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Monday, August 16, 2010

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.

FOI laws in most Australian jurisdictions have sat amid their administrative law roots in attorney generals' portfolios for much of the last thirty years. The record speaks for itself: it's been a factor generally in leading to too much emphasis in  administration on legalisms and technical points, and a predominant role for lawyers in many agencies, with the result that the spirit and intent of FOI has often struggled for oxygen.

The FOI reform discussion over the last couple of years has involved a tentative but sensible and welcome shift to put FOI more clearly into context as a public management issue, linked to a broader information policy framework, and with provision of information through publication and disclosure as a service delivery issue as much as anything else. Sure, FOI is still part of administrative law, but hopefully policy and day to day management in 2010 is moving in the direction of a lesser role for lawyers and a more prominent place for those involved more broadly in information access matters. Queensland reflected this sentiment and sensibly followed the Commonwealth lead of positioning this issue in the proper place near the top of the tree by assigning responsibility for the Right to Information Act 2009 to the Premier. NSW inexplicably put their new 2010 law in the attorney general's portfolio having been ahead of its time in locating responsibility for FOI with the Premier since 1989. And Tasmania kept things with the Attorney General where they have always been. But you get my point, even if the tide has not all been one way.

FOI has as much to do with attorney generals' departments as other government functions that significantly involve the law- perhaps areas such as immigration, and social welfare functions all need to be in that department on the basis of Brandis' unexplained logic.

As to the detail of what else might be contemplated by the Senator's undertaking to "drive the right to know agenda," the only guide is what Brandis raised in the minority report in the Senate committee report on the FOI reform legislation earlier in the year. That didn't amount to much beyond fees and charges, and some privacy related issues. The Liberal Party doesn't appear to have a relevant policy.The Howard Government's terrible 12 year record in this area is still fresh in memory.

Attorney General Robert McLelland said nothing in the debate about his Government's record or ALP plans for the future- not his portfolio after all. My recent 'modest at best' assessment on open government still stands, with an extra mark for the Open Government Declaration issued the day before the election was called. The ALP platform includes  Chapter (11) on "New ways of governing for a modern democracy" that says all the right things, but nothing new or specific for the forward FOI or open government agenda. A comprehensive review of the FOI act is required by law in two years.

The Greens have a general policy statement without detail, that hasn't been updated since 2008, but Senator Ludlam flagged a range of issues and concerns in his comments on the FOI reform legislation. So to the extent anything may need to face scrutiny in the Senate where the party seems certain to have clout, life should be interesting at that stage of the game for whoever wins on Saturday.
Update- interest reinforced by the presence of Senator Nick Xenophon whose term does not expire at this election. This by Yasmine Phillips in Perth's Sunday Times
Key senators are pushing for tougher laws to protect journalists' sources and whistleblowers. Independent Senator Nick Xenophon and WA Greens Senator Rachel Siewert joined forces in Perth yesterday, pledging to work together to defend what they said were vital freedoms. "These are basic matters of principle on which we will go to the wire," Mr Xenophon said. "The Greens and I are committed to work to ensure that those who speak out in the public interest are protected from criminal prosecution. "We will negotiate strongly to protect journalists from revealing their sources, so that the media is able to maintain its position as an independent Fourth Estate. "And we want to ensure that all government departments, including intelligence agencies, are fully open for scrutiny and their books accessible under Freedom of Information laws." Mr Xenophon said both Labor and the Coalition had pledged to be open and transparent, but neither had proposed legislation that would guarantee basic protections.

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