What a difference 14 days, and a hung parliament make

This post two weeks ago lamented the fact that governing differently or better hardly rated a mention in the election campaign. Here are extracts from the Prime Minister' address to the National Press Club  (posted by The Australian) today, on how improving democratic practices is now at the forefront of her thinking - although the detail of what she has in mind is yet to be revealed, beyond the independents and cross benchers. (Some emphasis added.)

Frank and fearless safe after all

Opposition leader Abbott's concerns about the flow of frank and fearless public service advice as some sort of reason for not co-operating with Treasury to allow a costing of policies for the independents lasted 24 hours before this backflip: about 12 hours longer than the earlier reasons given, that Treasury couldn't be trusted, or wouldn't be able to understand how to go about accurate costings of Opposition policy commitments

Abbott's earlier concerns about frank and fearless had the strong support of Shadow Finance spokesman Robb who took it to another level, arguing that the public service briefs prepared before the election warranted state secret status, if a public service 'down tools" was to be avoided:

''The red and blue books are fundamental to successful transition to government, and that's another important plank of convention in the way in which our government runs,'' he said. ''That material is based on frank and fearless … advice by the public service, and if they thought that could become public knowledge, they would not conduct that sort of assessment again.''

The Herald Sun quoted Professor John Williams, a University of Adelaide law professor,  supporting this line: ''If the public service knew their full and frank advice would be made public, they may not give it,'' he said.

As pointed out here on Friday, if we were looking at a hypothetical Freedom of Information issue, public servants know that since the introduction of the act in 1982, documents of this kind are potentially subject to disclosure unless contrary to the public interest.  As to the red and blue books, that post reminded that the Treasury itself - not regarded as at the leading edge when it comes to disclosure - released parts of its incoming minister's brief in 2007, in response to an application by Michael McKinnon.

As to concern about the impact of disclosure on advice in the future, the issue is whether the threat to frank and fearless is a relevant factor in determining the public interest, and what weight should be attached to this, as against other considerations that favour disclosure in the public interest. If Treasury's costings have the potential to influence a decision about who governs, the public interest in disclosure would seem strong.

The argument about the relevance and weight of frank and fearless has been going on since 1985 when the President of the Administrative AppealsTribunal, Justice Davies in Re Howard and Treasurer of Commonwealth of Australia (1985) 7 ALD 626 (yes that John Howard) acknowledged in a list of factors ruled to be relevant that disclosure which will inhibit frankness and candour in future pre-decisional communications was likely to be contrary to the public interest. But he added that evidence was needed to support such a claim. (Just about all the other public interest factors listed in that decision, again the subject of much judicial conjecture since, will be legislated out of action in FOI amendments that take effect in November.)

Justices Callinan and Hayne in the High Court in McKinnon's case breathed some oxygen into the argument, saying it was something that couldn't be ruled out. But in a subsequent McKinnon case, Deputy President Forgie rejected the argument advanced by the Prime Minister's Department saying there was no evidence to support it. In the course of her decision she noted [122] - APS =Australian Public Service:

The APS Value set out in s 10(1)(f) of the Public Service Act is concerned with the responsiveness of the APS to provide frank honest, comprehensive, accurate and timely advice and in implementing the government’s policies and programmes. It is a Value that complements the Value set out in s 10(1)(a) to be an apolitical service. It is intended to “... ensure that governments have a comprehensive view of issues and access to a full range of options on which to make decisions.”

Deputy President Forgie went on to refer to the Australian Public Service Guide [123] (one of its indicators whether an agency is reflecting the Value in practice is "The agency has a culture that supports the provision of frank  and  fearless  advice), the Australian National Audit Office guidance [124], the relevant Australian Standard [125], and Chief Executive instructions issued to the APS by then head of the Prime Minister's Department on record keeping [128] as all supporting the obligation on public servants to provide written, frank and comprehensive advice to ministers on key issues. But she remained open to evidence to the contrary.

The duty doesn't sit well with claims by Abbott and Robb that public servants won't continue to do what they are tasked to do if the product is to become known to the independents, or heaven forbid, public knowledge

Come 1 November with the commencement of amendments to the FOI act, a new equation tilted even more firmly in the direction of disclosure will apply, including a consideration in favour of disclosure where this would "inform debate on a matter of public importance." Frank and fearless will still be required. Potential public scrutiny should keep them even more honest.

Abbott, selfessly of course, embraces frank and fearless

TONY ABBOTT: This is very important Lyndal, because you know, our system depends on public servants being able to give free, frank and fearless advice to government and that means the advice has got to remain confidential.

And what we've got here is a desperate Prime Minister trashing the Westminster system in an attempt to hold onto power.

LYNDAL CURTIS: So you don't want that information released?

TONY ABBOTT: Well if, if, if the most confidential public service advice can be casually released just to help this government to hang onto power, I mean they are trashing the Westminster system in a desperate attempt to hold onto power...The conventions are there for a reason, they are there because if you are going to have efficient and effective government the public service has got to be able to give confidential advice...Now you just can't have this advice strewn around like confetti because you have a desperate government desperately trying to cling to power and in the process trashing the Westminster conventions. But what cannot happen, you cannot have the frank and fearless advice of the public service prejudiced by releasing it to people for whom it was never intended. I mean this completely undermines and compromises our whole system of government

And on it went as the Opposition leader on ABC radio AM this morning contributed to the big stakes argy bargy involved in seeking the numbers to govern. The independents have published seven points for the two main parties to consider before formal talks. The Opposition is resisting one demand, for Treasury costings of both party campaign policy commitments as Mr Abbott continues to refuse to give the over the full details because he claims Treasury's integrity was brought into question, as a result of a leak of one policy costing during the campaign. PDF posted by News Ltd: the full request for information


But on the issue of the centrality of confidentiality of advice to the future of the Westminster system, Mr Abbott is talking like some public servants, ironically Treasury Secretary Ken Henry, and head of the Prime Minister's department Terry Moran rather than a politician or someone who knows the legislative framework within which government  is supposed to operate.

Future payments to government "commercial in confidence"?

What constitutes "commercial in confidence" seems likely to get an early work out from the NSW Information Commissioner if the Sydney Morning Herald follows through on its editorial  today (the second in this link) about the publication of a $6 billion agreement between the Barangaroo Delivery Authority and developers Lend Lease published this week, stripped the Herald says, of almost all financial information. Well at least payments by Lend Lease for the development rights in seven payments yet to be made by 2018, what Lend Lease is contributing to the infrastructure like ferry wharves and light rail, the cap to the company's liability for damages for breaching the contract, or penalties it would face for missing targets for water, waste and carbon standards by the due dates. 

The Government Information (Public Access) Act requires such contracts to be published, but not "commercial in confidence" information or other information where there is an overriding  public interest against disclosure. "Commercial in confidence" isn't anything an agency or contractor might want it to be, but a term defined in Schedule 4 of the act. As the Herald, asks, ticking off the elements of the definition:

Would it disclose the contractor's financing arrangements, its cost structure or profit margins, its full ''base case financial model'', or any intellectual property? We think not. But perhaps it comes under this catch-all classification: ''any matter the disclosure of which would place the contractor at a substantial commercial disadvantage in relation to other contractors or potential contractors, whether at present or in the future.'' That must be it - but how?

It sounds something of a stretch.The Herald says that the Authority's compliance with the publishing requirement " renders the new law a joke.

This is a challenge to NSW's new Information Commissioner, Deirdre O'Donnell, who has declared that she wants to champion a ''revolution'' in the public sector's attitude to information. So let the revolution begin, and heads roll on the Hungry Mile."

Chance to lift parliamentarians game with taxpayers' money

Maybe there's a chance that the new influences at work in the Federal Parliament will, along with other much needed governance reforms, force action regarding transparency and accountability for payments to and expenditure by members and senators. This from the Sunshine Coast Daily is further evidence of the problem, if any is needed. The paper

has made a formal request to the Commonwealth Auditor-General for a full review of Fisher MP Peter Slipper’s entitlements for the period July 1 to December 31, 2009. Mr Slipper was the only Queensland Liberal to record a two-party preferred swing against him in last Saturday’s federal election following revelations about his extraordinary expenditure. The request is now being considered by the Australian National Audit Office. Information is also being sought from the Department of Finance and Deregulation, under Freedom of Information, regarding money Mr Slipper is believed to have been required to reimburse for unverifiable claims for expenses he said he incurred when he served as a parliamentary secretary....He  said only that the expenditure was incurred during the course of parliamentary, committee and electorate business. That is the only advice he is required to give the Department of Finance and Deregulation to justify his claims. A spokesman for the department said yesterday that it requested parliamentarians to certify each month that “entitlements accessed during that month were accessed in accordance with the legislation”. “However, ,” the spokesman said Finance is not provided with details of the purpose for which individual journeys are undertaken.

You will notice the word "requested" there.When the issue was last raised publicly a year ago Finance officials told a Senate committee a group of unnamed "recalcitrant" parliamentarians did not sign off monthly that money had been properly spent. No names, no packdrill as far as I'm aware.

Money paid out by Finance at least is subject to the FOI act, but Parliament itself which administers other payments and entitlements for members and senators is not. It should be. All payments and expenditure should be proactively published in any event.

An independent panel was established by Minister Ludwig in September last year to report on entitlements and related matters - "publicly"  the Minister said - within 6 months. According to The Age  last month, the Minister received the report in April. And?

A spokesman for Senator Ludwig said the panel's findings were being considered and a response would be released by the government ''in due course''

Let's hope the kingmakers in Canberra at the moment think the time for action is nigh.

FOI throws up another Chamberlain mystery

Nick Calacouros in the Northern Terrritory News (no link available) reports NT Chief Justice Brian Martin has joined Chester Porter QC, counsel assisting the Morling Royal Commission that exonerated the Chamberlains, in expressing surprise and dismay that jury notes from the Lindy Chamberlain trial ended up in the police file relating to the case. The notes and other documents were released recently in response to a Freedom of Information application. Chief Justice Martin said

"The practice is to destroy jury notes "They are taken by the Sheriff and they are destroyed and that should have happened then." He did not know why the jury notes were not destroyed or why they found their way into police files. "Nobody seems to have any idea," he said.

 The Herald Sun reports Porter said:

"Half of Darwin knew who was on the jury. "The story was that some of the jurors used to meet with the boys (the police) at the Darwin Hotel and go through what the jury thought. Perhaps that was true." However Mr Porter said a court officer picking up the notes and keeping them was as likely an explanation as any. "Someone must have preserved them, and with no idea of the importance of them, bunged them in with the police documents," he said. He said the notes should have been destroyed by a sheriff's officer immediately they were found after the trial. "I have never heard of this happening before," Mr Porter said

FOI law is silent on what records should be retained on file, but if someone makes a request and the documents are held, access is to be granted unless there is a good reason, based on provisions in the act, why they shouldn't. This report says there were 145 boxes - fun for the decision maker, who may, or may not, have picked up on the unprecedented nature of the jury notes.

FOI report lost in transmission in Queensland AGs office?

Government releases FOI access report is one of those headlines that attracts our attention, but it turned out to be an ABC report based on a Media Release by Queensland Attorney General Dick on the operation of the Freedom of Information Act for the period to 30 June last year. The act was repealed and replaced by the Right to Information Act from 1 July 2009.

(Correction: From here on the original post was off the mark. What was tabled in Parliament last week was the Attorney General's annual report on the operation of the act, not that of the Information Commissioner dated 11 September 2009, and tabled last October. The Attorney's Media Release didn't provide a link to the report, but with some digging, aided today by a reader, you can find it (2805 ) on the tabled papers website . I didn't look  there at the time,  its yet to be posted as a departmental publication, but is also now on the RTI website. The report isn't dated but the point about the slow process of tabling a report to 30 June 2009 on 23 August 2010 still stands.)

But still, we liked this assurance from the Attorney, and look forward to the comparative study that proves the point,  :

“Under the new laws introduced by the Bligh Government, Queensland is well and truly the most open and accountable government in Australia,” he said.

And to this year's annual report being made available sometime before August next year.

Integrity agenda for the king makers

With a handful of independents and a Green in the box seat to determine who governs, and some suggesting "doing government and parliament differently" is at the centre of concerns, here's an off the top of the head list of things worth throwing into the mix.

Political donations

A ban on anything other than small individual donations, and a limit on spending. If not that courageous, action on the Government's proposal to reduce the anonymous donation threshold to $1000, with something close to real time disclosure on the web  of donations.

Parliament

The three sitting independents know what would best get parliament working properly, including changes to question time, how to ensure more effective committee work etc, but hopefully they dust off speeches on the subject by their former colleague, the late Peter Andren. Oh and not just action to bring the parliamentary departments in under the Freedom of Information Act (as recommended by the ALRC in 1995, and ignored entirely by the Government in the recent reforms) but require on line publication of details of payments to and expenditure by members and senators. Appoint an independent arbiter to rule on Government refusals (on public interest immunity grounds) in both chambers to provide information or table documents- call for help from Greens Senator Scott Ludlam who knows about this stuff.

Transparency

Three years on the real rubber is still to hit the road on FOI reform, with some changes due to start on 1 November and others on 1 May next year. Call the Information Commissioner John McMillan in and ask what can be done immediately to get things started now. Also ask what changes to powers are needed to ensure he can crack the whip to make the government a model for transparency and accountability.  Ensure there are performance measures in this area for those at the top of the tree, and grab concepts, such as offence provisions for those who improperly influence decisions, from the state laws. If the Coalition is in the room, tell them the plan by Senator Brandis to return responsibility for FOI to the Attorney General's Department is a silly idea. Get a reference to the ALRC to look at disclosure in the private sector through FOI or a similar regime, as proposed by Senator Faulkner 18 months ago, but barely heard of since. Bend Senator Ludlam's ear on this as well. I've got more ideas if you need them...

Whistleblower legislation

This is coming, we've been told, but so is christmas. Get the bill the Government said it would introduce into parliament straight away. Call Senator Xenophon about what should be done about consideration of a pardon for Allan Kessing. If you are talking to Minister Albanese, ask for a statement about his office's role in disclosure of information to The Australian after Kessing contacted him.

Secrecy laws

The Government has had an ALRC report on Australia's 500+ secrecy laws since last December, but is yet to say a word about it publicly. Insist on action now to act on at least one crucial recommendation-to repeal section 70 of the Crimes Act which makes it an offence to disclose information without authorisation, to be replaced by a provision that links any criminal offence to an intentional or reckless disclosure that harms a specified public interest.

Lobbyists

Minister Ludwig's discussion paper in June on possible enhancements to the registration scheme just doesn't cut it-the first proposal was for an industry association (read lobbyist) for lobbyists! Get a quick run down on what they require in Canada, from someone like Professor John Warhurst, and insist on action to move in that direction.

Yes you can!

Readers suggestions welcome....

Victorian Law Reform Commission adds voice to call for privacy rights

The Victorian Law Reform Commission is the third law reform commission to propose legislation to clear up uncertainty in the law, by recommending legislation to create a right to legal recourse in the event of a serious breach of privacy. The recommendation in the commission report, Surveilllance in Public Places, comes on the heels of former Prime Minister Paul Keating's recent speech outlining and supporting the case for legislative action made by the Australian and NSW law reform commissions two years ago, neither of which has had a government response.

Keating drew attention to the fact that media organisations are almost boastful in pointing out there is no right to privacy in Australia, and that they argue (mostly, with the notable exception of ABC Managing Director Mark Scott) they should stay beyond the law's clutches if any government  picks up on the advice of the experts to act. They were at it again in this inquiry:

7.190 In their submissions to the commission, some organisations suggested that they, or their members, should be exempted from any new causes of action. For example, Australia’s Right to Know, a coalition of major media organisations, wrote: "There is no need for any additional privacy rights or remedies in Australia.  If any need for an additional privacy right or remedy is identified in future, it should be very clearly and narrowly defined and there should be a broad media exemption."

The commission rejected their special pleading, and that of the insurance industry and the police [7.194].

With three proposals now on the table, the Commonwealth Government should take the lead to ensure some national consistency.

WA Supreme Court upholds Information Commissioner's decision

Justice Kevin Martin of the Western Australian Supreme Court has dismissed an appeal by the Water Corporation against a decision by the Information Commissioner that had allowed access under the Freedom of Information Act to the full content of valuation reports by licensed valuers in respect of portions of the respondents' land the Corporation was seeking to acquire. (Water Corporation v McKay [2010] WASC 210.)

Justice Martin found no error of law arising from the Commissioner's decision that the valuations made in 2007 and 2008, while part of the deliberative process of the agency, would not if released constitute a disclosure, on balance, contrary to the public interest. There had been no failure by the Commissioner to identify as a relevant consideration in his assessment, the commerciality of the appellant's position, as regards it maintaining a viable negotiating position with the respondents[47]. In this case it was relevant that negotiations at the time had stalled and were not ongoing.  The Commissioner had properly distinguished an earlier Commission decision that disclosure of a valuation would adversely affect sensitive ongoing negotiations with private landowners and was against the public interest in maintaining an agency's ability to negotiate effectively in respect of the outstanding matters still to be settled with the landowners[51-53]. The Commissioner's evaluation [54] properly considered relevant public interest factors.

Election cliff hanger sees good government in the frame

Who would have thought that good governance, accountability and transparency and doing something to improve the way parliament works would be back on the agenda, now that a small group of kingmakers in the House of Representatives get to decide who governs after the Federal election deadlock sees the major parties with a likely 73 seats apiece? These are some of the issues that matter to the likes of  independents such as Oakeshott and Windsor, now joined by Wilkie, and The Greens Bandt, the last named with plenty of sage advice from colleagues in the Senate who have always been on about such things, and will number nine from next July when joined by former NSW MLC Rhiannon who strongly pursued similar issues while in office there. Interesting times. 

Trust hard to win, easy to lose, the message for whoever wins the election

One of the Prime Minister's problems, given the circumstances in which she came to office, ALP woes at the state level in Queensland and NSW, and the fact that all politicians are starting from a low base, is said to be lack of public trust. According to Peter Hartcher in the Sydney Morning Herald, the PM has three strings to her bow in trying to deal with this issue, one of which involves listing her achievements as Education Minister including more transparency for school performance through the My School website.

It seems surprising that the Government hasn't been able or inclined to run up a broader list of achievements concerning honesty, integrity, openness, and accountability in government, with Senator Faulkner by the PM's side throughout. Maybe the judgment is that the record is not much to boast about, although in a couple of areas including modest proposals for change regarding  political donations, the Opposition is to blame for blocking legislation. That first term "high priority" Freedom of Information reform, is still months away from commencement, and perhaps publicly mentioning the Declaration of Open Government-no one has- issued by Finance Minister Tanner the day before the election was called might be be greeted with derision rather than acclaim.

Politicians should know trust takes a long time to build but is quickly and easily lost. Deeds speak louder than words. The Opposition also has plenty of baggage in this area. In the broader context of law reform and rights still relevant to this issue, Richard Ackland suggests " the Greens seem more open to interesting possibilities than big, old, tired drones from the political machines."

ID card back on Opposition's agenda

So reports The Age, but just what's involved and how this fits with a decision to shelve e-health record plans until good economic times, who knows?

Victoria commits to action on Gov 2.0

While Victoria lags on freedom of Information reform, it seems to be moving ahead of the other states on Gov 2.0 - someone needs to connect some dots here - releasing last week an Action Plan to focus on four priority action areas: Leadership, Participation, Transparency and Performance. There are 14 initiatives aimed at engaging and empowering citizens, making government more transparent and improving government capability, including a commitment to develop a comprehensive Information Management Framework for sharing public sector information. "The framework will be developed in parallel to making as much public data open and accessible as quickly as possible."

Craig Thomler at e Gov AU says:

In my view, Victoria's Gov 2.0 Action Plan is an example of best practice in how to prepare to systematically embed Government 2.0 techniques and tools into a government, taking the necessary steps to reform public sector culture, build capability, engage proactively and innovate iteratively to deliver the best outcomes for citizens. I believe that the effective execution of this Action Plan, ahead of Gov 2.0 efforts in other states, will give Victoria a substantial first-mover economic advantage, positioning the state as more innovative and better equipped to service citizens and businesses in the 21st Century.

That culture change issue referred to by the Ombudsman, a modern FOI law, and a lift in practice also need to be factored in there somewhere.

Transparency the order of the day for food hygiene

With the Sydney Morning Herald reporting that 140 food businesses have been added to the NSW register for breach of food hygiene standards in the last 30 days

"NSW Primary Industries Minister, Steve Whan said the name-and-shame list, maintained as a partnership between the state government and local councils, had proved an effective measure in raising hygiene standards. “The vast majority of Sydney and NSW businesses do the right thing and to protect these businesses and consumers we will continue to expose and prosecute those who flout the law,” he said. The NSW Food Authority recently began trials of a new ratings system, dubbed "scores on doors", which will give consumers a new level of clarity when choosing to patronise any of the state's 20,000 registered food outlets."

Hospitality magazine gives NSW a big tick for positive leadership in this field, queries why other states have been reluctant to out offenders (see Brisbane developments), and calls for a national approach.

A far cry in NSW from four years ago when attempts to force greater transparency about observance of standards were being staunchly resisted on privacy and other specious grounds.

Some Victorian agencies just do their own FOI thing

Ombudsman George Brouwer

There is a tone of "when will they ever.." in the Victorian Ombudsman's introductory comments in the chapter on Freedom of Information (page  50) in the Annual Report 2009-2010 published last week, and it's 26 years since the FOI act commenced in that state. And a note of warning, if one was needed, about the challenge for those in the Commonwealth, Queensland, NSW and Tasmania facing up to the task of leading - for the first time, or again, or still - on culture change: years of guidelines, recommendations, advice and prodding may not be enough to deliver the goods:

"There is still a culture within some agencies regarding limiting access to documents under freedom of information (FOI) legislation. I regularly identify administrative actions that are contrary to or simply disregard the Attorney-General’s guidelines and the administrative recommendations from my 2006 Review of the Freedom of Information Act, which all 10 departments accepted. Despite the availability of the Attorney-General’s guidelines and the Department of Justice’s practice notes, agencies appear to just ‘do their own thing’. Not only does this lead to delays in the processing of requests, but there are inconsistencies in the way the Freedom of Information Act 1982 (the FOI Act) is applied across government."

The number of complaints received by the Ombudsman about FOI matters was around the 180 mark, the same as the previous year. The case studies cited in the chapter, all about process rather than the act itself and substantive decisions on access, remind that Victoria lags the reform states on information access generally, and FOI in particular:

Election briefs for government MPs/candidates none of anyone else's business

 Markus Mannheim in the Canberra Times today:

"The Federal Government has used the public service to prepare secret reports on every Australian electorate, in breach of its own policy. Eight government departments have confirmed they wrote the reports - detailed analyses of all spending in each MP's seat - but refuse to make them public. Labor said before it won office in 2007 that similar reports produced for the Coalition government showed it had misused and politicised the bureaucracy.... The party's then public accountability spokeswoman, Penny Wong, said the briefs should be available publicly or not produced at all. ''The Howard government seriously thinks taxpayers' money is their own. Australians are entitled to know how their taxes are being spent,'' she said two weeks before the 2007 election. The Canberra Times reported in 2007 that several Liberal ministers had given the briefs to their party's MPs and candidates to help them plan their election campaigns. At the time, Labor denounced the production of the documents as a ''scandalous'' abuse of public resources for political ends."

Don't worry folks, in the hard copy Times the Minister may have said from May next year, when new FOI act publishing requirements kick in, this is just the sort of thing the public service should be making available to us all:

For more on this story, including details of a response by Cabinet secretary Joe Ludwig stating that, under Labor's new freedom of information laws, departments should proactively publish information, see the print edition of today's Canberra Times.

Decision 2010 sees Opposition up for journalist shield laws

In the Attorney General's debate, Opposition shadow Senator Brandis also reiterated the Coalition's commitment to act on shield laws for journalists:

Another area in which the Government has been all talk and no action is journalists’ shield laws. The introduction of such laws was a Labor promise in 2007. The Bill which the Government  introduced only provided for defence which was in fact narrower than the existing provisions of the New South Wales Evidence Act. The legislation was so inadequate that faced with a storm of criticism the Government abandoned it and there has been no action since..... Recognising that the public interest is advanced by a better informed community an incoming Coalition Government  will introduce a new shield laws bill, the substantive provisions have already been drafted enacting a rebuttable presumption against disclosure along the lines of the regime operating in the United Kingdom and New Zealand.

Decision 2010 and Freedom of Information

The Attorney General's debate on Friday saw Opposition shadow Senator George Brandis announce an FOI initiative, but otherwise there has been no mention during the campaign about this or related transparency and accountabilty issues. Brandis said:

".. a Coalition Government will transfer responsibility for freedom of information laws from the Special Minister of State to the Attorney-General’s portfolio and a pro-disclosure culture will be observed in fact not merely in rhetoric. As Attorney General I will drive the right to know agenda just as former Liberal Attorneys-General, including Peter Durack, the father of FOI, in Australia, have done." 

Putting policy responsibility for FOI and privacy in the Prime Minister's Department with the Special Minister of State responsible for this area and other accountability and integrity issues from November 2007 was a Rudd government initiative that deserved a tick. The proposal to put FOI (and presumably privacy, also administratively linked with FOI in the Office of Australian Information Commissioner) back in Attorney General's doesn't.

Governing differently or better hardly visible in Decision 2010

In an election campaign where the debate has mainly been about small item features of the country's future, there have been few references to a big picture of what the future could be. Leaders of the main parties haven't mentioned much about governing differently or better, apart from Prime Minister Gillard promising to reinstate proper cabinet processes, and Opposition leader Abbott momentarily channelling Kevin Rudd in saying (at the Rooty Hill Forum) he would not be overridden by colleagues in the cabinet room. That should be something! All those "grand visions" of governance for the future at the 2020 Summit are not worth a cracker apparently. The former Prime Minister's brother Greg Rudd offered a few sage words on the subject in The Australian on Friday:

We have lost our values. We have gone for the lowest common denominator in our national debate. It's all about what we don't like in people, what focus groups say, the numbers, personalities rather than good policy. Both sides of politics seem to believe that destroying or humiliating the other side somehow makes Australia a better place... The party system no longer achieves the best outcomes for Australia. Too many dumb, short-sighted and wasteful decisions are made all in the name of survival: survival to retain government, survival to gain government, survival to retain or gain individual political careers... Whoever wins on August 21, the system has to improve. Governing well is a very hard business. Many aspire to leadership but not many are sure what to do or how to do it once they get there. In the brief period remaining before election day, it would be nice if both leaders could tell us how they might improve the political system in Australia.

In June, before Kevin Rudd was rolled, and before  the campaign, Roy Morgan Research found Federal MPs ranked 23rd out of 30 professions surveyed for honesty and ethics. Politicians, like death and taxes will always be with us, and next Saturday will reflect our collective wisdom choosing from those on offer. None seem interested in a different or better approach to the practice of democracy, or governance generally. Would we believe them anyway?

VCAT review of vexatious litigant's FOI request not an abuse of process

Julian Knight, who murdered seven people and injured 19 in Melbourne in the Hoddle St massacre of 1987 has been granted permission to seek review of a Freedom of Information decision by Corrections Victoria (part of the Department of Justice) to refuse him access to his prison file, sought to help him prepare to seek parole when he becomes eligible in 2014. Knight (with 20 odd years of extensive experience in FOI and court processes) was declared a vexatious litigant in 2004, and cannot commence litigation without court approval. He sought leave to challenge the refusal of access decision in the Victorian Civil and Administrative Tribunal.  Section 21(4) of the Supreme Court Act states that leave to commence proceedings ‘must not be given’ unless the court is satisfied the proposed proceeding ‘will not be an abuse of process.'

Supreme Court Justice Bell said [5] the relevant issue that needed to be addressed was "not whether the applicant has ‘reasonable prospects of success’ (in the VCAT proceedings) but whether the application is ‘foredoomed to fail’,.. a less strict test."

E-health on, but not for the Opposition while the budget is in the red

The Coalition's proposed saving of $467 million from scrapping the  Government's e-health record plans mightn't be forever, according to this report by Karen Dearne in The Australian-just till the budget is back in surplus- but the Australian Medical Association said it should be an absolute priority,  and the Australian Privacy Foundation has a single, coherent and contextual e-health policy at the top of the election wishlist.

In pursuit of NSW Police policy on pursuits.

On reading this report by Geesche Jacobsen in the Sydney Morning Herald, I was thinking the NSW Police might have had a point that some information about pursuit policy needed to be withheld under the new GIPA act on grounds that disclosure of eight of nine reasons for terminating a pursuit would compromise a ''lawful method and technique employed by the NSW Police Force … to detect and investigate contraventions of the criminal law.''

Until I googled the subject and found this New Zealand Police Review published two weeks ago Police Pursuits Policy [PDF 588KB] that includes an international literature review, and details of various risk assessment models used around the world, including in Australian states, to guide police decisions on continuation and termination of pursuits. There appear to be plenty of other published details of policy in Australia as well, including the ACT review in 2007 referred to in that article.

There is no hint of anything that needed to be censored in the New Zealand review report, and full details are included about best practice approaches (the SOWETO risk management model) taken in Australia, presumably in NSW, and the US, UK and other comparable countries.

The NSW Police GIPA decision to refuse access to parts of the policy seems unnecessarily cautious and overly defensive in the circumstances.

"We're politicians- trust us with your personal information!"

US Postal Service

As you are inundated with often personal mail, phone and email messages about how to vote on 21 August, and scratch your head about how well attuned some of these messages are to your personal circumstances, a reminder that the Commonwealth Privacy Act does not apply to registered political parties or to political representatives engaging in certain activities ‘in the political process.’ And that the Australian Law Reform Commission recommended two years ago that the exemption should be removed:

Victorian Police agreements on information exchanges-what's the point?

Last December when the issue of agreements between the Victorian Police and Aquasure about exchange of information first arose, this post asked "what goes?" An editorial in today's Age raises the same question after a freedom of information request by the state opposition revealed 36 ''memorandums of understanding'' between the police and external agencies, including the AFL.

Media doesn't do enough to police, prevent or penalise privacy intrusions

So says Mark Day in his column in The Australian today, the first mention in News Ltd publications of the Keating speech last Wednesday on the media and privacy. Day accepts "that the checks and balances of the existing system, which Keating says are self-serving and inadequate, are sometimes not enough to police and prevent privacy intrusions, or to penalise them."

He takes the same line on reform as that first suggested by ABC Managing Director Mark Scott 18 months ago, but strongly resisted to date by Day's employers: it is probably wiser that the media get into discussion now about sensible reforms to privacy law "before the legislature loses patience with the self-regulation regime and imposes standards of its own."

Day notes but doesn't have much to say about specific suggestions by Keating and the Australian Law Reform Commission for improving the media self regulatory schemes for protection of privacy generally, but focuses on the proposed cause of action for breach of privacy, and in particular the implications for conduct in the public domain. He says the idea we all have some right to privacy might be well and good,

"but how could it be enshrined in law? A photograph of a bone-jarring tackle at the footy may include, in the background, a clearly identifiable philanderer and his mistress. Would a media outlet be liable in a resulting divorce?"

The Australian Law Reform Commission Recommendation 74 answered both questions befre they were asked.

The defining elements of the Commission's proposal are that there has been a serious invasion of privacy where the person concerned had a reasonable expectation of privacy; and the act or conduct complained of is highly offensive to a reasonable person of ordinary sensibilities. In determining whether an individual’s privacy has been invaded for the purpose of establishing the cause of action, the court would be required to take into account whether the public interest in maintaining the claimant’s privacy outweighs other matters of public interest (including the interest of the public to be informed about matters of public concern and the public interest in allowing freedom of expression).

Taking the mistress to the footy and seeking to sue because you showed up in the background in a photo of action on the field isn't likely to pass first base.

As the Commission report (74.135) says, "the cause of action only will succeed where the defendant’s conduct is thoroughly inappropriate and the complainant suffered serious harm as a result." And continues:

74.136 The characterisation of the cause of action as a ‘serious invasion of privacy’ also will clarify the types of matters intended to be covered by the action, and allay many of the concerns raised in submissions. For example, street art generally would not fall within the scope of the cause of action. A claimant simply captured in a photograph of a street scene, taken in the manner suggested in some of the submissions, is unlikely to be able to establish either that there was a reasonable expectation of privacy or that the act complained of would be highly offensive to a reasonable person of ordinary sensibilities. 

74.137 It is neither feasible nor desirable to attempt to list or limit the types of acts that may be found to be highly offensive to a reasonable person of ordinary sensibilities. As noted above, matters the ALRC previously considered to be worthy of protection through a cause of action include sensitive facts relating to a person’s individual relationships, health, home, family and private life. Acts or disclosures revealing this type of sensitive or intimate information are the most likely to meet the test of what would be highly offensive.

Media commentator Margaret Simons, in a subscription only article in Crikey on Friday, described the Keating speech as "a cool, clear and ..unassailable argument for sensible privacy legislation." Roger Clarke of the Australian Privacy Foundation in an interview on Razor's Edge says media self regulation in this area is a joke.

Keating puts the case for some privacy in the face of "media free for all"

AAP

In a speech last night at the Centre for Advanced Journalism at the University of Melbourne, former Prime Minister Paul Keating while acknowledging the importance of freedom of expression, urged industry leaders to drop the pretence that the current framework within which the media deals with privacy issues is effective and works well; suggested some practical steps to return privacy to its proper place in the ethics, professional standards and self regulatory systems that apply to journalism; and argued the case for a statutory cause of action for a serious and unwarranted breach of privacy, as recommended by the Australian Law Reform Commission in 2008. The full text of his remarks posted by the National Times is here, and with footnotes here if you are interested (I provided some research input to the speech.) There is some coverage in Fairfax papers, including this op-ed in The Age, and the ABC today, but little so far in News publications. See also Jonathon Holmes of Media Watch, and Andrew Crook in Crikey.

Instead of standing aggressively behind the status quo, dressed in the cloak of the Fourth Estate, Mr Keating said industry and profession leaders needed to talk more about responsibility, more about the importance of ethics, more about improvement in the standards of journalism in all respects, including respect for privacy.  He said proposed changes to privacy laws announced recently by Minister of State Ludwig to allow for financial penalties for Federal government agencies and big business found to seriously breach privacy principles is likely to concentrate minds on the importance of  privacy a little more than hitherto. Media organisations currently enjoy an exemption from the Privacy Act on condition they accept self regulatory schemes. However the schemes are largely ineffectual particularly when it comes to penalties and enforcement. The industry needs to consider whether thrashing serious breaches of privacy with a warm lettuce should continue to be all that their self-regulatory systems can deliver.

Media organisations would be sending an important message about where they stand on these issues if they indicated they are prepared to work with, not against, the modest reforms to the self regulatory schemes proposed by the ALRC for continuation of the media exemption.

Mr Keating said industry and profession leaders should get back to an issue which has defied reformers for years: the idea that with regard to ethics and standards, including respect for privacy, all would benefit from unified arrangements rather than the current generally unsatisfactory system where different codes of practice and different standards apply across the broadcast and press industries.

More attention was clearly needed to guidance, education and training about privacy and the public interest for those engaged in journalism when some senior journalists and those to whom they report claim the public interest is anything the public might find interesting. The public interest requires a judgment that the community as a whole would benefit from publication, not what readers or an audience might find interesting or titillating.

On the proposed general cause of action for a serious and unwarranted breach of privacy proposed by the Commission, Mr Keating said the case for change was that dangers to privacy are escalating dramatically, driven largely by technological change; that the common law case by case exploration of whether there is recourse for breach of privacy is a slow piecemeal and fragmented process likely to lead to different approaches in different jurisdictions; that legislation would give effect to our international obligations under Article 17 of the International Covenant; and that the need for better protection of privacy is being recognised in comparable countries including traditional ‘peer law’ countries for Australia such as the UK and New Zealand, as well as Canada and parts of the US. 

With regard to the media (and the proposal was for a general cause of action and was not aimed specifically or solely at the media) the Commission proposal set a suitably high bar for any plaintiff who sought to pursue the matter through the courts. A plaintiff would have to demonstrate a serious breach of a reasonable expectation of privacy, and conduct offensive to a reasonable person, not outweighed by other important rights such as freedom of expression. As ABC Managing Director Mark Scott said last year:

With digital surveillance, location tracking and genetic tracing becoming commonplace, there is a very firm case for the law to allow people to protect thprivacy. It is a fundamental human right…the Australian Law Reform Commission proposal for a new statutory right of privacy, properly word is a sophisticated idea worthy of serious debate. To dismiss even the need to address the issue-the need to have a thoughtful and comprehensive debate – doesn’t seem to be in keeping with the openness and plurality of perspectives that media freedom should be about’.

There hasn't been much of that debate in the media since. Perhaps the Keating speech will reawaken media, and broader community interest.

Australia's FOI reform landscape

If you are interested in some detail about Freedom of Information reforms around the country over the last year, these notes are from my brief overview before facilitating a panel session involving the Commonwealth, NSW, Queensland and Western Australian information commissioners at the recent National Administrative Law Forum in Sydney on 23 July. There's a book in the subject, and I expect Moira Paterson is gearing up for a second edition of Freedom of Information and Privacy in Australia (Lexis Nexus Butterworths 2005), so all that was possible in 15 minutes was a high level look at some common themes and important differences - without much commentary.

ICAC recommends Parliament look again at corruption risk in payments to members

And more transparency should be part of the response.

The NSW Independent Commission Against Corruption has questioned whether the NSW Parliament has in place a sufficiently comprehensive program to identify and manage corruption risks in relation to the use of Members’ allowances and entitlements. Buried away in findings of corrupt conduct against former NSW MP Karyn Paluzanno and members of her staff, the Commission Report (Chapter 3 page 20) noted that a "new strategy" for scrutinising the use of entitlements, based on a review undertaken in 2008 and still in the process of being implemented, is entirely audit focused.

"It is the Commission’s experience that audit programs are often not designed to or capable of detecting corrupt conduct."

The Commission recommends the Clerk of the Legislative Assembly consider whether the program "has the capacity to detect corrupt conduct and, if not:

develop, implement and regularly evaluate a corruption prevention strategy that includes:
• a comprehensive risk assessment of the corruption risks in relation to the use of Members’ allowances and entitlements
• a corruption risk management plan describing the corruption risks identified and the strategies Parliament will adopt to manage each of these risks
• measures capable of detecting corrupt conduct and non-compliance by Members and electorate office staff."

Without spelling out the detail in this report, the Commission advocates that corruption risk is best managed by identifying and managing in a comprehensive manner those organisational features that allow corruption to occur and possibly go unnoticed or unreported. Proper accountability, and appropriate transparency form an essential part of any such plan.

As pointed out here, the NSW Parliament (and most others) fails expectations in this area. Despite claims for improvement and acknowledgment of the public interest in greater transparency in this speech by the Speaker of the Assembly Richard Torbay (at least the Members Handbook is online these days), there is no routine public disclosure of information in NSW about payments to or on behalf of members of parliament, other than global figures published in the annual report. The presiding officers, and the government dismissed the suggestion by the Ombudsman in February 2009 that consideration be given to extending access to information laws to the parliament, which should be the case in respect of matters of an administrative nature including the use of public money. Hooray for Tasmania, Australia's only jurisdiction to take such a step!

The NSW Parliamentary Privilege and Ethics Committee currently has a reference to review the Members Code of Conduct. and ICAC has given the clerk something to think about. There are plenty of strands for the committee, presiding officers, the clerk, and members of parliament to be collected here if any are really serious about transparency-let alone corruption prevention.

State of SA bridges out in the open

A year ago the South Australian Ombudsman described a decision by the Transport Services Department to refuse access to safety reports about bridges on grounds disclosure would aid terrorists, as absurd, irrational and ridiculous.The reports of 22 bridges rated "fair", "poor" or "unsafe" have now been released, presumably as a result of the Ombudsman's report. As the Freedom of Information applicant, Opposition shadow industry spokesman, Martin Hamilton-Smith says:

"Some of these bridges were rated by engineers as `poor' because they have specific faults, including construction joint concerns, cracking, missing bolts, pavement bleeding, chipping, girders with shear cracks, faulty piers, corroded pedestrian barriers and corroded bearings. "It's a disgrace. It is in the public interest for this information to be out in the open. "There is no credible excuse for the Government to cover up and to keep the truth secret."

 South Australians have been assured by the Department: "There are no bridges in South Australia that are unsafe." But I'm sure they'll now be keeping an eye out for the arrival of the bridge maintenance team.