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Wednesday, February 29, 2012

Assange spills the coffee as well as the beans

The Sydney Morning Herald headline Revealed:US plans to charge Assange" led to a coffee spill here this morning.The SMH and other media report that WikiLeaks release of internal emails from the shadowy Strafor company include one from January 26 last year in which the company's vice-president of intelligence, Fred Burton, responded to a media report with the comment:
''We have a sealed indictment on Assange.''
Suitably tagged with warnings to ''Pls [please] protect'' and ''Not for pub[lication]''.

So you might imagine I was calling "stop the presses" after cleaning up the coffee because my predictions for press freedom developments in 2012, all published this week in the February-March edition of The Walkley Magazine include as prediction No 1:
Julian Assange and WikiLeaks will continue to feature prominently in "freedom discussions" and despite the fact it's election year, Assange will not face charges in the United States."
Too late of course. Over another latte I figured the best line is what would Stratfor know (gulp)? To Walkley readers, keep faith, I'm not done yet. Neither is Assange.

The Greens Senator Scott Ludlam is asking questions according to AAP:
"What we need to know is whether the Australian government was tipped off, or whether the prime minister read about this in The Sydney Morning Herald this morning," he told reporters in Canberra. The Australian government needed to take "a very straight line" with the US on the issue. "That we will not permit, and we will not tolerate his transfer to the US, to face charges that could potentially land him in prison, potentially for decades."

Victorian Freedom of Information Commissioner on the statute book

The Victorian Legislative Council after five hours of debate concluding at 1am this morning passed the Freedom of Information Amendment (Freedom of Information Commissioner) Bill 2011 without amendment (See LC Hansard 28 February commencing at page 42-it's a long read!)

 It was a clear case of the numbers rather than rationality in some cases prevailing as the governing parties had enough votes to see off even those amendments supported both by the Opposition and The Greens.

So an FOI Commissioner will be a reality in Victoria when the act receives assent and the government finds someone for the job. Prospective candidates will no doubt find the Council Hansard (and the Assembly debate) illuminating-the Council debate was miles ahead in substantive terms.

Opposition speakers and The Greens Mr Barber (clearly the best informed participant in the debate) made plenty of legitimate points about aspects of the bill that are either unsatisfactory or could be significantly improved, although an amendment to require a decision on review by the commissioner within 14 days rather than 30 was unrealistic and naieve. (See my take on the bill in December.)

Mr Barber also got nowhere with amendments that would have been a start on the broader reforms necessary to bring Victorian law closer to standards adopted in other jurisdictions that have undertaken reform in recent years, for example prescribed pro-active publication.  Here and there he had a shot at a step beyond that standard- for example proposing an amendment that would abolish the internal working document exemption completely.

There was plenty of chapter and verse provided on what is wrong with the Victorian FOI act and the way it is implemented, particularly delay way beyond the already far too generous 45 days for an agency decision-some examples involved 260 days. Centralisation of  FOI authority within the premier's office also received plenty of attention.

As did ministerial interference in decision making arising from the long established and unique Victorian procedure that contentious decisions are submitted to the minister's office five days before they go out. Just "for noting" you'll understand. 

Mr Barber shared this result of an FOI request about how an earlier application had been handled (pages 51-52):
I have some examples of how ministerial staff of the Minister for Public Transport, Mr Mulder, are successfully directing FOI officers as to what to exclude and by doing so not only compromising the process in substance but also adding further delays. A number of these applications were well overdue — this one in particular was. It related to the network development partnership — that is, the monthly meeting between the Department of Transport and Metro Trains Melbourne. There are many commuters who would like to be a fly on the wall at such meetings. What we see is memos going back and forth between the FOI officer and the minister, the FOI officer and the spin unit, and the spin unit and the minister’s office. I have one document here from 13 September 2011. It is a file note about the FOI officer’s discussion with Mr Mulder’s office. The names of the ministerial advisers have been blanked out so I do not get to find out who they were.
Mr Leane — Faceless men.
Mr BARBER — The file note says:
 … called to advise that the minister was noting this FOI request. He asked if I would redact a further excerpt from page 4 of the January minutes which stated that … We do not know what it stated because it has been blanked out. … advised that this was not correct and to release it would be misleading. I agreed to redact the statement … also asked if we would be able to correct typos within documents, and I explained that we were unable to do so
The FOI officer had to explain to the minister’s office that when someone makes an FOI request for documents, we have to give them the documents — we do not get to clean up the typos and then send the documents over. The other point is even if the information in the documents is wrong, that does not mean we get to fix it. We have to send the documents. Get it? This is the FOI officer explaining it to the minister’s office. The file note continues: 
… advised that he would send a confirmation email shortly when the minister had noted the FOI brief. 
Then we get the following email, which says:
 Hi Sam — this is from the aforementioned ‘faceless man’ — or woman, who knows — Subject to the application of section 30 redactions we discussed, this office has no issues with your decision to release the NDP minutes to Mr Barber. 
There are a few more like that. This is just one example I pulled out of my little treasure trove. By way of a denouement, I appealed the removal of the faceless man’s name and on internal review I was successful. It turns out his name is Ashley, so at least that state secret is going to be out in the open. It was Ashley in Mr Mulder’s office who sought to direct — successfully in that case and unsuccessfully in other cases — an FOI officer in their administration of the act. This is exactly what the Ombudsman condemned in 2006 and exactly what the author of this bill and Mr Dalla-Riva, who will be sitting at the table in a minute, ranted and raved about when they were in opposition. It happens to this day.
The FOI commissioner has a big job ahead-and the legislation provides that the minister responsible for the act not the commissioner may (not shall) set standards for processing FOI applications!

Good luck to all concerned.

Monday, February 27, 2012

Advising FWA on FOI concerning HSU proves to be nice little earner for AGS.

Excuse the Canberra speak.

It's no doubt true but probably not to the extent of $912,562 plus GST left open to speculation from answers to questions by the Australian Government Solicitor in Senate Estimates on 14 February. When I checked the figure with David Whitbread, Manager Corporate Communications, he told me (after a couple of days) that the figure of $912,562 "was not for FOI services" but  he was not at liberty to say anything else.  
Ian Govey and AGS colleagues faced questions about the role of the office in advising Fair Work Australia on matters regarding inquiries into the Health Services Union. Mr Govey opened with a general statement that officers could not say anything about client work without consent, for legal privilege reasons, but eventually and obviously with consent, said it had advised on related Freedom of Information matters.

Senator Abetz, warming to the subject, proceeded to give a practical example of the FOI dribble effect mentioned here in this recent post: the initial FWA response to an opposition application, according to the senator, was in effect 'We aren't going to provide you with anything.' The subsequent slow drips included AGS invoices that informed further questioning, as below - emphasis added to the source of ambiguity.

The result is that FWA has been shown to be a good little earner for AGS even if $912,562 plus GST covered broader services than dealing with opposition and perhaps other FOI requests:

Friday, February 24, 2012

Where's Wilkie?

I know policy and the legislative business of the government and parliament are far from minds in Canberra at the moment, but this is a lament about the disappearance and missed deadlines for promised Federal whistleblower protection legislation. And the related issue of government silence on an Australian Law Reform Commission Report that it has had since the end of 2009 on Australia's 500+ secrecy laws. A crucial whistleblower related ALRC recommendation was for the repeal of the draconian section 70 of the Crimes Act which makes it an offence punishable by up to two years jail to disclose information without authorisation, to be replaced by a provision that links any criminal offence to an intentional or reckless disclosure that harms a specified public interest.

Has Attorney General Roxon got to the bottom of the red box yet to find these issues sitting alongside papers about the conviction of Allan Kessing and the pardon application under consideration since October 2009?

Andrew Wilkie MP sounded like someone who would surely hold a few feet to the fire on issues such as these, and he did put whistleblower protection in as part of the queen-maker deal after the August 2010 election. But publicly at least it's been silence since as deadlines passed. I couldn't find any reference to whistleblower protection on his website but the site does remind how he first came to national prominence: 
"his decision to resign from the Office of National Assessments (ONA) on 11 March 2003 in protest over the Iraq war. He was the only serving intelligence official in Australia, the UK and US to resign publicly before the invasion." 
Wilkie may now not be as influential as he was in 2010. And perhaps WikiLeaks/Julian Assange has effected more influence (in a cautionary sense) on the government  than he, without even trying. The government and parliament have been busy, busy, busy of course-266 bills passed and all that. The odds on a new order of things after Monday are not great I'm afraid unless Wilkie and others like minded make it an issue.

A recap on the timeline for whistleblower reform and some relevant information and statistics drawn from the State of the Service Report published last year:

Thursday, February 23, 2012

NSW public sector not a pretty picture

Open transparent government and specific observations about the administration of the laws, and policies, procedures and the agency culture needed to deliver it do not feature in the NSW Commission of Audit- Interim Report on Public Management released yesterday. Although the commission did find that "(i)nformation systems are complex and cumbersome and often non-existent" and identified "a culture of risk aversion, insularity, adherence to procedure and powerlessness, even defeatism.." The SMH take is here.

It's noteworthy that the report was released bearing the "Cabinet in Confidence" tag at the foot of every page, so a big tick for the Premier and Treasurer on that score, in marked contrast to the hands off approach taken with the initial (non) release of the incoming government briefs (Blue books) last year. 

The structural complexity as a result of agency amalgamations sounds like a nightmare for those with agency wide responsibilities such as information access and privacy. To which these extracts from the introduction and conclusion also apply.

Wednesday, February 22, 2012

Staff cutbacks ahead for Australian Information Commissioner

The Office of Australian Information Commissioner had its 20 minutes with Senate Estimates last week, with Privacy Commissioner Pilgrim and Freedom of Information Commissioner Popple doing the honours in the absence of Professor McMillan on leave.

Apart from a couple of questions concerning privacy matters including the Personally Controlled Electronic Health Records Bill, the main interest was in the effect of the increased efficiency dividend on the operation of the office next financial year. Commissioner Pilgrim told the committee that as a result the office will need to find "savings" of $300,000 a year which will have to be delivered through staff cuts to the current 80 ASL - as flagged in this post last November.

He said Professor McMillan had written to the secretaries of finance and deregulation and attorney general's raising some of the potential impacts, including the effect on capacity to deal with the increasing number of complaints and undertake investigation of matters that emerge, and comparing the situation with that of courts and tribunals including the Administrative Appeals Tribunal that had been exempted from the requirement.

The Q and A on this topic follows:

Monday, February 20, 2012

Media muskets trained on statutory cause of action for breach of privacy

Man vyi
I'll be surprised, given the "wicked" policy challenges on the government's agenda (today add school funding to the list), the current political mess, the polls and the hung parliament, if Canberra bites the bullet and moves ahead any time soon - this year, this term, this decade?- on the proposed statutory cause of action for a serious and unwarranted breach of privacy. At a time when it will be wary at the mere whiff of more grapeshot, acting on this would involve a showdown with yet another loud well resourced lobby, one equipped with the biggest cannon of them all, the media. The grapeshot is already flying in a related field in media submissions in response to reform ideas floated in the interim report of the Convergence review, and in editorials and opinion pieces.

This is even before the next skirmish when the Finkelstein inquiry reports on pressures facing newspapers, online publications and their newsrooms, the operation of the Australian Press Council, and conformity with media regulations, codes of practice, and public interest considerations-head for the bomb shelter at that stage.

Then there is the statutory cause of action. If I'm correct, there will be nothing particularly rational about a decision to leave the issue where it is - up in the air.

After what cumulatively amounted to years of inquiry, the three law reform commissions that looked at the issue -Australian, Victorian and NSW - recommended legislative action to establish a general cause of action, one not aimed specifically at the media.

Almost all legal experts who lodged a submission in response to the government's Issues Paper published last year accept there is a gap in the law. Most agree legislation is the best answer, although some think that judges rather than policy makers will have more and better wisdom. I'm with Professor Moira Paterson of Monash University:
The creation of a statutory tort is arguably preferable because it provides scope to craft a law which clearly addresses the complex policy issues involved (for example, by providing guidance concerning the balancing of privacy with competing interests such as freedom of expression). It also provides an opportunity to provide detailed guidance concerning the operation of the new law.
The Law Council of Australia has shifted from opposed, in a submission to the ALRC privacy inquiry, to open minded in this case. Two members, the Law Society of NSW and the Law Institute of Victoria are now publicly in favour of legislation.

There is plenty of support from others as well-the privacy foundation, rights groups, advocacy bodies such as the Public Interest Advocacy Center, state privacy law regulators. All accept the tricky part is to get the balance right-and there are plenty of ideas about that including whether to set the bar low or high, and whether to frame freedom of expression as an element of the cause of action or as a defence.

In media ranks the ABC and the MEAA don't have a view one way or another on the need for legislation. (Disclosure:I took part in an MEAA working group discussion on this last year.) Surprisingly the Australian Press Council reports division in the ranks:
Some members of the Council believe there should be a statutory cause of action for some invasions of privacy. They consider that this course is especially appropriate in the light of recent and likely advances in communication and surveillance technologies that provide greatly increased opportunities for such invasions. They also believe it is preferable to establish a statutory right at the national level than for current common law causes of action to be extended by the courts in a piecemeal, protracted and unpredictable manner which may differ considerably between States. They believe an appropriately designed statutory cause of action would encourage the handling of complaints by alternative dispute resolution. Other members of the Council consider that existing protections from laws relating to trespass, stalking, surveillance devices etc and from relevant court rules are sufficient. They see expansion as an unnecessary and unjustifiable intrusion on public access to information and freedom of expression. These members are concerned that the statutory cause would unduly limit exposure of corruption, deception or some other form of illegality or impropriety, which is adverse to the public interest. They also believe that it should not be introduced in the absence of a statutory right of freedom of expression, enshrined in a Bill of Rights or analogous legislation. They argue that the cause of action is likely to be of little practical use to people who are not wealthy.
But, sucking in:
All members of the Council agree that if there is to be a general cause of action it should apply only where there is a reasonable expectation of privacy and the bar for plaintiffs should be set very high. This could include, for example, restrictions along the general lines of the Australian Law Reform Commission’s recommendations that the invasion should have to be serious and to be highly offensive to a reasonable person. It should be a defence to establish that in the particular circumstances of the case the public interest in enabling access to information about matters of public concern and in allowing freedom of expression outweighs the public interest in maintaining privacy.
However other media organisations including those who have the muskets at the ready in house,  and big business-the banks, finance companies, the advertising industry-are strongly against.

Government House grins and bears testing FOI applications

A rare visit to the Governor General's website to locate the Bonsey report led me to this response a year ago, posted in the Disclosure Log sometime after May, to two FOI requests from Samantha Maiden (pdf) of The Australian. What is of interest is the broad ranging nature of the applications, and that they appear to have been processed without demur, free of charge, and "in the spirit of goodwill and transparency where no documents exist," some information provided above and beyond what is required by the act. (How else would we know that the average price of a bottle of wine served at Yarralumla is $11.64? Pity they didn't volunteer where the rest of us might find a more than passable drop at this, or an even cheaper price).

I have no idea whether Maiden as a journalist received special treatment or if your average FOI punter would get this sort of response to applications for documents for the last three years concerning 16 different topics, with sub-headings in most cases to spell out the detail. I would have advised against lodging all encompassing applications of this kind-shows what I know! Maiden clearly is not one of those smarties said to be artificially breaking requests into small parcels in order to gain multiple shots at five free hours of decision making time that some agencies are concerned about.

Some of the information sought was already in the public domain, or wasn't held, because for example the Governor General pays for her own clothes, hair and make up, and there are no separate records of dry-cleaning bills. Or was not matter of an administrative nature, and outside the scope of the act as it applies to the office, such as correspondence with Julia Gillard, Kevin Rudd and the Queen.

Government House only raised the issue of substantial and unreasonable resources when declining to produce original invoices but nevertheless extracted global information from records and provided it. Others might have been tempted to use these applications to test the limits of the diversion of resources provision.

The notice of determination may have FOI purists tut tutting over technical aspects of the response, but as the AAT readies for argument about the scope of s 6A and what constitutes a document that relates to matters of an administrative nature, Mr Fraser who signed off and others at Government House who were involved exhibited persistence, endurance, and patience akin to that of a saint quentin. And forbearance afterwards when a fair bit of the information gathered and released didn't make it into what appears to be the only story Maiden wrote subsequently. Which focused on travel, flowers - and the wine bill.

Friday, February 17, 2012

Release of parts of report on Australian Honours

Freedom of Information applicants who contest refusal decisions know the phenomenon well- internal review will probably get you something more (in 44% of cases according to agency figures in the latest Commonwealth annual report), and faced with an applicant prepared to box on further, the dribble effect where on second or third thought an agency decides some previously exempt matter, often innocuous in any event, is what it is and no state secret. Then again it is by no means an ironclad rule.

The Official Secretary Office of the Governor General Stephen Brady may have been justified when he bridled at the suggestion during Senate Estimates on Monday that anything of the sort was a reasonable interpretation of the decision to publish some information this week about the Order of Australia in the form of extracts from a review completed in June 2011. The reason for the lapse of time was that the Council for the Order of Australia had only just had time to give the report serious consideration and decided parts should be released. But  it is clear that there is some new thinking underway at Yarralumla about transparency

Brady rejected Senator Ronaldson's attempt to link the decision to publish and  the impending Administrative Appeals Tribunal hearing of the Kline case on 27 February. He did say direct legal costs to the Office to date were $34,000.

That hearing is to focus on the interpretation of section 6A which limits the application of the FOI act to the Office to documents that relate to matters of an administrative nature. Karen Kline is seeking among other things, manuals, policy guidelines and criteria related to the administration of awards.

Not that there hasn't been a dribble of a fashion since this began two years ago. The initial response to Kline was that documents regarding Honours weren't accessible because the Council was not an agency subject to the act. When challenged it was later accepted that documents held by the Honours secretariat were held by staff at Government House who are employed under s 13 of the Governor General Act 1974, and are within scope where they relate to matters of an administrative nature. Next stop was the Australian Information Commission where commissioner Popple decided that the documents requested were not of this kind. Now for the AAT. I understand Kline has heavyweight representation this time in the form of Tom Brennan.

If you are interested in what has been released of the Bonsey Report - historical information including some new statistics about past awards, and international comparisons of the system - it's not up in lights on the home page. But of course anyone interested would know to look at the Disclosure log. To save you the trouble, voila, Order of Australia Review 2011

Here is part of Mr Brady's opening statement at the Estimates hearing-the Q&A is still worth a read if you are a buff:

Monday, February 13, 2012

Cain urges serious FOI reform in Victoria

Former Victorian premier John Cain whose government was the first to introduce state freedom of information legislation in 1983 writes in The Saturday Age about the politicisation of the FOI process through the involvement of ministerial offices, and the return to an obsession with secrecy in the years since passage of the law . He argues that getting back to open society values should be the priority for Premier Ted Baillieu. Cain deplored the cheap shots in the debate on the Freedom of Information Commissioner bill in state Parliament last week, commenting that structural change in review processes was neither here nor there
 What needs to be corrected is the 30-year transformation of FOI into the world of political infighting, because that is where it is now, and has been for some years: a world where politicians say one thing in opposition and do another in government.
An independent commissioner should be part of the deal, but the Victorian legislation is limited in what it seeks to achieve and fails to bring the act into line with best practice. Why anyone would thinks the modest reforms proposed are anywhere near enough is a mystery.

Elsewhere in the same paper on Saturday Rick Snell of the University of Tasmania said:
There had been ''serious cultural hostility or, at best, blatant indifference'' by many in leadership positions in public service, and a feeling by many public servants that the FOI process was a game where they could bend the rules, ignore the rules or simply stack the deck in favour of non-disclosure..

Friday, February 10, 2012

We are six!

Six years this week since this professional hobby started and 2400 posts and 238,000 page views later it is still keeping me off the streets-golf went a couple of years ago.
 (OMPP (Own work) [Public domain], via Wikimedia Commons

I've previously acknowledged the impetus to get started was the prodding back then from Nicolette Davey, right, who left us for the Financial Times in London and is now with the Baw Baw Shire Council in Victoria-how lucky are they?) and Susan Timmins (still here, no escape for her). They insisted I ditch the occasional client newsletter in favour of a more contemporary communication channel. I'm still resisting other prods for the tweet and similar things.

Looking back there are some trends - a shift in my focus away from initial close attention to NSW freedom of information issues in the direction of attempted coverage of a wider Australian patch and a broader range of issues; year on year increases in visits of 40% or more with Australian readership consistently over 80%; as Australian numbers increase, overseas visitors have declined as a percentage of the total with the US, UK, Canada, New Zealand, and India always leading that group; comments have increased but my guess is that public servants of various stripes are behind Anonymous who remains our most steady contributor.

Another trend may be telling: the number of posts in the last three years went from a high 440, to 358 to 260 last year.

Importantly and despite lots of necessary qualifications, the laws and government transparency are better than in 2006, and open government these days involves discussion of a wide range of issues that weren't being talked about then.

Some lessons from blogging: content is king so feeding the beast regularly and often is a necessary part of the trade; some buzz words - the mere mention recently of Schapelle Corby for instance - attract a new audience; the blogger mindset that the last post published is of interest to the reader is wrong as people out there are grazing the net all the time usually looking at published pieces of current interest to them that may be years old; lots of pro forma "great post" comments are spam, meant to provide a link to commercial websites, so hit the delete button rather than take pride in publishing; there are plenty and an increasing number of people out there who need help in dealing with government on information related issues and will write and sometimes call at all sorts of odd times; and someone like me could do with a subeditor skilled in catchy headlines. And a red pen to rein in the tendency to ramble (sorry).

So thanks for the interest. As to the seventh year, on with the show.

Wednesday, February 08, 2012

Victorian FOI Commissioner bill close to next step

Debate resumed in the Victorian Legislative Assembly last night on the Freedom of Information Amendment (Freedom of Information Commissioner) Bill, introduced in December and was interrupted before a vote was taken. (Update: no further debate on 8th but according to the note accompanying the bill debate must be completed by 4.00 pm on Thursday 09/02/2012- Further update in note below)

See my take on the bill at the time-not quite the joke the Opposition claims but no great shakes and narrow, limited reform in any event.

You can read The Age report or go the full monty (Legislative Assembly  Hansard 7 February  pages 43-59) if you are up for wading through nine speeches from both sides over close to two hours, exchanging criticism of their respective records on open government and failure to live up to prior rhetoric. "Drivel", "lies"  and "hypocricy" feature prominently. Opposition front bencher Tim Pallas didn't hold back, showing a touch of the b word himself:
"This is a rancid bill, hiding the arrogant and rotten culture of born-to-rule belligerence in the government."
The Liberals in opposition in 2008 did their part in blocking a mixed-bag Labor FOI reform bill.  The numbers mean Labor won't be able to return the favour despite the fact that another Opposition front bencher Jill Hennessy told the Assembly Labor would vote against the bill in the Council if its amendments, flagged but yet to be rolled out, were not adopted.

 For the record Ms Hennessy told Parliament
our amendments will wind back the time the FOI commissioner has to review an agency’s decision from 30 days to 14 days. That is the same time frame that exists under the current system, yet again further illuminating evidence as to why this bill makes FOI worse, not better. We will move to reduce the time an agency has to consider a decision of the FOI commissioner to release documents from 60 days to 28 days. In terms of dealing with the independence of the independent FOI commissioner, our amendments will have the effect of ensuring that the commissioner is appointed for at least five years, not up to five years as in the current bill. We believe that goes some way to ensuring and entrenching greater independence in the commissioner. Our amendments will also ensure that the commissioner is not limited to commenting but has the right to comment on bad FOI practices as well as those which reflect on ministers and departments.
Fourteen days for external review is wildly optimistic given the need to get hold of the documents in dispute and get across the issues and content, and in the light of experience elsewhere. But it's all rhetoric at this stage as Labor needs support from others to get anything through.

(Further update:the Assembly passed the bill on 9 February without amendment or further debate-Hansard p57.)

Melbourne privacy conference later this month

A weighty privacy conference for academics and lawyers organised by the Faculty of Law at Monash University 23-24 February will cover a wide range of current and emerging issues in Australian privacy law, provide commentary on the law reform agenda, and discuss recent European developments in data protection and privacy law:
  • Australian privacy law reform
  • Privacy and Data Protection in Europe
  • Common law protection of privacy
  • Privacy and criminal justice
  • Privacy and the Internet
  • Theoretical and rights-based approaches to privacy
  • Privacy and Media Freedom
  • Should Australia introduce a statutory privacy tort?
I won't be there but sounds a good one.

Agency FOI fees and charges submissions are revealing

Professor McMillan
Australian Information Commissioner Professor John McMillan has probably signed off his report on the review of Commonwealth Freedom of Information charges, due to be in the hands of Attorney General Roxon about now, so we await the result with interest.

As to inputs,  FOI Editor at The Australian Sean Parnell seems to have been alone in digging into the published submissions and writing about them. The headline to his report of 30 December, Freedom of Information fees to soar if bureaucrats get their way, captured the essence of his summary.(Update: a more detailed report by Parnell on the submissions and FOI generally was published on 11 February-Counting the cost on new FoI)

Generally applications for non-personal information are up since application fees were abolished and other minor changes made to the charges regime in 2010.

I can understand that some applicants, and some applications, can be trying to say the least for those at the other end. So those agencies with more than their quota may be justified in complaining about a lack of resources to deal with the load, and about difficulties with aggrieved-for-whatever reason applicants who keeps going over and over the same ground. Agencies also clearly don't like the loophole exploited by some applicants in splitting requests to take advantage of the five hours free decision making time for each, the increased use of FOI as a cheaper alternative to discovery in legal proceedings, and free resort to OAIC review either.

The submissions reveal that some agencies are pretty dark about what has happened in the first year of the new charge arrangements, coinciding with broader changes to the law. Some give the impression that dealing with an increased number of "non-personal" information access requests is a nuisance and diverts resources from the "real work" of advising and assisting government to develop policies and to manage programs to implement them.

Amid those grumbles there is little acknowledgement that information access itself is a service, with citizen rights and agency obligations mandated by law, backed by policies including the Declaration of Open Government that give new prominence to accountability and transparency. All for the stated purposes of enhancing representative democracy through increased public participation in government, encouraging scrutiny, discussion, comment and review of government activities, and to recognise that government information is a national resource. Not to mention that Parliament intended that functions and powers set out in the FOI act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost. (Sound familiar?-2010 FOI act amended objects, s3)

The changes to charges and abolition of all application fees were conscious government decisions, taken in part to mitigate to a degree the cost barrier to use of the act. As Defence, and Agriculture Fisheries and Forests also point out in submissions, the administrative cost of processing $30 application fees far exceeded the return.

The "not fair, applications are on the rise" tone in some submissions suggests the long anticipated culture change has a long way to run. As has public awareness of FOI, and public engagement in the affairs of government. Heaven forbid, even more use of the act could be in prospect.

Without repeating too much of Parnell's angle, or attempting a comprehensive summary, some observations...

Monday, February 06, 2012

Who's lobbying for more sunshine for lobbying activity?

When it comes to half-hearted schemes supposedly designed to throw light on those who seek to influence government decision making, the federal arena is not unique. More transparency is needed not just there, but in the states as well.

As Sean Nicholls, state political editor at the Sydney Morning Herald, in The power of a word in the ministerial ear reflected in his piece on Saturday about the activities in NSW corridors of power of the poker machine lobby, and the ethanol producer Manildra . Not that he is saying that business people and other interest groups do not have a right to lobby ministers:
Of course they do - that's one way government gets to know about issues that affect them and possible remedies. The problem is this: the public is kept in the dark about these high-level meetings. It takes a controversy - or a cabinet leak, as was the case with ethanol - to bring them into the open.
Nicholls advocated a register of meetings held by ministers that makes public the date, the participants and the issue that was discussed. In effect a government wide version extending to ministers, of the Lobbyist Contact Register published by the Department of Planning, which currently records only meetings of third party lobbyists with the department: 
If the O'Farrell government is committed to transparency it might consider two changes as a matter of priority: alter the definition of a lobbyist to include any private sector interest pushing for government action; and introduce a publicly available lobbyist contact register for every department and its minister.
Surely the government has nothing to hide.
There is more that could and should be done in the interests of transparency, outlined in a report on corruption risks sitting somewhere in the system since November 2010.

Friday, February 03, 2012

Transparency failings in regulating the exercise of power and influence

I don't think I've written anything about our pathetic Commonwealth disclosure laws for political donations since noting in 2010 that donations made then would be made public in February 2012, and lamenting the absence of anything close to real time disclosure. Here we are now at the due date with plenty of media attention to the details of who gave what to whom.

But Bernard Keane nails it in Crikey today

" the Commonwealth level, the laws about electoral donations are a complete disgrace. That we are only finding out 17 months after the 2010 election who donated to the major parties is a blight on our democracy — one the mainstream media, normally quick off the mark to denounce any lack of political transparency, seems to ignore. That blight is there because the Coalition and Steve Fielding blocked reforms proposed by John Faulkner during the Rudd government that would have significantly accelerated the reporting cycle for donations, as well as reducing the reporting threshold back to $1000, rather than the current $11,500 threshold created by the Howard government. To its credit, Labor reports according to the $1000 threshold. The Coalition — complying with the law — does not...."
Pathetic is also the word that comes to mind regarding the current level of transparency in the related field of lobbying. Last year Special Minister of State Gray announced these results of a year long consultation about "improvements" to the registration scheme. No one seemed to find any newsworthy angle-and rightfully so.

The minister showed not even a hint of interest in meaningful reform such as disclosure requirements concerning lobbyist activity canvassed in this post, or in ideas floated in this NSW ICAC report.

Ah, but in the absence of more transparency, the register of lobbyists was to be given something of a lift (?) by placing responsibility with a parliamentary integrity commissioner, part of the agreements with the independents/ third parties after the 2010 election.

We have no commissioner-PM&C manages the scheme. And as The Australian reported on 30 December, the federal parliament would not have one or "a code of conduct for politicians until late next year (2012) at the earliest, despite Julia Gillard having pledged to put these anti-corruption measures (sic) in place by last September."

Update: a reader points out that the Senate Finance and Public Administration Committee is conducting an inquiry into the operation of the Lobbying Code of Conduct and the Lobbyist Register, to report by 1 March. Not surprisingly lobbyists (including former senator Guy Barnett) are well represented in published submissions. Others suggesting significant change, some along the lines of the NSW ICAC report, include Dr Bob Such the Member for Fisher, Action on Smoking and Health, NSW Greens Political Donation Project, the McCusker Center for Action on Alcohol and Youth and Mike Ahrens (of TI International).

And of particular interest, weighty submissions from the Accountability Roundtable, and the Queensland Integrity Commissioner Dr David Solomon AM, who has the benefit of experience with such things in that state and is strongly critical of Australia's regulatory effort, pointing out what should be done to lift our game:
Governments have publicly justified the regulation of lobbyists on the basis that this is required by “public expectations of transparency, integrity and honesty”, as the Commonwealth’s lobbyists code of conduct puts it. If that intention is to be met, it is desirable that the regulation should not leave gaping holes that can be exploited by entities that wish to lobby but to avoid being caught up in the regulatory scheme. Creating a level playing field should be one of the aims of the scheme. As explained above that should include broadening the categories of lobbyists who are required to register (or required to adhere to the requirements of the Code of Conduct, in the case, for example, of in-house lobbyists); it should also cover the lobbying of legislators who are not Ministers or parliamentary secretaries. The scheme should also make it possible for the public generally, and others in the lobbying business, to monitor what lobbying is occurring. To be effective, that will probably require publicly accessible registers, to which both government representatives and lobbyists should be required to file reports of lobbying contacts. It is desirable that there be sanctions introduced, for breaches of the Code, and for lobbying by unregistered lobbyists. There is also a need for rules that govern the time that former Ministers and other government representatives are banned from lobbying activities in areas where they have previously had official dealings.

Achieving these aims will require legislation. It would be desirable if the Commonwealth and the States could agree on uniform legislation. This would reduce red tape and the burden on lobbyists and the entities they represent, making it possible to have, for example, a mutual recognition regime and removing the need for multiple registrations. But in any event, if regulation is to be effective and backed by sanctions, legislation is necessary and desirable.

In the interests of transparency and accountability, it is also desirable that the scheme should be administered by an independent person, and preferably an officer of the Parliament, reporting to a parliamentary committee.

Kiwis show incoming government briefs

And show us up. What a contrast. Just over two months after the election, New Zealand Prime Minister John Key yesterday posted online a consolidated list of briefings to incoming ministers, with links to each briefing document. Not that disclosure of the briefs is anything new in NZ-it's been accepted as routine for years, as has disclosure of cabinet material.

I haven't looked at the content ,and material has been redacted from the briefs, in some cases such as Foreign Affairs, controversially. While many of our federal agencies, led by Treasury got onto the front foot with significant pro-active disclosure of briefs following the 2010 election, government leaders in the states that have held elections in recent times, South Australia, Victoria and NSW, chose to hide behind an FOI cabinet document set up, and leave it to applicants slug it out.

At least reasons given for the need for confidentiality in Victoria last week would have given the Yes Prime Minister team, currently playing in Melbourne ,some good local lines-release would ''delay the operation of effective government in Victoria,'' damage government's relationship with the public service, and mislead the public. Sir Humphrey's best of course was "Minister, you can be open or you can have government but you can't have both."

Wednesday, February 01, 2012

Victoria the latest "Blue Book" battlefield

The Age
Steve Vizard of MTR Melbourne radio picked up on this story in The Age on Monday and interviewed me yesterday about the battle for access to incoming government briefs prepared over 12 months ago for the Baillieu government. As Melissa Fyfe recounts, The Age is in the Victorian Civil and Administrative Tribunal arguing in a test case against the claim that much of the brief prepared by the Department of Sustainability and Environment is exempt.
Vizard made much in the lead in to our talk of the grandiose claims by the Premier on assuming office:
Under a Baillieu Government, what you see is what you will get. There will be no hidden agendas, there will be no spin, there will be no secrecy. Accountability and transparency will be the principles that underpin our Government. And the Government that we lead will be driven by integrity and governed with dignity and decency.
And a brief chat followed on the whys and wherefores of balancing the need for the necessary private space for good government, against disclosure of information consistent with those worthy principles.

Of course the "no secrecy" promise always sounded absurdly out of line with, well, the entire history of government. But in letting pass the opportunity to voluntarily and promptly disclose, outside the strict limits of the Freedom of Information Act, material that would inform and assist public discussion and debate on the state of the state, education, health, transport etc, as well as the environment, the Premier pretty quickly rendered the promise hollow.

Instead, presumably, the decision was to leave all this to FOI and the public service. Large dollops of public money are now being spent arguing legal points concerning disclosure of information 16 months old, arguments according to The Age that are peppered with chestnuts such as release would ''delay the operation of effective government in Victoria,''  damage government's relationship with the public service, and mislead the public. (In addition to an internal working document claim, I take it the cabinet document exemption is also being argued as was the case recently in NSW and South Australia, set  up in all three jurisdictions by a public service directive before the election to agencies to prepare the briefs for submission to cabinet-game, set, match.)

I didn't get a chance to tell Vizard that other issues of concern in Victoria include the slow movement towards delivering on the promise to establish a position of Freedom of Information Commissioner, the weaknesses in the bill now before Parliament, and the apparent complete  lack of interest in government, publicly at least, in bringing the 29 year old Victorian FOI act up to contemporary standards set by reforms in Queensland, Tasmania, and NSW, or perish the thought, even exceeding them.