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Thursday, July 30, 2009

ALP back in town, quiet time expected

National Library of Australia

The Australian Labor Party National Conference - the first since the election of the Rudd Government in 2007 - gets underway in Sydney today.It's expected to be a sedate affair, as is the way of these things when the party is in office. Chapter 11 "New ways of governing for a stronger democracy" (page 127) of the Draft National Platform includes plenty of rhetoric about its commitment to a strong democracy and transparent and accountable government. And an update, but nothing new, on elements of reforms such as Freedom of Information and privacy, journalist shield laws, whistleblower protection, etc, all still stuck somewhere in the system. But nothing to gladden Harry Evans' spirits after his shot that our parliament is as weak as they get in democratic societies as a result of rigid party and executive government control of the people's house. And $7500 would buy your way into the Business program including a brief meeting with a minister. Questioning or criticism of the fine detail of the Platform or when most of the"new ways" will come to pass are probably regarded as an impertinence.

E-health big picture thinking-action to follow?

The National Health and Hospitals Reform Commission Report on the future of the health system was released earlier in the week. The discussion of e-health is in Chapter 5 of the Report.

Generally positive reactions to the reform proposals overall, and although the Government has some runs on the board and plans to continue to move ahead on a number of fronts, disappointment about what is seen as more talk, not enough action on another big high priority. For example this editorial in the Sydney Morning Herald today says too much dithering, and the PM must have loved the George Bush comparison. Yesterday Ross Gittins said he wasn't optimistic about health reforms because "(i)n the short time he’s been in office, Rudd has established a record of over-promising and under-delivering." Although there is something to all this, with his ratings around 66% the PM continues to blog away on health and other topics and is probably not losing sleep at this stage.

On e-health the experts seem to see the general direction as the right way to go and want to see action and leadership from the Federal Government. But some cautionary flags for example from
Dr David More about a Personal Electronic Health Record where everyone gets to choose their provider unless we can ensure "a secure, inaccessible, un-data-minable environment where the terms of service were such that the public would be entirely comfortable to have their information stored by whoever provided the service."

The e-health recommendations are:

115. We recommend that, by 2012, every Australian should be able to:
• have a personal electronic health record that will at all times be owned and controlled by
that person;
• approve designated health care providers and carers to have authorised access to some or
all of their personal electronic health record; and
• choose their personal electronic health record provider.

116. We recommend that the Commonwealth Government legislate to ensure the privacy of a
person’s electronic health data, while enabling secure access to the data by the person’s
authorised health providers.

117. We recommend that the Commonwealth Government introduce:
• unique personal identifiers for health care by 1 July 2010; unique health professional
identifiers (HPI-I), beginning with all nationally registered health professionals, by
1 July 2010;
• a system for verifying the authenticity of patients and professionals for this purpose – a
national authentication service and directory for health (NASH) – by 1 July 2010; and
• unique health professional organisation (facility and health service) identifiers (HPI-O)
by 1 July 2010.

118. We recommend that the Commonwealth Government develop and implement an appropriatenational social marketing strategy to inform consumers and health professionals about thesignificant benefits and safeguards of the proposed e-health approach.

119. Ensuring access to a national broadband network (or alternative technology, such as satellite) for all Australians, particularly for those living in isolated communities, will be critical to the uptake of person-controlled electronic health records as well as to realise potential access to electronic health information and medical advice.

120. We recommend that the Commonwealth Government mandate that the payment of public and private benefits for all health and aged care services depend upon the ability to accept and
provide data to patients, their authorised carers, and their authorised health providers, in a
format that can be integrated into a personal electronic health record, such that:
• hospitals must be able to accept and send key data, such as referral and discharge
information (‘clinical information transfer’), by 1 July 2012;
• pathology providers and diagnostic imaging providers must be able to provide key data,
such as reports of investigations and supplementary information, by 1 July 2012;
• other health service providers – including general practitioners, medical and non-medical
specialists, pharmacists and other health and aged care providers – must be able to
transmit key data, such as referral and discharge information (‘clinical information transfer’),
prescribed and dispensed medications and synopses of diagnosis and treatment, by
1 January 2013; and
• all health care providers must be able to accept and send data from other health care
providers by 2013.

121. We recommend that the Commonwealth Government takes responsibility for, and accelerates the development of a national policy and open technical standards framework for e-health, and that they secure national agreement to this framework for e-health by 2011-12. These standards should include key requirements such as interoperability, compliance and security. The standards should be developed with the participation and commitment of state governments, the IT vendor industry, health professionals, and consumers, and should guide the long-term convergence of local systems into an integrated but evolving national health information system.

122. We recommend that significant funding and resources be made available to extend e-health teaching, training, change management and support to health care practitioners and managers. In addition, initiatives to establish and encourage increased enrolment in nationally recognised tertiary qualifications in health informatics will be critical to successful implementation of the national e-health work program. The commitment to, and adoption of, standards-compliant e-health solutions by health care organisations and providers is key to the emergence of a national health information system and the success of person-controlled electronic health records.

123. With respect to the broader e-health agenda in Australia, we concur with and endorse the
directions of the National E-Health Strategy Summary (December 2008), and would add that:
• there is a critical need to strengthen the leadership, governance and level of resources
committed by governments to giving effect to the planned National E-Health Action Plan;
• this Action Plan must include provision of support to public health organisations and
incentives to private providers to augment uptake and successful implementation of compliant
e-health systems. It should not require government involvement with designing, buying or
operating IT systems;
• in accordance with the outcome of the 2020 Summit and our direction to encourage greater
patient involvement in their own health care, that governments collaborate to resource a
national health knowledge web portal (comprising e-tools for self-help) for the public as well
as for providers. The National Health Call Centre Network (healthdirect) may provide the
logical platform for delivery of this initiative; and
• electronic prescribing and medication management capability should be prioritised and
coordinated nationally, perhaps by development of existing applications (such as PBS online),
to reduce medication incidents and facilitate consumer amenity.

Wednesday, July 29, 2009

Government 2.0 Issues Paper raises familiar and new questions

The Government 2.0 Taskforce Issues Paper raises many important matters concerning transparency and open government including several questions familiar to readers here:

How can we build a culture within government which favours the disclosure of public sector information? What government information should be more freely available and what might be made of it? What are the major obstacles to fostering a culture of online engagement within government and how can they be tackled?

I'm sure the chair Nicholas Gruen and member David Solomon and their colleagues don't need reminding that the Freedom of Information history and experiences of the last thirty years, and the reams that have been written about why the law has fallen short of delivering its great promise can provide plenty of insights into the first and last questions.

Then there's the 507 secrecy provisions identified in the current Australian Law Reform Commission Review including the draconian Section 70 of the Crimes Act, with up to two years gaol for unauthorised disclosure, all of which in the words of Moira Paterson have a chilling effect on disclosure; the obsession with media mananagement, spin and the 24 hour news cycle; the shared interest in the upper echelons of government in the information as power equation, and the nature of politics; the recent Moran-Shergold volleys about the essential need for confidentiality for say thirty years for advice offered to government...I could go on, but best in a submission to the Taskforce before 24 August.By the way
submissions on the ALRC Discussion Paper on Secrecy close on 7 August

In the meantime some interesting reflections on aspects of the challenge from Taskforce member Martin Stewart-Weeks.

The Taskforce provides the opportunity to bring strands of the open government discussion together. Some elements -access to government information as a qualified right in a democratic society, and the underpinning it should provide for community participation in government and government accountability - have been well traversed, although the web opens up new frontiers. Others -such as access, use and reuse of government information to advance community, social and economic purposes - is newer territory. There is plenty of common ground in the problems to be addressed and the ways to achieve better outcomes.

Monday, July 27, 2009

Australian Parliament among weakest in the world

The long-time Clerk of the Senate Harry Evans, on the verge of retirement, reflected on the operation of our institution of representative democracy in Canberra on Friday in this address Time, Chance and Parliament Lessons from Forty Years.

The mainstream media doesn't find it interesting, with the Canberra Times the only paper reporting the speech.

For all the talk about reform and good governance, Evans says we "still have one of the weakest legislatures of the democratic world, especially compared with our great and powerful friends. The Parliament here is under a degree of executive domination that would not be tolerated elsewhere, even at Westminster."

And this on access to information, accountability and parliament generally:
"More than ever before, independence in the legislature depends on the ability to obtain information that governments would rather conceal. Knowledge has always been power, but the management of information has become the key to government. The executive wants the public to receive only the information favourable to it, and strives to manage the release and the presentation of unfavourable information, and to keep much secret. A functioning legislature is essentially an instrument for breaking down that information management in the interest of the public's ability to judge governments. It is in this role, however imperfectly, that the Senate, with its committee system and its culture of independence, has performed. At the 2020 Summit I suggested 20 parliamentary reforms, none of which was adopted by the government. Perhaps the most significant was for an independent body to finally determine government claims to keep information concealed from Parliament. It was the proposal most decisively rejected."
How about Evans, Independent candidate for the Senate at the next election?

On reflection he probably knows too much about it all and is sure to have other important things to do. Thanks Harry for a wonderful contribution to the Parliament including plenty of truth to power over 40 years.

Legal hands on deck for NSW open government "revolution"

Matthew Moore in the Sydney Morning Herald calls on the NSW Premier to take back responsibility for the new Government Information (Public Access) Act from the Attorney General to ensure the backing from the top that will be necessary if culture change on transparency is to go anywhere in the state. And to avoid excessive resort to legalisms, always a danger when attorneys-general and their departments are involved. Hear, hear.

Moore also comments about some aspects of Attorney General Hatzistergos' form, and that of the "invisible Privacy Commissioner", now Acting Information Commissioner, Judge Ken Taylor suggesting reservations about their credentials as access to information czars.
Here are a few other thoughts in addition to this and this last week.

In addition to Moore's example of Mr Hatzistergos putting a Bureau of Crime Statistics report in the "delay release" basket, the Attorney General has been involved in other instances of ordinary performance in this respect. Take the case of the long lost statutory review of privacy legislation, invisible publicly for years until the NSWLRC referred to it in August last year. Then in January this year the mysterious case of the statutory review of the NSW Administrative Decisions Act, with nothing surfacing publicly for years after it should have been tabled in Parliament. Even when eventually published, locating the reports and government responses is tough going (good luck, even with this link after hard digging) and submissions received as part of the reviews are never published.Then there was the tabling in Parliament by the Attorney General of the Privacy NSW Annual Report last year, about six months after it was completed, and a few days before the end of the next reporting year.

The Attorney General was also one of the many NSW ministers who didn't publish media releases on the web until the Premier insisted upon it last year. He doesn't speak publicly often:
one of the two speeches now posted on his website outlines his vigorous opposition to a charter of rights for Australia.

All pretty good background for the minister responsible for the making of a regulation concerning the planned publication scheme for government agencies, required by the new act.

Judge Taylor has been Privacy Commissioner since December 2007, now 20 months. According to the Privacy NSW website, he has issued one media release in that time: four lines in May 2009 about how he will be watching a Federal investigation of a possible privacy breach closely.

There are no speeches by Judge Taylor on the website, so he too either hasn't made any or they are not of interest to the wider community. In fact there have been no speeches posted on the web by any member of the staff since August 2006, just on three years. The Office hasn't made a submission to NSW or Federal government agencies on any policy or legislative matter with privacy implications since December 2008.There has been nothing added to publications under the heading Special Reports and Research since 2002.

Let's hope the standard performance metric for the Information Commission isn't the one used by the Privacy Commission - complaints dealt with within 12 months.(The latest quarterly stats posted are for 2007-2008, now 12 months old, but the link isn't working)

Judge Taylor renewed a batch of "public interest" directions earlier this year that authorise departures from the law by NSW government agencies. As observed at the time the public interest justifications are mere assertions, with no reasoning provided to support the conclusion that the public interest justified a departure from the law. Here was my take on one of them:

"Some uses of the power are highly questionable. For example this direction- extended now for a ninth year - covers a number of exchanges of personal information between government agencies, including simply where the agencies had an agreement to exchange personal information before privacy legislation commenced in July 2000. Maybe there are public interest arguments to support this, but the Commissioner doesn't provide them. And what agreements exist between government agencies to share information about us that need to continue in place 9 years after a law was passed by Parliament that imposed new standards and requirements regarding the handling of personal information? Well the Commissioner doesn't publish a list, and neither did his predecessors who like him were satisfied that the public interest required continuation of old pre-privacy law arrangements."
Neither the Attorney General nor the Privacy Commissioner said a word publicly or took any visible action to address the problem that 10 years after the commencement of the NSW privacy law, because of inaction by the minister and his predecessors, a public servant in a NSW agency passing a person's personal information to any organisation or person in another state or territory does not breach privacy principles, regardless of the circumstances. Not only that, the issue came to light in an ADT decision last December after the Privacy Commissioner intervened to push this point in successfully arguing, despite the agency's prior admission to the complainant, that the agency concerned was not in breach of the law because the relevant action to bring this provision into effect had not been taken,

Mr Hatzistergos pulled the plug on a raft of recommendations from the NSW Law Reform Commission on surveilllance, after the report had sat in the in-tray (his and his predecessor's) for two years saying it was all being adequately handled on a national basis, although I can't recall hearing a word since.

As Matthew Moore points out, the Crown Solicitor is also located in this portfolio, so access to legal advice shouldn't be a problem for the Attorney or the Commissioner. The Crown Solicitor, of course famously declared in 2006 that demands for access to information had created a crisis in government, and railed against media treatment of the subsequently disgraced and disbarred former Justice Marcus Einfeld. Here is a string of posts following that speech. There is no record of the then Attorney General or Mr Hatzistergos taking issue with anything that was said. I can't imagine what the Crown Solicitor makes of the new and generally improved access to information law, although on one point he will be pleased. The law now excludes an override public interest discretion for an agency or review body to release or require the release of information that is claimed exempt on legal privilege grounds, a point Crown sols have been arguing for years, even though the existing law went against them.

Ah you just know that the Attorney General and Acting Information Commissioner are going to be pushing the envelope on this open government business, with strong, visible and vigorous leadership, don't you?

Lobbyists and anti-corruption in the news

As The Australian Public Sector Anti-Corruption Conference opens in Brisbane, influence peddlers are under the spotlight in Queensland also following the Nuttall case, with the Premier looking for ways to ban or ensure public disclosure of success fees and this call for further lobbying reforms. In Victoria despite an election commitment by Labor in 2006 to set up a register of lobbyists, no register has been mandated and no public disclosure of lobbyists' identities is required. The Australian reported last week that former Labor MPs, ministers and staffers make up the bulk of Melbourne's thriving lobbying community. In South Australia it's the same- no government interest in a register or an anti-corruption body.With Tasmania announcing plans to establish an anti-corruption commission, Victoria and SA stand alone against the idea. Nothing unseemly happens in those neck of the woods.

Former NSW Premier Nick Greiner discussed the value of the ICAC which he established 20 years ago on the National Interest yesterday, and still remains positive despite the fact that he was forced to resign after the Commission wrongly made findings against him over a government appointment.

Friday, July 24, 2009

Conference circuit hits Canberra

Two conferences, fortuitously or otherwise on successive days in Canberra, worth consideration.

Public Affairs in the Nation's Capital, the annual Walkley Foundation gig examining media issues affecting the public sector, will include two sessions titled "Breaking down barriers: Freedom of Information and disclosure. The first, New reforms, new processes:what do they mean? featuring Joan Sheedy of PM&C, Peter Roberts of Charles Sturt University, and yours truly; followed by Roxanne Missingham of the Parliamentary Library on The public good-publishing online and Markus Mannheim of the Canberra Times on Secrecy's toxic effect on political journalism. With plenty of other interesting sessions to follow. The early bird rate cut-off is today.

Then on 6-7 August the Australian Institute of Administrative Law Annual National Forum will cover human rights, whistleblower reforms, the role of the ombudsman, and Freedom of Information and other topics as well. David Solomon and Michael McKinnon will discuss "FOI reform or political window dressing?", and Professor Bill Lane and Eleanor Dickens of Clayton Utz Brisbane, "Reforming FOI: Time for a new model?" Details here

Thursday, July 23, 2009

Public servants play a key role in determining public interest

I like Andrew Podger's well stated wisdom in Public servants serve the public interest,period for Crikey:

"What (Shergold and Moran) advocates of confidentiality and allowing the political process to determine the public interest leave out is the direct responsibility of public servants to act in the public interest in the implementation of policies and in due process more generally, including with regard to the provision of information to the public.

It is public servants who hold the delegations under the FOI Act. The Act requires them to release information unless it is not in the public interest to do so (or unless it comes under specific exemptions). They must judge when the confidentiality of advice to the government, or of information pertaining to that advice, is sufficiently in the public interest to justify non-release of the material. These judgments are not easy. Senator Faulkner, however, has been arguing forcefully that public servants should change their culture of secrecy and give more weight to the public interest in release of information.

I do not for a moment condone leaks by public servants or unauthorised discussions between senior public servants and members of the Opposition. But the limits to confidentiality need to be explored more openly within the public service as it is public servants who have the responsibility to determine the public interest on this issue under the law. Leaving aside responses to requests under the FOI Act, there is much more the public service can do pro-actively to release research and statistics, and give public speeches, and even to talk to the media from time to time, without undermining the public interest in confidentiality."

Given that the public service and ministers often have a vested interest in advice finding its way into the public domain only when it suits, we need a more open debate about how to better protect the public interest in open and accountable government with clearly defined limits on confidentiality. And better laws properly enforced to make it so.

NSW steps backwards as others step forward

Matthew Moore in the Sydney Morning Herald picks up the point that the shift of responsibilities to the Attorney General for the implementation of the new NSW access to government information act is a change from 20 years of practice in the state where the Premier has been the minister with authority concerning the Freedom of Information Act.

Putting the Premier in charge of FOI was unique to NSW and reflected a clear decision originally by Nick Greiner- arguably the only premier in this state in living memory to take a close interest in public administration- that transparency required a different focus than the administrative law mindset applied in every other jurisdiction where responsibility sat with the attorney general. In 2009, just as others-notably the Federal and Queensland governments- have recognised this and followed the NSW lead, NSW goes in the other direction. Its a shift of gears that no-one (outside government at least) had heard a word about in over a year of discussion following the Ombudsman's decision to have a look at how things could be done better.

The Premier's spokesman says the changes reflect arrangements in most other jurisdictions. Not the current arrangements in the two other jurisdictions that have dusted off old acts to have a look at what might work best in the information age.

Not a good move in my book. What's that old story-give a person a hammer and everything looks like a nail?

Wednesday, July 22, 2009

Hat tip to Defence

Further to the comment last week that a real sign of change in the transparency equation would be a shift in attitude in Defence and Treasury, hat tip to Air Chief Marshall Houston for this announcement yesterday
"..when a civilian casualty incident is confirmed or when a credible allegation is substantiated, Defence will issue a public statement. After the allegation or incident has been appropriately reviewed through internal and/or external mechanisms, the findings of these reviews will be publicly released.Under our new processes, all credible civilian casualty claims and incidents will be publicly reported. It is vital that in the event of an alleged or actual civilian casualty that there are transparent, consistent and robust processes in place.During the past twelve months, the ADF has investigated 13 incidents. Of these, we have held a media event or issued a media release—announcing either an inquiry, the results of the inquiry, or both—for seven of these incidents. I will now outline the remaining six for you."

And so on. One swallow and all that, but a positive step nonetheless.

By the way, the Crikey article that started this stream now includes some interesting comment, particularly from Kathleen Fisher about how the NZ Treasury is in the vanguard there on transparency and seems proud to have advice to government on public display. If you are a reader Kathleen, would love to hear from you.

Transparency for parliament needs consideration

Good on Labor Member for Franklin in the Tasmanian Parliament Daniel Hulme for raising for consideration whether the state's Freedom of Information Act now under review should be extended to cover the parliament itself. Of course it should in Tassie and elsewhere, despite the fact that most parliamentarians seem to show no interest. (Update: of course the issue is information concerning the administrative functions of parliament, not correspondence with constituents as made clear in this discussion on ABC Hobart this morning with Rick Snell-at 13.33 to 7.10)

In Queensland after much introspection about governance standards following the conviction of former minister Nuttall, no one appears to have raised the issue that the just passed Right to Information Act doesn't cover parliament or parliamentarians. While it would not stop the Nuttalls, it would add a layer of transparency that would modify the climate that gives rise to this sort of skulduggery.

Lawyers back in the driving seat on access to information in NSW

The new face of government in NSW on access to information-Attorney General John Hatzistergos.

The NSW Government, having done well with generally good reforms in the yet to commence Government Information (Public Access) Act has now dampened hopes ( well at least mine) by giving the Attorney General responsibility for this and related acts. There has been no announcement other than the publication of a notice in last Friday's Government Gazette ( Page 4110).

This is a whole of government administrative reform, not a primarily legal issue that fits with the responsibilities of the First Law Officer of NSW. The reform initiative has had up until now leadership from the top, with the Premier announcing the commitment to turn past practices of secrecy on their head, and with he and his department with all its clout shepherding the legislation through to finalisation. Now the Government has passed the parcel to the minister with a legal perspective to manage implementation from here on, with the major task the oft-spoken culture change. The Premier should be standing behind the Information Commissioner, particularly when other ministers will need to be required to toe the line.

The Freedom of Information Act which the new legislation replaces has been the responsibility of the Premier since commencement in 1989 because it was seen from the start as primarily a matter of public management, with administrative law implications, not the other way round-one of the reasons NSW earned a reputation until recent years for being less legalistic in this area than other jurisdictions. The new act-with emphasis on pro-active disclosure and formal applications for information only required as a last resort- properly moves even further in this direction, just as as more open government becomes part of the Government 2.0 discussion about changing the relationship between government and the citizenry. It's not primarily lawyer turf, as we see elsewhere.

For example, the Federal Government moved responsibility for Freedom of Information, and the proposed Office of Information Commissioner (incorporating the Privacy Commission) from Attorney General's to Prime Minister and Cabinet under the Special Minister of State. In Queensland the same shift of responsibilities to the Premier has taken place as a result of the passage of the Right to Information and Information Privacy acts. The recognition that less legalisms and more emphasis on citizen rights and public participation is behind these changes. NSW appears to be going in the opposite direction.

On the day that responsibility for the new legislation was given to him, the Attorney General appointed the NSW Privacy Commissioner Judge Ken Taylor Acting Information Commissioner to begin the process of setting up the new office. According to the announcement, "the appointment is being made as a transitional measure only. The Government will shortly commence the public advertisement and selection process for the appointment of a permanent Information Commissioner, with a view to having a permanent officeholder appointed upon commencement of the new legislation in early 2010."

Judge Taylor is a former District Court Judge, for two years NSW Health Care Complaints Commissioner, and sometime Director General Naval reserves. He'll need all the public administration experience he can muster to deal with the tough issues flagged in this letter about his appointment to the Joint Parliamentary Committee on the Ombudsman and Police Integrity Commission. Getting the public service ready for the change doesn't seem to be part of his responsibilities as training isn't mentioned. (Correction-it does include preparing draft guidelines and training materials). Nor are any initiatives to inform and educate the public about what are major generally positive changes in their rights. But I'll bet no fine legal point escapes attention.

Tuesday, July 21, 2009

Record-keeping weaknesses limit accountability

The reference in the post yesterday to former PM&C Secretary Dr Peter Shergold alluding to the fact that the prospect of disclosure would lead to advice to ministers not being given in written form highlights a shortcoming in the legislative framework within which the Australian Public Service operates: the absence of a general legal obligation to ensure that full and accurate records are created in the conduct of government activities, and to document and retain records of decisions.

Not that Shergold's point is new, or just a possibility. Treasury Secretary Ken Henry told the Canberra Times in 2006, that "because of FOI," records of communication with the Treasurer were not always kept. On the general issue, the Australian Law Reform Commission, the Ombudsman and the Auditor General (most recently in this 2006 Report Recordkeeping including the Management of Electronic Records) have all referred on many occasions to the need to address shortcomings in record-keeping practices. The Audit Office and the Public Service Commission have put out plenty of guidance on good practice including the need for written briefings on key issues where practicable, and records of decisions on significant issues.

Some new information about what goes on behind the scenes is contained in the recently published e-book The Role of Departmental Secretaries by former Public Service Commissioner and Secretary of the Department of Health and current President of the Australian Institute of Public Administration, Andrew Podger. This from the chapter Fourth estate or fifth column? Working with the media about a strategy meeting on how to foil FOI applicants, while staying just inside the law, although "systematic arrangements to tie as much policy advice to cabinet papers as possible" in order to avoid disclosure might have gone close to an issue of interest to the Ombudsman at the time.
" A meeting of all departmental secretaries in 2004 discussed concerns about the media campaign, led by The Australian newspaper, to challenge decisions (including the issuing of ‘final certificates’) to exempt documents from FOI. Discussion focused first on the definition of ‘documents’ and then, when the meeting was advised by Rob Cornall (Secretary of the Attorney-General’s department) that the legislation implied a wide definition, discussion turned to ways of limiting the number of documents held that were not unequivocally exempt from public release. Keeping diaries was firmly discouraged, those with ‘day books’ or similar were advised to destroy them at the end of each week or fortnight and it was suggested that good practice was to systematically review document holdings to destroy draft papers that were no longer essential for future work. Where possible, policy documents were to be managed as cabinet papers, which were exempt. One secretary went so far as to boast that he never kept written records of conversations with the minister, but reported back to his departmental officers orally on decisions made and action to be taken. Cornall was asked to provide further legal advice on how to gain exemptions from FOI coverage.

I expressed concern that the conversation was so one-sided. I noted the Auditor-General had frequently criticised the lack of adequate record keeping and asked Cornall to give us legal advice also on the obligations of public servants to make and to keep records. Cornall agreed that this was a sensible request. (As I recall, the subsequent advice provided was that there was no explicit obligation to create records, though the Public Service Act and the Financial Management and Accountability Act arguably implied some such obligation—for example, through the value of ‘open accountability’; the Archives Act certainly constrained the destruction of records once created.) I also asked the secretary who claimed he did not keep records how he expected his staff to carry out the minister’s decisions, which he had relayed orally. Surely effective management, let alone the obligation of accountability, meant someone would make a record of the decisions.
A year later, when I was working in the Department of PM&C, I was intrigued by the systematic trawling of files, official and unofficial, to destroy ‘surplus’ copies of draft papers and other papers not essential for recording the decision-making process. There were also systematic arrangements to tie as much policy advice to cabinet papers as possible. The processes did not involve the destruction of any key documents, but were clearly aimed at limiting the risk of FOI (or parliamentary) requests for working papers being upheld."
I don't know whether Dr Shergold was at the meeting but he was Secretary of the Department of Prime Minister and Cabinet at the time.

On another aspect of FOI- the ticklish problem of dealing with the minister's office- Podger recounts this episode from his time as Secretary of the Department of Health to Minister Woolridge:
"I was accompanying Michael Wooldridge on a visit to the United States when, on the way to an important meeting one morning, he turned to me in the car blasting me about the department betraying him and lying to his office. I had no idea what he was on about until the adviser explained that it concerned an FOI request. The department overnight had released information requested about the minister’s personal expenses in the form of all the various receipts for expenditure. The media back home was having a field day about such things as champagne with the AMA president after settling some negotiated agreement. I contacted my office and sought the background.

The minister remained furious all day, convinced of the department’s disloyalty and unilateral action. Having finally obtained the full story, I went to the minister’s hotel room late in the evening, a bottle of red wine (bought with my own money) under my arm. The staffer was with him. I accepted responsibility for the department not forewarning the minister or his office of the precise time the information would be released, but advised that his office was aware of the request and the information to be released. I also noted that the FOI request followed the minister’s continued refusal to answer a related Question on Notice, a reply to which we had drafted on several occasions. The minister was not much mollified (given the continuing media fun and games), but said he appreciated my gesture and accepted it was my role to defend the department.

I bit my tongue, waiting until the staffer and I had left his room to hand the adviser copies of all the emails I had. These detailed the extent of communication between the department and the office over several weeks, including the collation and verification of documents by the office, consideration of what had to be released under the law and the deadlines under the law for release. I told the staffer: ‘You now know what I did not tell the minister: I could have nailed you and the office on this. There was no lying by the department or any disloyalty to the minister. You guys clearly did not keep the minister informed.’ Perhaps I should have been more forceful with the minister, but this way I won important credit with the office and greater cooperation from then on. I doubt the minister forgave us, however."

Monday, July 20, 2009

That culture change challenge

Crikey today gives prominence to a speech last week by Secretary of Prime Minister and Cabinet Terry Moran in which he endorsed remarks by his predecessor Dr Peter Shergold about the role of the public service concerning policy advice

"The public service, Dr Shergold said, provides ministers, that is the executive government, with frank, fearless and robust policy advice — and it does so in a confidential manner. I believe, as does Peter, that the confidentiality of advice is critical to our ability to be professional."

This overall was a small part of the Moran speech about challenges facing the public service, which also relevantly included comments about the need to put the citizen at the centre of service delivery, the wonders of the economic stimulus plan website, and the Government 2.0 Task Force which Moran (the nation's top public servant) says will among other things "advise on how to establish a public sector culture that favours openness."

The Shergold remarks were made in a panel discussion at the Adelaide Festival of Ideas, broadcast a week ago on Radio National's the National Interest. The quote above is accurate but Shergold added at the time that the Westminster system can only work when advice including options presented to government remains confidential. When challenged on this by former Senator Natasha Stott Despoja, Shergold said unless confidentiality was assured, he had fears about the strength of advice that would be offered, that he and others would write in different terms, and that oral rather than written advice would be offered in some circumstances.

All this is a rerun of arguments Shergold and others including Treasury Secretary Ken Henry (and many before both of them ) have been running for years. And often rejected by those responsible for independent review of decisions on access to information, for example in McKinnon and Secretary Department of Prime Minister and Cabinet (2007) AATA1969 . In that case a number of claims by Dr. Shergold that documents concerning government deliberations should not be disclosed in response to a Freedom of Information application on public interest grounds were rejected by the Deputy President of the Tribunal - that disclosure would reveal deliberations of senior public servants, would mean that proper records would not be created, and that frank and candid advice would not be offered.

These sorts of claims were similarly dismissed recently by Clerk of the Senate Harry Evans as grounds for refusal by ministers and public servants to respond to questions in parliamentary committee hearings.

I'm sure Moran and Shergold know that advice to government (other than in the context of cabinet deliberations) has had no guarantee of confidentiality since the FOI Act came into force in 1982. It is only protected where disclosure would be contrary to the public interest. The Government's proposed Freedom of Information Reform Bill- or at least the draft, Moran's department has carriage of the bill yet to be presented to parliament- will enhance prospects of disclosure where this would increase scrutiny and review of government activities, and inform debate on a matter of public importance. No one until now has suggested the need for more confidentiality.

Moran seems to be suggesting we go backwards rather than forward on this one. I don't contest the need for confidentiality in provision and consideration of advice and the weighing of options. But after decisions have been taken, good government in my view, would be enhanced by disclosure of the decision making process, the choices available and the arguments for and against, unless the sensitive nature of the issues at hand, and therefore the public interest demands otherwise.

Only a glimpse of Victorian food hygiene standards

Mark Russell in The Sunday Age reports

"The veil of secrecy protecting Melbourne's restaurants and cafes caught dishing up contaminated food will be lifted next year. The State Government expects a "name and shame" food hygiene website to be up and running by July 1. The website will be similar to one in NSW that has attracted more than 2.3 million visitors since its launch a year ago."

The veil however won't be lifted as much as it should, or as much as it has in NSW, despite the claim by a spokeswoman for the Minister for Health that the Food Amendment (Regulation Reform) Bill currently before the Parliament will deliver the goods. The Bill ( Clause 27) will require the publication on a website of convictions for offences, which of course are court imposed, and while this would provide convenient access, only involves information that is already in the public domain. What is different about the NSW Register is that it also includes information about penalty infringement notices issued after council or Food Authority inspections. These are not convictions, but represent findings that may or may not be disputed. The Victorian Bill (Clause 39) provides for infringement notices to be issued but makes no provision for inclusion of notices issued on a publicly available register.

Last week the NSW Authority went a step further than the NSW Act requires in releasing in response to a Freedom of Information application, details of the number of inspections undertaken, providing for the first time a list of of those councils which don't appear to attach a priority to this aspect of regulatory responsibility.

On my reading, Victoria is following a Western Australian lead in only mandating publication of the register of convictions. A more serious effort to lift hygiene standards would involve opening up the inspection regime to public scrutiny by ensuring publication of results of all inspections (good as well as poor findings), any enforcable undertakings (Clause 34) entered into, and penalty infringement notices and convictions, with scope for the proprietor to add information about rectification of identified problems.

Friday, July 17, 2009

Premature call on the death of secrecy?

Bernard Keane in Crikey today hails the release of a "truckload of documents" by the Department of Immigration for providing a glimpse of the yet to be legislated new era of open government in Canberra. The Department deserves congratulations for "getting with it" but I'd hold judgment for a moment or two about how widely the message has travelled, and how it has been received. The best indicators might be any shift in attitude in Treasury and Defence.

Thursday, July 16, 2009

Information Commissioner challenges

As NSW goes about setting up the Office of Information Commissioner and finding someone to fill the job, the Acting Information Commissioner in Queensland comes to grips with new legislative responsibilities, the new West Australian Information Commissioner Sven Bluemell settles in, and the Federal Government continues to mull over legislation to establish its Office of Information Commissioner, a timely reminder from the UK that more than good intentions are needed to make this kind of set up work:

"Long delays by the Information Commissioner’s Office (ICO) in investigating freedom of information complaints are undermining the effectiveness of the FOI Act, according to a new report by the Campaign for Freedom of Information.

The report analyses nearly 500 formal decision notices issued by the ICO in the 18 months to 31 March 2009. The decisions were made under the FOI Act and the associated Environmental Information Regulations. It finds that -

  • on average it took 19.7 months from the date of a complaint to the ICO to the date on which the ICO’s decision on the complaint was issued
  • in 46% of cases it took between 1 and 2 years from complaint to decision
  • a quarter of formal decisions took between 2 and 3 years while 5% of cases (23 complaints) took more than 3 years
  • the longest case took 3 years and 10 and a half months
  • only 24% of decisions were issued within 12 months of the complaint.

The report also found that on average the ICO’s investigation into a complaint did not begin until 8 months after the complaint had been received. In 28% of cases, there was a delay of more than a year before the investigation began and 19 cases waited more than 18 months. One complaint had been with the ICO for 22 months before the investigation began."

Wednesday, July 15, 2009

E-health on the move, with lively privacy debate to follow. Not Federal Health Minister Nicola Roxon

Our wonderful system of federation adds a layer of complexity to an already complex problem when it comes to getting the balance right between access to health information, now in digital form, for those that need it for efficient and effective service to those in need, and the appropriate protection of privacy of the individual concerned.

In a somewhat low key fashion (not even a ministerial media release, perhaps reflecting the potential hot political potatoes at the heart of the matter), the Federal Government via the Department of Health and Ageing has released a Discussion paper on Healthcare Identifiers and National Health Privacy Arrangements.It seeks submissions by 14 August on legislative proposals, to be in place to allow a scheme for the issue of unique health identifiers by Medicare Australia, by mid 2010. A spokesperson for The Australian Privacy Foundation made the obvious point that any system poorly thought through and not properly managed poses dangers to the health of those involved. The Foundation had earlier laid down a few markers about the privacy concerns about e-health systems in letters to the Federal and NSW Health ministers. Expect considered comment on the details soon.

The Australian Law Reform Commission spent two years on research and consultation and delivered a report late last year running to over 2000 pages on the reform of Australia's privacy laws. The Government hasn't responded to any of it so far but as the Discussion Paper illustrates through examination of only some health issues, holding to the proposed consistent uniform approach will be a monumental task. Queensland's Information Privacy Act only commenced on 1 July; NSW and WA are looking at reforms and the Commonwealth will announce phase one of its response to the ALRC proposals before the end of the year. The Discussion Paper says consultations with the states about e-health (its been on the agenda of Australia's health ministers now for 9 years) will commence in the second half of the year. However existing laws and regulations-with some modifications to allow for national identifiers- are to get us by until the proposed uniform national system of regulation is in place.The mind aches at the thought of all those inter-departmental, inter-government meetings across the country..

Meanwhile before the Federal Government makes any public response to the ALRC proposals, the Paper (Part B, page 45) proposes ditching a number of those put forward by the Commission, including that one group of ministers (Attorneys- General) should be in the driver's seat on all this- Health ministers are preferred- and adding some new elements to the ALRC Uniform Principles proposals to reflect special features relating to health.
Special pleading may have some justification, but I'm sure there has already been plenty of it behind closed doors from other sectors, and it's a contributing factor to the current legislative mess. No doubt the experts will give us plenty to think about over the next month on the e- health issues.

If we are still to get anything through the Federal Parliament on Freedom of Information Reform, 20 months on, what chance all this in place by mid 2010?

First signs of new Queensland

The Queensland Right to Information Act came into force on 1 July 2009, replacing the Freedom of Information Act, so it's still very early days, but already some visible developments.

The Premier's Statement of Right to Information Principles includes a clear, strong message that the government will conduct itself "in the most open and transparent way possible":
"The processes of government should operate on a presumption of disclosure with a clear regard for the public interest in accessing government information. The Queensland public service should act promptly and in a spirit of co-operation to carry out their work based on this presumption"
Specific instructions to the public service include a duty to maximise access without the need for formal applications, to process requests rapidly and fairly, to continually improve processes and to use innovative ways to ensure information is available to all sectors.

The RTI website provides a step by step "where and how" guide to accessing information.

The Premier has also issued Ministerial Guidelines on Publication Schemes and Disclosure Logs. There is nothing wrong with the fact that the categories of information to be included in each agency's publication scheme are a straight knock off of the UK scheme. But a pity there was no original thinking of other information that could be usefully added such as policy research papers, expert reports, grants, loans and guarantees, and ministerial and senior public servant travel and expenses.

The Disclosure Log guidelines seem reasonable, with wider publication of information released no sooner than 24 hours after disclosure to the applicant and in any event within five days, with exclusions of personal information where disclosure would breach the Information Privacy Act or cause substantial harm.

Some agencies have already published the first version of their publication schemes. A good move to provide a single point of access. I haven't checked searchability.

The Premier's Department includes in "Our Lists" the Premier's Gift Register. I didn't check them all but couldn't find any others who had followed this lead.

Welcome developments, wonderfully ironic as the jury retires to consider the verdict on former minister Nuttall over charges of secret commissions.Update: guilty, facing a maximum of seven years.

Monday, July 13, 2009

Back in touch.

I'm in Darwin catching up, courtesy of internet access, on developments of a week spent in very remote locations. For me, items of particular interest include:

James Massola in The Canberra Times, brought together the key elements of the open government reforms now moving on a number of fronts in Canberra, and included a well deserved wrap for what the four volunteers behind Open Australia have managed to do with parliamentary information. All very positive. Massola should have included a mention of the Australian Law Reform Commission review of secrecy provisions in Federal laws, due for final report later in the year, which is another plus piece in this picture. Meanwhile as Shadow Attorney General George Brandis pointed out, we still have zilch to show on Freedom of Information legislative reform, described by then responsible minister John Faulkner, as a "high priority" for the Rudd Government (elected 20 months ago).

Reality about accountability strikes when you read Warren Read's account in Online Opinion of the 15 year fight, now settled, between Defence and Russell Vance which has cost taxpayers $15 million, with limited parliamentary or media attention. And no-one's responsible. Ditto for security failings at Sydney Airport.

And reality double take to read on that the Therapeutic Goods Administration only has out-of-date and incomplete information about whether sunscreen approved for sale contains engineered material suspected of causing damage to human cells and DNA. It only cost Lee Rhiannon of The NSW Greens $2000 instead of $4000 to find this out however, after arguing for a public interest discount!

Matthew Moore in the Sydney Morning Herald finally obtained information from the NSW Food Authority about lax approaches to regulatory inspections of compliance with food safety standards by some NSW local councils, with the Authority somewhat belatedly recognising through disclosure, that it's more than "name and shame": there are major public health benefits in opening up the inspection system to public scrutiny. A tick for NSW but as to the rest of the country.....

The debate about publication of school performance information in NSW continues following the remarkable attempt by The Greens and the Opposition to put newspapers and magazines in the dock it they dare to play around with published data to create "simplistic league tables". I don't think this has occurred too often but I'm with former Treasurer Michael Costa, now writing for The Australian:
".. much union criticism of so-called league tables misses the central issue: parents and taxpayers have a right to know how their children and their schools are performing. The unions claim the league tables "are unfair and simplistic" and they could "stigmatise schools and lead to unfair comparisons". Any statistical data can be misused. That is not an argument against collection of the data or publication of the data."
This is the same Michael Costa who in the NSW Legislative Council for years made an art form of rude obfuscation and refusal to respond to legitimate questions from the other side of the chamber about aspects of government performance. Ah, you've gotta love 'em.

Good use by John Warhurst of ANU writing in The Canberra Times, of information dug out of the Federal Government on publicly funded travel by former parliamentarians by the Sydney Morning Herald, to give new life to the debate about the generosity of the Life Gold Pass scheme.

Fiona Hudson in the Herald Sun obtained some information about taxpayer-funded extras fitted to 126 vehicles supplied to Victorian members of parliament but I'd love to see the reasoning for the following knockbacks. Hope she challenges:

"(The) Department of Treasury and Finance staff ruled the cost of the extras was a "trade secret", and refused to release a breakdown of spending. The department also refused to identify which politicians had ordered which extras."

More as the week goes on.

Saturday, July 04, 2009

Federal Privacy Commissioner extended 12 months

Federal Privacy Commissioner Karen Curtis has had her appointment extended for a year. In the announcement Special Minister of State Ludwig said she would assist in the transition to new arrangements including the establishment of the office of the Information Commissioner, expected to be operating from early 2010. That position and the Freedom of Information Commissioner are to be created by legislation yet to be introduced into Federal Parliament. It will require an amazing spurt to get the Reform Bill through Parliament and the administrative arrangements including appointments done by the end of the year. We live in hope.

Thursday, July 02, 2009

Queensland RTI in effect

Now I wonder whether you read in the media anywhere-I didn't -that it appears from this home page that the Queensland Right to Information Act came into effect yesterday.

Warning do not enter: danger to democracy

Found a web connection way out here and see News Ltd CEO John Hartigan at the National Press Club yesterday gave an interesting, spirited and optimistic speech about the future of journalism for those prepared to make the very big adjustment to changing times and public tastes, and how News plans to thrive in this environment. While there is a plug for instances of good journalism even in the much maligned tabloids, and plenty about what should constitute better journalism, there is nothing in the speech about challenges such as observance of professional standards, responsibility and ethics including respect for privacy.

Hartigan however puts journalism on a pedestal while making some scathing unqualified generalisations about all the rest of us out here who might like to think we have something useful or interesting to say on subjects that the mainstream media doesn't always cover. So while you might think there are bloggers and bloggers , there are no distinctions for Hartigan.What you get from bloggers is "limited intellectual value as to be barely discernible from massive ignorance" ; "the blogosphere is all eyeballs and no insight" and quoting one of News' own “the blogs and comment sites are basically editorial echo chambers rather than centres of creation”. This is a bit like a couple of other bald Hartigan assertions of recent memory such as "the current media privacy framework is effective and working well" in March and "Freedom of Information laws that barely function" in April .

Anyway I'll leave it to the reader to mull over another Hartigan claim in the speech that sounds a overreach to me that "amateur journalism trivialises and corrupts serious debate – it degenerates democracy into mob rule and rumour milling."

While democracy is going to the dogs, I'm on holidays . No mob rule while I'm away,OK?

Wednesday, July 01, 2009

No sympathy required.

I'm travelling in far northern Western Australia and the Northern Territory until 14 July so you will understand that things germane to the usual preoccupations here have assumed a lesser priority. I'll check in occassionally- perhaps and as opporunities arise- but it may be slim pickings for the next two weeks.Enjoy.