub-prime mortgages. If investors think greater transparency is a problem for them, it begs the question of what they want to hide, or more to the point from whom they want to hide.

Remember this is AAA-rated debt, exposure to which is about the nearest thing you’ll get to a sure thing in global finance. We’re not talking about junk bonds with a Standard & Poor’s, generously-commissioned pseudo-triple A rating. We’re not talking about the sort of leveraging based on pre-GFC smoke and mirrors. And greater transparency is supposedly a key element of the new international financial framework. Hockey’s register is a good start, whatever his real agenda might be."

"Bloggers to have greater say in legislative debate"

Well, it's an encouraging headline, and, ahem, some of us would like to think so. Minister for Finance Lindsay Tanner dubbed here "the unofficial minister for blogging", and newly appointed Special Minister of State and Cabinet Secretary Senator Joe Ludwig are to announce "an exciting new initiative" at the Government 2.0 event on Monday. It will have to be quick- they have a fifteen minute spot on a very crowded speakers schedule .Where have all the others been during the freedom of information debate of the last few years?

Everything fine and dandy in NSW parliament

When asked in the Legislative Council yesterday about why the NSW Parliament would not be subject to the Government Information (Public Access) Bill the Attorney General John Hazistergos said it was a silly question and that the President of the Legislative Council and the Speaker of the Legislative Assembly had explained the reasons for the decision. He said citing examples of where this had occurred elsewhere, like the UK, was inappropriate "cherry picking" because " how we do business in this Parliament, the checks and balances that exist in New South Wales are not replicated in every other jurisdiction" and "freedom of information legislation in this State and throughout Australia is about keeping the Executive accountable. There are other means for keeping the Parliament accountable."

Just what those means are is not apparent. And-if applying the law to the legislature poses a problem- why the Government has not asked Parliament itself to consider embracing higher standards of accountability and transparency has not been explained. The Attorney General has been a vociferous opponent of a Human Rights Bill or Charter for Australia on the basis that parliament, not unelected judges should strike the right balance in protecting rights. Yet when it comes to a system to ensure the right to know about the day to day operations of Parliament in spending the $123 million allocated in this week's state budget, it is not even a topic worth discussing.

So no more pesky questions please about the $100 million in the Budget for "Members' Support" or how much each member is paid in entitlements or how travel, electoral or other allowances are spent. Just look forward with anticipation to next year's annual report for a few high level details.

Trust us, we're the NSW Parliament.

Much needed reforms proposed for secrecy laws

The Australian Law Reform Commission Discussion Paper on secrecy provisions in federal laws was released today with 65 proposals for change. ALRC President David Weisbrot said the proposals involve major changes to the treatment of secrecy in statutes, currently "507 secrecy provisions scattered across 175 pieces of legislation, including 358 distinct secrecy offences carrying a wide variety of criminal penalties." The statute book at present is "more reflective of the old culture of secrecy than the current preference for openness.’

The Commissioner in charge of the Inquiry, Professor Rosalind Croucher, commented:

“In trying to shift the system towards a more open and ‘pro-disclosure culture’, the ALRC proposes a substantial decrease in the use of criminal sanctions—limiting prosecutions to those unauthorised disclosures in which it is alleged that harm has been caused, or was likely to be caused, to a compelling public interest. These include harm to: national security, defence or international relations; law enforcement operations; the physical safety of a person; or public health. Of course, the offence is more severe where the person intends to cause harm or is recklessly indifferent to the consequences. Mostly, however, it seems preferable to deal with these issues through better education and training, improved information handling practices, and by utilising public service disciplinary procedures."

The Paper steers clear of related issues of Freedom of Information and Whistleblowers Protection which are the subject of other review processes. But the shift to a harm test for criminal sanctions would involve burying the current draconian Section 70 of the Crimes Act which provides for up to two years in jail for any unauthorised disclosure, the basis of the conviction of Allan Kessing following disclosure of information about security shortcomings at Sydney Airport.

Disclosure: I'm a member of the ALRC Advisory Committee for this reference.

Hat tip to those involved in NSW GI Bill

The NSW Government Information (Public Access) Bill and related legislation only got to initial reading stage in the Legislative Assembly yesterday, with the Premier Nathan Rees (copy of the statement here) outlining the key features and government policy that underpins the changes. No other speakers and debate was adjourned. While my druthers, and I'm sure those of others who lodged submissions didn't all get a run, there have been changes to the Consultation Draft that generally improve an all-together good piece of legislation. The Premier and those who did the work deserve high praise for their efforts. The Premier was right to say the bills

"turn the freedom of information regime on its head. The bills establish a framework to actively promote the release of Government information and they offer the opportunity for a fresh start...These bills constitute a fundamental freedom of information revolution... New South Wales will gain the nation's best freedom of information laws. The public's right to know must come first. As well as comprehensively responding to the Ombudsman's report, they pick up reforms arising from the Solomon review in Queensland and recently proposed changes to Commonwealth legislation. The bills mark a paradigm shift. Our public sector must embrace openness and transparency and governments must forever relinquish their habitual instinct to control information. This is generational change and reform that is long overdue."

The Premier said the Privacy Commissioner and the Information Commissioner will be brought together in a single office once the NSW Law Reform Commission report on privacy legislation has been finalised. Local councils will be pleased that confusion over access rights concerning Section 12 of the Local Government Act and the FOI Act are to be no more- Section 12 is to be repealed and local council disclosure obligations (including a reworked 12 (1) now in Schedule 5) and public rights of access to other information are all contained in the GI Bill.

Open Australia gets a wrap

Congratulations to the Open Australia gang- cracking a story in the mainstream media about their great voluntary, free service of immeasurable value in keeping track of developments in Federal Parliament. Rated as "a rival parliamentary record" although it in effect depends on Hansard, but adds great value through repackaging and adding search capabilities. Turns out one third of subscibers are from within goverrnment.

NSW GI law to replace Freedom of Information

The NSW Government has published on the Department of Premier and Cabinet website most of the 57 submissions received on the (now to be titled) Government Information (Public Access) Bill, together with the (mostly reasonable) Government response to submissions, and has introduced the legislation into State Parliament today, apparently with the intention it will pass through all stages immediately. The Premier has also issued a media release, yet to appear on his website, that $3 million initially and $4million on an ongoing basis has been allocated for the stand alone Office of the Information Commissioner.

The most obvious cause for disappointment is the dismissal of calls ( well at least mine) for the law to apply to the administration of Parliament itself, on grounds that the Presiding Officers don't think much of the idea, it may raise separation of powers issues, and no-one else in Australia so far has taken this step.

Here was what I said in my submission on the subject:

"According to the Budget papers, in 2008-2009 $122 million was allocated to the NSW Parliament for administrative purposes. The Budget Estimates Statement describes the role of Parliamentary Joint Services to “provide support and ancillary services to Members and for the operation of the two Houses and the Parliament House building. These services are finance and payroll, archives, catering, education, Hansard, information technology, library and research, security, printing and building maintenance”. The amount allocated for Members Support was $99.5 million. Types of payments to members or on their behalf are not specifically listed. Presumably wages and allowance payments to members are included. No information is publicly available about the expenditure of any allowance payments. The only reference to entitlements in trends of the last five years was ”increased flexibility to Members in the use of their entitlements”. “Increased accountability and transparency” should be a goal from here on.The Premier’s public statements to Parliament have committed the Government to openness, transparency and accountability. The same standards should apply to Parliament through the application of access to government information laws in the same way the law applies to the Executive Branch and, in respect of administrative functions, to the Judicial Branch of Government. All three branches should be covered by the OGI Act. "

If there are insupperable separation of powers issues, how about the Government proposing that Parliament itself resolve to require publication on the web of details of expenditure on administration by Parliamentary Joint Services, including the payment and expenditure of member entitlements?

I'll have a bit more to say when I see the final version

Government 2.0 discussion opens up

Open government and what it should mean in the digital age has had a kick along in the UK, with the Government's appointment of internet founder Sir Tim Berners-Lee to advise on how to make government information more open and accessible. Read all about it on the UK Cabinet Office Blog (now there's an idea). This follows an already lively discussion there on how the UK Government might emulate the US data.gov initiative-"to increase public access to high value, machine readable datasets generated by the Executive Branch of the Federal Government"-which already has a catalogue of 30 datasets or links to information in government systems, and plenty of other ideas in the wings.

And here-hallelujah- Senator Kate Lundy (Labor ACT) has organised a Public Sphere event at Parliament House Canberra on 22 June on Government 2.0: policy and practice for Australia, provoking a lot of comment, ideas, and volunteers to speak. And hopefully some movers and shakers from within government at all levels to lend an ear.

Other developments here come in for positive attention in discussion in Canada about the need to get moving on a digital information action plan, including this that I hadn't seen before:

"In Australia, Senator Kim Carr, who serves as the Minister for Innovation, Industry, Science and Research, has remarked that "to the maximum extent practicable, information, research and content funded by the Australian governments. . . should be made freely available over the Internet as part of the global public commons. This should be done while the Australian Government encourages other countries to reciprocate by making their own contributions to the global digital public commons."

Hear, hear.

Papers catch up from lavish quarters in HK

Just a couple of things from a quick browse of the papers at home.Peter van Onselen writing in The Weekend Australian thinks the arrival of Senator Joe Ludwig as Special Minister of State and Cabinet Secretary signals it's game up for much of Senator Faulkner's integrity in government agenda. I'd suggest we wait at least for a moment or two to see.

Buried away in the South Australian Budget were details of increased government charges of all sorts, according to news.com including an increase in Freedom of Information application fees- the first time anyone has gone in that direction for quite some time.

And amid the FOI forced details of an expensive overseas trip by NSW Minister Joe Tripodi is the revelation that part of the journey was spent at "lavish accommodation" at the Grand Hyatt Hong Kong. Gulp, guilty your honour, I'm here too- but not at Australian taxpayers' expense. Nice place though, even if the global financial crisis and the dreaded flu seem to have wreaked havoc with the tourist trade. Even Joe could crack a discount at the moment.

New surrounds, familiar themes

I'm in Hong Kong for a few days,but there is no escape: according to today's paper 77% of respondents to a Democratic Party survey said they wanted the government to enact new freedom of information legislation; 55 % thought press freedom in Hong Kong had deteriorated in the past two years; 54% believed the media had exercised self-censorship.

FOI sword sheathed

Telstra under former boss Sol Trujillo sure knew how to wage war- 55 Freedom of Information applications in one month last year!! Acording to Business Spectator, Telstra sought documents it hoped would show the Australian Competition and Consumer Commission (ACCC) had been involved in setting up the G9 consortium seeking to compete with Telstra in discussions with the Government about the building of a fibre-based national broadband network. And was gearing up to continue the fight in the Administrative Appeals Tribunal. All withdrawn now as part of the shift in gears by new CEO David Thodey. Sighs of relief all round, I expect.

Food hygiene coming out of the cupboard

A reader-Fitzroyalty, a blog on matters of local interest in the Melbourne suburb of Fitzroy - is doing battle, with some success with the local council over access to food hygiene inspection reports. Another blog, Lifehacker, gives an overview of available information on such things around the country, but I wouldn't make much of any "come-clean" (sorry) performance other than NSW-WA and SA are only publishing in a convenient form, conviction information already in the public domain. Of course even that's better than the other states.

The Sydney Sun Herald last week had an article about restaurant owners protesting that penalties for minor infringements were listed next to serious ones and minor breaches unfairly still stayed on the NSW list for 12 months.The best answer, not yet acted upon by anyone, is for all inspection reports-good or bad -to be published online, with scope for the owner to add information about rectification of identified problems. This type of system would be an incentive for everyone to keep lifting their game to improve standards, surely the underlying policy objective not necessarily achieved by "name and shame."

Ministers and staffers our biggest transparency challenges

Andrew Podger is one of our best and most experienced in terms of the way government works , so his comments about transparency-that the biggest cultural change is necessary at the ministerial and ministerial staff level-are apposite. See the third video here at 7.20

Claims about "advice to Government" don't wash with Harry

Harry Evans Sydney Morning Herald

The Clerk of the Senate Harry Evans has given a preliminary report to Senator Cormann (Liberal WA) on the compliance of witnesses over two weeks of Senate Estimates hearings with a Senate Order passed on 13 May on the Senator's motion, relating to public interest immunity claims in the course of witness response to questions. The report notes there were relatively few-around 26 occasions- when the order was actually or potentially applicable. But Evans takes issue with the oft-cited claim that advice to government can't be disclosed.. because it isn't. Here are some extracts from the report:

"On at least eight occasions ministers and officers invoked the claimed principle that advice to government is not disclosed. This is demonstrably false, as it is contradicted by all the occasions on which such advice has been disclosed. The claim was made by three senior ministers, Senators Evans, Faulkner and Conroy. The claim was also made by the Secretary of the Treasury, Dr Ken Henry, although at the last estimates hearings he answered questions about advice he and the Governor of the Reserve Bank gave to the government about dealing with the global financial crisis. The Department of Foreign Affairs and Trade repeated the often-made assertion that legal advice to government is never disclosed, apparently oblivious to all the legal advice that has been disclosed in the past. It is clear from many examples over many years that the mere fact that information consists of advice to government is not a barrier to its disclosure in the course of a committee inquiry. What seems to be really meant by these statements is that advice is disclosed when the government chooses to do so.

When asked whether he was making a public interest immunity claim in accordance with the Senate’s order, Dr Henry stated that he was not. This could be the beginning of an argument that, over and above public interest immunity claims, government has a discretion to refuse information without raising any public interest ground. In other words, information can be kept secret regardless of whether there is any public interest reason for doing so. Such a claim has no basis in law in respect of legal proceedings or in parliamentary practice. It is an unlimited discretionary claim repudiated by past resolutions of the Senate and explicitly rejected by paragraph (7) of the order of 13 May 2009.

On one occasion Senator Faulkner quoted paragraph 2.32 of the Government Guidelines for Public Service Witnesses, which indicates that material in the nature of advice etc. relating to government deliberative processes may be withheld, but he did not appear to appreciate the effect of the proviso at the end of that paragraph: “where disclosure would be contrary to the public interest”. Those words are marked for emphasis in the original text of the guidelines. It is clear in these guidelines that the fact that information consists of advice is not in itself a ground for a public interest immunity claim, and that there must be a separate consideration of whether there is a public interest ground for not revealing the advice.

On one occasion Senator Conroy stated, when attention was drawn to the Senate’s order: “It is of no relevance to the official. It is only of relevance to a senator.” It is not known what was meant by this statement. If it is the beginning of an argument that the orders of the Senate are not binding on officials, it is clearly not correct. Past orders of the Senate are binding on officials, and it is open to the Senate to make orders governing the conduct of officials during their participation in Senate proceedings or the proceedings of Senate committees.

Senator Conroy also stated: “If you’re not going to respect the conventions, you can pass all the resolutions in the Senate you like.” This appears to indicate a determination to ignore the resolution and to claim that, simply because ministers refuse to answer questions at their discretion, this establishes a “convention”. Obviously, a parliamentary convention cannot be established by unilateral (and inconsistent) assertion by the executive...

In at least five cases grounds for secrecy were raised which have not been regarded as acceptable in the past, including nebulous grounds such as “budget processes”. On one occasion a minister stated that officers may not be asked to clarify factual statements by ministers. One officer stated that information could not be provided until a minister had released it. In one case privacy was claimed for officers’ remuneration, in violation of the well-established principle referred to in past Senate resolutions that the remuneration of persons paid from public funds must be disclosed."

Evans concludes:

"As was pointed out in the advice tabled in the Senate when the order was passed, the basic principle underlying the order is the same as that underlying the government guidelines for public service witnesses: information should be secret only where there is a public interest-related ground, of which there are well-known categories, for maintaining the secrecy. This also appears to be the foundation of the current government’s stated emphasis on transparency and openness. The difficulty in securing observance of the order is the lack of understanding of that principle.Closely related to this difficulty is the apparent notion that a public interest immunity claim is merely one category of claims to withhold information, perhaps confined to the grounds suggested in the government guidelines, while there are additional categories of grounds for withholding information which are somehow different from claims of public interest immunity. It needs to be emphasised that “public interest immunity” is an all-embracing generic term covering all grounds for claiming that information should be withheld from a parliamentary inquiry. The phrase was first adopted by the courts in relation to claims of confidentiality of official information in legal proceedings, and was subsequently adopted in the context of parliamentary proceedings, in substitution for the old phrase “Crown privilege”. The virtue of the term “public interest immunity” is that it emphasises that information may be withheld only on public interest grounds. Information in the custody of officials, including ministers, performing public duties does not belong to the officials, and as the servants of the public they may withhold information from the Parliament and the public only on grounds of possible harm to the public interest." The experience of the estimates hearings indicates that an educative effort is required to secure appreciation of this principle on the part of Commonwealth office holders."

Interesting times. We may have a real barney on the Senate horizon here. In a previous post I mentioned the close parallels between the Senate Order and the Freedom of Information exemption that will apply to advice documents, as a result of the Government's Reform proposals.

Submission on NSW Open Government Information Bill

My submission on the NSW Open Government Information Public Consultation Draft may be of interest. The comment at the time that it is close to a gold star effort still stands. The drafters have set a new standard for plain-English.There are many positive features but of course, room for improvement- about 12 pages worth by mine.

"Disclosure to the world" not an automatic presumption in NSW

The NSW Administrative Decisions Appeal Panel has taken another look at whether "disclosure to the world" should be the default position in considering whether release of documents containing information about the personal affairs of someone other than the applicant under the NSW Freedom of Information Act was unreasonable. In an earlier decision the Appeal Panel had specifically disagreed with the views of Hansen J in Marke v Victoria Police [2007] VSC 522 that in some circumstances the consideration of "unreasonableness" required consideraration of the interests of the applicant and what the applicant intended to do with the information.The decision in Marke was subsequently upheld by the Victorian Court of Appeal. Acting Justice Smart of the NSW Supreme Court in Simring had since commented that he would hesitate before deciding not to follow the majority view of a court of appeal.

The Appeal Panel in Department of Education and Training v GJ [2009] NSWADTAP 33 found, following Marke, that while it was of no help to the applicant in this case, an FOI decision maker, and the Tribunal where exercising such powers, "must not, uncritically, exclude from its consideration matters pressed by the applicant personal to the applicant such as the purpose of the application and promises of limited use":

"47 Clause 6 of the NSW Act and s 33 of the Victorian Freedom of Information Act 1982 are materially identical. Having regard to their respective places in the hierarchy of the Australian legal system, an Appeal Panel of this Tribunal ought, we consider, where there is no material difference in the law under scrutiny, follow any considered decision of an interstate appellate court where it conflicts with a prior decision of the Appeal Panel.

48 These issues received some attention in a recent Supreme Court decision, Simring v Commissioner of Police, NSW Police Force [2009] NSWSC 270 at [70] ff. Smart AJ found it unnecessary to rule on an agency submission that Marke was not correctly decided. His Honour stated at [71] that he ‘would hesitate before not following the majority view of the Victorian Court of Appeal on legislation which has so many similarities to the NSW FOI Act.’

49 Consequently, the FOI decision-maker (agency or review tribunal) must not, uncritically, exclude from its consideration matters pressed by the applicant personal to the applicant such as the purpose of the application and promises of limited use. As the Victorian Court noted, that does not mean that the decision-maker must give effect to the applicant’s plea. The decision-maker may form a negative view as to the likelihood that the promise will be kept, and the attributes of the applicant may militate against acceptance of the promise. The Victorian Court gave the following illustrations of this point: the applicant who is a political activist, a journalist or a member of parliament, all of whom might reasonably be assumed to be likely to seek maximum publicity for the material released."

"Disclosure to the world" will not be the default position in NSW under the proposed Open Government Information Bill either as one of the provisions states personal factors can be taken into account in some circumstances in determining an application. Clause 52 provides:

"Consideration of personal factors of the application

(1) In determining whether there is an overriding public interest against
disclosure of information in response to an access application, an
agency is entitled to take the following factors (the personal factors of
the application) into account as provided by this section:

(a) the applicant’s identity and relationship with any other person,

(b) the applicant’s motives for making the access application,

(c) any other factors particular to the applicant.

(2) The personal factors of the application can be taken into account as
factors in favour of providing the applicant with access to the
information.

(3) The personal factors of the application can be taken into account as
factors against providing access if (and only to the extent that) those
factors are relevant to the agency’s consideration of whether the
disclosure of the information concerned could reasonably be expected
to have any of the effects referred to in clauses 2–5 (but not clause 1, 6
or 7) of Schedule 2.

(4) An applicant is entitled to provide any evidence or information
concerning the personal factors of the application that the applicant
considers to be relevant to the determination of whether there is an
overriding public interest against disclosure of the information applied
for.

(5) An agency may, as a precondition to providing access to information to
an applicant, require the applicant to provide evidence or information
concerning any personal factors of the application that were relevant to
a decision by the agency that there was not an overriding public interest
against disclosure of the information.

(6) An agency is under no obligation to inquire into or verify claims made
by an access applicant about the personal factors of the application but
is entitled to have regard to evidence or information provided by the
applicant.

Note. An agency is not entitled to impose any conditions on the use or
disclosure of information when the agency provides access to the information in
response to an access application. See section 70."