Monday, November 30, 2009
Hard to argue against any of this. While going further than the Australian Law Reform Commission Open Government recommendations of 1995 in important respects, the proposed changes do not incorporate one ALRC recommendation- that charges should be based on documents released not withheld.
The abolition of the application fee in all cases will have the additional plus of facilitating straightforward lodgement of an application by email. The no charge where time limits are exceeded should prompt agencies to look seriously at more proactive or informal disclosure, and will place new pressure, particularly on those often late, to find efficiencies in processing.
There is room for debate whether journalists and not-for-profit- community organisations are the only applicants who deserve additional concessions on charges. Any applicant who seeks information about government's conduct of public functions for the purposes of dissemination arguably should receive similar consideration. This impinges on definitional issues, not addressed in the draft, about who is a journalist, and what constitutes a not for profit community group. The Exposure Draft leaves it to the agency- the power to waive is where an agency reasonably believes the applicant is a journalist etc. This issue cropped up earlier in the year in the context of consideration of shield laws for journalists ( the Evidence Amendment (Journalists’ Privilege) Bill 2009 is still not through the Parliament) where after some debate the Government decided to go with no statutory definition. Its also an issue being considered in the context of reform of privacy laws and ALRC proposals for change to the media exemption. In both instances the issue of bloggers and citizen journalism has been raised.
Saturday, November 28, 2009
Friday, November 27, 2009
The important issues in the decision concern legal privilege. Judge Herriman was not satisfied  the Acting Ombudsman correctly applied the law in reaching his determination and made orders remitting the matter for redetermination in accordance with guidance provided  on the proper application of the law concerning privilege. Included in the judgment are these observations :
No severability in common law privilege
"It is not, therefore, appropriate to look at challenged factual material from the standpoints that (a) some part of it is not legal advice or (b) it has been ascertained by the author or by others in circumstances which did not themselves attract privilege or (c) it contains material put there for a separate purpose. If a court is satisfied that the dominant purpose of a communication otherwise meets the required test then, ordinarily, the entire document will enjoy privilege and no question of severability should arise."The SA FOI Act enshrines a different notion
Judge Herriman [60(2)] was
"not satisfied that the exemption test applicable under clause 10(1) of the FOI Act is equivalent to or co-extensive with (common law privilege.) Had the legislators intended such a result, they might simply have said so. Indeed, the Commonwealth Freedom of Information Act 1993 expressly provides (s 42(1)):A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.
But here, clause 10 provides that a document is exempt if ‘it contains matter that would be privileged’ on the ground of legal professional privilege. That phrase appears to me to introduce a concept that common law authorities have not squarely dealt with. They focus upon the question of whether a whole document is privileged, not on whether ‘matter’ contained within it might be....
It appears to me that the legislature has here (in clause 10) embraced a form of exemption that is considerably wider than that which would apply at common law. It looks not at the dominant purpose of the document itself but, rather, whether there is matter contained within it that would be privileged.
Under the FOI Act where part of a document contains privileged matter, the entire document is exempt
"..if a discrete part of a document can be so characterised, then the whole document can be said to ‘contain’ privileged material and a clause 10 exemption ought be available, notwithstanding that the dominant purpose of its creation as a whole document may not otherwise satisfy the common law test."
(Comment:I can't recall this issue arising elsewhere in jurisdictions that use the same formulation in FOI legislation, but would be interested in any comments.)
Judge Herriman found that the Acting Ombudsman had erred in law in addressing issues about whether privilege properly applied to agenda papers prepared for Board consideration in disciplinary proceedings:
"Once he found certain parts of an agenda did contain legal advice, the basis for a clause 10(1) exemption necessarily emerged and he erred in then proceeding to determine the matter by considering the dominant purpose of the whole document. Further, he did not properly direct his mind as to whether such material amounted to ‘evidence gathered for the purpose of litigation’
Judge Herriman added that if the FOI privilege and common law were co-extensive, the Ombudsman had "wrongly failed to consider the appellant’s argument that some factual matters in the agenda were necessarily intertwined with legal advice and should therefore also be part of any privilege claim"; had "misapplied the law and applied too narrow a test in approaching litigation privilege on the footing that ‘the dominant purpose test aside’, it could not be said that the documents in question could be ‘used in or aid the conduct of litigation’;and had "failed to turn his mind to the distinction between documents prepared by solicitors employed by the Board in the exercise of investigatory and legal advisory functions."
There were also errors in the way the Acting Ombudsman had addressed the public interest test in connection with a claim for exemption of internal working documents.
On the substance of what was said yesterday, one matter worth noting, although the Government appears not to be making much of it- the FOI Charges Regulation yet to be released will provide that if there is a failure to comply with a statutory time period, any charges will be waived. NSW has included a similar provision in the GIPA Act. This will have some impact on agencies frequently late in determining applications. Unless I missed it I don't think waiver of charges for being late has been mentioned before.
Congratulations to the Walkley Award winners, particularly Gary Hughes of The Australian, who took the Gold for his very personal and highly professional reports of the Black Saturday bushfires. Special mention of Michael McKinnon, FOI Editor of Seven Network, who received the award for Journalism Leadership for his 20 year involvement in Freedom of Information, and was one of the Seven News team who won the All Media Investigative Journalism award for reports on police corruption.Nice on air tributes from John Hartigan, Matthew Moore and Queensland Premier Anna Bligh (did they ask Treasury boss Ken Henry?), and Rick Snell was one of those included in McKinnon's "thank you" list. Commonwealth Ombudsman Professor John McMillan said McKinnon has played a “pivotal role in the transformation of Australian FOI law and practice” by drawing public attention to the cause:
“He has shone a light on many government actions that would otherwise be buried from public scrutiny, on matters such as asbestos contamination, tax administration, Treasury forecasts, weapons safety, grant schemes, bulk billing and Reserve Bank decision making,” said McMillan.
Thursday, November 26, 2009
The official Summary of the main changes between the draft and Introducted FOI reform Bills RTF 1.17MB includes 25 items but there are few of significance and little take-up of suggestions for improvements made in the published submissions. In fact there is little to show for the last seven months of consultation and whatever was going on behind the scenes. The only changes worth mentioning in this preliminary assessment are that internal review will now be optional; the business affairs exemption has been split making an absolute exemption for trade secrets and information of commercial value that would be destroyed or diminished by disclosure, and subjecting information about business or professional affairs to a public interest test ( in essence the status quo and a step back from March when all business related information was to be linked to public interest considerations); and the Minister is to ensure a full review of the Act within two years, to be completed within six months and presented to Parliament. The rest is very minor detail.
So the Reform Bill is essentially what Minister Faulkner outlined in March. My comments at the time were that it is good and welcome, so congratulations to that extent. The reforms are designed to deliver Labor's pre-election commitment to implement key recommendations of the 1995 Australian Law Reform Commission Open Government Report, rationalise exemptions, review charges, and establish an Information Commissioner- the other leg of the commitment to abolish conclusive certificates has already been accomplished. Positives about the Reform Bill include the creation of the Commissioner to lead, guide and monitor as well as undertake review functions; proactive publication of information ( but the legislation doesn't go far in specifying the detail which will be in the hands of the Information Commissioner); a tilt in the direction of disclosure as a result of clear statement of the objects and more forceful expression of relevant and irrelevant public interest considerations; and the abolition of application fees (subject to a regulation yet to appear).
However the Government has been selective about the ALRC's 106 recommendations, with no explanation for example for failing to bring the parliamentary departments within the scope of the Act; to reduce the time limit for dealing with an application from 30 days to 14 days; for charges to apply only in respect of documents released; and to act on various other recommendations that vary in significance but include that chief executives of government agencies should have a duty under records legislation to create "such records as are necessary to document adequately government functions, policies, decisions, procedures and transactions."
The "rationalisation of exemptions" is a bit of a damp squib with the abolition of two rarely used exemptions (Executive Council documents and documents prepared in accordance with companies and securities legislation) and a sub-section relating to documents concerning the conduct of industrial relations, all as recommended by the ALRC. All other exemptions (including many internal combinations and permutations) remain, with a couple of welcome changes but some ALRC recommendations not acted upon. Exemptions at least will now be arranged in two neat boxes - absolute exemptions, and conditional exempt documents where a public interest test applies.
The Reform Bill however still involves the crafting of new, mostly better plain English provisions onto the old bones of a 1982 Act that shows its age. Its a pity the Government didn't look for best of breed ideas from Queensland, NSW and Tasmania which have all acted more expeditiously and comprehensively on reform. Issues raised in my submission on the Exposure Draft attracted little interest (I think I managed one change) including suggestions for a shift from "documents" to a right to access information, more fitting in the digital age; to require an agency to use the most efficient means to retrieve information from electronic or other systems; to remove a hopefully never used provision (Section 23) that allows a minister to make a decision on access to agency documents, one of the provisions that hardly encourages confidence; to re-examine blanket exclusions of documents relating to functions of some agencies; and to include offence provisions for destruction of information to avoid disclosure, or interference or improper direction in the making of determinations.
With parliament to rise, exhausted by climate change wrangling, and the country starting to think about summer holidays it's over for the moment. It will be interesting to see what it all looks like when debate resumes in February, particularly in the Senate. And in two years time when a full review is promised.
We won't be starting 2010 with the new regime in place, more's the pity, and bets are open on when we will see performance match promise.
Wednesday, November 25, 2009
Update: Sean Parnell in today's Australian reports the Minister announced that the FOI Reform legislation will be introduced into Parliament tomorrow.. Bills introduced on the last day of sittings proves me wrong in my Fail Grade piece on Monday-but only just.
"The new regime comes with the promise of government proactively releasing more information, loosening its grip on historic but still relevant documents, and making it easier and cheaper for individuals to obtain information about their affairs. It remains unclear when the new regime will be in place. Senator Ludwig said last night the initial drafts had been "updated and improved" through consultation.
It is understood the government has altered the proposed avenues of appeal, allowing applicants to go straight to the Information Commissioner if dissatisfied with a decision, and requiring agencies to obtain the approval of an applicant to push back processing deadlines.
Senator Ludwig said the reforms would ensure the right to information was "limited only where a stronger public interest lies in withholding access to documents". "By introducing these bills to the parliament, the government is driving a cultural shift across government to free up access to government information and enhance accountability and transparency," he said.
Senator Ludwig said application fees, currently $30, would be scrapped, a period of processing time would be complimentary, and applications for a merits review by the commissioner would be free. Significantly, the scope of the FOI Act would also be extended to contracted service providers and subcontractors doing work for the commonwealth."
- In the present case I accept the submission that if the Minister has sought opinion, recommendation and advice from Vicroads through its Chief Executive on a highly sensitive and highly contentious issue this is significant as to where the public interest lies. If under the Freedom of Information Act it were generally possible for critics of a Government to trawl through the advice which a Minister received in those circumstances with a view to detecting consistencies or inconsistencies between what a Government has done and what advice it has received, or perhaps seeking support for some of the criticisms made in the advice which the Minister received, the ability of Ministers to obtain that sort of advice would be prejudiced. Either Ministers would be deterred from seeking it at all or they would seek it in some unwritten form so that it could not thereafter be canvassed following release under freedom of information legislation. The public interest rationale here is to some degree along the same lines as the rationale for the high value which the law attaches to client legal advice privilege.
The case has a number of interesting angles, and highlights  another familiar feature of contested FOI applications: the dribble effect. Vicroads initially identified 10 documents within the scope of the request granting access to one and refusing access to nine. On internal review, part of one of the documents claimed to be exempt was also released but the initial determination was otherwise affirmed. It's not clear whether the applicant soldiered arms on some of the other documents in dispute or the agency conceded, but by the time the proceeding came on for final hearing before the Tribunal the one document remaining in dispute was a memorandum from the Chief Executive of Vicroads to the Minister for Roads and Ports re ‘Advice on clearway hours.’ Access had been granted to the document with the exception of paragraphs 5 to 11.
Monday, November 23, 2009
"The report also found Australia's public service to be less adept than other nations at incorporating non-government expertise and the views of citizens into its policy development and service design process."
He went on to say:
"This is something that the Government has been addressing since we came to office through measures such as community cabinets, reforms to Freedom of Information laws, the 2020 Summit and the development of a Web 2.0 plan."Of course it's true "the Government has been addressing since we came to office.... reforms to Freedom of Information laws." But it is also true that most of that consideration has been behind closed doors and that it has little to show for its efforts, other than legislation this year to abolish conclusive certificates. This was promised for 2008, and while a good and welcome move, should have been low-hanging fruit for a government serious about fundamental reform elected in November 2007.
It's also true but unacknowledged in the Prime Minister's speech that his government has failed to deliver on the commitment to introduce into Parliament in 2009, the more substantive FOI reforms canvassed in an Exposure Draft released with fanfare in March, followed by a submissions period that ended in May. The bills as distributed had the new regime , including the Office of Information Commissioner in place by January 2010.(Correction: this "failure" and comment that follows was a premature call- FOI Refom Bills were introduced into Parliament on the last scheduled day of sittings for the House of Representatives on 26 November. Debate was adjourned until next year. See details in this later post.)
Mike Steketee in The Weekend Australian in an account of the internal workings of bureaucracy in dealing with an FOI application for documents concerning climate change (that sounds distinctly old school and unchanged by all the talk of more open government), concludes (emphasis added)
"The email trail .. demonstrates how readily a bureaucracy is prepared to cut corners, including ignoring legal advice, in order to protect ministers. It makes you wonder how strongly the appetite within the government for FOI reform extends beyond Faulkner, who since has gone on to Defence.The main part of the legislation for the FOI reforms has yet to be introduced into parliament, meaning Faulkner's starting date of January 1 will not be met. It has been delayed because his successor Joe Ludwig still is considering submissions on the draft bill. In August he said that changing the culture of the public service was a work in progress. That may qualify as the understatement of the year."
Still considering submissions? Only 45 were published, and five months have now passed. Maybe there was a rush of late confidential ones? On 6 August the Minister Senator Ludwig said
Having considered the submissions, the Government intends to introduce into Parliament and seek passage of the BillsThis followed previous commitments by his predecessor Senator Faulkner to put legislation before Parliament this year.
Get ready to hear someone in Government say that FOI reform-and the culture change that obviously has yet to start in some places ( see Steketee's story and this from the ABC's Chris Uhlmann)- will be a high priority for next year. On the evidence so far you wouldn't bet on it.
"More recent exchanges centered on requests by independent climate researchers for access to data used by British scientists for some of their papers. The hacked folder is labeled "FOIA," a reference to the Freedom of Information Act requests made by other scientists for access to raw data used to reach conclusions about global temperatures.
Many of the email exchanges discussed ways to decline such requests for information, on the grounds that the data was confidential or was intellectual property. In other email exchanges related to the FOIA requests, some U.K. researchers asked foreign scientists to delete all emails related to their work for the upcoming IPCC summary. In others, they discussed boycotting scientific journals that require them to make their data public."
However other recommendations would move NSW in the direction of Canada's more robust reporting and transparency requirements:
That the Premier strengthen the NSW Lobbyist Code of Conduct to require that each minister is informed at regular intervals of contact between government representatives and registered lobbyists.
That the Premier strengthen the NSW Lobbyist Code of Conduct by publishing a report on the internet at regular intervals detailing contact between government representatives and registered lobbyists. The report should include the name of the lobbyist, date of contact, meeting attendees (if applicable) and issues discussed.
That the Premier strengthen the NSW Lobbyist Code of Conduct by establishing protocols to be applied to all meetings between government representatives and registered lobbyists. At a minimum, the meeting protocols should contain guidelines regarding venues, properly recorded minutes and the requirement for the third party presence of at least one government representative.
On political donations, the Committee notes recent commitments to change by the Premier but recommends full adoption of 47 recommmendations made in a Committee Report in June 2008 2008, only 19 of which have been accepted by the Government to date:
That the Premier adopt the model for funding of the NSW electoral scheme proposed by the NSW Legislative Council Select Committee on Electoral and Political Party Funding, and implement the Committee’s recommendations in full. The key provisions of the model are to:
• ban political donations by corporations and other organisations
• cap individual donations
• cap election spending
• make disclosure of donations and election spending more timely and transparent
• introduce greater policing of the electoral funding scheme, and tougher penalties for
"The independent arbitrator shall, as soon as practicable, report to the Senate on whether the reasons given for withholding the documents or information are justified. Where the independent arbitrator reports that reasons given for the withholding of information or documents are not justified, the documents or information shall be produced in accordance with the order of the Senate or the requirement of the committee, subject to any further order of the Senate."
While welcome a pity that this further step in enforcing accountability to the parliament comes just as Clerk of the Senate Harry Evans, a great upholder of the rights of the parliament, and a stickler for detailed reasons for any public interest immiunity claim, retires. Evans will be just another interested spectator when the Committee reports in February next year.
Friday, November 20, 2009
All power to Open Australia for the ground-breaking initiative in getting a version of the Members and Senators registers up and on-line in February this year. Better things to follow.
Most state parliaments are yet to consider this 21st Century step up in transparency.
Here are a couple of points that may not have been picked up so far about aspects of the Parliamentary Electorates and Elections Amendment (Automatic Enrolment) Bill 2009. The bill was introduced by Parliamentary Secretary Penny Sharpe on behalf of the Attorney General in the NSW Legislative Council on 12 November. Other than the Second Reading speech, there has been no debate to date.
Was the Privacy Commissioner consulted, and to what effect?
The Second Reading Speech concludes:
"The Government has consulted extensively with the New South Wales Electoral Commission in relation to all aspects of the bill. I place on he record the thanks of the Government to the New South Wales Electoral Commissioner and his staff for their invaluable contribution to the preparation of this bill."There was no mention of any other consultation including with the Privacy Commissioner. There are no published submissions on the Privacy Commissioner's website since November 2008. A perspective from the Commissioner would be helpful in assessing the claim in the speech that "(t)he provisions of the bill with respect to elector privacy are both fair and balanced..." and that protections will be enhanced by creating a new offence for the misuse of personal information acquired under the Act, carrying a maximum penalty of 50 penalty units, currently $5,500.
From my reading of the Bill, some of the privacy concerns, which need to be balanced against advantages of automatic enrolment are:
that the Electoral Commission(proposed Section 46) can for any purpose relating to the roll demand and must be provided with personal information relating to a person (including a person’s telephone and email contact details and any other information or code used to identify a person) for the purposes of determining whether the address for which the person is enrolled is the person’s real place of living, or if the person is not enrolled—whether the person is entitled to be enrolled for any district. There follows a list of those subject to this obligation including any public servant ( eg those at Births, Deaths and Marriages, the Roads and Traffic Authority, the Department of Health and Area Health Services, Education, Community Services etc,etc), a police officer, local council employee, Sydney Water Corporation, an electricity supplier, the public universities and last but not least, an elector or person entitled to be enrolled;
that regulations yet to be seen may make provision for or with respect to the collection of information by such persons, for example, for the Roads and Traffic Authority in its application forms to collect information such as mobile phone numbers and email addresses for the purposes of notifying electors they will be placed on the roll;
that the NSW Privacy and Personal Information Protection Act does not apply in relation to the disclosure of personal information to the extent that the personal information is provided to the Commission under proposed Section 47 by any of these persons or bodies. Does this mean simply in respect to disclosure or that they also aren't required to give notice of this disclosure at the time of collection? There is no opt out.
that the Electoral Commmission is not subject to the PPIP Act in the collection use and disclosure of information received in this way. It would still seem to be bound by the PPIP Act regarding reasonable safeguards for keeping the information secure.
Political parties and independents entitled to know who voted and where
What is the justification for this provision (proposed Section 138) and is there a precedent?:
(2) After an election, the Commission must ensure that: (a) each registered party that so requests, and (b) each member of Parliament who is not a member of a registered party and who makes a request in respect of the member’s district, is provided with electoral information containing the names and the addresses of electors who voted (other than silent electors and itinerant electors), whether they voted personally or by post and, if they voted at a polling place for the district for which the electors were enrolled, the location of that polling place.
(3) Electoral information provided under subsection (2) must only be used in connection with an election.
(4) A person must not use, or cause or permit the use of, electoral information provided under this section for any purpose other than in connection with an election. Maximum penalty: 1,000 penalty units.
How does the presumption of an overriding public interest against disclosure fit with a discretion to disclose?
Proposed Section 48 creates an offence for a person divulging information other than in the course of duties. With the ink barely dry and the Government Information (Public Access) Act yet to commence, a consequential amendment in Schedule 6 would add Section 48 to Schedule1 of the GIPA Act - creating a presumption of an overriding public interest against disclosure of information under GIPA. Such information is not to be published or disclosed. There is no other test.
Yet Section 48 contains these exceptions:
(2) Despite subsection (1), information may be divulged:(a) to a particular person or persons, if the Electoral Commissioner certifies that it is necessary in the public interest that the information be divulged to the person or persons, or (b) to a person who is expressly or impliedly authorised to obtain it by the person to whom the information relates.
Relationship with Freedom of Information Act
After 20 years and with the FOI Act on its last legs with the GIPA Act to replace it early in 2010, how has the Commission got by so far, and why is this (proposed Section 48) now necessary: (6) Any document that contains information provided to the Electoral Commissioner under this Division, and any database maintained by the Electoral Commissioner for the purposes of this Division, are not subject to the Freedom of Information Act 1989.
On a more positive note Carolyn Bond (of the Consumer Action Law Centre, Victoria) and Kathryn Lane (of the Consumer Credit Legal Service, NSW) were recognised for consistent advocacy for the privacy rights of consumers in relation to credit reporting.
''I'm not going to take advice from a bloke on issue of probity and the like who still refuses, as Leader of the Opposition, to put his very large share portfolio into a blind trust.'' Mr Baillieu said he had complied completely with disclosure requirements about his shareholdings.You've got to love them!
As to Baillieu's chances of winning next year, you will currently get good odds.
Thursday, November 19, 2009
The Office of the Commonwealth Ombudsman Professor John McMillan received over 45000 approaches and complaints in total during the year, just over 200 or less than 0.5%, concerning FOI matters. 50% of the FOI work involved three agencies- Centrelink, Immigration and the Child Support Agency. Most complaints were about delay, fees and charges and poorly explained decisions.The report comments about failures to assist applicants and too literal reading of applications, both giving rise to avoidable user dissatisfaction. FOI rates one page (116) in the report. Unlike coverage of most other investigatory functions there are no case studies.
South Australian Ombudsman Richard Bingham reports his office considered 2543 cases in total, including 221 or about 8%, and more than his Commonwealth counterpart, concerning FOI. (The total number of approaches to the Office are estimated at around 12000). The FOI chapter of the report runs to 24 pages, consisting mainly of case studies and comments about matters investigated. These include an ongoing issue whether the Legal Practitioners Conduct Board is subject to the Act and whether Board documents attract legal professional privilege (an issue before the District Court); the status of information about contractual arrangements and work performance of a former chief executive of a rural health service; commercial in confidence information held by the Department of Health (also before the District Court); and several cases involving the Cabinet documents exemption including the Ombudsman's observation that Clause 1(1)(e) which exempts information concerning any deliberation or decision of Cabinet is too widely drawn. On this the Ombudsman says:
As a final comment, I note that interstate and Commonwealth FOI legislation apart from NSW, does not have such a broad exemption as clause 1(1)(e). I consider that an exemption worded to exempt access to documents revealing rather than concerning a decision or deliberation of Cabinet would be more appropriate, and would protect Cabinet confidentiality and also conform to the objectives of the FOI.The NSW Government Information (Public Access) Act to commence early in 2010 contains a presumption of an overriding public interest against disclosure of a document prepared after a Cabinet deliberation or decision that would "reveal or tend to reveal information concerning any of those deliberations or decisions" (Clause 1 Schedule1). This is an improvement on Clause 1(1)(e) in Schedule 1 of the FOI Act. The exemption for disclosure of information concerning any deliberation or decision of Cabinet was interpreted by the NSW Administrative Decisions Tribunal as broad enough to cover a document that predated cabinet consideration of a matter, something the new formulation would rule out.
Wednesday, November 18, 2009
"The National Archives of Australia has announced that it will be closing its regional offices in Darwin (in 2010), Adelaide (2011) and Hobart (repository 2010 and reading room 2012). It is proposed to relocate the records to Sydney and Melbourne. This is heartbreaking for Indigenous people in the Northern Territory because the NAA office in Darwin houses the records relating to the Territory's Stolen Generations. As well, the Adelaide office of NAA holds significant records relating to child migrants from the 1940s to 1960s – part of the ‘Remembered Children’ to whom the PM apologised on Monday (and promised to help with link-up networks). This move is disastrous for Indigenous people, archivists, librarians, genealogists, historians and many others in those localities and goes against all principles of equity in access to Commonwealth records. Please register your condemnation of this decision with your local MHR or Senator and/or with Senator Joe Ludwig, the Minister responsible for National Archives. Further information: firstname.lastname@example.org
9A Application of legal professional privilege to office
(1) This section applies to communications made in or for the performance of the office’s functions under section 7(a) to (i) or a function incidental to those functions. (Comment-in essence in drafting, and the provision of advice)
(2) Confidential communications between a client of the office, and the Parliamentary Counsel or any member of the office’s staff, are subject to legal professional privilege.
Examples of office’s clients—
1 a Minister to whom the office provides advice on the application of
fundamental legislative principles to proposed subordinate
legislation drafted by the office
2 a member who asks the Parliamentary Counsel to draft a Bill, an
amendment of a Bill or an instrument to be used in the Legislative
(3) Without limiting subsection (2), the communications may not be disclosed by the Parliamentary Counsel or a member of the office’s staff without the client’s consent.
(4) This section has effect despite any other law.
As to other states?
My Queensland correspondent says the only other similar statutory privilege is conferred on communications with Legal Aid lawyers by the Legal Aid Act (Section 75)- I'd be surprised if this is uncommon around the country.
Political advice is part of the problem
Draft advice prepared by a senior public servant told the Government the Tillegra Dam was in the wrong place and would not be needed for 30 years ("A dam or a smokescreen'', November 17). It also revealed the blurring of the important distinction between policy and political advice.
The briefing note included this observation: ''Newcastle is a marginal seat after the last election and many of the people I talk to would vote for an independent who opposed the dam. I can't see what political benefit there is to the Government in the dam.'' Marginal seat impacts and political benefit one way or another should not feature in professional policy advice.
NSW lacks a body to set, lead and encourage professional and ethical standards for the public service, and to protect public servants who act properly in accordance with those standards. The results are self-evident.
Peter Timmins Potts Point
New Zealand No 1- take a bow.
Tuesday, November 17, 2009
The Court stated  that when preparing draft legislation, either in the form of an Act of Parliament or a regulation:
"Parliamentary Counsel do not merely type or format the legislation. Parliamentary Counsel apply legal skill and knowledge to give written expression to the policy underlying the proposed legislation. Parliamentary Counsel would be expected, and perhaps under a duty, to advise upon the legality or effectiveness of the legislation being sought by the instructors. In the case of subordinate legislation, if regarded as beyond power, Parliamentary Counsel would presumably advise of this view. Similarly, if an Act of Parliament was considered unconstitutional, or inconsistent with another Act of Parliament, this is a matter Parliamentary Counsel would be expected to advise upon, even if the only express instruction was to draft the legislation.
22 Where no problem of this kind arises, Parliamentary Counsel, in drafting the legislation and presenting the draft to the government agency, is in effect advising that the draft legislation is in accordance with the instructions given and gives legal effect to those instructions. The draft itself is not the legal advice, but the communication in providing the draft legislation contains implicitly the advice of Parliamentary Counsel endorsing the draft legislation as being effective and valid.
23 It is impossible to disentangle the creation of the draft legislation and the giving of advice in these circumstances. It is not a matter of there being multiple concurrent purposes. Undoubtedly if there were purposes of equal weight, then neither would be dominant, and a claim for privilege would fail. However, there is only one purpose here – to obtain the advice of Parliamentary Counsel, and the communicating of that advice is given in the form of draft legislation."
The Full Court decision includes consideration of the status of third party communication undertaken for the dominant purpose of enabling the Office of Liquor Gaming and Racing to seek legal advice ( following the Full Court in Pratt) [25-41] and whether privilege in some documents had been waived because they were dealt with in a manner that destroyed the State’s capacity to control further dissemination of the document [42-59}, finding privilege applied in both circumstances.
Meanwhile in separate proceedings brought by Sportsbet in which the State of NSW is a party not just an intervener, Justice Jagot considered similar claims of public interest immunity and legal privilege, and a new head for a claim to deny access to discovered documents-parliamentary privilege-which the State argued protected documents in three categories: (i) documents constituting or recording communications with Parliamentary Counsel for the purpose of preparing a draft bill, (ii) documents created for the purpose of a Minister’s use in Parliament, and (iii) documents relating to the preparation of a draft bill.Justice Jagot considered authorities back to 1688 before deciding  that with two exceptions she was
"not satisfied that the discovery or use of the material in question would infringe parliamentary privilege. I do not accept the State’s proposition that every document concerning the preparation of draft legislation is protected by parliamentary privilege because of the fact that, ultimately, Parliament makes legislation. The proposition depends on a connection with the business of Parliament far more distant and tenuous than that accepted as founding the privilege in Rowley v O’Chee."The consideration of public interest immunity claims [23-63] covers similar ground to Justice Jagot's decision in Betfair. In balancing public interest considerations Justice Jagot found that the public interest in the proper administration of justice and the conduct of the litigation outweighed the public interest against disclosure of the documents to Sportsbet, in most instances except for a small number of documents that could be categorised as Cabinet related. Relevant considerations included that the matter at issue-wagering on horse racing- was not a high matter of state deserving the same degree of protection as matters of national security; that disclosure of the documents was unlikely to lead to a lack of candour or inhibition in the future by any of those involved including Parliamentary Counsel; that disclosure of any inter-State dealings would be highly unlikely to have any material impact on the workings of the Australian Racing Ministers' Conference or the officials and officers involved; and that the legislative process was complete, meaning little weight should be given to claims that disclosure posed the risk of premature, distracting, ill informed or misdirected public comment.
The State of NSW has to date generally been on the losing side in arguing the case for non-disclosure of documents in these proceedings.
Monday, November 16, 2009
Cabinet Secretary and Special Minister of State Senator Joe Ludwig spoke on "Confidence in a Digital Age"at the Australian Privacy Awards Dinner last week, primarily about three areas of the proposed privacy reforms that he says will contribute to confidence: the Openness Principle, one of several new Privacy Principles; meeting the challenge of new and emerging technologies; and strengthening the Office of the Privacy Commissioner.
But no mention of issues raised recently by Professor Graham Greenleaf of the University of NSW in Australian IT that the Government's proposals for safeguards for the transfer of personal information outside Australia exposed us to Nigerian scammers, American spammers and Russian mafia-hardly a confidence booster. Greenleaf is supported by Galexia privacy law expert Chris Connolly who in this earlier Australian IT report said all of the positive reforms were "completely overwhelmed by the failure to protect data when it is sent offshore". Former Federal Privacy Commissioner Malcolm Crompton in the same article thought these concerns were overstated.
Congratulations to award winners. The Victorian Department of Justice was the Grand Award winner ( a standout for this range of initiatives). Other winners were: Australian Customs and Border Protection Service (Symantec Government Award), Australian Health Management (Large Business Award), Loyalty Pacific - FlyBuys (Small-Medium Business Award), and the Association of Market and Social Research Organisations (Community and NGO Award). Privacy advocate Dr Roger Clarke was named as the recipient of the Australian Privacy Medal 2009.
“We want to make sure that the work practices of all government suppliers are fair and open to public scrutiny,” Mr Hatzistergos said. “In the interests of open and transparent government, we have committed from next year to disclose details of the industrial relations practices of all our suppliers.”The website will publish comprehensive information on the industrial relations practices of suppliers including: Names of each government contractor and subcontractors including ABN and ACN; Work undertaken as part of the contract; Industrial instruments (awards etc) that apply; Locations of work; Details of former breaches of employment laws by the contractors.
Published information will not include details that are commercial in confidence, risk safety or security, compromise other Government contracts or are prohibited by law.
Sounds a good move and may be an Australian first?
Contractors to NSW government agencies are facing other transparency changes. Those who provide services to the public on behalf of an agency will find contracts entered into after the Government Information (Public Access) Act due to commence early in 2010, will include a provision requiring certain information to be provided to the agency immediately , if it has been requested by an applicant. Contracts entered into by NSW local authorities with private sector providers for $150,000 or more will be subject to disclosure requirements for the first time under the GIPA Act. Local councils and other agencies will be required to publish online a register of contracts. A link between contract details and the industrial relations disclosures-if this is to be a separate site- would be handy.
Searchability will be an important issue in the new era of proactive publication of government information
Sunday, November 15, 2009
''Newcastle is a marginal seat after the last election and many of the people I talk to would vote for an independent who opposed the dam. I can't see what political benefit there is to the Government in the dam.''Beyond the station of an apolitical, professional public service to my mind. And a bit like like the following disclosure in the Ombudsman's Annual report concerning the NSW Roads and Traffic Authority's Freedom of Information practices - now said to have stopped:
"Our investigation revealed that the RTA had a longstanding practice of sending draft FOI determinations to the Minister’s office and then waiting for their endorsement. RTA staff felt unable to finalise applications without this endorsement. They were also not inclined to make determinations that might be contrary to the views they understood the Minister’s office to hold, whether or not those views were directly communicated by the Minister’s staff or indirectly intimated....
The appropriateness of involving the Minister’s office in agency FOI applications is of relevance to the entire public sector. For this reason, we recommended that the Department of Premier and Cabinet develop a Code of Conduct to clarify the role and relationship of a Minister’s staff with agency staff. A draft Code of Conduct has been prepared, but not yet finalised.'
Thursday, November 12, 2009
Wednesday, November 11, 2009
Deputy Prime Minister Gillard had a discussion with 150 school principals in Canberra this week . Here is what she told them. What is contemplated is that each school will have its own profile webpage that will contain a range of information about the school. The categories covered will include: information about the type of school, student and staff numbers, student attendance rate, socio-economic background of theschool student body, results from national literacy andnumeracy tests, and data about vocational education participation and Year 12 attainment.
Information will be available about how a school performs in literacy and numeracy, compared to other schools that serve student populations that have similar socio-economic backgrounds (known as like-school groups). A like-school group could include, for example, schools with similar proportions of students from disadvantaged backgrounds, and comparisons would be made between these schools. Like-school comparisons will be the only form of comparison made. The website will include a list of schools in the local area of the selected school, but comparisons between schools in the same local area will not be undertaken.
Fairly modest really. And the reaction? According to the ABC, teachers and academics have condemned the move, saying the information could be misused to name and shame schools.
I'm no expert in education but I can only see good coming from greater transparency about what's happening in our schools, given the enormous investment of public money and the importance of the issue. A friend who has spent his life in the school system told me today the prime problem was most teachers haven't kept up with the world around them and those in NSW, at best would read the Daily Telegraph each day. If this is near true, no wonder performance measurement is a foreign concept and the reaction to publication of information on the situation in and some achievements of various schools is one of concern.
Ban the payment of success fees to lobbyists for achieving favourable outcomes from government.
Replace the Code for Lobbyists with a legislative framework for the regulation of the lobbying industry and put oversight in the hands of the Integrity Commissioner.
Introduce measures to require newly appointed public service officers and ministerial staff to disclose whether they have worked as lobbyists in the past two years.
Create a statutory obligation on Members of Parliament to declare their pecuniary interests rather than leave this to Parliament's Rules.
Require all statutory office holders to declare their pecuniary interests.
Publish the pecuniary interests of Members of Parliament and Ministerial and departmental gift registers online.
Reform the Whistleblowers Protection Act 1994.
Hold regular People’s Question Time.
Lower the threshold for reporting some details of contracts from $100,000 to $10,000.
Ensure publication of contracts over $10 million.
Overhaul political donations and campaign funding if the Commonwealth does not act by July 2010.
"So what does this tell us? To start with, perhaps opposition politicians and journalists (yes, me included) should read the FOI disclosure logs of government departments more carefully. But perhaps it also tells us something about the relationship between the web and the media. Documents are available on the internet for anyone interested to read for several months - yet it's only when the mainstream media focus on them that other journalists and politicians get interested."The mindset that information in the public domain can't be of interest or importance is widespread here as well. With Queensland in the vanguard regarding more proactive publication of information since 1 July, I wonder whether journalists, politicians and interest groups there regularly check the disclosure logs of government agencies ( involves going through each agency Publication Scheme to find the Log - and they were admittedly a bit thin last time I looked) or the regular public release of information about Cabinet decisions?
Monday, November 09, 2009
"The Freedom of Information Act 1982 (“FOI Act”) gives the public the right to access documents held by the ABC. Part II of Schedule 2 of the FOI Act gives the ABC an exemption in relation to material that is program related. During the past year, the ABC received 10 requests for access to documents under the FOI Act. Two requests were granted, three were granted in part and five were refused."An improvement on last year's almost 100% refusal rate (8 refusals, 1 part disclosure) but no information about how much reliance was placed on a very generous 2006 Federal Court decision that the exclusion was broad enough to cover any document that had an indirect (as well as a direct) relationship to program material.
10 requests in the year wouldn't have put any strain on the system. Maybe the FOI Act isn't needed when it comes to getting information from the ABC. In contrast the BBC received 1141 requests during the same period.
In Ensham Resources Pty Ltd and Department of Natural Resources and Water (210706 19 October 2009) Assistant Commissioner Henry found that much of the information sought by AOAI Insurance that the Department decided to release despite the objections of Ensham Resources (about the Ensham Central Project, more particularly flood risk and/or flood protection levee banks in the Nogoa River floodplain), was already publicly available on Ensham's website, or in other reports and articles, and on the agency website. Ensham declined invitations to provide more detailed submissions to support its claim that notwithstanding, the documents were exempt, arguing unsuccessfully that it carried no onus. Ensham also failed to satisfy the Assistant Commissioner that other documents not publicly available should be exempt from disclosure: the information in dispute appeared to be aged or out of date, was likely to have been significantly revised or superseded and was likely to have lost any commercial sensitivity due to subsequent events and/or the passage of time. In addition the content consisted of commonly known information
Top end of town lawyers Mallesons Stephen Jaques (for AOIA) and Clayton Utz (for Ensham) were involved in this with a win all round for Mallesons (and of course for the Department and its FOI decision maker). But it took from July 2008 when the FOI application was made, and presumably involved a bit of pain for both companies (and the taxpayer) on the costs front.