FOI front in the News v ABC battle

News Ltd papers are pushing and prodding the ABC. Chris Kenny in "Whose ABC?" in the Weekend Australian challenged the existing culture within the national broadcaster, and development strategies being pursued by Managing Director Mark Scott.

Two other reports detailed Freedom of Information rejections: Sean Parnell in the same paper ("FOI block keeps ABC audience data secret") and Russell Robinson in the Herald Sun ("ABC staying silent over staff salaries").

The audience data rejection was based on the exclusion from the FOI act that the ABC enjoys "in relation to documents" (s 7(2))" in relation to its program material" (the Schedule). In a Federal Court decision in 2006 Justice Bennett said[17]:

" It may well be that the repetition of ‘in relation to documents’ was unnecessary for the other agencies, as it was for the ABC. However, the repeated use of "in relation to" reinforces an intention to exempt not only the category of documents specified but also documents that relate to that category."

Justice Bennett held the exclusion covered a document if it had a "direct or indirect relationship to program material."

In the light of this, Parnell thought it was worth an application for the overall data,and did not seek program-specific data. To no avail:

"Audience research documents are closely tied with the ABC's programs, relating to the extent to which the ABC's content is consumed, and informing decisions about the creation, production, commissioning, scheduling and dissemination of current and future content," the decision-maker ruled.

The Weekend Australian editor Nick Cater said the application would be pursued through the appeals process."Since the ABC's business is program-making, it can theoretically argue that everything it does is related to programming," Cater said.

Macquarie University now committed to a more open and transparent public sector

Macquarie University may have left behind the uncertainty of the past detailed in the Information Commissioner's report, with this Announcement on Friday (hat tip to a reader) of a commitment to the NSW Government Information (Public Access) Act which "grants new rights of access to meet community expectations for a more open and transparent public sector." Parliament passed the law in June 2009. It came into effect from 1 July 2010:

We are committed to ensuring we meet the requirements of the GIPA Act and that we appropriately respond to other requests for information. As demonstration of this commitment, we have:
• completed, and published on the web (see http://disclosure.mq.edu.au/), a publications guide
• developed and published training material, and commenced training staff in GIPA Act compliance
• collected contractual information into a centralised database ready for publishing on the web
• aligned our internal records management policies to include the GIPA Act
• maintained a Disclosure Log as a record of information that  Macquarie University has already released
• incorporated required GIPA statistics into the annual report
• received and processed GIPA applications since July 2010.

Contracts on the Contracts Register and the Disclosure Log or other Open Access Information are yet to be published.

The Information Commissioner wanted a statement of commitment publicly and to staff, and a report on processes to promote compliance about now, and plans an audit in September.

Expensive freedom of information

Darwin academic and former Northern Territory parliamentarian Ken Parish in "The high cost of free information" posted on Club Troppo last week, raised the high cost to FOI applicants of time spent retrieving and perusing documents the subject of an FOI request. Parish suggested an easy fix solution-“state-of-the-art” document management systems-that some might expect to be in place already given the millions/billions spent on ICT in recent years. That issue to one side, at Commonwealth level there is now five hours free decision making time, a better chance of  waiver or rebate on public interest grounds, and no charge for an application not dealt with in time. The Australian Information Commissioner is to report on the fees and charges regime towards the end of the year. Tasmania leads in this area- under its Right to Information Act, a small application fee remains but other charges were abolished.

Australian Information Commissioner to launch Principles on open public sector information

Australian Information Commissioner Professor John McMillan at the Meta 2011 conference in Canberra today will launch the "Principles on open public sector information" setting out

"the central values of open public sector information: that it be freely available, based on open standards, easily discoverable, understandable, machine-readable, and freely reusable and transformable.”

Though not binding, the principles are welcome statements that form part of the government information framework established by the FOI Act, Privacy Act 1988, Archives Act 1983 and other legislation and the general law.They will be applied by the OAIC when monitoring agency compliance with the publication requirements of the Freedom of Information Act 1982.

Let's hope the principles are nailed to the wall alongside the Open Government Declaration of last year,  and incorporated in senior executive and induction training and all points in between until they become second nature across the Australian Public Service. Oh, and brought to the attention of ministers and their staff forcefully and on a regular basis.

The eight principles are a consolidated and redrafted version of ten draft principles published for comment in this issues paper earlier in the year, following consultation and significant public service discussion and debate.The language has been polished to good effect, and most changes represent improvements. Professor McMillan comments about the process in ITnews today. (Update: the OAIC has posted a report on submissions and consideration of issues raised during consultation.)

There has been a little winding back from some aspects of the draft, perhaps reflecting the fact that parts went beyond the strict letter of the law-more's the pity.

For example

• Draft "Principle 1 Open access- a default position" included reference to an agency's "obligation to maximise the amount of information that is published voluntarily, rather than waiting for specific requests under the FOI Act."  Highly desirable spirit and intent stuff, but it didn't make it through probably because the act does not require an agency to publish anything that isn't stipulated, and the Commissioner has no powers to force more. Something less appears in "Principle 7 Appropriate charging for access": "Agencies can reduce the cost of public access by publishing information online, especially information that is routinely sought by the public."

• A cautionary note to not go overboard that was not in the draft appears in the final version of "Principle 4 Robust information asset management", requiring agencies to: "identify data that must be managed in accordance with legislative and legal requirements, including requirements relating to data security and protection of personal information, intellectual property, business confidentiality and legal professional privilege."

• The bean counters appear to have zeroed in on this section of the draft on charging, which had users rejoicing: "The principle of open access to public sector information requires that the cost of access to individuals is not unreasonably restrictive. Appropriate charging for access to information can be achieved by: not charging more than the additional marginal cost of providing access to published information, and in particular excluding from calculation cost associated with producing the information.."   But none of this survived. "Principle 7 Appropriate charging for access" has a more parsimonious tone strictly in accordance with the law: "The FOI Act requires agencies to facilitate public access to information at the lowest reasonable cost. This principle applies when information is provided upon request or is published by an agency. Other Acts also authorise charges for specific documents or information access."  

"Principal 6 Clear reuse rights" includes welcome stronger guidance than in the draft on conditions to be attached: "The default condition should be the Creative Commons BY standard, as recommended in the Intellectual Property Principles for Australian Government Agencies,that apply to agencies subject to the Financial and Management Accountability Act 1997." 

My suggestion that  the draft refer to the need for an agency to have a plan for more open government is partly answered by the reference in Governance to the senior officer "champion" instigating strategic planning on information resource management. There is nothing specific in response to my second suggestion that the Commissioner indicate how progress will be measured, except perhaps this in ITnews:

One of McMillan's few enforcement options will be via the Freedom of Information Act, under which his office is required to monitor how each agency responds to requirements to publish information. (See the Information Publication Scheme which commenced on 1 May, 2011.) “This provides an excellent opportunity to ask them whether they are aware of observing these standards,” he said.

Indeed.

The Principles are
1: Open access to information – a default position
2: Engaging the community
3: Effective information governance
4: Robust information asset management

5: Discoverable and useable information
6: Clear reuse rights
7: Appropriate charging for access
8: Transparent enquiry and complaints processes

The full text follows

NSW Government shuts the door on incoming government briefs

Documents prepared for submission to cabinet are subject to a watertight exemption under the NSW GIPA act, so you might say the NSW Government's hands were tied from the time public servants were told before the election that this was the purpose of the incoming government briefs they were asked to prepare before the state election in March. So the decision to impose a blanket ban on access to all such documents in response to applications under the GIPA act, as reported by Matthew Moore in today's Sydney Morning Herald was preordained. But as there is no restriction on release of such information by the Premier and ministers outside the GIPA act, a government interested in lifting the game on accountability and transparency would grab the opportunity. Large slabs are likely to consist of factual information about the situation the incoming government faced.

I stopped counting after 13 Commonwealth government departments including Treasury and Defence released parts of the briefs prepared for the incoming government in Canberra last year-released under FOI because that act, unlike GIPA contains a discretion to release otherwise exempt matter (or more correctly because they weren't cabinet documents or otherwise exempt). Much of this material contributed significantly to informed public discussion and debate.

Not in NSW where the government has placed material that better informs ministers about the state of things on roads, schools and the health system for example, on the same "state secret" footing as the incoming government brief prepared in Canberra by Foreign Affairs and Trade, one Commonwealth department that flatly refused to release anything of this kind.

As I told Moore," it's poor form for a government that came to office indicating improvements in transparency and accountability were a high priority.."

Ontario hospitals like Australian precedent for protecting health "quality of care" information

But just what is the "Australian approach"?

WikiMedia Commons-Stethoscopes

In Ontario a move to specifically exempt "quality of care" information from the province freedom of information act through an amendment tucked away in budget legislation has advocates and critics hard at it, with Australia featuring in the fine print as one of the precedents for such a provision. According to the Ontario Hospital Association:

Protecting quality of care information is a universally-recognized standard. The protection for a limited and well-defined class of information related to patient safety and quality of care is found in most other Canadian provinces, the United Kingdom and Australia.  In fact, what Ontario has proposed is less stringent than what is available in these other jurisdictions.

In its submission (pdf) to a parliamentary committee OHA states

"that other Canadian jurisdictions, as well as in the United Kingdom and Australia, exempt access to, and the disclosure of hospital quality of care information, either through their respective freedom of information legislation, or other related legislation."

Appendix D includes the research. It hardly amounts to a survey of Australian laws, focusing entirely on Victoria, with a passing reference to Western Australia.

The proposed amendment to the Ontario Freedom of Information and Protection of Privacy act would exempt

“information provided in confidence to, or records prepared with the expectation of confidentiality by, a hospital committee to assess or evaluate the quality of health care and directly related programs and services provided by a hospital, if the assessment or evaluation is for the purpose of improving that care and the programs and services.”

According to the OHA research, in Victoria  despite the existence of specific protections for this type of information in the Victorian Health Services Act 1988 

"hospitals generally rely on the exemptions contained in Sections 33 and 35 of the Victoria Freedom of Information Act 1982. Section 33 exempts information from disclosure affecting personal privacy, which is broadly defined. Section 35 exempts documents from disclosure if the material was obtained in confidence or "would divulge any information or matter communicated in confidence".
Hospitals in Victoria report that from an FOI risk management perspective they are very careful about what documentation they create relating to quality assurance activities (i.e., they ensure it is created in a manner that facilitates reliance on section 35). Consequently, in most instances, there is unlikely to be very much by way of difficult documentation to be requested under FOI even if Section 35 cannot be relied upon. Southern Health, the largest public health service in Victoria, reports that based on its reliance on sections 33 and 35 of its FOI legislation, it does not find that FOI legislation significantly impacts its comprehensive safety and quality review programs and accreditation programs for healthcare professionals."

Here is a rundown on the way in which the various Australian state access laws deal with this issue. I haven't looked at differences in the scope of the coverage. Or arguments that protections go too far.

Alert for journalists: rich pickings from the public record

Fresh from receiving the Douglas Stewart Prize for Non-Fiction as well as Book of the Year for Malcolm Fraser: The Political Memoirs last week, Margaret Simons in a long piece in Crikey points out we are

"right bang slap in the middle of a revolution in the way that governments in the western world hold and make available what, in the buzz word of the times,  is known as public sector information."

And that many in the mainstream media appear not to have noticed.

"In Australia all the important moves in this revolution are being made, not by journalists, but by governments and by engaged and web savvy citizens, often on a volunteer and not for profit basis."

Simons heaps (well earned) praise on Open Australia, wonders why newspapers aren't doing similar things in the state capitals, and suggests journalists do what the Gov 2.0 report  anticipated:

"There is a new set of government data released almost every day. The challenge is to make it mashable – that is, uniform in type so that it can be combined with other datasets, so that one can search it and the patterns and relationships made immediately apparent.... Imagine if a media organization not only harvested and made usable all this, and added intelligence from its archives. The archives, after all, are surely one of the truly unique, and truly valuable assets of legacy media. They are the residue of the operation of journalism over decades and centuries Time to exploit them, I would have thought. The result would be a close to indispensable utility for any citizen who wanted to find out anything. And could you charge for it? I would be willing to bet that you could."

Journalists still working on the basis that if its public there's no story in it, if it falls off the back of a truck there must be a story in it, are, well, missing the bus.

NSW Greens push for a better shield law

NSW Greens Legislative Council member David Shoebridge has introduced a bill to provide a rebuttable presumption for protection of a journalist's source in state court proceedings, setting the scene for a debate on the scope of privilege. The bill is modelled on Commonwealth legislation passed in March and would apply where a journalist engaged and active in the publication of news in print or online seeks to protect a source who gives information to the journalist in the normal course of the journalist's activities.

Shoebridge told Parliament the privilege would protect "journalists, bloggers and online commentators who may not be in paid employ but who are a necessary part of getting the word out and giving the public information in the modern online world." That modern online world appears to be a foreign one for NSW Attorney General Greg Smith who foreshadowed legislation in March that would limit the privilege to journalists employed and working in the mainstream media, probably excluding both freelancers not in an employment relationship, and bloggers even including your humble scribe. Hmph!

Cooling off period and success fee ban just the start on lobbying reform

I missed the fact that the upper house amendment to the NSW Lobbying of Government Officials Bill for a cooling off period for ex ministers went through the Legislative Assembly on 11 May with no opposition. With that and success fees out for lobbying in the state government arena, the government is off to a good start. Let's hope the other ICAC recommendations to improve regulation of lobbyists don't disappear from sight.

Familiar ring to Canadian journalist disclosure log woes

Surprise!BC flag

I'm sure journalists won't need prompting to bring to the attention of Australian Information Commissioner John McMillan the statement by the British Columbia Minister for Labour, Citizens' Services and Open Government that the government has no plans for simultaneous release of documents to the freedom of information applicant and the public. The statement followed a report by the province information and privacy commissioner that found an agency adopting this practice:

"They are narrowly within scope of the law. However, I'm finding the practice is offside the spirit of the law, which is about open and accountable government," the commissioner said.

In arguments that have a familiar ring here, media groups in Canada said the practice "was designed to discourage requests, because journalists will be less willing to put the time and money into a request when they know their competitors will have the same information as quickly as they will." The commissioner recommended the agency provide at least a 24-hour delay in posting records from FOI requests to its website.

The Australian Commissioner having floated a couple of options in a draft, left things up to each agency in the final version of the guidelines (Part 14) on the Disclosure Log:

Agencies and ministers are encouraged to consider this issue and to decide upon an appropriate approach to publishing information in their disclosure log. It is advisable that each agency and minister adopts a guiding principle or practice as to when accessed information will be published under s 11C, so that applicants know of that practice in advance and that they will be treated similarly to other applicants. Further, if an agency or minister decides to provide access to the FOI applicant as at the same time it publishes information in its disclosure log, the agency or minister should consider reducing or waiving any charges it may otherwise have imposed under s 29.. (14.25)

I haven't looked too far so don't know if this is common, but Foreign Affairs and Trade for one have announced the practice of updating the log weekly on a Thursday.

Commissioner finds Macquarie University not up to the GIPA mark

A report dated 9 March but just published of an investigation by NSW Information Commissioner Deirdre O’Donnell into  Macquarie University (pdf) in Sydney reveals some extraordinary aspects of administration of the Government Information (Public Access) Act. The investigation followed a complaint that termination of employment in September last year of the person holding the position, among others, of General Counsel, followed contact by her with the Commissioner's office to seek to clarify the status of the university under the GIPA act. The Commissioner stopped short of a finding that employment had been terminated for this reason - probably a criminal offence if proven- but made an adverse finding against the University that criticism for contacting the Commissioner was inappropriate, and likely to have undermined effective university compliance with the Act.

The report also deals with the failure by the university to prepare, in the year before, for the commencement of the GIPA act in 2010 as university staff involved in implementation were held back from doing so by instructions from the University executive; intervention with the Information Commissioner by the NSW Universities Vice Chancellors Committee (a group chaired by UNSW Vice Chancellor Fred Hilmer) apparently to seek relief for universities from all or some of the disclosure obligations under the GIPA act; and incorrect information given by a person associated with the Committee that the Commissioner had exempted universities from compliance.

The Commissioner made further adverse findings regarding actions by the executive in giving inappropriate directions to staff that communications with the OIC be via the NSWVCC, and in interfering with compliance efforts of the staff. Macquarie has been asked to publicly affirm its commitment to complying with the GIPA Act through communications with all staff and on its website and to provide a written report on the processes it has put in place to promote compliance within three months. The OIC will conduct a formal audit of Macquarie University’s compliance with the GIPA Act in six months’ time (September 2011).

Update: The OIC has been in touch to say that while "the Commissioner signed the report on March 9, it contained adverse comment about the agency. We were therefore required to notify the Education Minister before publishing the report. Given the state election, we considered it appropriate to also notify the new Education Minister, who replied the day the report was published on May 13." Thanks. 
Further Update: As reported in the Sydney Morning Herald on 17 May

NSW upper house votes to put lobbying ex-ministers in the cooler

The Lobbying of Government Officials Bill was amended in the NSW Legislative Council last week on the motion of The Greens to add a cooling-off period for ex-Ministers and ex-Parliamentary Secretaries to preclude them from lobbying for 18 months on a matter dealt with in the previous 18 months before ceasing to hold office- one of many recommendations in an ICAC report on lobbying last year that the Government has been silent on so far. It now faces an early test of the commitment to improving integrity in government as the amended bill is now back to the Legislative Assembly where the government alone will determine its fate. (Update: the bill as amended passed.) No one in debate mentioned other issues such as extending the success fee ban to the local government sector, or other ICAC recommendations for tougher regulation including more transparency-pity.

An ALP amendment to increase a fine for breach of the success fee provisions from $55,000 for a corporation and $22,000 for an individual to $550,000 and $220,000 was decided against by the casting vote of the President after a tied vote 19 all. Another Greens amendment to prohibit a member of a political party executive from lobbying was lost 19-21.

Blogger's bad week

Apologies for any unusual experiences you may have encountered here during the week-duplicated RSS or email notifications of posts, or in making a comment, for example- as Google's Blogger platform had a shocker, felt by users around the world. The disasters have mostly been resolved. But at least we're back from a complete wipeout on Thursday/Friday, and compared to some who have lost posts, seem to be intact.

NSW Information Commissioner satisfied with Barangaroo contract disclosures

"This government will ensure that there is absolute transparency about this process," NSW Planning Minister Brad Hazzard told parliament yesterday during debate on the controversial Barangaroo development proposed for Sydney Harbour. That may provide some comfort to those keen to see, and to see behind, the detail of a partly published $6 billion contract with Lend Lease, and the associated decisions and approvals made and given by the previous government (heading for the courts until some discussion today about an independent inquiry) in a process that some suggest has been marked by excessive secrecy.

Those same interested parties and observers may have been surprised that a recent investigation by the Office of Information Commissioner NSW (OIC) found little fault with the Barangaroo Development Authority's (BDA) approach in withholding parts of the contract from publication, largely reflecting OIC satisfaction with the agency's response (after criticism and complaint) in releasing or promising to release more information. They might think the BDA got off lightly, but at least the OIC intends to take another look at how things are going on the disclosure front in July.

Office of Australian Information Commissioner cashed up with $12 million

The Office of Australian Information Commissioner has been allocated $11.9 million in the 2011-2012 Budget. With $720,000 carried over from the current year, available resources will be $12.6 million for this its first full year of operation.The estimated actual 2010-2011 expenditure is $10.3 million-presumably for the year since November for the combined operation and the July-November 2010 period for the Privacy Commission when it had stand alone status. The Portfolio Budget Statement PDF 140KB, like all such documents is as dry as dust, and full of that language beloved by bureaucrats. But there are some indications of what to expect in the year ahead.

Parliamentary entitlements not public administration's finest hour

The documents that were the basis for Sean Parnell's article in The Australian yesterday about the handling of the Belcher report are posted in the Disclosure Log (11/13) on the Finance website. Parnell looks to have made something out of not much at all.

More significant is the publication (a welcome step in line with the spirit of FOI reform) of the report by Helen Williams, Review of the Administration of Parliamentary Entitlements by the Department of Finance and Deregulation, that first came to attention when Special Minister of State Gray released the Belcher report in March. The Minister's comment at the time was that the "review found that greater client focus and more effective administration by the department would be facilitated by a clearer and more integrated entitlements framework."

NSW ADT rules maximum $40000 for damage from serious privacy breach

The decision by Judicial Member Montgomery of the NSW Administrative Decisions Tribunal to award a privacy complainant $40,000 as compensation for loss or damage is the first instance since the commencement of privacy legislation in NSW in 2000 where the maximum amount has been awarded.( NK v Northern Sydney Central Coast Area Health Service (No 2) [2011] NSWADT 81.) The legislation provides for such an order up to the maximum "by way of compensation for any loss or damage suffered because of conduct" contrary to the relevant privacy principles.

The previous highest award  was $7500, although in another case in which it found it had no jurisdiction, the Tribunal said an award of $15000 would have been justified. Judicial Member Montgomery [52] distinguished other cases by reference to the significant number of breaches in the matter before him, and the seriousness of the damage suffered by the complainant as a consequence, involving as it did a suicide attempt. The decision includes discussion [32-45] of the law concerning compensatory and exemplary or aggravated damages. Judicial Montgomery left open the question of the full extent of Tribunal powers commenting that the maximum amount specified was lower than what might have otherwise been awarded [63].

Gender differences and use of Freedom of Information laws?

Has anyone ever seen research on this topic? Are women applicants under-represented?

Prompted by this announcement by South Australian Status for Women Minister Gail Gago that the state's Women's Information Service would have a new facility to enable women to make complaints to the Commonwealth and SA ombudsmen. And: 

“It will also help women to instigate freedom-of-information requests with state and federal governments."

A worthy new service, I'm sure, but as South Australia is an FOI reform black hole there's plenty of room there for government initiative.

Parliamentarians' entitlements report given state secret treatment

Sean Parnell in The Australian reports on a Freedom of Information application that produced documents that "suggest the federal government sat on the report of the Belcher review, going so far as to shred duplicate copies and keep others in a safe in a minister's office until Labor had been re-elected." The long slow reform process  is still unexplained, and the unsatisfactory  accountability and transparency arrangements for payments to parliamentarians remain unaddressed.

Establishing the Victorian Freedom of Information Commissioner on the cheap.

In his Budget speech  last week Victorian Treasurer Kim Wells  mentioned integrity in government with one reference to money, the allocation of funds for the establishment of an Independent Broad-based Anti-Corruption Commission. The Integrity of Government section of the Budget paper Overview (p 24) provides more detail and lists a number of projects including:

"The Government will provide $7.9 million to establish an independent Office of the Freedom of Information (FOI) Commissioner."

Some fine words follow about the importance of FOI, with an acknowledgment of problems with the current FOI regime, described as "excessive and unreasonable delays, and limited assistance to FOI applicants pursuing documents of interest." This falls well short of the real problem that the Victorian act is outmoded and the jurisprudence classicly conservative. And that's before you get to implementation issues.There is nothing in these papers to indicate recognition of the thorough overhaul needed to bring Victoria close to the standard set in recent reform in Queensland, NSW, and Tasmania, and in Commonwealth law.

However back to the money: Budget Paper 3 (Chapter 1 Election Commitments p 54) reveals  $7.8 (not $7.9 referred to in the Overview) million for the Office of FOI Commissioner will be spread over four years. The claim this amount will be spent "to establish" the Office, as the Overview paper does, is a bit rich. In the first year 2011-2012, the year in which the Office is to be established and at least operational for part, the allocation is a neat $1million.

Victoria's planned ban on lobbyist success fees modest in comparison

 Victorian Budget Paper 3 lists election commitments to be delivered by the Department of Premier and Cabinet in 2011-2012 (Chapter 1 P 67) . The Department

"will redirect funds to implement a ban on lobbyists’ success fees for public or State tenders or projects. This will contribute to higher standards of probity and transparency in Victorian public activities."

No timetable or other details. Maybe this is budget shorthand for what is intended. The Liberal Party made a more general pre-election commitment in a letter to the Accountability Roundtable:

The Coalition will establish a register of lobbyists and a ban on lobbyist success fees to ensure the highest standards of probity and integrity in government decision-making."

The Register was an initiative of the previous government in late 2009.

A ban on success fees for lobbying on "tenders and projects" as described in the Budget Papers is narrow and no big deal when compared to what is to be covered by the ban in NSW legislation introduced into Parliament this week. The NSW bill would apply to those seeking to influence legislation or proposed legislation, a government decision or policy or proposed government decision or policy, a planning application, or the exercise by an official of the official’s official functions.

NSW lobbyists may need to multiskill

Things got even bleaker for the lobbying industry in NSW this week, after the Assembly passed the Lobbying of Government Officials Bill. Here's Premier O'Farrell answering a question on notice from Opposition Leader Robertson later in the day:

"But I do have some absolute bad news for people in this House and outside this House, for businesses in this State, and anyone else who believes that by employing a lobbyist they are going to get better access to my Government or get an inside run on a decision, a tender or anything else, that they are wasting their money. Those days are over. There will never again be a Hawker Britton operating in this State, an organisation like that established by those closest to the Labor Party and for which the former Government was charged at times—and I will come back to that in another question time—money and resources that ultimately found their way into the election campaigns of State and Federal Labor. It was a complete and utter scam on the taxpayers of this State.

Success fees banned for NSW lobbyists

The O'Farrell Government in NSW was off to a quick start on the election commitment to abolish success fees for lobbyists, with the Legislative Assembly passing the Lobbying of Government Officials Bill 2011 this week on the first full day of parliamentary sittings. The bill is now before the Legislative Council. Labor in opposition for the first time in 16 years didn't oppose but criticised the fines as not enough!

The bill bans agreements for a success fee and the giving or receiving of payments, creating a criminal offence for both parties punishable by a fine of $55,000 for a corporation and $22,000 for an individual, plus potential forfeiture of the amount of any payment to the Crown. It applies to agreements entered into and payments after commencement of the bill, allows payment after commencement for work carried out before that date, and voids any agreement to pay a success fee entered into before commencement.

The bill includes a more detailed definition of what constitutes lobbying than the Lobbyist Code of Conduct, the basis for the registration scheme in place in NSW for some years.

All good stuff if only a step on the long path of cleaning up, as the Premier acknowledged (Hansard debate commencing at 10.37 am)

This bill is part of a series of measures that the Government will take to restore confidence in public administration in New South Wales—confidence destroyed, confidence sapped after 16 years of Labor government and a culture and a decisions-for-donations culture that had grown up. We are determined to ensure that people see how decisions are made. We are determined that people understand that decisions are made on the basis of public interest. We are determined to ensure that we are a government for all of New South Wales, and that we are accessible for all of New South Wales....This bill .... is part of a series of measures that we will take not just in relation to lobbying but in other areas to restore the confidence that people in New South Wales voted for on 26 March. Every member of this House—even those opposite—surely got the message out of the election that people in New South Wales want clean politics: they want openness and transparency; they want the public put at the heart at government again. The New South Wales Liberals and Nationals Government is determined to achieve that.

The ban applies to lobbying a (State) Government official, but Government MP Andrew Fraser floated the good idea that it should extend to the local government sphere. Far more extensive improvements to regulation of lobbying were recommended by the Independent Commission Against Corruption last year, including disclosure of lobbying activity, on which the Government has been silent so far.

Another gap concerns the lobbying of Government backbenchers, Opposition parliamentarians and crossbenchers who are not Government officials as defined, but may have a significant influence on legislation particularly in the Legislative Council where the Government doesn't have the numbers.  A success fee for this sort of activity is unaffected by the legislation.

NSW Information Commissioner on the public interest

The NSW Information Commissioner is yet to issue guidelines on the application of the public interest test in the GIPA act but this submission on behalf of the Commissioner in a matter currently before the Administrative Decisions Tribunal provides an indication of how the office interprets aspects of the relevant provisions. 

The NSW ADT has not published a decision so far on a review application under the GIPA act that commenced in July 2010. The Information Commissioner has a right  that may be unique in Australian law to appear and be heard in such cases.

The submission is obviously tailored to matters relevant to the case involving NSW Police, but parts of general interest include:

Celebrate or commisserate, it's Privacy Awareness Week

Steps to raise awareness about the importance of privacy are commendable and Privacy Awareness Week, an initiative of the Asia Pacific Privacy Authorities, may be a good thing.


At the same time, the 1.6 million Australian users of Sony PlayStation might be reassured that the Privacy Commissioner is on the job, investigating whether Sony in Australia, despite an apparent system failure, did everything reasonably practicable to safeguard their personal information.

But nothing has changed since the last big privacy invasive blow up a year ago-Google's street view- revealed a legal framework with plenty of holes still in need of attention:

• No public or private organisation in Australia has an obligation at law to notify those affected by any breach of privacy standards. Sony took days to admit publicly there was a problem. The ALRC recommended mandatory notification of a significant breach in 2008. The Privacy Commissioner says we need such a law. The Minister for Privacy and Freedom of Information Brendan O'Connor in today's Sydney Morning Herald says a such a system now ''appears necessary." But when?

• The Information Commissioner has no powers to impose or seek penalties if an own motion investigation finds a breach of privacy principles in the Sony PlayStation case or any other. As the Privacy Commissioner noted most recently after finding Vodafone breached privacy standards. He will no doubt say the same thing when he completes an investigation of Dell. And Sony. The minister's predecessor Senator Ludwig said the Government intended to do something about this in October 2009. He repeated it in July last year. Still for action mid 2012?

• Those affected probably have limited legal rights regardless of the loss or damage. The broader issue of a statutory cause of action for a serious unwarranted breach of privacy was recommended years ago, is yet to be considered by the government, and is listed as a second phase privacy reform issue to be considered in 2012.

• Doubts remain whether Australian law adequately covers protection of personal information collected from Australians by a company operating in this country and held overseas. This is but one of the "first phase" reform issues arising from the Government's draft revised privacy principles that a Senate committee has been looking at since mid 2010.

In Privacy Awareness Week the Minister tells us nothing new about these matters but says we all have to step up to the mark:

“We’re acting to ensure that our privacy laws are robust in changing circumstances, but Australians also need to take responsibility for their actions, particularly online.”

Bernard Keane in Crikey gives the Government some credit for being more serious about privacy than its predecessors, but cites failings and conflicting policy objectives that suggest "it’s hardly in a position to lecture the likes of Sony about their casual disregard of privacy and transparency."

MEAA 2011 Press Freedom Report

On good reads, congratulations to the Media Entertainment and Arts Alliance for the 2011 Press Freedom Report, jam packed with information and informed comment on all the relevant issues-freedom of information, secrecy, whistleblowing, shield laws, privacy, copyright, open justice, national security, censorship and more.

Julian Burnside QC [8-9] has a good oneliner on the WikiLeaks message to government:

"Assange has introduced a new element into global politics: tell the truth or fear that the truth will be exposed."

Chris Warren in his introduction [3] sees grounds for cautious optimism in some recent developments, but with plenty more to be done. One urgent priority is the " ludicrous plethora" of secrecy laws revealed in the ALRC report still awaiting a government response well over a year later, an issue picked up elsewhere including by Markus Mannheim of the Canberra Times [14-15].

Mannheim's main point is that public servants- described as the real opponents of open government- and journalists all need to lift their game. Public servants must accept that open government means a stronger focus on what they do and need to develop the necessary thicker skin to go with this. As for journalists its a question of standards:

"The more documents become publicly available we must ensure that we get it right and be fair when we report on them.There are many eyes in Canberra watching for and counting our mistakes hoping to use them to argue against any further moves to open up..government. Let's not give them the pleasure."

(Update:Jonathan Holmes on The Drum on 13 April writes about FOI and subsequent media reporting on what was disclosed that falls short of professional standards.)

On privacy the Alliance calls [33] for a robust debate to ensure that judgments about legal rights of recourse are not just in the hands of the courts. The problem with this is that the debate, admittedly often in a desultory fashion, has been underway for years, with three law reform commission inquiries resulting in recommendations yet to be acted upon four years later, for a statutory cause of action for a serious unwarranted breach of privacy. If the debate hasn't been robust enough that may be because of the stand by some media organisations, including our loudest, that there is no need.

The chapter on privacy fails to mention the failings in the self-regulatory privacy arrangements that apply to the print media, pointed out last year by former Prime Minister Keating, but David Marr [33-34] gives Channel 7 both barrels for their judgment in outing then NSW minister David Campbell and more of the same for the ACMA for their "cockamamie"  argument that this was in the public interest. (Barbara Tuchman's "March of Folly" comes instantly to mind.)

Michael Pelly, at the time a legal affairs writer with The Australian and since appointed Media Adviser to NSW Attorney General Greg Smith, confirms [7] what most know or suspect about prevailing attitudes in some newsrooms regarding public interest considerations in publishing: "would the public be interested in reading about this?" is the question journalists ask, Pelly says, subject only "to the interests of good taste and reader sensibilities."

I'm afraid that's not what journalism professional standards and media codes say, or what the the law requires when the issue arises, with Pelly at least acknowledging this last point.

Assange lawyer:disfunctional FOI encourages whistleblowers

In this interview published by Miller-McCune, Julian Assange's lawyer Mark Stephens, one of the best in the media law game anywhere, discusses "the uncomfortable relationship between the free flow of ideas and the inclination of governments to make everything a secret."  Well worth a read. Much of it has relevance everywhere, in particular:

M-M: Is the government entitled to keep any of its secrets?
MS: It is the government’s job to keep its own secrets, and it is the media’s job to be a check and balance on that. For myself, clearly I would accept that the government must have its secrets. But as Richard Dearlove the former head of MI6 has said, the state should have its secrets, but not as many, and not for as long as most people think. That’s the critical factor....

M-M: Is there a direct relationship between a flawed freedom-of-information system like the one you’ve just described and the rise of whisteblowing outlets like WikiLeaks?

MS: Freedom of information has been a good thing since 1766 when the Swedes first passed a freedom of information law. The theory in democratic society is that we know all things of moment so that we can make up our minds about the issues of the day. If we’re not told most of the important matters on which to base our decisions, then clearly they’re going to be skewed. If you have a freedom-of-information system which is defective, if you have an exponential increase in classification like we’ve seen in the last two to five years, where the classification graph goes up virtually vertically, at that point, you are going to see far more people whose consciences are going to be pricked to become whistle-blowers. The dysfunctional nature of freedom of information, the overclassification, means that people are not going to stand for that lack of accountability in government.

If you're in New York this panel discussion with Stephens on Wednesday, "Life After WikiLeaks: Who Won the Information War" at the Colombia School of Journalism sounds interesting.

While his client can't travel for obvious reasons, Stephens can. Is anyone trying to get him here?

May Day means Publication D day in Canberra

The new publication provisions of the Commonwealth Freedom of Information Act took effect from 1 May so these logos are prominent on many agency websites today, and are linked to the documents now required to be published. Prime Minister and Cabinet, Foreign Affairs and Trade, and Defence are just some that seem to have done a good job and even though others such as Health and Ageing and Immigration and Citizenship don't have the flags flying on the home page, the relevant documents can be found with a little digging. 

NSW joins Victoria in dismissing shield law protection for all but the mainstream

Chris Merritt in The Australian reports that NSW Attorney General Greg Smith plans to follow the Victorian lead on a state shield law to protect journalists sources through a rebuttable presumption against disclosure in NSW courts. Welcome news to that point. But his views echo those of Victorian Attorney General Robert Clark, and before that Opposition Senator Brandis, critical of what they claim are protections that are too broad and accepted by the government on the motion of The Greens in recent Commonwealth legislation. The protection they say should be limited to journalists working in the mainstream media.