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Friday, May 29, 2009

Some lessons on engaging the public and moving on open government

You might recall I didn't think much of the process that led to the Federal Government's Freedom of Information Reform Exposure Draft- 130 pages of amendments to legislation- plonking onto the table in March. The Draft is now being reconsidered in the light of (41 non-confidential) submissions from the public. This from a post a week after its release, with emphasis on the point I'm making:
"To the outsider, the bulk of available time to date on FOI reform appears to have been spent by Minister Faulkner, his office and the public service engaging in a 16 month, largely private internal seminar on drafting legislation to enable the Government to tick the box on another election commitment. It could have been different if there had been a serious attempt to reach out to engage the community on the subject of government transparency and accountability, not now after 16 months, but way back when minds first turned to the subject.That didn't occur. Overall, however its way better than what was on offer-nothing- from the last lot."
I'm not suggesting we start again, but it is interesting to see the White House Open Government Dialogue which led to 900 submissions and 33,000 votes in a week of public brainstorming on ideas ranging from strategies for making government data more accessible to legal and policy impediments to transparency.The next phase, public discussion of the ideas, starts 3 June. The process was not without its critics- OMB Watch for example- but they also
"give the administration kudos for being innovative and making a real effort to adhere to its commitment to a collaborative and participatory process for open government. There is real potential here that this system may yield new voices and ideas. Noveck (Deputy Chief Technology Officer for Open Government) also states that the brainstorming site will still be running and accepting new submissions through June 19th so this is also positive, but she makes no indication as to how those additional recommendations will be considered, if at all. Further, it is clear that the government is not waiting for these recommendations in order to pursue open government policies. The Innovation Gallery is a clear example of this."
The White House Innovations Gallery "celebrates the innovators and innovations who are championing the President’s vision of more effective and open government."

Our people should be picking up the pace, in similar fashion and on other initiatives such as the US Government economic stimulus website, complete with its own Accountability and Transparency page , there because the "President has made it clear that every taxpayer dollar spent on our economic recovery must be subject to unprecedented levels of transparency and accountability."

I'm afraid the Federal Government's equivalent here came in for criticism in Senate Estimates this week regarding the appropriateness of some political references on a government agency website- has no sign of anything along these lines and produces this in response to a search:

"No document(s) were found matching the query 'accountability and transparency'

Thursday, May 28, 2009

New FOI oversight model attracts a modicum of interest

And yes,a few questions were raised during those 23 hours of hearings about the Government's Freedom of Information Reform proposals, when the Office of the Privacy Commissioner Karen Curtis stepped up to the plate on Tuesday.(Finance and Public Administration 26/05/2009 at 38-45)

Senator Ronaldson (Liberal Victoria) seems to have a bee in his bonnet about 'conflict of interest" and security of data in the proposed Information Commission office, matters that don't appear to have led to problems elsewhere when FOI and privacy oversight have been placed in a single agency.(New Zealand even manages to include the Ombudsman in the same office, apparently satisfactorily, as well.) The answers suggest preparations have matters under control.

Privacy Commission officials said the Office has had 912 complaints this financial year. There were a couple of (justified) questions about the practice of measuring performance on the basis of dealing with complaints within 12 months. The score is 82% but 12 months is hardly a target time frame likely to bring plaudits from those with a gripe.Ten to 13 per cent of complaints are about the public sector, 17 per cent about credit-reporting and 60-odd per cent relate to the private sector.Health, finance and telecommunications providers are the three largest areas of complaint. The Commissioner rates public sector performance highly[41]:
"By and large the Australian Public Service does a great job at handling personal information. When you consider the huge number of transactions that occur on a daily basis with, say, Medicare and Centrelink, the fact that we receive in total probably a little over 100 complaints a year about public sector agencies—the ATO, Medicare, Centrelink and the Child Support Agency—I think our public servants do a very good job. That does not mean that there is not an opportunity to improve their performance."
According to officials the Office has never in anyone's memory had to go to Court to compel co-operation with an investigation of a complaint and gets 5 million hits from one million different visitors to its website in a year

Small postage stamps of the world unite!!

Senate Estimates hearings for the Department of Prime Minister and Cabinet and other agencies in the portfolio dragged on for another nine hours ( with breaks) on Tuesday. (Finance and Public Administration 26/05/2009).

Bloggers everywhere are reeling in the light of Minister Faulkner's
"What I know about blog sites could be written on the back of an extremely small postage stamp."
Otherwise the Minister and officials showed admirable patience through lots of questions(many of the non earthshattering variety) amid frequent reminders from Opposition senators of the Minister's statement: ‘There is no better way to achieve integrity and accountability within government and government transactions than by promoting transparency and openness."

The issue of what information can be withheld in response to questions, discussed at length by the Minister and Senator Cormann the previous day, arose again this time when Senator Trood (Liberal Queensland) asked [50 and following] about the preparation of the Defence White Paper, in particular which intelligence agencies contributed to the process, differences of view between them and when the differences became material and clear. The official wasn't going there, Minister Faulkner backed him up, but after rumblings about a private hearing to sort this out, and an adjournment to enable some consultation, the Minister returned to respond [57]:
"I make the general point in relation to the contribution to the white paper process of the intelligence agencies that of course intelligence agencies do make a contribution to this process in accordance with their duties and mandate. Specifically let me say this in answer to Senator Trood’s question. I can inform the committee that DIO produced a series of dedicated intelligence reports specifically for the white paper. I can also inform the committee that the Office of National Assessments prepared a national assessment which served as its contribution to the white paper development process. I can also inform the committee that during the white paper development process the Defence officials responsible for the production of the white paper or production of drafts of the white paper consulted other reports prepared more generally by both the ONA and DIO. Finally, I can inform the committee that relevant Australian intelligence community agencies were consulted during the white paper process but that DSD and DIGO as technical collectors were not."

Senator Trood expressed thanks but said this confirmed what he had read in the newspapers.The rest of his questions were taken on notice:
"Did the views of ONA and DIO, which you have acknowledged were contributing agencies to the preparation of the defence white paper, more or less accord with each other with regard to China’s rise and whether or not China’s rise constituted a threat to Australia’s strategic interests? That is question 1. Secondly, were the views of the Defence Intelligence Organisation and ONA at odds, or did they place different emphasis, on the views of the Department of Defence and the Prime Minister’s department in relation to this matter? Did the Director-General of the Office of National Assessments, Mr Varghese, write to the Prime Minister about the China debate and express alarm or concern that the nature of this debate within government could distort Australia’s national security priorities? Finally, assuming that there was a difference of view here between the agencies and the department of defence and indeed the Prime Minister, did the Office of National Assessments seek to resolve this difference of views for the purposes of preparing the defence white paper?"
Senator Trood was having none of the idea that answers to questions like these pose any danger to national security or international relations, or otherwise would be contrary to the public interest.

Wednesday, May 27, 2009

Malcolm Turnbull: Brits should learn about allowances from us

I'm sure it's never a slow day out there in Oppositionland, but Malcolm Turnbull also today sent this response to my article in New Matilda:

I read your piece and cannot agree. The allowances to Australian politicians are very transparent and independently determined. The travelling allowance for Canberra for example is a flat rate which everyone gets regardless of where they stay. There are no provisions for upgrading duck ponds, or buying flat screen TVs or any of the scandalous nonsense we have seen in the UK.

I think you will find the UK moves to a system like our own.

The Hon Malcolm Turnbull MP
Leader of the Opposition
Federal Member for Wentworth

To which I replied:

Dear Mr Turnbull,

Thank you for your response. There is no question that the allowances are independently determined and with a little digging you can find out what they are.The point is that how the allowances-electoral, travel, printing, communications, etc- are spent is not transparent. There are even questions- first raised eight years ago by the Auditor General and again in Estimates Committee in February this year- about whether some expenditures on behalf of parliamentarians by the Department of Finance and Deregulation (which spends $390 million running its support services for parliamentarians) are confirmed and signed off as properly incurred. No information is published on the web by Parliament or Finance (other than global amounts for some travel) about expenditure of allowances . Neither is the Register of Interests available in this way. None of the three departments that service parliament and pay some allowances-combined expenditure this year of $318 million- are covered by the Freedom of Information Act. Nor is this part of the Government's FOI Reform proposals.

All in all, I doubt the British have much to learn from us on this aspect of accountability and transparency.

Peter Timmins

Access to advice: Senator Cormann responds

The following note from Senator Cormann regarding his exchanges with Minister Faulkner on Monday in Senate Estimates is worth a bit more space than the Comments section allows.

Dear Peter,

Thank you for your interest in the recent exchange between Senator Faulkner and myself during Senate Estimates. I was most interested in reading your account of that exchange, and like you I am keenly interested to see where the discussion will go from here.

For the purposes of completeness and accuracy I thought I would draw your attention to a few relevant matters.

Senator Faulkner was in fact quoting, not from the continuing order of the Senate, but from paragraph 2.32 of the government's guidelines for official witnesses before Parliamentary Committees (and selectively at that).

A copy of these guidelines is available here:

Senator Faulkner at the Committee also suggested that there is a long-standing practice of not revealing the content of advice to Ministers.

I have since written to Senator Faulkner following up on our hearing on Monday to draw his attention to consistent advice by the Clerk of the Senate that there is no such long-standing practice.

Advice to ministers is frequently disclosed. Among many other examples, you might recall the last estimates hearings when the Secretary of the Treasury and the Governor of the Reserve Bank answered questions about the advice they had provided to government on dealing with the global financial crisis. It is clear from this and from many other such 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.

Secondly, in relation to Senator Faulkner's selective quoting of paragraph 2.32 of the Government Guidelines for Public Service Witnesses - that provision does indeed indicate that material in the nature of advice relating to government deliberative processes may be withheld.

However, Senator Faulkner omitted to note (or quote) the particular 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 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.

Persistent misunderstanding about these two points has led to constant difficulties in Senate committee hearings in the past, and it is one of the aims of the continuing order of the Senate of 13 May 2009 on Public Interest Immunity Claims to overcome that misunderstanding.

In very simple terms, the order of the Senate passed on 13 May 2009 requires that, if asked, a responsible Minister advance a recognised public interest ground and provide a statement with the reasons for not disclosing the particular advice which questions are being asked about.

I have asked Senator Faulkner to reconsider the position he took at Monday’s hearing of the Finance and Public Administration Committee, in particular, given the evidence by the Officer that the advice had not been provided in the context of Cabinet deliberations, but appeared to be more in the nature of routine advice as is requested by Ministers from time to time.

For those visitors to your blog with a particular interest in the matter I commend the debate between Senator Ludwig as Manager of Government Business and myself as mover of the motion in the Senate on 13 May, which can be accessed here:

Thank you again for your interest in these important matters of government accountability.

Kind regards

Mathias Cormann
Senator for Western Australia

The debate on the motion of Senator Cormann, subsequently adopted by the Senate on 13 May requiring reasons for any claim of public interest immunity and laying out a process to be followed where claims are made, is best accessed here through the wonderful resources of Open Australia.( Memo Senators: the publicly available search facilities on Hansard don't do the job.)

Well worth a read, particularly the following from the Clerk's advice of 19 May 2005:

"…the mere fact that information consists of advice to government is not a ground for refusing to disclose it. Again, some harm to the public interest must be established, such as prejudice to legal proceedings, disclosure of cabinet deliberations or prejudice to the Commonwealth's position in negotiations. Any general claim that advice should not be disclosed is defeated by the frequency with which governments disclose advice when they choose to do so."

"Critics of FOI join me" as Faulkner nails colours to the mast

There were further references to Freedom of Information in the hearing of Budget estimates of the Department of Prime Minister and Cabinet referred to in the last post. Mostly political point-scoring about things that had nothing to do with the Department such as this decision in March about the National Broadband Network tender. However Minister Faulkner used the opportunity to repeat his strong commitment to change.The following, particularly parts emphasised, is worth noting on the record.

Senator Faulkner—It would be quite inappropriate to talk at this committee about what appears to be an FOI request made within another agency. It appears that that is the case. I have certainly been advised that it is not an FOI request within the Department of the Prime Minister and Cabinet. I am sure you would appreciate that if there is an issue to be raised then it is an issue to be raised at another committee either with the minister at the table there or more appropriately with the department. There might be an issue with the departmental or agency decision maker. I do not know any of the details of this at all, Senator. But do not think for one minute that my commitment to FOI reform is lessened by some decision that has been made. I can assure you that, over the years, I have seen a lot of decisions made under the current legislation that have worried me. I worried about the issue of conclusive certificates, and you would be aware that there is a bill in the parliament to remove the capacity to issue a conclusive certificate. So I think there is a lot wrong with the regime. I think there is a lot wrong with the laws. I think there is an awful lot that can be done and a real need—and a long overdue need—for reform; and that is what the government is committed to doing. If you have criticisms of the way the current regime works, frankly, join me.[123]

Senator Faulkner—It is appropriate for decision makers in agencies to act in accordance with the FOI legislation. There is obviously an obligation they have to do that. Do I think that the current FOI legislation is adequate? No, I do not. Do I think it is in need of a very significant overhaul? Yes, I do. But do I think it is appropriate that I speculate on a possible decision that an FOI decision maker has made in some agency or department that I am not aware of? Certainly not, and I would not do that. I think that is quite inappropriate for me to comment on.[124]

Senator Faulkner—Well, let me make it very clear to you so you are under absolutely no illusions about this whatsoever: the government is committed and I am committed, as I think most people who take an interest in politics know, to reforming the Freedom of Information Act. We are committed to doing that, so we will promote a pro-disclosure culture across government. We want to build, as I have said on many occasions, a stronger foundation for more openness in government. I might also say, if it assists you in relation to this, that a short time ago, I think on 30 April this year, I wrote to departmental secretaries and heads of agencies—I think it was 151 letters in total—asking them to take a lead role in facilitating the government’s policy objective of enhancing that culture of disclosure and also to make it clear to FOI decision makers in their agencies that the starting point for considering a request should be a presumption in favour of access to documents. So, in answer to that question, Senator, let me say clearly and categorically to you that I have nailed my colours to the mast and my commitment on this is very, very strong indeed. That does not mean I should wander inappropriately into an issue in relation to a particular FOI application in a particular agency of which I have absolutely no knowledge whatsoever.[124-125]

Access to advice a lively issue in Estimates

Special Minister of State and Cabinet Secretary John Faulkner has been through the Senate Estimates Committee processes interminably over the years, and probably knows more about the subject than anyone other than soon to retire Clerk Harry Evans. In the Finance and Public Administration Committee (25/5/2009) Budget Estimates for the Department of Prime Minister and Cabinet on Monday however he came in for close questioning from WA Liberal Senator Mathias Cormann ( a drop-in on the session, who brought with him on appointment to the Senate in 2007 experience as an adviser to a WA Premier and to the former Federal Minister for Justice and Customs), about the circumstances in which ministers or public servants can refuse to provide information in response to questions.

Senator Cormann [84] asked whether PM&C had provided advice on the Alcopops issue (RTD excise)-46 times since May 2008, seven times since the Committee met in February was the response from the departmental official. Was any of this part of the cabinet deliberating process? "Advice to government" was the reply. Then with the request to table the advice, the exchanges started.

The Minister explained many times that the actual content of the advice would not be provided and "should not be provided to the committee. This is, as you know, a very longstanding convention of these committees. But what we are happy to provide for you and are doing so in a fulsome manner is the details around the processes leading to the provision of the advice."

To which Senator Cormann responded just as often along these lines:
"And you would be aware of the continuing order of the Senate that was passed last week that ministers and officers who refuse to provide information to Senate committees have actually got to raise a proper public interest immunity ground. Ms Cass has already said it was not part of Executive Council or cabinet deliberations. So which public interest ground are we talking about? Would it be a prejudice to the national security or the defence of Australia if we were provided with copies of that advice? Would it prejudice law enforcement investigations? Would it damage commercial interests? Would it be an unreasonable invasion of privacy? Would it prejudice Australia’s international relations perhaps? Which recognised public interest ground is the government relying on not to release the advice to government in relation to the ramifications and implications of the increased tax on RTDs?".
A little later:
"Senator Faulkner—I want to correct the record. I do not think Ms Cass said it was not part of cabinet deliberations.
Senator CORMANN—Yes, she did.

Senator Faulkner—This was advice to government which informed the government and informed the cabinet.

Senator CORMANN—They are two separate things. I asked very specifically: was it part of the cabinet deliberations or was it advice to government? Ms Cass said that it was advice to government. ‘Advice to government’ is not in itself a recognised public interest ground. I am sure, Minister, that you know that very well and I am sure that, as somebody who is a stickler for process and procedure in the Senate, you are very well across the issue I am raising.

Senator FAULKNER—I would like to think of myself as that, Senator, and as a stickler for consistency on these matters, too. I think my approach has been consistent, regardless of what side of the estimates table I have sat on, and it is consistent today. The process questions around this advice to government which informed a cabinet decision, I think, should be answered, if they are able to be answered, by ministers or officials; if we are not able to answer matters directly, we should take them on notice and provide an answer to the committee, which is precisely what we are doing. The content of advice to government, which of course is a very relevant matter in relation to the cabinet consideration, is something again on which I have taken this consistent view. I intend to maintain my consistency, regardless of on what side of the table I sit."

Senator Cormann then took the discussion to general principles:
"I am not necessarily arguing that the information or the advice should be provided. I am arguing and asking the department and the government to consider that if you decide not to provide that information then you have to properly claim public interest immunity on a recognised public interest ground and you have to provide a proper statement of reasons as to why not providing that information is in the public interest. That is entirely consistent with past practice, with past resolutions of the Senate. In fact, it is entirely consistent with the government’s own guidelines about officials giving evidence to parliamentary committees. I will leave it at that."
But that wasn't the end.The issue cropped up again with later references [94-96] to public interest immunity claims and Freedom of Information exemptions. Senator Faulkner found some comfort in the reference in the Senate Order to "material disclosing matters in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place in the course of, or for the purpose of, the deliberative processes involved in the functions of the Government where disclosure would be contrary to the public interest." He added:
"Obviously ministers have, for very many years, asserted that their obligations under the resolution is discharged by that particular part of the document. Senator, what I also went on to say, and I would commend this to you and other members of the committee, that I think the interpretation of this, for a very long period of time—as it is a longstanding document, as you would appreciate; I think it has now been in place for 20 years—is that the obligation remains on governments to provide as much process detail around these matters as they can. I think there has been a consistent view from both government and opposition, regardless of which party forms government and which party is in government or opposition, to accept that it is contrary to the public interest for advice to government prepared for the purposes of such deliberative purposes and input into cabinet and the like for those sorts of matters to be disclosed. Government ministers at the table have said that consistently for the past 20 years. What I am saying is that what has not been applied consistently is information around the process of the provision of advice. I certainly want to provide as much information to you as I can. But let the record at least stand—if we are going to talk about public interest immunity—of the full scope of that public interest immunity, which someone in reading the transcript might think it might be left at issues such as national security, defence, international relations or the like.

Senator CORMANN—Minister, I am very pleased that you have stated all of that for the record because it will enable people to review what is a proper process moving forward. You have read an extract from paragraph 2.32, but I would also point out to you that that particular section concludes with: It must be emphasised that the provisions of the FOI Act have no actual application as such to parliamentary inquiries, but are merely a general guide to the grounds on which a parliamentary inquiry may be asked not to press for particular information, and that the public interest in providing information to a parliamentary inquiry may override any particular ground for not disclosing information."
That was it for the moment at least.It will be interesting to see where the discussion goes from here. Cabinet documents are one thing, general advice another. A general claim of exemption for advice documents without citing compelling public interest considerations against disclosure would be unlikely to be sustained under FOI as it now stands. Under the new Reform proposals Minister Faulkner now has on the table, advice to a minister for the dominant purpose of briefing on a document to be submitted to cabinet would be exempt. Other advice will be subject to a test including consideration among other factors, of whether disclosure would increase scrutiny and review of government activities, and inform debate on a matter of public importance.

Tuesday, May 26, 2009

Zero interest in Senate Estimates in transparency concerns about Parliament

The Senate Finance and Public Administration Committee ( 25/05/2009) laboured through 14 hours of questions and answers on Monday concerning Budget allocations and associated matters for the Parliament, Governor General's Office and Department of Prime Minister and Cabinet. I'll refer in a separate post to a couple of Freedom Of Information issues that were raised.

Should we be, make that are we, surprised that following last week's media interest in MPs allowances, questions generally about transparency and accountability of parliament and parliamentarians, and issues about the fact that parliament to date does not post any of the limited information tabled or released about declarations of interest, travel and other payments to senators and members on the web, none of these subjects was raised during the course of the hearings? Didn't think so. As far as I can see this was the same level of interest shown in the House of Representatives in the first two days back on the job.

The Department of Parliamentary Services does have plans but not much money to do something next year about Parliament's website, still chugging along as a 2002 model, but not a squeak from anyone about what the people's window on parliament should look like in this day and age.

Costello and a handy slice of the advice cake

Former Treasurer Peter Costello had a "let them eat cake" attitude to Freedom of Information while in office, pronouncing in this speech in November 2005 on the dark dangers posed by those using the Act to seek access to documents relating to policy development. Access to documents about your own affairs was fair enough, but advice to ministers was guarded vigorously-all the way to the High Court in one instance- with claims that frank and candid advice would suffer if confidentiality was not assured.

But times change.
Paul Kelly in The Weekend Australian, after an interview with the former Treasurer, was able to cite with precision, and quote from a document that helped Costello make a point in 2009:
"When Costello began thinking about his final budget, he got a Treasury minute of November 24, 2006, signed by Treasury's senior fiscal officer David Tune. It said under the Budget Strategy heading: "Maintaining a strong surplus of around 1 per cent of GDP in 2007-08 is prudent, given the economy is operating with limited spare capacity and the risks of increasing inflationary pressures from any large increase in spending. "The strength in the budget position provides some latitude to make gradual structural adjustments to the budget over time, particularly as it looks likely that the Future Fund will not require much augmentation in later years to reach its target. Such adjustments ... could gradually draw down the surplus in the out-years to around a half per cent of GDP (or even a bit less) by 2009-10. Policy reform should focus on boosting the supply side of the economy." The minute, marked "cabinet-in-confidence", advised that spending bids from ministers should be cut to ensure that spending as a proportion of GDP "would be maintained at around 21.4 per cent over the forward estimates".

The article tells us Costello,Treasurer-extraordinaire, was having none of this 1% nonsense and, according to his account, insisted on a higher surplus. Kelly doesn't source the leaked briefing note, leaving it to our imagination whence it came.It raises the question what else might have walked out the door on change of government that could in future help shape the first draft of history- according to former ministers, at least. In the light of the disclosure, rather than Treasury officers downing tools when it comes to frank and candid advice as predicted by Costello in 2005, maybe it simply reinforces the need for public servants to act in accordance with Australian Public Service Values including the commitment to be

  • openly accountable for its actions, within the framework of Ministerial responsibility to the Government, the Parliament and the Australian public;
  • responsive to the Government in providing frank, honest, comprehensive, accurate and timely advice and in implementing the Government's policies and programs.

FOI battle over University of NSW medical fraud investigation

There is no new law in the decision of the NSW Administrative Decisions Tribunal in Chen v University of NSW (No 2) [2009] NSWADT 99, but it is a reminder of the wide meaning of some words used in FOI exemptions. In this case the issue was the exemption for documents which would disclose "matter relating to a protected disclosure"-Clause 20(1)(d) of Schedule 1 of the NSW Freedom of Information Act.The documents referred to in the case came into existence during inquiries years later about the handling of claims of a medical research fraud in 2001, and long after many details and various reports had been made public. Way back in 2003 the FOI applicant, Dr Chen had been described on Four Corners as one of the "whistleblowers."

Dr Chen is still seeking some documents. Judicial Member Wilson thinks there may be a case for exercise of the override discretion to order disclosure of exempt documents and wants others who have an interest notified of the proceedings before a decision.
However regarding the exemption the words " relating to" cover virtually anything that has some connection with a protected disclosure [at 8]:
".. to the extent that such documents, inter alia, record the protected disclosures made, discuss those disclosures or deal with them in any way, a disclosure of such material would disclose matter relating to a protected disclosure, on a broad reading of the necessary connection. This would include comments in the documents as to how the disclosures were investigated, criticisms of those investigations and recommendations as to outcomes or future steps that ought to be taken, again on a broad reading. The reason for this is that, clearly, it can be well argued that, by reason of the postulated connections, the material recorded in the document is matter relating to a protected disclosure."

Monday, May 25, 2009

NSW OGI BIll steps into digital age

Those interested in the detail of the NSW Open Government Information Consultation Draft will find the E-Brief prepared by Dr Gareth Griffith of the NSW Parliamentary Library Research Service of interest.

One point that seems to have been missed in media comment and in Griffith's excellent paper is the significant shift from the emphasis in the Freedom of Information Act on access to "documents," to a new obligation under the OGI Bill to publish and provide access to "information." The 1989 NSW FOI Act, like it's Commonwealth counterpart was drafted before the digital age and, while information stored electronically is covered by both, "documents" occupy centre-stage.

The OGI Bill however has the title “An Act to facilitate open access to government information”. The objects in Clause 3 include the words ”proactive release of information” and “enforceable right of access to information”. Access is to be provided to a copy of a record defined as "any document or other source of information compiled, recorded or stored in written form or by electronic process, or in any other manner or by other means."

Section 23 of the FOI Act-headed "Information stored in computer systems etc"- which imposes an obligation on an agency to create a document using equipment to retrieve information stored in a system, but only when a written document containing requested information is not held, doesn't appear in the new legislation. Instead Clause 50 of the OGI Bill will require an agency to undertake “reasonable searches as may be necessary” to locate requested information using any resources reasonably available to facilitate the retrieval of information stored electronically.” The only limit on the search of data systems is where this would involve substantial and unreasonable diversion of resources.There will be no initial obligation on an agency to search an electronic back-up system for relevant information. However it will be obliged to do so if a record has been lost through destruction or transfer or otherwise dealt with in contravention of the State Records Act or contrary to the agency's record management procedures.

recognition of the realities of the digital age in access to government information laws is overdue by about 15 years. NSW (and to a degree Queensland, although the word "document" still features prominently in the Right to Information Bill introduced into Parliament) has moved in the right direction, while stopping short of reform along the lines of the possibilities envisioned in this presentation by Rick Snell on FOI 2.0(Pdf). In contrast, the Commonwealth FOI Reform Exposure Draft leaves "documents" and quaint provisions in the Act about the use of computers where they were twenty odd years ago.

Blanket exclusions and exemptions rarely justified

Exclusions of some government agencies entirely or in respect of certain functions from freedom of information laws, and exemptions for classes of documents with no requirement to find harm from disclosure or to consider public interest factors, leave a significant hole in the principles of open, transparent and accountable government that underpin the law. They can rarely be justified.

A thought prompted by this
Sydney Morning Herald report of a comment by the compliance monitor, the Inspector, of the Police Integrity Commission, in a letter to a parliamentary committee:
Mr Moss expressed "grave disquiet" about the suppression orders in this case, "which continues to keep the relevant issues shielded from public scrutiny, despite the obvious issues of public interest and commission accountability involved"
The matter relates to the exercise of Commission powers under the relevant act. Mr Moss QC thinks the Commission has not had appropriate regard to the principle of open justice. FOI wouldn't be much help either if you sought information held by the Commission as it (and a long list of others) is excluded from the Act in respect of documents concerning corruption prevention, complaint handling, investigative and report functions. No change is proposed in the Open Government Information Bill Exposure Draft. In fact the current exclusion remains and other information held by the Commission is likely to be non-accessible because of secrecy provisions in the Police Integrity Act which are specifically listed in the Draft as measures that trump the disclosure provisions of the OGI Act.

Of course highly sensitive information should be protected against disclosure where this would prejudice an investigation or inquiry, reveal a confidential source, endanger life or safety etc. Exemptions in the FOI Act and proposed provisions in the OGI Act justifiably protect such information.However blanket exclusions, and widely drawn exemptions-like powers to issue suppression orders- if used improperly can have other consequences, undesirable for broader public interests and agency accountability.

Continuous disclosure a private sector concept for some NSW agency CEOs

The NSW Auditor General last week reported on a review of Corporate Governance Arrangements in Large Government Agencies and Universities based on the 17 measures used as reference points for ASX listed companies.The review covered 50 agencies and the 10 universities.

The conclusion was that "most agencies and universities surveyed have many of the 17 key governance components" with the Auditor General citing gaps in key stakeholder communication, continuous disclosure of performance, management sign-offs on the adequacy of internal controls, and managing compliance with laws and Government directions fraud control.

The findings on
compliance with the continuous disclosure component illustrate the culture change challenge to open government that lies ahead in NSW. It's remarkable that the Auditor General felt the last two sentences needed to be said:
Some CEOs have suggested that continuous disclosure is purely a private sector concept and has no place in the public sector. Others are of the view that continuous disclosure is different in the public sector. I welcome this debate. Continuous disclosure in listed companies is about keeping the market informed of events and developments that a reasonable person would expect to have a material effect on the value of a company’s securities. The equivalent in the public sector would be a State Owned Corporation keeping the shareholder ministers advised of such events. At the very least, all government agencies should regularly keep the public aware of the ongoing performance against its key performance indicators. Importantly, the public expects to be kept fully informed on how well their taxes are being spent."

Friday, May 22, 2009

South Australia FOI concerns not unique

South Australia has been one of the blanks (with Victoria and Western Australia) on the Australian map of the Freedom of Information reform movement of the last couple of years. Still nothing from the Government but last week former minister, now Family First member of the Legislative Council Robert Brokenshire introduced the Freedom of Information (Victimisation and Interference) Amendment Bill (Hansard LC 13 May).

Bill would create offences for interference with or direction to decision-makers, and tip-offs that an application has been made, and enact safeguards to protect determining officers from detriment or victimisation in carrying out duties. Brokenshire was prompted to act by concern about the implications of these paragraphs from the Government's Guidelines for staff dealing with FOI applications:
"When the application is received, it is important to decide if the application is significant and/or sensitive and whether the minister should be notified.

“Notify your minister's office through your accredited FOI officer immediately if you receive an application from a member of parliament or from the media. If the application is considered to be sensitive in nature, or involves information of a non-personal nature, e.g. budget papers, reports and contracts etc., or if you are aware that a similar application has been made to another agency."

"Where the minister's office has specifically advised that they wish to see the final determination...then determinations in relation to the following kinds of applications should be forwarded to your minister's office—two full working days prior to the determination being released to the applicant...applications made by members of parliament, applications made by the media or all applications that are not about personal affairs, e.g. budget papers, reports, contracts, etc”.
Brokenshire added that in several cases departmental FOI officers are also ministerial liaison officers, or are situated within the minister's office. One of his amendments would prevent this.
"Clearly, there is a conflict of interest. How can you perform your duties to the letter of the law on freedom of information if you also have a job as a ministerial liaison officer, advising and liaising with the minister? It is a clear conflict for those people."
He concluded with a tribute to FOI officers. This is rare so those of you anywhere who deserve it, take a bow:
“Theirs is actually a thankless job, and I have great respect for all of them. I have found them to be constructive, polite, friendly and understanding in the various freedom of information applications that I have made. Together with my staff, I have at times found when working with them that their job is incredibly difficult. They are compromised because of those guidelines, which are only that: guidelines set up by this government. The guidelines have never before been designed for FOI officers, as I understand it. These guidelines have been set up just to try to circumvent the legislation passed by the parliament. My bill is intended to offer FOI officers the protection they deserve so that they can do their job without fear or favour to the government of the day."
No other speakers so far so where this goes is in the lap of the gods-not a safe place to be given the realities of the numbers in the SA Parliament.

The matters highlighted are not unique to South Australia.
Perceptions of political interference or excessive responsiveness by public servants to political considerations have plagued FOI for years. Some guidelines, like those in SA and the law itself don't help. Victorian guidelines also provide for submission of FOI determinations to the minister's office prior to notification to the applicant. Some might be surprised that the Commonwealth and Victorian acts confer powers on a minister to determine any application for an agency's documents (hopefully rarely if ever used).

Change is on the way, in some places. The Queensland Right to Information Bill would create an offence for giving a direction to act in a certain way knowing this is a decision that should not be made.
The NSW Open Government Information Exposure Draft Bill includes a provision that would preclude direction or control by a minister regarding an agency determination and offence provisions for doing something a person knows is contrary to the Act, directing unlawful action, influencing a decision, knowingly misleading a person in carrying out functions, or concealing or destroying information.The proposed Federal law changes don't go there- even leaving in place ministerial authority to determine an agency application. This and the need for stronger offence provisions were raised in my submission, the last point featuring in a couple of others as well.

Movement at the station on transparency and accountability for parliamentarians

As to MPs allowances and expenses, today's headlines say it all. Here is a sample:

The Australian: "Call for more transparency in electorate payments"
ABC Online: " Rudd open to MP allowance reform" and "MPs employing family "bad form": Abbott"
SMH:"We have to make allowances, but guidelines could be clearer" and "Perks and lurks or tools of the trade" and "Full list of federal MPs entitlements"

Almost an anniversary- the first post on this blog about the need for reform in this area was on 24 May 2006.

Update: Special round of applause to the Daily Telegraph for digging out these gems concerning use of our money by NSW parliamentarians.

Obama standard sounds pretty good from here

President Obama's speech at the National Archives in Washington covered a wide range of issues concerning intelligence, values, and national security including this:
Now, let me touch on a second set of issues that relate to security and transparency. National security requires a delicate balance. One the one hand, our democracy depends on transparency. On the other hand, some information must be protected from public disclosure for the sake of our security -- for instance, the movement of our troops, our intelligence-gathering, or the information we have about a terrorist organization and its affiliates. In these and other cases, lives are at stake.

Now, several weeks ago, as part of an ongoing court case, I released memos issued by the previous administration's Office of Legal Counsel. I did not do this because I disagreed with the enhanced interrogation techniques that those memos authorized, and I didn't release the documents because I rejected their legal rationales -- although I do on both counts. I released the memos because the existence of that approach to interrogation was already widely known, the Bush administration had acknowledged its existence, and I had already banned those methods. The argument that somehow by releasing those memos we are providing terrorists with information about how they will be interrogated makes no sense. We will not be interrogating terrorists using that approach. That approach is now prohibited.

In short, I released these memos because there was no overriding reason to protect them. And the ensuing debate has helped the American people better understand how these interrogation methods came to be authorized and used.

On the other hand, I recently opposed the release of certain photographs that were taken of detainees by U.S. personnel between 2002 and 2004. Individuals who violated standards of behavior in these photos have been investigated and they have been held accountable. There was and is no debate as to whether what is reflected in those photos is wrong. Nothing has been concealed to absolve perpetrators of crimes. However, it was my judgment -- informed by my national security team -- that releasing these photos would inflame anti-American opinion and allow our enemies to paint U.S. troops with a broad, damning, and inaccurate brush, thereby endangering them in theaters of war.

In short, there is a clear and compelling reason to not release these particular photos. There are nearly 200,000 Americans who are serving in harm's way, and I have a solemn responsibility for their safety as Commander-in-Chief. Nothing would be gained by the release of these photos that matters more than the lives of our young men and women serving in harm's way.

Now, in the press's mind and in some of the public's mind, these two cases are contradictory. They are not to me. In each of these cases, I had to strike the right balance between transparency and national security. And this balance brings with it a precious responsibility. There's no doubt that the American people have seen this balance tested over the last several years. In the images from Abu Ghraib and the brutal interrogation techniques made public long before I was President, the American people learned of actions taken in their name that bear no resemblance to the ideals that generations of Americans have fought for. And whether it was the run-up to the Iraq war or the revelation of secret programs, Americans often felt like part of the story had been unnecessarily withheld from them. And that caused suspicion to build up. And that leads to a thirst for accountability.

I understand that. I ran for President promising transparency, and I meant what I said. And that's why, whenever possible, my administration will make all information available to the American people so that they can make informed judgments and hold us accountable. But I have never argued -- and I never will -- that our most sensitive national security matters should simply be an open book. I will never abandon -- and will vigorously defend -- the necessity of classification to defend our troops at war, to protect sources and methods, and to safeguard confidential actions that keep the American people safe. Here's the difference though: Whenever we cannot release certain information to the public for valid national security reasons, I will insist that there is oversight of my actions -- by Congress or by the courts.

We're currently launching a review of current policies by all those agencies responsible for the classification of documents to determine where reforms are possible, and to assure that the other branches of government will be in a position to review executive branch decisions on these matters. Because in our system of checks and balances, someone must always watch over the watchers -- especially when it comes to sensitive administration -- information.

Now, along these same lines, my administration is also confronting challenges to what is known as the "state secrets" privilege. This is a doctrine that allows the government to challenge legal cases involving secret programs. It's been used by many past Presidents -- Republican and Democrat -- for many decades. And while this principle is absolutely necessary in some circumstances to protect national security, I am concerned that it has been over-used. It is also currently the subject of a wide range of lawsuits. So let me lay out some principles here. We must not protect information merely because it reveals the violation of a law or embarrassment to the government. And that's why my administration is nearing completion of a thorough review of this practice.

And we plan to embrace several principles for reform. We will apply a stricter legal test to material that can be protected under the state secrets privilege. We will not assert the privilege in court without first following our own formal process, including review by a Justice Department committee and the personal approval of the Attorney General. And each year we will voluntarily report to Congress when we have invoked the privilege and why because, as I said before, there must be proper oversight over our actions.

On all these matters related to the disclosure of sensitive information, I wish I could say that there was some simple formula out there to be had. There is not. These often involve tough calls, involve competing concerns, and they require a surgical approach. But the common thread that runs through all of my decisions is simple: We will safeguard what we must to protect the American people, but we will also ensure the accountability and oversight that is the hallmark of our constitutional system. I will never hide the truth because it's uncomfortable. I will deal with Congress and the courts as co-equal branches of government. I will tell the American people what I know and don't know, and when I release something publicly or keep something secret, I will tell you why. (Applause.)

As our debate here on another matter- the budget and the economic outlook- continues amid concern about the Government's information management and control, and "obsession with spin" , that last sentence sounds like a pretty good commitment to me.

Thursday, May 21, 2009

Australian media find an MPs story in our own backyard after all

Australian MPs allowances-not just the UK debacle- make news today with various calls for increased accountability and transparency. My two cents worth for several years has been that the administration of parliament-including the payment of public moneys to parliamentarians-should be subject to the same standards as any other government agency. That is, subject to audit, freedom of information and any other relevant laws.This year's Federal budget papers list the three parliamenentary departments as having combined funds available of $318 million, including $45 million for various entitlements of parliamentarians. The Parliamentary Services Branch of the Department of Finance and Deregulation which provides them and former members with facilities and services has $390 million. It's not easy working out between them who pays for what, or even what the entitlements are or the rules and guidelines for payments. Finance is subject to the Freedom of Information Act; the parliamentary departments aren't.

I don't have a problem with MPs spending their travel allowance to buy a home, or for one to pay another, or a faceless landlord, hotel, friend, relative or supporter for the privilege of a roof over the head when away from home-just that we should know how the money is spent. The same rules should apply to electoral, printing, communication or other allowances, or if they employ spouses or family members in their office, an issue raised in the Herald Sun today.

It should be the same story at state and territory level. Emma Chalmers writing in the Courier Mail in Brisbane finds the Canberra scene of interest but fails to mention that the Right to Information Bill tabled in the Queensland Parliament this week won't apply to that institution.No issue about payments to state parliamentarians there? My article published in New Matilda earlier in the week listed the various payments to NSW parliamentarians that are not subject to public scrutiny

The NSW Auditor General yesterday released the Audit of Members' Additional Entitlements finding members "substantially complied" with the Remuneration Tribunal's Determination- except on one point that no-one monitors whether they are using frequent flyer points for our benefit as stipulated, or theirs. The Report refers to a consultant's review of the system and changes as a result, to commence on 1 July, but no sign of that on Parliament's website and no, the Parliament won't be covered by the proposed NSW Open Government Information Bill now on the table for public comment

Wednesday, May 20, 2009

Federal FOI Reform submissions.

The 39 non-confidential submissions on the Federal Freedom of Information Reform bills-perhaps some still to come- have now been posted. Plenty of grist I'm sure- just not the chance to read yet.

NSW aims to dispel perceptions about overseas travel

NSW Premier Nathan Rees yesterday issued an instruction to ministers concerning disclosure on the web of details including the purpose and cost of overseas travel. This follows recent on-the front-foot disclosures of costs of trips recently undertaken by him and separately by Finance Minister Joe Tripodi

The Premier said

"Overseas travel is undertaken by Ministers to attract investment, trade and business opportunities to the State, to learn from the policies and processes of other Governments, and to forge relationships with export markets. Full disclosure of the costs, purpose and benefits of overseas trips would help to dispel the public perception that overseas travel is undertaken for the private benefit of Ministers and their attendants at taxpayers’ expense. This information is routinely sought, and released, under the Freedom of Information Act."

Within 28 days and with immediate effect information is to be posted on an agency website including:

  • The portfolios to which the trip relates.
  • A detailed description of the purpose and benefits of the travel to the State of New South Wales.
  • The destinations visited.
  • The date of travel.
  • The number of persons who accompanied the Minister, including Ministerial advisers, agency staff and, in accordance with relevant guidelines, family members.
  • The total cost of airfares.
  • The total cost of accommodation.
  • The total cost of other expenses (including travel allowances).
Good and welcome news-add an across government link that provides access to the full picture and a search capability and that may be as good as it gets- for overseas travel. As to other automatic disclosure of payments of domestic travel, allowances and expenses to ministers and members of parliament, perhaps another day-soon?

Queensland legislation roll-out

The Queensland Government yesterday introduced a raft of legislation into Parliament on accountability and transparency related matters- Right to Information Bill, Information Privacy Bill , Queensland Civil and Administrative Tribunal Bill, Parliament of Queensland Amendment Bill and Auditor General Financial Accountability Bill. The Hansard for 19 May and the bills and explanatory notes contain the detail.I haven't yet had the chance to look, so welcome any analysis or commentary from up north or elsewhere.

The learning is for us, not them

The UK MP allowances expose rolls on (now 3500 articles listed on Google News) with Prime Minister Gordon Brown stating any Labour member who defied the rules won't be running in the next election, and scalps on the rise, the latest the Speaker of the House of Commons.

But ABC European correspondent Phillip Williams knows something I don't about how the Brits could learn from us in this area. Or Williams is in need of a spell back home for orientation. This from his chat about Michael Martin's departure with Tony Jones on
Lateline last night:
"Well, very simply, Tony, because he's been seen as stopping reform, stopping the sort of reforms that would've meant that we had a more open, transparent like Australia's, where the receipts would've been public knowledge. He actively stopped freedom of information requests that would've revealed these now. And so he's seen as being a blockage, supporting a system that's now thoroughly discredited and has led to so many MPs being on the nose."
Very simply Phillip, receipts for payments by Australian parliamentarians from allowances are not public knowledge.The Parliament over there is subject to the Freedom of Information Act. Here it isn't.

My local member of Federal Parliament is Malcolm Turnbull MP. I've sent him a copy of the
New Matilda article and look forward to his response. If you follow suit, glad to hear of any reaction.

Update: The Daily Telegraph has done some digging into the Register of Interests and identified 40 parliamentarians who own or are in the process of buying a property in Canberra. No scandal to my mind but where their travel allowance payments go is information that should be disclosed as a matter of routine.

Tuesday, May 19, 2009

Those MPs allowances again-or still

Maybe more than you ever wanted to know you didn't know about the subject-this is also published today on New

Joe Hockey may be all heart, but...

Peter Hartcher in Saturday's Sydney Morning Herald wrote about Shadow Federal Treasurer Joe Hockey buying a $2500 dinner for 10 at a charity auction, speculating whether it came from his pocket or courtesy of his recently increased electoral allowance. The Herald published these letters today under the heading "If only we knew what our MPs did with their allowance":

"Joe Hockey may or may not chalk the raffled bid for lunch with Les Murray to his newly increased $32,000 electoral allowance, but we will never know unless Joe chooses to tell ("Rudd cements his reputation as the Cowardly Lion of Oz", May 16-17). This is just the tip of what we don't know about MPs' use of our money. There is no information available publicly about how they spend this allowance, or their postal, telephone and printing allowances, or where the travel allowance payments go for all those nights away from home. Who knows whether all the allowance for time in Canberra is paid to a hotel, a friend, a relative or a supporter who owns the place, or to the bank to pay off the mortgage?

Limited information is published twice a year about money the Department of Finance pays on behalf of members for some travel and the use of cars - though it is not on the web - but this also is far from the full picture. Unpublished details include taxpayer-funded spouse travel and the cost of an entitlement for anyone to represent an MP at a funeral anywhere in Australia. It is the same situation or worse for money paid to state MPs.

The federal and NSW governments have recently rejected a recommendation to change freedom-of-information laws to apply to parliaments. All this when the media has been full of the excesses of British politicians spending at taxpayers' expense, information that came to light only after a four-year FoI battle. We won't be reading about such things here.

Peter Timmins. Potts Point

"If the same light were applied to the electoral claims of Australian politicians as has been shone on those of the British political elite, there would be similar results. In Australia the unspent balance of electorate allowances may be spent by the member on anything. While some claim there is nothing left over for personal use, others have been much less forthcoming on how much of their allowances is left over and is therefore used for private expenses.

How do we know that money designated for use in the local area is not being spent on an MP's dog or holiday home? Until there is openness in our reporting system the suspicion will remain that Australian and British politicians are the same."

David Neilson Invergowrie

Queensland RTI set for Parliament this week

Queensland's Right to Information Bill, to replace the Freedom of Information Act, and the Privacy Bill are to be introduced into Parliament this week, according to the Brisbane Times. No details so far about what changes if any as a result of issues raised during the consultation phase.The media gripe mentioned- that information released to an applicant will be posted on the web within 24 hours thus limiting the impact of information ferreted out by a journalist for example- seems legitimate.The Federal Government Freedom of Information Reform Exposure Draft provides for publication of disclosed information within 10 days.

Sunday, May 17, 2009

Federal FOI reform submission

Submissions in response to the Exposure drafts of the Federal Freedom of Information Reform Amendment Bill and associated legislation closed on Friday. My submission welcomed the very positive proposed shift in the direction of a pro-disclosure bias in the publication scheme and in the right to access, through powerful statements of the objects of the Act and the linked list of public interest factors in favour of disclosure.

However it also raised issues about matters not addressed in the Exposure Draft- the failure to move from rights of access to documents to rights to access information and to reflect other aspects of the technological changes since 1982; to act on some 1995 recommendations in ALRC Open Government Report 77 particularly to extend the Act to cover the parliamentary departments; the absence of detail about the proposed publication scheme and the adequacy of the powers of the Information Commissioner to enforce compliance; and the failure to tidy up some strange anomalies in the Act, for example a minister's authority to make a determination on an application for an agency's documents. It also included comment about aspects of the absolute and conditional exemptions and a few other thoughts beside.

Be very interested in what others have said and where it all goes from here.

Friday, May 15, 2009

Shield law over the easy hurdle- now for the high jump

The Evidence Amendment (Journalists' Privilege) Bill was the subject of very good debate as it went through the House of Representatives in Canberra yesterday, without amendment. Speeches from both sides of the House were on subject and well-informed. Those who think shield laws and whistleblower protection are essentially the same thing should read the contribution of Member for Isaacs, Mark Dreyfus. Attorney General McClelland assured the House that consideration would be given to the Senate Committee recommendation that would require the court to consider both the public interest in the disclosure of a protected confidence and the disclosure of protected identity information. Beyond that the Government is sticking to its guns:
"We have specifically referred to a balance, and we have graded all considerations equally for them to be considered in the exercise of a court’s discretion. Labor have been absolutely consistent in where we stand on this issue, both when in opposition and in government . Our position is reflected in this bill. The government have made it clear that we support the courts having a guided discretion to make a decision. In contrast, the opposition as usual is playing opportunistic politics in a bid to get some cheap praise, one would think, from media outlets. In conclusion, this bill forms an integral part of the Rudd government’s commitment to enhance transparency and accountability of government and the Public Service and to promote free speech. In conjunction with other proposed reforms in areas such as freedom of information law and whistleblower protections, this bill will bring about a more vibrant system of democracy in Australia."
Action now moves to the Senate.

Thanks to Open Australia for the heads up, and the link

Oops moment for Australia's diplomacy

Foreign Minister Stephen Smith-pictured here sometime before the day in question- inadvertently tabled in Parliament on Wednesday a document summarising the current situation in Australia's negotiations with over 80 countries on various matters. The front page of the document included a note in bold saying the "sections of this schedule dealing with bilateral negotiations should not be tabled in any parliament or any committee of a parliament, or otherwise placed on the public record," but the Minister's spokeswoman states the document was not classified. The Minister has apologised for a breach of international etiquette. Significant harm is unlikely- these things happen. The incident may even prompt more regular intentional release of information about what's happening out there in our dealings with other countries. That very busy reader of these pages, Anonymous of Canberra, left this comment this morning:
"Smith in making his apology for the accidental tabling of a DFAT document listing the bilateral treaty negotiations currently underway, mentioned that he is looking at extending the publication regime currently in place for multi-lateral treaties, to also cover, the usually more sensitive, bilateral treaties. Front page stuff for the Canberra Times print version, but can't find it on their webpage. The full text of Smith's apology isn't online at The Australian or the SMH, nor his website (though it was this am) - odd."
I can't find the statement either.

Thursday, May 14, 2009

A story of sorts about MPs payments in our own backyard

The Australian media continue today to lap up the UK MPs expense story- in addition to the Fairfax papers, the ABC is onto it with this lead:
"The British Parliament is facing one of the biggest crises in its history after a week of politically-devastating revelations about MPs' expenses claims."
The West Australian even had room to run an Associated Press story on Heather Brooke.

But dear reader, as to interest in the opaque aspects of Australian Federal, state and territory arrangements for payments to parliamentarians, well it seems to be zilch, zero, not even a hint in mainstream media reports of the contrast between what is coming out in the UK, and what we don't know here.

Just on the Federal front, there are three departments that carry out administrative functions on behalf of the parliament. Details of allocations to the departments in Tuesday's Budget are at the bottom of this page listing Portfolio Budget Statements. All up the Department of House of Representatives has about $61 million in 2009-2010, including $27-$30 million in salaries and allowances to be paid to members.The Department of The Senate $47 million (about $11 million left over from last year) including about $15 million in member entitlements. And the Department of Parliamentary Services $210 million, around $73 million carried over. None are subject to the Freedom of Information Act. Minister Faulkner says change is not part of the FOI reform agenda despite the recommendation from the ALRC in 1995. There is no publicly available information about the payments to individual members and senators or how the money is acquitted (if at all) or spent.

A reminder from a post in May last year about what the Auditor General had to say:
An Auditor General's report seven years ago noted there was no public reporting on other allowances or payments made to MPs who in addition to publicly funded electorate offices (and three staff), have a privately-plated Commonwealth vehicle, and receive electorate, printing, postal, and telephone allowances. While travel allowance payments are reported, travel at government expense by spouse or dependents is not. Many of the payments appear to be made on the basis of self certification, without the need for proof of expenditure. The report says "a key area in which some overseas models reviewed, particularly those of Canada and the United States, differed from the approach currently taken in respect of the Australian Federal Parliament is that they provide for significantly greater levels of public disclosure of the guidelines and/or rules that govern entitlements’ expenditure by the members of the respective legislatures; and of the costs incurred by the individual members."
All this is separate from allocations to the Department of Finance and Deregulation - subject to the Freedom of Information Act- which provides current Parliamentarians and their staff, and former Senators and Members with a range of facilities and services,including: electorate office facilities; travel and accommodation entitlement support; personnel-related services; and VIP hire car services. To the tune of $390 million in 2009-10. Some information about MPs travel and use of cars is published twice a year- but not on the web. As noted in March some unnamed members won't certify the payments made on their behalf by Finance to be correct or properly incurred.

Opacity in the states and territories-if NSW is any guide -is the same or worse. This from that same post in May 2008:

"In NSW, Greens MLC, Lee Rhiannon has been attempting to throw some light on what NSW MPs get in allowances and gives some details here. There appears to be no public reporting and many payments do not depend on evidence of use of the money. Her website lists the following:
  • Expense allowance for members who have an official title.
  • Electorate allowance. In theory to be spent on expenses. Rhiannon says payments can be pocketed by the member.
  • Logistical support allocation: A lump sum of money to spend on travel, printing, stationery and other 'office expenses'.
  • Electorate mailout account: A $5.5 million Carr Government initiative allowing MPs to send out glossy newsletters promoting themselves.
  • Sydney allowance: Money given to non-Sydney MPs for the time they spend in the capital.
  • Printing bonus: Extra money for some MPs to spend on printing.
  • Charter transport: Rural MPs get cash to use for flying around their large electorates.
Rhiannon notes that parliamentarians also have home fax and phone bills paid, and free flights to and from Sydney - over 100 per year. The parliament house websites contain no information on rules and guidelines for payments,or actual payments to members."

Bringing the NSW Parliament under NSW FOI law was one of the recommendations from NSW Ombudsman Bruce Barbour not acted upon by Premier Nathan Rees in his proposed reforms announced last week.

At least the media is finding plenty of interesting stuff about payments to parliamentarians-in the UK.