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Thursday, September 30, 2010

Slipping into Deputy Speaker's chair

Plenty of media coverage in the last few days about the election of the Liberal Party's Peter Slipper as Deputy Speaker of the House of Representatives but it seems Bill Hoffman at the Gold Coast Bulletin Sunshine Coast Daily is the only one writing about the ongoing investigation into Mr Slipper’s claims for parliamentary entitlements, and any possible link between the two.

Special Minister of State for the Public Service and Integrity Gary Gray told Hoffman that
“Details of any specific action, or the outcome of any matter dealt with under the protocol, are not made publicly available. This does not preclude other avenues of accessing information, such as the Freedom of Information process."
Yes, that's true for documents held by Finance. But Mr Gray at some point might let us in on current thinking about issues raised here about entitlements including:

The report of the panel to look at entitlements and related matters established in September last year by then Special Minister of State Ludwig to report within 6 months, which the Government has apparently had since April but is yet to be released.

The unnamed members - surely not anyone holding high office - and senators that the Department of Finance says routinely refuse to certify that payments made to or on their behalf have been properly incurred.

The long silence from governments of all persuasions about the 1995 recommendation by the Australian Law Reform Commission that the Freedom of Information Act be extended to the parliamentary departments that this year will spend $142 million running the place, including payment of some entitlements separate from those paid by Finance. All entitlement payments and expenditure incurred should be published proactively in any event.

And the detail of what the proposed Parliamentary Integrity Commissioner's mandate "to report to parliament on entitlements" will involve.

"Unnecessary debate" still running, fast trains aren't

Michael McKinnon of the 7 Network told the Right to Know Day Conference in Brisbane on Tuesday that he had applied immediately under the Freedom of Information Act to the Department of Transport for documents concerning the proposal for a high speed train when it was raised during the election campaign, only to be told then, as reported this week in Fairfax papers, that disclosure was contrary to the public interest because it was an ''incomplete picture unlikely to make a valuable contribution to public debate. ''Indeed, its nature is such that release would likely lead to confusion and unnecessary debate about issues that are not settled within government."

McKinnon said following the knockback Reporter Mark Riley had "monstered" Minister Albanese over the refusal, with the result that the minister decided to release to 7 a briefing note on the subject. The Department's view that fast trains are unviable of course is not the only or definitive assessment, but who other than the Department, obviously edgy about  Labor's commitment of $20 million for a limited study, would argue that release wouldn't make a valuable contribution during the campaign to public debate?

The good news is that the minister showed leadership, after the election, in the shuffle towards more open and transparent government. A big advance on Wayne Swan's "don't blame me, I'm only the Treasurer" response when his department ran this argument to protect documents from disclosure in May 2008.

The bad news is that we are still apparently a long way from routine disclosure of information of this kind, that a minister who should be flat out on other things had to get involved, that knocking on a minister's door to get attention is a course unlikely to be available to John and Mary Citizen in similar circumstances, and that some are still clinging to hoary old chesnuts like this, when come 1 November "unnecessary debate" is finished as a consideration relevant to a decision about the public interest in disclosure of documents.

Monday, September 27, 2010

Publication of Treasury's Red Book contributes to public understanding

There should be more of it.

The release in response to Freedom of Information applications and the initiative taken to publish on the internet Treasury's "Red Book" brief prepared for a returned Labor Government is a commendable start on delivering more open government as promised by Prime Minister Gillard. While parts have been redacted- including everything, even the title of Attachment G- most of the briefs have been published. Economic and other policy commentators have already found much of interest, prompting The Australian's Michael Stutchbury to observe
Many Australians would have wanted to know about all this before, rather than after, they voted. Surely that would encourage a more informed election campaign than the one we've just endured.
The same goes for what other agencies had to say on issues within their domain so interesting to see whether who if any have or will follow the Treasury lead.

Public debate could and should be informed, not so much through daily access to what public servants are telling ministers about policy plans or problems but through publication of what amounts to expert opinion and assessment of issues that are or should be seen as of great public importance. Treasury and public servants generally are up there with the best we have in many fields, although they don't have a monopoly on wisdom, and aren't always right. They have a contribution to make to public understanding of issues, best made not months later when someone might ask under FOI and will usually have to battle through, or years later when the documents are available from Archives, but at the time when the  community and public discussion would benefit most from this input.

This comment in June 2008 argued the merits of such an approach following publication of embarrassing leaks that showed differences between agencies about the merits of the ill fated FuelWatch. Maybe Treasury's disclosures indicate we are moving in this direction and away from the excessive secrecy of previous times.
Perhaps indicative of the traditional Treasury risk centric mindset, the Administration brief includes a section on FOI, advising (emphasis added):
The Policy Coordination and Governance Unit provides advice and management of risks associated with Freedom of Information (FOI) and privacy issues in accordance with legislative requirements.
Treasury did not publish the Blue Book, the briefing prepared in the event of a change of government, but processed FOI applications for a draft that was never finalised. According to media reports Shadow Treasurer Joe Hockey passed it around after redacted copies were released to journalists in response to FOI applications.

Queensland where I am at the moment is unique in including an absolute exemption in the Right to Information Act (Schedule 3 Clause 3) that protects for 10 years information prepared for the purpose of briefing an incoming minister about the department.

Sunday, September 26, 2010

NSW busy with announcements on integrity

The NSW Government had a busy week on the integrity and accountability front, with Premier Keneally announcing the introduction of legislation into parliament to amend the Protected Disclosures Act (Download PDF), releasing campaign finance reform proposals (Download PDF), establishing a Joint Select Committee on Parliamentary Procedure to see what changes "agreed" in Canberra might be suitable for adoption in NSW, and indicating preparedness to look at the Ombudsman's suggestion of an integrity act for the public service. The Premier branded the last mentioned potentially "symbolic" claiming the state already has "one of the most stable, integral and respected public sector workforces in the world."

Not mentioned in the media release on changes to whistleblower protections is that the amendment bill extends a protected disclosure specifically, to one made by a public official in honest belief on reasonable grounds of "a contravention of government information laws."

Friday, September 24, 2010

Conferences calling

I will be in Brisbane next Monday and Tuesday attending Right to Know Day functions, so look forward to catching up with Queensland readers in attendance.

iappANZ’s one-day conference, “Silver Lining: The Privacy Umbrella of Cloud Computing” will be held in Sydney on 30 November.

The 2010 Conference of the CMCL–Centre for Media and Communications Law University of Melbourne Law School on 25-26 November, includes a number of interesting sessions including this one to be chaired by Moira Paterson of Monash University:
2.00 - 3.30pm - Regulatory Approaches
Room 108

Andrew Stewart, Adrian Lawrence and Alison Manvell (Baker & McKenzie)
Regulating Content by Platform – Reconsidering Traditional Approaches

Helen Versey and Anthony Bendall (Privacy Victoria)
Privacy and the Media

John McMillan AO (Australian Information Commissioner)
Office of the Australian Information Commissioner

The 1st Global Conference on Transparency Research "to bring together leading scholars from throughout the world to collectively advance our understanding of the impact and implications of transparency policies that involve governments, either directly or indirectly" has issued a call for papers. The conference will be held at Rutgers University 19-20 May 2011. Australian institutions are missing from the impressive list of international sponsors although Rick Snell of the University of Tasmania is a member of the Advisory Committee.

Thursday, September 23, 2010

NSW Information and Privacy Commission

The Legislative Assembly passed the bill on 31 August to integrate Privacy NSW and the Office of Information Commissioner, up to now separate but colocated bodies, into a single agency, the NSW Information and Privacy Commission , and the Legislative Council  followed suit on 21 September. The amendments to legislation also set up formal consultations between the commissioners, broaden oversight by a parliamentary committee to extend to the Privacy Commissioner and address issues concerning appointment and dismissal, clean up a previous oversight regarding amendment of personal information, and create an advisory committee to both commissioners.

No one opposed the amendments, and few issues of substance about the integration of the two offices were raised. Shadow Attorney General Greg Smith commented that "(t)he creation of two commissioners of equal status is bureaucratic duplication and could lead to inefficiencies and demarcation issues," but neither he nor other speakers mentioned that the NSW Law Reform Commission had recommended a model different to that adopted - two commissioners with discrete functions but with the Information Commissioner in charge. The adopted model puts the Information Commissioner in charge for administrative purposes, not regarding the exercise of functions by the Privacy Commissioner. The result is that the three jurisdictions that have had a go at structuring similar arrangements have produced three different results. (See my earlier comment here.)

Still too much confidentiality in Commonwealth contracts

The annual Australian National Audit Office performance audit to assess the appropriateness of the use and reporting of confidentiality provisions in Australian Government contracts, in accordance with a 2001 Senate Order, highlights some improvements - around 10% of the 42,000 contracts entered into in 2009 contained confidentiality provisions, consistent with experience over the previous three years, and a significant decline from 24 per cent in 2001–02 -but also ongoing problems.

An examination of a sample of 150 contracts, managed by 33 agencies, that were reported to Parliament containing confidentiality provisions, identified 52 (35 per cent) correctly, and 21 (14 per cent) incorrectly asserting confidentiality provisions contrary to the standard in Finance guidelines.  However the remaining 77 (51 per cent) did not contain confidentiality provisions but had been listed in documents tabled in Parliament as containing such provisions, potentially precluding or restricting the Parliament and the public from accessing information about them.

The audit concluded:
"Overall, while the use of confidentiality provisions has decreased since the Order was introduced, the benefit of the Order, as an accountability and transparency mechanism for Australian Government contracting activity, is not being fully realised due to incorrect use of confidentiality provisions and inaccuracies in contract reporting.."
The report attributes this partly to multiple and differing requirements for reporting on contracts. In addition to the Senate Order agencies are required to comply with Department of Finance instructions to report procurement activity in AusTender, an internet based system, including whether there is confidential information within any contract or agreement with another agency, for example, profit margins, or confidential information obtained or generated during the term of the contract.

But the report also draws attention to the fact that contract preparation practices in some agencies do not "support adequate consideration of the use of confidentiality provisions in contracts." Polite auditor language, pointing to the fact that confidentiality provisions end up in too many contracts without hard headed consideration of the need, or the merits.

Finance is urged to explore consolidation of reporting obligations and to promulgate consistent and more readily understood guidance. Agencies are implored to lift their game.

Culture (memo Information Commissioner Designate) almost certainly has something to do with what appears to be excessive caution, or willingness to comply with contractors wishes on the part of some public servants. (As an example price lists frequently crop up in confidentiality provisions.)

And consolidation of requirements and the cause of rigour would have been advanced if the opportunity had been taken in the Freedom of Information reforms to legislate for publication of contracts, and to define in law "commercial in confidence." Contract disclosures (or other categories of information required by administrative instructions to be published such as  grants) don't get a mention in legislated proactive publication obligations that will commence next May.

Tuesday, September 21, 2010

Devil in the detail in shield laws and the public interest

A renewed attempt to enact a federal shield law for journalists has had a push from Victorian Attorney General Rob Hulls and from independent Andrew Wilkie, reported to be planning to introduce legislation when parliament sits next week. What is proposed, as outlined by Chris Merritt in The Australian is a  bill to create a "rebuttable presumption" that confidential sources should remain confidential, based on New Zealand legislation. This was not acceptable to the government in the last parliament with the Evidence (Journalists' Privilege) Bill that passed the House of Representatives in May last year sitting on the Senate Business List without progress. The Opposition threw weight behind the rebuttable presumption idea during the election campaign.( Update: A uniform national approach on this would require the states to co-operate-while Merritt sees grounds for some optimism don't hold your breath.)

The devil is in the detail in this, particularly who should be entitled to the privilege, and the circumstances that could override the presumption of confidentiality. The New Zealand model is outlined below. As Eric Pfanner in The New York Times reports it is an issue in the US where there is no such protection at a national level, with questions still being asked about whether such a law is needed, and some arguing in any event for the exclusion of organisations like WikiLeaks.

Pfanner also summarises developments in Europe where protection for the reporter-source relationship is cited in the European Convention on Human Rights, and many European countries have written it into law.

But, privilege in this case is always subject to buts...

Monday, September 20, 2010

E-health pros, and privacy concerns

This article in the Sydney Morning Herald today has a close look at the Government's e-health plans, with $466 million on the table and enthusiastic support from some medical circles as well as privacy advocates' fear of "a stalking horse for another run at a national identity card. They also fear e-health records will mean Big Brother peeking through the keyhole of a very private place: the consulting room."(Update: Health Minister says safeguards are in place.)

NSW Premier fronts questioning about transparency and integrity

NSW Premier Kristina Keneally faced questioning first up in a Budget Estimates hearing last week about her views on accountability, transparency, integrity and standards raised by Ombudsman Bruce Barbour recently. The Premier said she agreed with the Ombudsman's comments that these values are important to any democracy, and that for democracy to function at its best, its elected members must uphold them as she does in her actions, and as she expects members of the Government to do so. The Premier said she was not surprised that the Ombudsman advocates the importance of these principles:
"However, I was surprised that he chose to make such comments in a public forum, given that he has met with me in my capacity as Premier and has not raised those particular views with me directly...I.. respect that he holds a position in which, if he seeks to do so, he can provide that full, frank and fearless advice directly to the Government. To date he has not done that."
From the transcript it sounds as if the Premier and Ombudsman have met once in the 10 months since she came to office.There was no admission of any shortcomings in this area and nothing to indicate government interest in the Ombudsman's call for legislated standards for the public sector and for re-examination of the integrity framework. The Premier rejected the suggestion she should follow up his concerns with the Ombudsman, and defended her personal record:
"Let me remind you that in circumstances where I have made a determination that Ministers in my Cabinet have not acted with the integrity that I expect I have sought and received their resignation. When I held the portfolio of Planning I instituted a series of reforms and changes in that portfolio that put in place greater transparency, particularly around the issues of political donations, particularly around depoliticising the Planning portfolio. So if you would like to make a characterisation that I am not acting with initiative I would invite you to examine the entirety of my ministerial record."
There were questions to the head of the Premier's department about the register of minister's interests, something he admitted he didn't look at regularly if at all. After a little scrambling it turned out one of his deputies has it under control. No one raised the question why the GIPA act confers an absolute presumption of a public interest against disclosure of anything in the register.

Later in the hearing,The Greens Dr John Kaye raised a concern about cabinet documents and the operation of GIPA, but ran out of details when more was needed:

Friday, September 17, 2010

Data deficits emerge, and a step up for Gov 2.0

Peter Martin in the Sydney Morning Herald reports that the chairman of the Council of Australian Government's Reform Council, appointed to push state governments to improve their hospitals, schools and disability services, says he is in the dark for much of the time and can't get the information he needs.
''Of the nine national health-care benchmarks, data is not available to measure three,'' he said. ''We can't report on indicators related to the quality and safety of hospital care and we can't measure progress against the agreed benchmark of reducing type-2 diabetes. Hospitals data is routinely one year late...''Our data on disability comes from an ABS survey conducted once every six years. Our report released this year relied on data from 2003. We are unable to measure progress.'' While the council is required to monitor the proportion of young people who have obtained a year 12 or equivalent qualification in each state, it is forced to rely on an annual Bureau of Statistics field survey. ''It's a survey of 20- to 24-year-olds, and there's a time lag. For our 2010 report we used data from the 2008 survey based on answers to questions from people who completed year 12 between three and seven years ago,'' he said.
Once decisions are taken about the need for data, collection takes time and money, so there may be an explanation that it's still early days in some jurisdictions, particularly if the goal posts have shifted. But it never ceases to amaze that we haven't been measuring performance in many areas against policy and program goals and objectives.

In Canberra AGIMO announced a Gov 2.0 Steering Group, appointed "to provide leadership and oversight in implementing the Government 2.0 agenda," and posted a status report on the Gov 2.0 work plan that includes an impressive range of activity including raising awareness at COAG, and encouraging publication of data sets already held but not published to date by Commonwealth agencies.

Queensland "world beater" on whistleblower protection

Dr A.J Brown's summary and analysis of the new Queensland Public Interest Disclosure Act in The Australian describes the protections for taking a public interest disclosure to a journalist as "the simplest, clearest and most liberal provision for public servants to be able to go public with serious concerns about wrongdoing, if official authorities fail to act -- not just in Australia, but anywhere in the world." As Chris Merritt comments this ups the ante in Canberra where independent Andrew Wilkie has a particular interest in the subject and newfound clout. Dr Brown's comparisons of the Queensland scheme with NSW and the Federal Government's March proposal follow:

Thursday, September 16, 2010

A few cracks in Queensland's "best of breed" law

In an opinion piece in today's Courier Mail, I point out that recent concessions to local government there put something of a dent in Queensland Government claims to lead the nation on open government. Amendments to the Right to Information Act passed in June exempt from disclosure information considered in the course of a local council's budgetary processes, and accord the work of the Brisbane City Council's Establishment and Coordination Committee, consisting of the Lord Mayor and the chairs of other council committees, the same level of cabinet secrecy claimed essential to the operation of government at state and federal level. Both sides of parliament supported the changes. Only the six independent members of the Assembly voted against.

There is no harm test - both exemptions protect innocuous as well as other information for 10 years after it comes into existence - or any requirement to weigh public interest factors that would require consideration of benefits of disclosure of particular information. Reasons given for the changes are weak and unconvincing.

"Information brought into existence in the course of a local government’s budgetary processes” is broad and imprecise and capable of wide interpretation by councils. Local Government Minister Boyle said at the time, perhaps more in hope than anything else, that councils didn't have to use what amounts to a discretion to refuse access.This exemption is based on a similar exemption in the RTI act since inception for information held by an agency other than a council. There was no reference to exemptions of this kind in the Solomon Report. The Premier's response to the report includes this statement:
The government also considers that there is a compelling public interest in protecting the confidentiality of material prepared in the course of budget deliberations, particularly in terms of options for budget revenue and expenditure measures, and will also include this material in the Cabinet exemption.
Nothing else was made of this at the time. I'm not aware of any similar broadly drawn blanket exemption in other FOI/RTI acts for government agencies or local councils, or any precedent elsewhere for giving a local council committee a cabinet type exemption.

The text of the article follows-it didn't make it into the online edition of the paper.

Wednesday, September 15, 2010

Ministers for privacy, FOI and integrity.

The full details of the Gillard Ministry and the Administrative Arrangements Order reveal we have an historic first with Brendan O'Connor appointed Minister for Privacy and Freedom of Information. These  functions remain in the Prime Minister's portfolio. (O'Connor is also Minister for Justice and Minister for Home Affairs, with those functions in Attorney General's.)

Gary Gray is Special Minister of State for the Public Service and Integrity, also the first time we have seen integrity included in a ministerial title. The functions are also part of the Prime Minister's portfolio.

This is the right place for these functions, and appointing people with these titles in close proximity to the PM is a good thing. Comments yesterday about the ministers' standing at 22 and 29 in the hierarchy and other matters still stand.It's the first time FOI has been allocated to a minister in the outer ministry since the act was introduced in 1982. Offset to a degree by putting the subjects up in lights. No mention in the AAO of Gov 2.0 or the Australian Government Information Office but presumably Penny Wong as Finance Minister has these responsibilities.

Tuesday, September 14, 2010

Spin costs, regardless
Whether spin is government business in Victoria - more correctly, whether ministerial media plans are ministers' documents subject to the Freedom of Information Act - will be resolved by VCAT, but former speaker Ken Coghill is right, in theory at least, that if it isn't, the party not the taxpayer should be paying for this function. David Rood of The Age recaps the evidence in the case and concludes  "(w)in or lose the government's legal argument fails the common sense test."

Meanwhile the Opposition in NSW has used the law to find $4.3 million in spin costs, amid claims that the government tried to block FOI requests for this information.The SMH reports "The Department of Premier and Cabinet advises it did not attempt to block access to this information. It was deferred until the expiry of a standard review period, and then released.'' Not sure what this means - maybe consultation with those concerned prior to release?

Information that could have kicked off that empty DPC Disclosure Log?

Monday, September 13, 2010

NSW disclosure logs so far, a mixed bag

Fair dinkum...
Two and a half months after the NSW GIPA act commenced, including the requirement each agency post on the internet information about a disclosure to a particular applicant of potential interest to the wider community, the disclosure log of Premier and Cabinet, Education and Training, Planning, and many other important NSW agencies remain as empty as my wallet. Maybe they haven't had formal applications, or haven't released anything of broad interest - the strict legal requirement - although this would be surprising. There would be nothing to stop an agency also making available information released in response to an informal request in any event.

While it is referred to in the Publication Guide posted on the web, I can't find the NSW Police disclosure log. Police were far and away the leader in the number of Freedom of information applications over 20 years.

The following agencies are some who have something to show: NSW Health, Treasury, University of Sydney, Justice and Attorney General, Camden Council, NSW Fire Brigades, and Roads and Traffic Authority.

A central NSW site with a link to major agencies' GIPA page - like this for Queensland agencies - would be a help to those keen to keep an eye on developments.

Minister for FOI stands at number 22, integrity scrapes in at 29

The Gillard Government has nailed its flag to the mast of governing differently (and hopefully better), faced with the situation of no guaranteed majority on any vote in the House of Representatives except where the Budget or a vote of no confidence is concerned, and with specific commitments to independent members and The Greens including on how parliament will operate. And with the Prime Minister's acknowledgment that she heard the peoples' message loud and clear about the need for more open, transparent and accountable government.

So integrity and accountability issues have to be high on the agenda.

Just how these things are to be managed in the Gillard Ministry announced over the weekend remains to be seen. What is clear is that no one at the most senior level (other than the PM) has overall responsibility for policy in these areas. Freedom of Information (and Privacy) have been assigned to Home Affairs and Justice Minister Brendan O'Connor, an experienced member of the outer ministry, now ranked 22 in the the Prime Minister's list of 30 ministers.This suggests these functions move back from the Department of Prime Minister and Cabinet to the Attorney General's Department, a bad idea when suggested by shadow attorney general Brandis during the campaign, and still so in my opinion.(Update: Not just a false alarm, we've ended up with a Minister for Freedom of Information.)

The rest of the integrity issues appear (the Administrative Arrangements Order with the details is yet to be published) to have been assigned to Gary Gray, as Special Minister of State, listed 29 of the 30 ministers, with the function presumably still located in the Department of Prime Minister and Cabinet.
In the First Rudd government, Senator Faulkner, as Special Minister of State and Cabinet Secretary was listed fifth in standing in the cabinet, and brought a well earned reputation for honesty and integrity, and years of demonstrated interest in and knowledge of the issues that suggested clout in this area. Faulkner was succeeded in 2009 by Senator Ludwig who didn't bring the same qualities or reputation but was a former shadow attorney general, and was and remained a member of cabinet. Putting combined integrity issues in the Prime Minister's department gave them new central agency status.

Prime Minister Gillard has separated the functions, FOI and Privacy to O'Connor, so far unspecified other functions to Gray as Special Minister of State, with Mark Dreyfus (who at the bar was an expert in Freedom of Information, and contributed to debate, well at least supported the government line, on FOI in parliament, and chaired a parliamentary inquiry into whistleblowing) as Cabinet Secretary. Dreyfus will combine the job with Parliamentary Secretary for Climate Change and Energy Efficiency. None of the three are cabinet ministers. 

We wish them all well. As O'Connor settles into the job, privacy reform is looking untidy and unsatisfactory; FOI reform in practical terms is still in the "potentially promising" but "could do a lot better" category. There is an ALRC report on reform of secrecy laws that the Government has had since last December in AG's somewhere.

On the broader integrity front, Gray may prove to be an outstanding choice. Dennis Shanahan in The Australian describes him as a relative newcomer who did not flourish under Rudd and says he is  "perfectly suited to Special Minister of State." Elsewhere Gray is mentioned simply as one of the "faceless men" behind the ousting of Kevin Rudd.

Apart from the difficulty of exercising influence arising from (lack of) standing in the hierarchy, Gray appears to have a lot of catching up to do, having not said a word during the last parliament on relevant issues - political donations, lobbying, government advertising, parliamentary entitlements, archives, records etc- now within his domain.

However as a former ALP National Secretary and one time director of corporate affairs for Woodside, Gray is sure to know plenty from those lives about a couple of the issues. He was made an Officer of the Order of Australia in 2003, for service to the Australian Labor Party and to politics "through the introduction of modern campaign techniques (handy when advancing the issue of truth in campaign advertising, an issue for attention as agreed with The Greens), fundraising protocols for all political parties (ditto), affirmative action guidelines, and by strengthening the party's organisational and financial structure." On lobbying, he made it clear in this statement that while he had been prepared to consider at one stage representing James Hardie, this hadn't transpired. (Thanks to Open Australia for the Hansard links.)

Gray is a first time minister having been Parliamentary Secretary to the Minister for Infrastructure with Responsibility for Northern Regional Australia and Local Government in the Rudd Ministry, and the Dreyfus appointment is a first for him.

In the fullness of time....

Friday, September 10, 2010

VCAT to decide if spin is government business

The Age and The Australian both report on evidence given in Victorian and Civil Administration Tribunal proceedings to review the knock back by the Office of the Premier to a request by opposition scrutiny-of-government spokesman David Davis to obtain individual ministerial media plans under the Freedom of Information Act. Here was my less than hopeful comment in June on the issue of whether such a document is a minister's document as defined in the act, and a post two years ago on a related issue- whether the guest list for former Prime Minister Kevin Rudd's New Years eve party came within the similar definition in the Commonwealth FOI act. VCAT's ruling is awaited with interest.

Evidence in the case confirms, if any was necessary, that more goes on in the cabinet room than weighty deliberation of the most important matters of state for which utmost confidentiality is vital and necessary. Weekly consideration of spin plans is also part of proceedings in Victoria, at least.

Integrity missing in administration of NSW law

The full text isn't on the website (Update: it's here and raises a whole range of important issues that go beyond the SMH report) but this Sydney Morning Herald report of a speech by NSW Ombudsman Bruce Barbour about ethical and professional lapses in the NSW public sector  draws from Freedom of Information investigations to illustrate lack of transparency, and that too many public servants regard integrity as an old-fashioned, optional concept. Barbour calls for a public service integrity act.(Update on an update:This SMH( second on the page) editorial picks up on broader issues and suggests Premier Keneally should revitalise the current discredited system -  even at this late stage, it could do wonders for her government's battered reputation.)

There has been no agency in NSW charged with overall responsibility for leadership and oversight on public sector values, ethics, and professional standards since the abolition of the public service board thirty years ago. It shows. 

Barbour is right in acknowledging the integrity of a vast majority of public servants across the state, but pointing to too many examples of a lack of ethics and integrity which signalled a ''lack of transparency'' in public life. 

It may take a while for the message to get through but since 1 July improper interference with decisions and concealing information when dealing with a GIPA application are criminal offences, not just ethical lapses.

Update continued-Here are Barbour's concluding remarks, including a call, strongly supported here, for public debate and re-examination of the integrity structure. A response from Premier Kennealy in a speech soon would kick this along nicely.

Thursday, September 09, 2010

Tasmanian Supreme Court delves into competitive disadvantage

It took almost 20 years to surface in the courts and is now somewhat moot as the Freedom of Information Act 1991 has been repealed and replaced by the Right to Information Act from 1 July, but the decision by Justice Porter of the Tasmanian Supreme Court in Forestry Tasmania v Ombudsman [2010] TASSC 39 highlights shortcomings in the FOI act business affairs exemptions. However the term "competitive disadvantage" is used in sections 37 and 38 of the replacement RTI act and this aspect of the judgment is of ongoing relevance in Tasmania and Victoria where similar terms are used.  Both provisions are now subject to the public interest test as they appear in Part 2 Division 3 of the RTI act, removing the FOI act uncertainty referred to below.

Justice Porter found errors of law in the Ombudsman's determination on review of a decision to refuse access in response to an application by a member of state parliament, Kim Booth for information about the cost involved in Forestry Tasmania's arrangements with a commercial television company for commissioning and production of the television program "Going Bush."(ABC News and The Mercury were premature in concluding FT achieved more than a win on legal points in this round, as the Ombudsman is now to reconsider the matter applying principles set out in the judgment.)

Commissioner reports WA FOI administration generally competent

In a report to Parliament following an 8 month review of the administration of the Freedom of Information Act 1992 by State and local Government agencies, Western Australian Information Commissioner Sven Bluemmel found "that agencies generally administer the FOI process competently" but identified "room for improvement in a number of areas if there is to be a culture throughout government which is consistent with the aims of the FOI Act.” The Commissioner mentions that in some agencies "inappropriate factors" are taken into account when deciding whether to disclose documents under the FOI Act, and cites scope for more proactive and informal release of information, and greater consistency and quality of outcomes in the health sector and in dealing with requests to ministers."(M)ost of the areas for improvement identified in the review can be addressed by providing more training and support for government agencies" for which his office needs more resources.

The report includes 28 recommendations, all but one framed in terms of agencies "should" or "should consider" and the exception, "ministers may wish to explore..", so it's unlikely to set off a whirlwind of urgent activity in the corridors of power in Perth. The terms of reference didn't encompass a review of the act itself, or a requirement to examine developments in Australia or elsewhere. Even modest reform proposals put forward in WA in legislation in 2007 that never passed hardly rate a mention, let alone best practice ideas that have emerged since the WA act which remains largely unamended came into force in 1993.

Significant problems in the west are being encountered as a result of large numbers of requests to ministers offices, poorly resourced to deal with them (the report suggests a shared resource), and a corresponding spike in applications for review to the Commissioner which are now taking 200 days rather than the stipulated 30 to resolve.

While the report contains useful survey information about attitudes and approaches of ministers and public servants, public perceptions and experience of those who have sought to use the act hardly feature except in references to some points raised in 15 (confidential) submissions.

Wednesday, September 08, 2010

Gillard up for more open, accountable and transparent government

With the support of two of the last three uncommitted independents Prime Minister Gillard has edged over the line and back into office, peppering her set pieces and answers to questions with a theme that led to cheering here. We've come a long way since neither leader thought the subject was worth a mention during the campaign.

Some examples (emphasis added):

From the PM's announcement:
"What the Australian people told us, and they told us this in no uncertain terms on that day and on the days that have followed, is this: that we will be held more accountable than ever before, and more than any government in modern memory. We will be held to higher standards of transparency and reform, and it's in that spirit that I approach the task of forming a government......To quote Rob Oakeshott, sunshine is the best disinfectant, and we've agreed to far-reaching reforms that make me as Prime Minister and our government and how it functions more accountable to the Australian people. So, let's draw back the curtains and let the sun shine in; let our parliament be more open than it ever was before. That's real reform, and that's the direct result of the election.'(Actually PM, there's a long line who have used the sunshine quote, going back almost a century to US Supreme Court Justice Louis Brandeis, and it's even had a run on this blog from time to time.)

Prompting this lead paragraph in Phillip Coorey's report in the Sydney Morning Herald:
"Julia Gillard has promised to heed the lesson handed to Labor at the election and govern with a new style of openness...Labor sources said last night that discipline within the ALP would have to be rock solid if Ms Gillard were to govern for the next three years as she has promised. The use of expenses and allowances and other behaviour would have to be exemplary across the board."

And the PM's first answer in this interview with Kerry O'Brien on ABC 7.30 Report:
O'Brien:"Julia Gillard, you've been handed a gift today, a chance to escape from the bad odour of those last few months of your government and the axing of Kevin Rudd, kind of a get-out-of-jail card, in a way. How are you going to protect this gift?

JULIA GILLARD, PRIME MINISTER: Well this is an opportunity for the nation, Kerry, an opportunity for the nation to listen to what the Australian electorate told us at this election. I've heard the message loud and clear. People do wanna (sic) see us more open, more accountable, more transparent. I am going to be held to higher standards of accountability than any Prime Minister in the modern age. I'm well aware of that, and I'm going to focus on being up to that challenge. And I'm also well aware that when we go to the polls next time in 2013, Australians are going to hold me to account and I wouldn't have it any other way."

Tuesday, September 07, 2010

Better parliament- guaranteed!

Well let's hope so, no matter who ends up governing, to be revealed later in the day.

The Agreement on Parliamentary Reform that the independents led by Rob Oakeshott negotiated with both major parties is a great win for parliament and parliamentarians in a battle for power that parliament has been losing since the emergence of the modern political party with the numbers to govern and an ironclad grip on the House of Representatives. We'll have to wait and see what the various deals, announced and unannounced amount to, and what happens in practice once the dust settles, but elements of the agreement of particular interest on the integrity, accountability and transparency front include:

Response to committee reports 
Required within six months (not sure if this is new) and the Minister to appear before the relevant Committee at the next reasonably available opportunity to answer questions. "Following this, issues of dispute between a Parliamentary Committee and an Executive will be referred to the Auditor-General for further follow-up, clarification, and attempted resolution". (Not sure how this fits with Labor's agreement with The Greens that would have the Information Commissioner arbitrate on public interest immunity claims.) "Timely response to committee reports to be included as a Key Performance indicator in employment arrangements of Agency Heads."

Parliamentary Budget Office
"A Parliamentary Budget Office be established, based in the Parliamentary Library, to provide independent costings, fiscal analysis and research to all members of parliament, especially non-government members."

Parliamentary Integrity Commissioner
"This commissioner would be supervised by the privileges committee from both House and Senate to provide advice, administration and reporting on parliamentary entitlements, investigate and make recommendations to the Privileges Committees on individual investigations, provide advice to parliamentarians on ethical issues and uphold the Parliamentary Code of Conduct and control and maintain the Government’s Lobbyists register." ( Let's hope this extends to new commitments to transparency and accountability for money spent by the parliamentary departments including on and by parliamentarians.)
Members Code of Conduct
"A cross-party working group and inquiry process will be established to draft a code of conduct for members of the House and the Senate. Once established, this code will be overseen by the Privileges committee." (This should include something about parliamentarians dealings with lobbyists.)
Register of Lobbyists
"Further enhancements to the Register of Lobbyists be examined, including to the online publication of the Register and to place the register under the supervision of the Parliamentary Integrity Commissioner."(The Register is already published online. It only covers third party lobbyists who seek to contact ministers and public servants. Extension to parliamentarians, enhancement of disclosure requirements, and enforcement mechanisms for standards of conduct is what is needed. I'm sure the tentativeness in this area owes nothing to the fact that Bruce Hawker and Grahame Morris have been advising the independents.)
Other "Better Government" Improvements
"It is expected, through the life of this Parliament, and with Private Members Bills now having the ability to be voted on, that there will be further steps taken to improve Government in the following way; Open and Accountable Government improvements; Further steps on improving democratic operation of the Parliament; Electoral Funding Improvements; Truth in Political Advertising improvements." (Yes, we live in hope.)

Monday, September 06, 2010

Dr Haneef strikes out on FOI access

Two freedom of information decisions, one in the Federal Court, the other by the Queensland Information Commissioner went against Dr Mohamed Haneef recently, adding to the mixed FOI record of attempts to access documents concerning his detention and cancellation of visa in 2007. The fact that he has commenced legal action for defamation against former federal immigration minister Kevin Andrews and an unlawful arrest claim against the Federal Government may give rise through discovery to other access rights.

Both decisions concern issues relating to communication of information by a foreign government ( one the UK, the other India), and disclosure expected to cause damage to international relations. While the Federal Court decision is unremarkable in terms of interpretation and application of the law, it reminds that the blanket exemption under the Commonwealth act for information communicated in confidence by a foreign government has no element that requires balancing with any other consideration.

The Queensland Information Commissioner's decision on the other hand is a remarkable outcome. The similar Right to Information Act provision there, positively, requires consideration of the public interest in disclosure. But the exemption turned out to be broad enough to block Dr Haneef from obtaining the transcript of his conversation with the Indian Consul General while in detention in 2007, a document only in the hands of the Queensland Police because the conversation was taped without the knowledge of either party. And a ruling that disclosure of the transcript to Dr Haneef, who obviously knows what he and the Consul General said to each other, could be expected to cause damage to Australia's relations with India.

Thursday, September 02, 2010

Blair shows real democrat colours

Martin Rosenbaum on Open Secrets has a great post on Tony Blair's reflections on his introduction of Freedom of Information law to the UK:
"You idiot. You naive, foolish, irresponsible nincompoop. There is really no description of stupidity, no matter how vivid, that is adequate. I quake at the imbecility of it."
The Constitution Unit  at University College London put out this release (thanks Rick Snell) suggesting
"the former Prime Minister should not have reproached himself in such extravagant terms. He is mistaken to fear that FOI has had a significant effect in inhibiting private policy discussions, says the Constitution Unit director Prof Robert Hazell.  As in other Westminster countries, the Act contains protections for policymaking.

Prof Hazell points out that in the UK, “sections 35 and 36 of the FOI Act offer protections for policymaking discussions and there is also the ultimate protection the of a ministerial veto to prevent the release of information which the government has used twice.” For instance, last year Jack Straw used the veto to block publication of Cabinet discussions in the run-up the Iraq war in 2003.

A two year study 'Does FOI Work'? by the Constitution Unit  found little evidence of a 'chilling effect' inhibiting policy making or committing it to paper.  Prof Hazell adds: “anecdote abounds but hard evidence is difficult to find. Changes in methods of recording policy discussions were due to other factors, notably the use of electronic communications and the changed pace of decision –making.”

Another study undertaken by the Unit for the Information Commissioner’s Office concluded that, although there has been some concern and nervousness, ‘neither officials nor Ministers thought that FOI requests would have much impact on the substance of the decisions taken by government. The same factors would be considered; and the same conclusions reached’.

Second vote for Gillard, three still for grabs

Tasmanian independent Andrew Wilkie's agreement of support for a Gillard government sees the parties sign up, on the accountability, integrity and parliamentary reform side of the ledger, with everything agreed with The Greens, and one additional commitment, to introduce whistleblower protection legislation and have parliament pass it by 30 June 2011. Thanks to the Herald Sun, read the agreement in full.

Given the already long gestation period, and the Government's stated intention in March to introduce legislation this year, this on the surface doesn't look like any great concession. However Wilkie, who courageously and at great cost outed the Howard government on the intelligence assessments prior to the Australian commitment to war in Iraq, may be planning to have influence on the shape of a law that some experts six months ago thought close to best practice.

All up to the three remaining independents now.

Hatton hot to trot

Another ministerial resignation, in NSW, along with a couple of other scandals this week prompted former independent state MP John Hatton, who has a stellar reputation for integrity, to announce yesterday he would stand as a independent candidate for the Legislative Council. ''We live in a corrupt state,'' his media release stated. ''Open, accountable government, a level playing field for all business, freedom of information, ethical, impartial decision making in key areas simply does not exist in NSW,'' Hatton declared. 

This might be a little over the top. Freedom of information, read GIPA exists. It's true, the environment may not be conducive - never has - to open and accountable government, and the new law is yet to prove its worth. And culture change depends heavily on words and deeds through strong, clear, visible and ongoing leadership from all those at the top, encouraging professional public servants to recognise and act in the spirit and intent of the law.There's the rub.

The SMH reports Hatton, one of the three independents who shook up things up in NSW, including forcing a Royal Commission into police corruption, and FOI changes following the 1991 election, "has come out of retirement to tackle his old enemy. It's as if he can smell it." More details in Business Spectator include a blast for the Opposition and the ICAC.

Balancing cabinet confidentiality and other considerations

This Federal Parliamentary Library Background Note on Cabinet confidentiality by Dr Mark Rodrigues covers the origins, history and evolution of the concept, and issues concerning leaks, the courts, parliament's rights of access, and Freedom of Information exemptions. Dr Rodrigues concludes that a harm based approach reflecting public interest considerations would strike a better balance than blanket secrecy between the need for confidentiality and the need for open and accountable government. Don't hold your breath.

It is hard to see from the annual Archives release of cabinet documents that harm to any identifiable public interest would result from release of the vast majority of what are generally unexciting cabinet submissions - without the 20-30 year wait.  What is said in the cabinet room is a different matter.

Not referred to in the Background Note is the fact that Queensland leads the country with voluntary publication on this webpage of details of some cabinet decisions at least.  As a first step to better balance, others could follow suit.

Integrity, accountability and transparency in the frame

The Labor Party - Greens Agreement "designed to establish a basis for stable and effective government" gets off to a great start, putting transparent and accountable government and improved process and integrity of parliament up there in lights as the first principles that underpin the deal.  For this reason, and acknowledging much of this is still general in nature, it's somewhat surprising that whistleblowers legislation, associated issues like draconian penalties for disclosure without authorisation, and a bigger leap forward than in the pipeline on Freedom of Information law or practice didn't get a run.

Transparency for parliament itself particularly for parliamentarians in the use of public money, and lobbyists only get a mention in connection with a welcome plan to appoint a Parliamentary Integrity Commissioner to "provide advice, administration and reporting on parliamentary entitlements to report to the Parliament" (sic), and to investigate and provide advice to parliamentarians on ethical issues; and to "uphold the Parliamentary Code of Conduct and to control and maintain the Government’s lobbyists register." (Let's hope we get a bit further than that on lobbying.)
There is plenty of good news. Here are other extracts that relate to integrity issues: