All the best...

Wiki Commons-Hai Linh Truong, Sydney

I'll be around for the next few weeks, spending more time than usual enjoying the view, but expect many, most, or all of you will soon be a million miles from caring about the usual fare found here. So best wishes for Christmas, the season, summer or winter solstice or whatever you are celebrating, and a safe, healthy and rewarding 2011. Thanks to readers, casual and dedicated, near and far, for your interest and feedback.

US and Australian law regarding publication of government secrets

Attorney General McClelland on 17 December announced the Australian Federal Police had not identified any criminal offences regarding WikiLeaks "where Australia has jurisdiction" and added:

“The Government remains extremely concerned about the unauthorised and irresponsible distribution of classified material.”

We are likely to see that concern flavour discussion and debate next year on a range of issues: open government in all its dimensions, the Government's response to the ALRC report on secrecy provisions in Commonwealth laws, shield laws for journalists, whistleblower protection, and perhaps even government copyright.

The leaks of course were of US government documents although the content of some reveal information passed on to US embassy officers in Canberra by public servants in government agencies including intelligence agencies. Whether WikiLeaks/Assange or anyone else has committed an offence under US law by publishing classified materials remains to be seen.  Secrecy News has facilitated access to this Congressional Research Service memo on the Wikileaks controversy, “Criminal Prohibitions on the Publication of Classified Defense Information” dated December 6. The summary states:

This report identifies some criminal statutes that may apply [to dissemination of classified documents], but notes that these have been used almost exclusively to prosecute individuals with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents, or to foreign agents who obtain classified information unlawfully while present in the United States. Leaks of classified information to the press have only rarely been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it. There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship.

There is a good discussion about the US legal issues in this NPR On the Media interview with University of Chicago law professor Geoffrey Stone including Senator Lieberman's move to introduce the SHIELD Act- Securing Human Intelligence and Enforcing Lawful Dissemination.

If the leak had been here and of Australian documents covering ground similar to some of that published, s 79 of the Crimes Act and s 91.1 of the Criminal Code (Cth) (espionage) might apply to publication if it occurred within Australian jurisdiction. Philip Dorling who is doing the hard slog for Fairfax papers on the released cables relevant to Australia is familiar with the law. Two years ago he had the police knocking on the door  after he wrote an article in the Canberra Times about the Defence Intelligence Organisation.

Kessing's plight, and notorious secrecy law both deserve government attention

Chris Merritt in The Australian puts it to Andrew Wilkie to push for an inquiry into the Kessing affair, a process that might allow the truth to come out and, if so, a conviction to be quashed. Or at least provide a bookend for a pardon for Kessing that the Attorney General's Department regarded as a "Hot Topic" just a few months ago. Any full inquiry would need to be able to consider the whole box and dice including the decision to charge Kessing with a breach of s 70 of the Crimes Act over the report on security at Sydney airport ending up with journalists at The Australian when the Commonwealth DPP had a discretion to not prosecute on public interest grounds; the strength of the conviction on the basis of circumstantial evidence in a trial in which neither Kessing nor the journalists Martin Chulov and Jonathon Porter testified; Kessing's later admission of contact about the report with the office of now Minister Albanese and members of his staff employed while in opposition, and what they did with the information. The Canberra Times reports Senator Xenophon saying it was lawful for Mr Kessing to share his concerns with his MP, but the former Customs officer's lawyer had advised him not to raise the issue at his trial. 

Merritt described section 70 as "the notorious heart of the federal fixation with secrecy" a point picked up by Dr Johan Lidberg in Fairfax papers today in a comment on WikiLeaks.The ALRC report on this and other aspects of hundreds of secrecy laws has been with the Government without response for nine months.

Red book 9:Human Services brief published-not even a whistle

Another release with not the slightest attempt to draw attention, this time the Department of Human Services incoming government brief surfaces. Thanks to the eagle eyed reader who noticed this in responses to Estimates questions taken on notice. No mention on the Department's home page, no media release. The Department's search results for "incoming government brief" identified two irrelevant pages but not the Red book.The Government's cross agency search facility didn't pick it up either, or several other agency briefs that have come to light.

Ah you've got to love 'em.

WikiLeaks early report card sees mix of bad, good and unchanged consequences

There is an interesting discussion thread on the Lowy Institute Interpreter about the implications of the WikiLeaks disclosures from a foreign affairs perspective, commencing with Rory Medcalf and his "preliminary and highly speculative judgments" that he hopes might be proved wrong in many respects. The headings say it all: Bad for diplomacy and international cooperation; Bad for the US and its allies, good for China and Russia; Bad for cohesion in the democratic world; Bad for freedom of information; Bad for diplomats and good for spooks; Bad for peacemakers; Bad for journalism; Bad for Obama and those who put faith in him; and Bad for Australia's Gillard Government.

The follow on contributions include Stephen Collins, Sam Roggeveen and Scott Burchill who see more good than bad at least potentially, and Michael Fullilove who says that while some materials are genuinely interesting and enlightening, overall WikiLeaks' conduct has been reckless.

Pre the cablegate deluge but as recently as 25 November I wrote about the necessity to move towards more openness in foreign policy and the conduct of international relations, but five days later ventured the view that the random nature and scope of the Wikileaks cable dump had changed the environment for the worse for discussion here of open government generally, whistleblower protection, and the reconsideration of our messy statute book with 500 plus secrecy provisions in Federal laws, particularly s 70 of the Crimes Act.You can add journalists' shield laws, already slowed in passage through parliament by discussion of who is a journalist, to the list. Perhaps even government copyright.

Medcalf's "Bad for freedom of information" comments are on the likely tightening effect on  information sharing within government but he adds that restrictions on providing sensitive information to the media and the public could well be tightened. Collins on this topic acknowledges there is a culture of over-classification among many Western governments, including our own, but ventures some positives from FOI act and Gov 2.0 developments:

"Yet the wholesale changes wrought on our FoI system, the introduction of the Information Commissioner and the powerful push for open licensing of public sector information will make unnecessary classification progressively more difficult. No doubt, there will be abuses, but if those seeking information and those administering it play fair, we will end up in a measurably better position than we were before. With more a more open view of the way government works, citizen satisfaction with how informed they are could act as a deterrent to unwanted information exposures."

 Things have been looking up, but...

Red book 8: Veterans' Affairs brief published-but no song and dance

The Department of Veterans' Affairs, like Attorney General's has provided copies of the redacted Red and Blue book incoming government briefs in a follow on from questions during Senate Estimates, but you also wouldn't know this from the Department's website. 

C'mon this is something worth telling the world about.

Thanks to one of our anonymouses for the lead. 

Relying on Estimates junkies to keep an eye out for other off centre stage disclosures like this.

NSW Information Commissioner review functions

The Office of NSW Information Commissioner has had a busy first six months since the commencement of the GIPA act, and the lead up to integration of that office and Privacy NSW. Not much has been published about what's been happening with the resolution of external review applications that can now be sought from the Commissioner (powers on review are recommendatory not determinative), the NSW Administrative Decisions Tribunal or both. Nether the Commission nor the Tribunal have published statistics for this period. Of interest  are the number of applications, and how many reaffirm the original decision (an indicator of the quality of primary decisions), how quickly matters are being resolved or determined in the OIC, and what agencies and users of the act can learn from Commissioner decisions.

I put these questions to the office on 1 December:

How many review applications have been received?

How many have been resolved, and how many by formal determination?

Presumably an initial attempt is made to resolve a matter to the satisfaction of the applicant. But will there be a time limit-weeks, months- on how long is spent on this ?

Can the applicant initially or at a later time insist a matter be subject to determination by the Commissioner?  In other words is agreement to mediation mandatory or optional?

Is there a time target for disposal of review applications? (The Privacy Commissioner in the past used 12 months as a measure which hardly seems an acceptable standard in most cases. The ADT reports against 6 and 12 month time frames from memory.)

Will decisions or summaries be published, in what form and frequency?

On 14 December the response, as below that around 17 of 105 review requests have been completed. (The Queensland Commissioner received 439 review requests in the first full year of the operation of the new act there- the lower comparative number in NSW may be  a positive or negative indicator of public awareness, quality of agency decisions or other factors.) Nothing has been published to date about what agencies are involved, the outcomes, issues that have been considered, or the Commissioner's application of the law  particularly in weighing public interest considerations. The target turn around time for a review is three months

As at 10 December 2010, the OIC has received 141 requests for assistance: 105 were for reviews of decisions made by agencies under the Government Information (Public Access) Act 2009 (GIPA Act). The remainder were complaints about agency GIPA-related processes or procedures.Thirty three of these issues have been closed (about 50% in each category.)  All have been resolved by the OIC providing recommendations. Generally agencies have accepted the OIC recommendations which have primarily been around the format and content of decision records.

At the moment, we are working towards an average processing time of 60 working days.

The OIC is still determining our policies around publicising decisions and / or summaries - when this policy is finalised, it will be available on our website.  We are also currently developing a reporting template on key measures that will be available on the web in the first quarter of 2011..."

Red book No 7: AGs incoming government brief released but hardly visible

Thanks for the tip from a reader, perhaps alerted by this AAP report today, that the Attorney General's Department incoming government brief (heavily redacted) has been published and located. Not up on the Department's website along with a statement about how the Department is glad of the opportunity to inform public discussion of matters of great moment, but buried away in a pile of documents requested by senators during the estimates hearings. You'll find it here in response to Question 106 in five separate downloads. The disclosure breaks new ground in that a redacted version of the brief prepared in the event of an opposition election victory has also been released.

There is a lot here on a wide range of topics despite the deletions.Of particular interest- in Section 3 Hot Topics:
Page 48, on a pardon for Allan Kessing, the Department comments generally that a pardon would not be recommended unless the person was morally and technically innocent of the offence, and there is no remaining avenue of appeal against conviction." But adds The Australian has suggested that Minister Albanese's then office was the source of the leak to the media. (Perhaps Minister Albanese might help here.)
Page 57 on consultation with industry on ISP data retention and FOI requests for the consultation materials mostly denied because disclosure may lead to unnecessary concern and reveal law enforcement procedures for investigating breaches of the law
Page 60-what's left on the Haneef cases.

As to the low key approach to disclosure????

Walkley award winner found prize in Defence contract documents

Congratulations to all the Walkley Award 2010 winners for excellence in journalism, particularly to Linton Besser of the Sydney Morning Herald who showed the errors in the information age of that old journalistic notion that there's no story in it if its publicly available. The citation reads:

All Media:Investigative Journalism

"The Department of Defence is Australia’s biggest-spending agency. So where does all the money go? In the four years to 2009, Linton Besser discovered, more than $1.4 billion was spent on travel, accommodation and conferences, almost $48 million had been spent on rental cars, $20 million on corporate coaching, and hundreds of thousands of dollars’ worth of cosmetic surgery and fertility treatments had been subsidised by Defence.

Besser spent months downloading more than 700,000 contracts, and reading the 80,000 which were issued between 2006 and 2009 – some $48 billion worth of spending. Oil paintings, custom-designed chesterfields, games of skirmish, horse-back trail rides and yachting adventures were among the 80,000 contracts Besser scrutinised. Peppers Blue On Blue resort at Magnetic Island and the Lake Crackenback ski resort near Thredbo had been hired out for internal management meetings. More than $18,000 had been spent on “incidentals” for an employee rugby trip to Europe, and taxpayers spent another $11,000 for someone’s membership fees at Singapore’s exclusive Sembawang Country Club. Another find: “Army Cadet Exchange Program – flights to the Cayman Islands – $47,000.”

Defence Minister, John Faulkner, endorsed the Herald’s investigation in an interview which landed on page one the following day: “If you need more evidence of why the [government’s] strategic reform program is required, then you have provided it.”

For the past 18 months, Linton Besser has been stationed in The Sydney Morning Herald’s investigative unit. In this time, he has written reports on corruption and poor accountability within both the NSW and Commonwealth public service, leading to the removal of officials and prompting several high-level inquiries."

The judges commented:

"An outstanding piece of investigative journalism, based on thousands of Australian Defence Department documents. Besser’s incisive analysis, combined with multiplatform publication of the raw documents on which his stories were based, produced a valuable public service. "

See Besser's The wrong stuff published in March this year, and this comment at the time about the need to further improve contract disclosure.

FOI "burden" the price of democracy in Ken Henry's awful year

Treasury Secretary Ken Henry was reported in The Australian last week talking to a "private audience" about his department under stress and the awful year 2010 had been. He returned to a familiar theme, the downside of FOI:

The growing burden of the Freedom of Information process had only compounded the stresses on the department, Dr Henry told the gathering. He expressed concern that the exposure of documents under the FOI laws undermined the prospects for good public policy and frank advice from the bureaucracy. Dr Henry acknowledged that the Red Book drafted by Treasury for the incoming government had been prepared on the basis that it could be subject to FOI requests.But he said that Treasury had made the decision not to waste more resources by appealing to the Freedom of Information Commissioner. 

The last bit is rich (as well as confused but that might not be Dr Henry's doing) given Treasury's willingness to spend plenty over the years arguing against FOI disclosure to applicants, and defending decisions in the courts and tribunals that might have been arguable on technical grounds but seemed to run counter to spirit and intent.

Treasury has a knack of looking on the gloomy side when it comes to FOI. Its incoming government brief in 2010 (special commendation for publishing at least in part and informing public debate) advised the minister that the Department provides 'advice and management of risks associated with Freedom of Information (FOI) ... in accordance with legislative requirements."

The "growing burden" referred to in the speech might be an increase in use of the act over the last six weeks as a result of the government's public commitment to more open government and the abolition of application fees and some charges. Or Dr Henry might be suggesting that "the prospects for good public policy and frank advice" are even bleaker because the act since 1 November is a little more pro-disclosure. It now includes provisions that recognise explicitly and give some weight to the public interest in disclosure  that would increase discussion and review of the Government's activities, or inform debate on a matter of public importance. Except in respect of a cabinet document, or release of a document that could be expected to harm international relations or national security, or a raft of other absolute exemptions that have no public interest element.

More use of the act and more disclosure of Treasury's views might be a 'burden" that Treasury has to carry in the interests of a more vibrant democracy.

But maybe its not the recent changes that prompted these comments. It may simply be the continuation of a long running argument by Dr Henry and others that the confidentiality of public service advice should be sacrosanct, although there have been exceptions.

WikiLeaks and the implications at home and abroad

Here's Professor A.J Brown and me with Carson Scott  On the Record on Sky Business today talking about WikiLeaks, whistleblowers, the right to know, and comparisons between the US and Australia.

And in this segment with James White talking about transparency in China and Australia  and what governments know- and we should know-about the performance of the economy. Including comment on the Federal Treasury's special pleading about the need for confidentiality of advice to ministers.

Leaking and publishing are two different things

Australia's leading academic on whistleblower protection Professor A J Brown of Griffith University Law School,gave the keynote address to the Annual General Meeting of Transparency International Australia, in Sydney tonight.

 Professor Brown said:

"Trying to target and control Julian Assange is not likely to be an effective response to these leaks, in either the short or long term... “The conflict over Wikileaks is at risk of turning into a war between a naive but powerful vision of global cyber-liberty, and the “1984” nightmare of an internet subject to massive government regulation and control.” “This is not a war that either side can ever win.”

Professor Brown said there was a need for a more considered response from governments about how they will improve their whistleblowing systems so that genuine wrongdoing can be disclosed when needed by government insiders – including through the media and internet. 

“Creating a martyr out of Julian Assange – as advocated by a range of politicians – is unfortunately typical of the ‘shoot the messenger’ attitude that has often prevented decisionmakers from appreciating how best to respond to whistleblowing.” “It also distracts from the very important issue of developing effective regimes for regulating the responsibilities of publishers and journalists in respect of both ‘leaks’ and public interest disclosures.”

As I see it Assange is not a whistleblower as far as we know the story so far. He publishes,with relish, material leaked to him. Few suggest he's done anything more, although Prime Minister Gillard initially described the WikiLeaks website as "illegal" and subsequently toned this down to "grossly irresponsible." And Attorney General McClelland is still going on about possible breaches of someone's law.

Mr Assange regrets...

Timing is everything. US State Department announcement yesterday:

"The United States is pleased to announce that it will host UNESCO’s World Press Freedom Day event in 2011, from May 1 - May 3 in Washington, D.C. UNESCO is the only UN agency with the mandate to promote freedom of expression and its corollary, freedom of the press.The theme for next year’s commemoration will be 21^st Century Media: New Frontiers, New Barriers. The United States places technology and innovation at the forefront of its diplomatic and development efforts. New media has empowered citizens around the world to report on their circumstances, express opinions on world events, and exchange information in environments sometimes hostile to such exercises of individuals’ right to freedom of expression. At the same time, we are concerned about the determination of some governments to censor and silence individuals, and to restrict the free flow of information. We mark events such as World Press Freedom Day in the context of our enduring commitment to support and expand press freedom and the free flow of information in this digital age."

Neither secrecy nor openness in international affairs should be absolutes.

My Administration is committed to creating an unprecedented level of openness in government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration."

—President Barack Obama, January 21, 2009

This statement appears at the top of the US State Department web page headed "Open Government Initiative." The page outlines steps taken or planned in accordance with President Obama's Open Government Directive, issued coincidentally, a year ago this week.

The publication of a selection of state department cables apparently leaked by an army private who made the call on what he thought should be known more widely wasn't what President Obama had in mind. The leak, the posting of cables on Wikileaks, and the associated media coverage has changed the atmospherics of discussion about more openness in the foreign affairs field around the world, including here. "Need to know" and secrecy, on the way out for a brief moment, are coming back into the discourse as claimed vital prerequisites to the conduct of international affairs.

Red book 6: Health and Ageing incoming government brief published

The Department of Health and Ageing has published a redacted version of its incoming government brief (four volumes) with this interesting first- hopefully the second version will be marked up so the changes resulting from the 1 November changes to exemption provisions are readily apparent, providing useful  learning all round:

Given the interest in the brief, the Department has decided to publish on its website the brief with redactions based on exemptions that apply to FOI requests made before 1 November 2010. The Department will publish a second version of the brief with redactions based on exemptions that apply on or after 1 November 2010 in the near future.

In taking this decision the Department joins the following earlier movers:

Treasury,

Finance,

Defence 

Climate Change and Energy Efficiency 

and Broadband, Communicartions and the Digital Economy.

As to the many late movers yet to contribute to informing public understanding and debate of issues that preoccupy them, impact on us, and consume large amounts of our resources..

what's your story?

As Heath and Ageing explains:

The four volumes will no doubt prove extremely useful for lobbyists as well as journalists and others seeking to understand health policy, how the department works, and who are the key contacts for the various areas of policy.

Senate consideration of journalists' shield law slips to 2011

I've laboured over a long piece on this but ****!!! its disappeared into the ethernet. The short version:

The Wilkie bill didn't come on for consideration in the final week of sittings after the Senate Legal and Constitutional Affairs Committee reported and recommended the bill. Liberal senators on the committee in a dissenting report favour the Brandis bill. Senator Ludlam in additional comments foreshadows amendments to the definition of journalist and journalism that seem sensible to me.

The committee hearing transcript is worth a look for the discussion of issues about the definition of a journalist and questions about whether Julian Assange would qualify (mixed opinions).  Police powers unaffected by the proposed law also get a mention. These allow for access to telephone records of a journalist or anyone else where necessary in an investigation of a criminal offence (submission and evidence of Ken Parish, and evidence of officers of AGs department).

The precedent value of a 2002 NSW Supreme Court decision (NRMA v John Fairfax [2002] NSWSC 563) referred to in evidence by Matthew Minogue of AGs on the test for determining who is a journalist is questionable. The issue in that case was whether a confidant, a journalist was a member of a "profession" and acting in a "professional capacity," the words used in the NSW Evidence Act.This required the court to consider the attributes of carrying on a profession against standards tightly drawn by the law [145-157].These words aren't used in the Wilkie bill. The issue as the bill stands will be whether a person in the normal course of work involved in dissemination of news is given information after providing an assurance of confidentiality. Compliance with the standards expected of a person as a professional won't arise. What constitutes the normal course of work may. Senator Ludlam sensibily suggests avoiding this, the paid /unpaid issue, whether a person is employed (as mentioned in the Wilkie EM but not the bill) and the old/new media divide by amending the definitions as follows

journalism means the reporting in a news medium of facts which are, to the best knowledge of the person reporting those facts, fair, true and accurate, and includes incidental processes such as the gathering of information for that purpose; journalist means a person who engages in journalism, no matter who the person is nor the medium in which the person publishes his or her material

There was more- in my head if anyone wants to talk about it. Or read at your leisure if you can track down the reams that may be floating around somewhere out there. ****!!!

Shield laws and whistleblower protection will both be back on the agenda in 2011.

State of Service report opaque about culture of transparency

The annual State of the Service report issued by the Australian Public Service Commission and the accompanying State of the Service Employee Survey  2009-2010 provide useful insights into attitudes and approaches of our public servants. Overall the Commission concludes "that APS performance compares well with that of its peers. Yet there is always room for improvement .." The Commission is to be commended for publishing these details. Some relevant issues addressed include:

Baillieu declares new era of no spin, no secrecy

Victorian Premier Elect Ted Baillieu yesterday with words worth recording even though there has to be some hyperbole in the "no secrecy" commitment:

Under a Baillieu Government, what you see is what you will get. There will be no hidden agendas, there will be no spin, there will be no secrecy. Accountability and transparency will be the principles that underpin our Government. And the Government that we lead will be driven by integrity and governed with dignity and decency.