Out of touch-again

While in Spain, France and Italy-no sympathy messages required-I'll be mostly resuming my out of touch position.

Australia and Open Government Partnership

Thanks to itnews for the news from the horse's mouth that Australia is still considering and consulting on this-as it has been saying for nine months or so. My source in Washington who told me we were out said that he got this from the Australian Embassy when he rang to seek clarification after hearing about Australia's position from other sources.

If we are luke-warm to cold on the idea of a commitment because we are already in good shape, I guess Mexico, the US and UK, all founding governments with reasonable records, might have said the same thing-but didn't.

 I'm a bit handicapped to contribute more as I'm on the way to Europe but two relevant posts from last year if you didn't see them: from September when I first raised our absence and this in October includes a link to Professor McMillan's response to questions asked at the time in Estimates by The Greens Senator Rhiannon. 

I'll be glad if my report turns out to be wrong-as I said in September, Australia should be proud to line up on this one.

FOI charges review

Sorry to say I lost the original post somewhere while crossing the Atlantic as I tried to update it. Briefly it noted the publication of Professor McMillan's report, welcomed the idea of simplification but reserved comment until I have a chance to read the detail, and linked to some media coverage of the issue. Sorry.

Australia to sit out Open Government Partnership

We don't say no to Washington all that often but while there last week, I was told by someone following the initiative closely that Australia has decided not to join the Open Government Partnership, launched by President Obama in New York in September last year. Just what's the problem is unknown but I recall Australian Information Commissioner Professor John McMillan telling a Senate committee last year that  we had some questions concerning the initiative. Whatever, concerns haven't been enough to hold back the eight founding governments and 38 others participating who will meet in Brazil next month.

 I understand the UK will co-chair the initiative with the US for the ensuing 12 months. 

Who knows what our new Foreign Minister Bob Carr thinks about it all. If he made a speech during his 10 years as premier of NSW extolling the virtues of FOI, I missed it. In his time in that office even ministerial media releases didn't get posted on the web, media management and spin came ahead of other considerations, and the open government cause generally suffered from the lack of high level leadership and support. DFAT already has a tendency towards excessive secrecy so it's a nice fit on that score.

A pity as Australia has something of a positive record worth sharing in international company. As to which parts of the OGP Declaration trouble us, your guess is as good as mine:

Out of touch

I'm traveling, with limited internet access, so will be back to this when I get the chance.

Tough times for whisleblowers

So what's new...

The session on whistleblowers at the National Freedom of Information Day Conference in Washington last Friday was hardly encouraging for those brave enough to contemplate taking a stand on wrong-doing, as summarised here by Nikki Troika of the First Amendment Center. Lucy Dalglish of the Reporters Committee on Freedom of the Press told the conference the post WikiLeaks situation seems to be there is no judgment call within government on the nature of information disclosed to the media or publicly in cases labeled as involving national-security issues. The government’s attitude, she said, has been to try to track and punish any such disclosures.

Outside the conference the talk here is that it is hard to see Assange being charged with anything unless conspiracy with the leaker or leakers can be shown-always a high hurdle.

Australia makes news at US National Freedom of Information Day Conference

But it wasn't for any great freedom of information accomplishment. On the contrary we together with other countries involved in negotiating the Trans-Pacific Partnership copped quite a serve over the lack of transparency.

Last Friday at the Sunshine Week conference I attended in Washington, Lori Wallach of Public Citizen Trade Watch, recently returned from observing the 11th round of negotiations in Melbourne on the TPP trade agreement spoke to her just published article  in the March edition of American Prospect. Wallach said "unprecedented secrecy" surrounds the draft texts under discussion, quoting former US trade official Gary Horlick as saying it "is the least transparent trade negotiation I have ever seen" in his 40 years in the game. Wallach contends the negotiation has been misbranded as "trade": the 26 proposed TPP chapters

 "include domestic policy on financial, health-care, energy, telecommunications, and other service-sector regulation; patents and copyrights; food and product standards; land use and natural resources; professional licensing and immigration; and government procurement."

Wallach said decisions are being taken without public access to any documents or details or, in the US case, input from members of Congress serving on key committees whose jurisdiction is directly implicated. And that the governments involved have ignored a global “release the texts” campaign led by unions and civil-society groups. However more than 600 business representatives serving as official U.S. trade advisers have full access to an array of draft texts and an inside role in the process. "The strategy is to squelch informed debate until a deal is signed and any alterations become difficult."

Wallach's talk prompted a look at other materials. The Department of Foreign Affairs and Trade website confirms that it is no secret that the TPP will involve more than trade (emphasis added):

The Australian Government will pursue a TPP outcome that eliminates or at least substantially reduces barriers to trade and investment. The TPP is more than a traditional trade agreement; it will also deal with behind-the-border impediments to trade and investment.

This report from another observer at the Melbourne negotiations puts Australia up there leading on the confidentiality issue-and avoiding rather than answering questions:

The Australian chief negotiator opened the briefing with a statement of the chapters which had made progress during the round. Intellectual Property was not mentioned as one of these chapters, though market access, services, rules of origin and capacity building were amongst those specifically mentioned. He stated that there were more than 20 negotiating groups.

As usual, very few substantive questions were answered. Some procedural questions also went unanswered.

The first question came in the form of request for greater transparency, including the release of the text, in order to permit the general public to be part of the process. The Australian chief negotiator stated that the stakeholder forum provides the primary way for stakeholders to participate and it is common practice not to release texts during negotiations of free trade agreements. He suggested that releasing the text would not be feasible because "nothing is agreed until it is agreed."

A later question regarding the release of the text came when one stakeholder asked if the TPPA negotiating parties would consider a release after a composite text had been reached as is done at the WTO. The Australian chief negotiator repeated that in his view, the answer had already been clearly stated, that this is not the WTO and they would not release the text.

When asked whether all countries had finished tabling their IP text and whether the US specifically had tabled its text (marked as "placeholder" text in the prior leaks) on biologics, the length of the access window, internet retransmission and copyright limitations and exceptions, the Australian negotiator immediately responded that they would not release text. When pressed to answer simply whether specific text had been tabled or not, Barbara Weisel, US chief negotiator, did not clearly answer the question but seemed to indicate that such text had not been tabled yet. She noted that USTR is still consulting with stakeholders regarding some provisions, presumably on biologics and the length of the access window.

I don't know what relevant FOI activity has been undertaken. Participants have sought to head things off at the pass with this agreement on confidentiality to apply for four years, with NZ  acting as the organiser in chief:

First, all participants agree that the negotiating texts, proposals of each Government, accompanying explanatory material, emails related to the substance of the negotiations, and other information exchanged in the context of the negotiations, is provided and will be held in confidence, unless each participant involved in a communication subsequently agrees to its release. This means that the documents may be provided only to (1) government officials or (2) persons outside government who participate in that government’s domestic consultation process and who have a need to review or be advised of the information in these documents. Anyone given access to the documents will be alerted that they cannot share the documents with people not authorized to see them. All participants plan to hold these documents in confidence for four years after entry into force of the Trans Pacific Partnership Agreement, or if no agreement enters into force, for four years after the last round of negotiations. Second, while the negotiating documents are confidential, each participant may mail, e-mail, fax, or discuss these documents over unsecured lines with the groups of people mentioned above (i.e., government officials and persons who participate in the domestic consultation process). The participants may also store these documents in a locked file cabinet or within a secured building; that is, the documents do not need to be stored in safes. Each participant can also create and store these documents on unclassified computer systems. Lastly, the participants will mark the documents they create in a manner that makes clear that the documents will be held in confidence.The policy underlying this approach is to maintain the confidentiality of documents, while at the same time allowing the participants to develop their negotiating positions and communicate internally and with each other. We look forward to your confirmation that you agree with this approach.

In answer to a question, Wallach said Peru's FOI law offers the best chance of some access to TPP documents and a court case there is underway.

What public servants think about open government, a question yet to be asked

The Australian Public Service Commission State of the Service Report referred to in a recent post on whistleblower protection was published in November 2011 together with  results of an employee survey . The report details the activities and human resource management practices of APS agencies. But the survey again was a missed opportunity to gather data about awareness of open government reforms and respect for privacy that would throw some light on prevailing culture and assist to track change over time. Nothing has changed since last year in this respect.


Question 70 for example asked about familiarity with the Standards of Ministerial Ethics, the Register of Lobbyists, and the Lobbying Code of Conduct-around 50% in each case of a large sample of public servants had not heard of these, or were not sure. But no-one was asked about familiarity with the Open Government Declaration, with freedom of information reforms of 2009-2010 or asked to respond to any questions designed to guage general attitudes concerning open government, or appreciation of the law regarding respect for information privacy and what that entails.


Responses to questions such as these would be a modest but useful start to testing culture. After all culture change has been one of the prime objects the government says it is on about in moving towards greater transparency. 


The only jurisdiction that has attempted a to gather base-line data is Queensland where a survey was undertaken on behalf of the Queensland Information Commissioner last year. 


Results of that survey showed the reaction to questions by a large number of Queensland public servants was "what reforms?" but at least those in the know thought important changes were underway and were having a positive effect. We know little about the views of Commonwealth public servants although those who signed off on submissions to the fees and charges review hardly exhibited an enthusiastic embrace of the new regime.

ABC FOI setbacks won't draw sympathy from the chair

A nice juxtaposition.

In a week when Freedom of Information Commissioner Popple in two review decisions ruled the ABC had pushed too far in applying the exemption it enjoys under the Freedom of Information Act in relation to program materials, beyond what generous court interpretations allow, former NSW chief justice James Spigelman was appointed chairman of the ABC, to widespread acclaim.

In 1972 Spigelman's book Secrecy: Political Censorship in Australia helped put FOI on the agenda for the Whitlam government, with Spigelman himself appointed to a key position on the Prime Minister's staff following the election in December of that year. He went on to head the short-lived department of media while still in his twenties before an illustrious legal career.

Not that issues like those in the two FOI cases decided this week are going to take time at the board table. Although given Mark Scott's best memory of his days as a journalist before elevation to editorial and managerial positions, was using FOI to dig out a few gems about the education system, he and Spigelman maybe should kick back and shoot the breeze on FOI after a board meeting sometime.

In Herald and Weekly Times Dr Popple examined the legal precedents regarding interpretation of s 7(2) and part II of Schedule 2 of the FOI Act, citing the Full Court of the Federal Court conclusion in Bell that the expression 'in relation to its program material and its datacasting content' covered 'documents relating to program material, as well as program material itself'. The documents in dispute in this case were "documents dealing with salaries, or any other payments, paid by the ABC in the financial year 2009–2010 to program makers working on the following television and radio programs..".HWT specified 10 television programs and three radio programs. Dr Popple concluded:

16. In ABC v UTS, Bennett J decided that there was a sufficient relationship between documents concerning complaints about ABC programs and the ABC's program material for the exemption to apply. I think the connection between the documents in this IC review and the ABC's program material is so remote that there is not even an indirect relationship between them. The complaints in ABC v UTS were about the content of the program material; information about the salaries of program makers relates only to the administrative process of the production of that material."

Dr Popple found the documents were not exempt on the basis of Schedule 2 and referred the matter back to the ABC, noting that other exemptions such as the conditional exemption for protection of personal information may apply-but there are reasonableness and public interest tests that apply as well.

In "F", Dr Popple reached a similar conclusion about the documents in dispute:

Secrecy and foreign affairs

My hurried contribution before taking off for a while, to a discussion on secrecy and international and foreign affairs on the Lowy Institute Interpreter - here is the thread - where the question was asked, to get things going, whether we have a culture of secrecy in government.

Sunshine Week- a great idea still to hit our shores

It's that time of the year - well it is next week - when the US open government community, led and co-ordinated by the Association of Newspaper Editors and the Reporters Committee for Freedom of the Press demonstrate the importance of open transparent government through Sunshine Week publicity and events.

I've been lamenting for years the absence here of a Knight Foundation to fund the start up, and a formidable team with a shared interest, prepared each year to invest time and resources to help build public awareness of the importance of the right to know. For everyone, not just the media.

 Three years ago, the coalition of media groups Australia's Right to Know organised a conference in Sydney on FOI reform, but hasn't repeated it. Or at any stage reached out to partners who might share an interest in open, participatory government. Despite the great name, ARTK's focus has been on media not citizen interests. And it's maintaining a very low profile - the last addition to published submissions on its website was in October 2009  and to the media releases list, in May 2010

By happenstance I'll be in Washington next week, attending a couple of events and renewing some contacts.

While the Queensland Information Commissioner has organised three Right to know days and the NSW Commissioner is talking about a Sydney event later this year, oh for a local equivalent of a group like these Sunshine Week partners:

American Library Association ♦ Association of Alternative Newsweeklies ♦ Association of American Editorial Cartoonists ♦ Center for Democracy & Technology ♦ Center for Public Integrity ♦ Center for Responsive Politics ♦ Collaboration on Government Secrecy ♦ Electronic Frontier Foundation ♦ First Amendment Center ♦ Investigative News Network ♦ League of Women Voters ♦ Media Law Resource Center ♦ National Association of Broadcasters ♦ National Conference of Editorial Writers ♦ National Freedom of Information Coalition ♦ National Newspaper Association ♦ National Press Club ♦ National Security Archive ♦ Newspaper Association of America ♦ OMB Watch ♦ Online News Association ♦ Openthegovernment.org ♦ Patch ♦ Project on Government Secrecy ♦ Project on Government Oversight ♦ Radio Television Digital News Association ♦ Society of Professional Journalists ♦ Student Press Law Center ♦ Sunlight Foundation ♦ Sunshine in Government Initiative

FOI protection for Victorian Blue books set up well ahead of 2010 election

Melissa Fyfe of The Age was unsuccessful in a challenge in the Victorian Civil and Administrative Tribunal to the refusal by the Department of Sustainability & Environment (DSE) to grant access under the Freedom of Information Act to the Departmental Status Report (DSR) and the Policy Implementation Action Plan (PIAP) prepared for the incoming government in 2010. Along similar lines to what was done in NSW and South Australia to protect these types of documents, the grounds for refusal were set in place earlier that year when the Department of Premier and Cabinet issued guidelines to agencies that stated the purpose for which they were to be created included to brief the Premier on an issue to be considered by cabinet.

At Commonwealth government level where significant disclosure of the incoming government briefs by agencies voluntarily occurred in 2010 after the Federal election, those documents were prepared for the incoming minister. Agencies would not have had the cabinet exemption available in those circumstances. As possible exemption grounds other than cabinet documents such as deliberative process involve a public interest test with strong pro-disclosure elements, most agencies chose to voluntary disclose a redacted version of the brief. And contributed in many instances to informing public discussion and debate.

In Victoria from the time well before the election when the guidelines were issued by DPC, the documents regardless of the content or how they were eventually used were protected from disclosure under FOI. Of course the Premier and ministers retained and still retain the discretion to disclose such documents outside the confines of the FOI act. While they may (for obvious reasons) want to withhold PIAPs unless compelled to disclose, why DSRs need to be locked away from public scrutiny for years is less clear.

What will "Can Do Newman" deliver on open and transparent government in Queensland?

Holding steady as she goes might be a good result. And forget about  access to the incoming government brief/Blue or Red books, no matter who wins on 24 March.

The odds on the election outcome strongly favour Kevin Campbell Newman at this stage but time will tell. (Addendum- sorry, the late Kevin was his father and the coach of the University XV when I was a young rugby player in Canberra a long, long time ago.)

In the campaign so far Mr Newman has made much of his five point action plan to get Queensland back on track.

The fifth pillar is to "Restore accountability in government: Ministers will be accountable for their Departments and our decisions will be open and transparent." Ironically Mr Newman has found himself on the back foot early in the campaign concerning donor deals and personal and family interests.

The published detail of policy linked to the goal of "restoring accountability" refers to two subsidiary priorities -  to give Queensland communities a choice on local Council de‑amalgamation, and to address planning issues including restoring the Coordinator General's power and authority regarding major projects. The only mention of transparency in the detailed list of 71 LNP commitments is to put the cost of the carbon "tax" in big print on electricity bills sent to customers. This report has Mr Newman showing some interest, when questioned, in speedy disclosure of donations to political parties.

But it all seems pretty thin given the headline status of the commitment.

You might expect the LNP would have something to say about such things as open government and the Right to Information Act, whistleblower protection, lobbying and other integrity issues. Or at least  something to indicate that a new government would leave alone those Bligh government initiatives that generally seem to be marked improvements on what went before. Perhaps it is still to come. There was nothing more on the subject in the campaign launch speech, or at least the summary. The text is hard to find.

Of course as Brisbane lord mayor Mr Newman had some form on open government. In 2010 he was successful in persuading the Government to legislate to give Brisbane City Council's Establishment and Coordination Committee the same status for RTI purposes as the state cabinet. The legislation also gave all local government authorities in Queensland an exemption from the RTI act for "information brought into existence in the course of a local government’s budgetary processes" for 10 years, a wonderfully wide provision.

ACT FOI reform stalled, whistleblower protection plans open for comment

ACT Chief Minister Katy Gallagher's plan to bring the Territory Freedom of Information Act generally into line with the reformed Commonwealth act by the end of 2011 was not realised. Her version is the ambition failed because the bill was blocked in the Legislative Assembly in December by the Opposition and The Greens. Their version is they voted to adjourn debate because the Government was seeking to rush through less than satisfactory legislation and they were not ready for substantive debate on the bill introduced three weeks earlier in November. Either way, debate will resume sometime in this session. It's been a long haul since the Assembly established a committee to have a look at this in 2009 although some changes to the law have occurred since and the Chief Minister has some administrative improvements to her credit. The bill as introduced would bring welcome changes but stops way short of groundbreaking.

Of interest also in the Territory is the exposure draft of the Public Interest Disclosure Bill released on 22 December and open to submissions until 26 March-by email to psm@act.gov.au or to

Public Interest Disclosure: Consultation

Public Sector Management

Chief Minister’s Department

GPO Box 158

Canberra ACT 2601.

This proposal is a significant improvement on the 1994 act, but as always leaves further room for changes that would deliver "best of breed." Queensland leads in that respect and of course the Commonwealth drags the chain with nothing to show for years of talk.

 It's not too late to point out how the ACT might improve even further.

South Australian FOI reform stirrings

The Advertiser reports a glimmer of interest in change in South Australia, one of the laggards on Freedom of information reform where the 1991 act is Mark1.10, just a notch ahead of the 1980s Commonwealth/Victorian Mark 1.0 versions. Not just from long-time critics such as The Greens Mark Parnell and Family First's Robert Brokenshire who add to the list of failings identified by the Ombudsman Richard Bingham, but also in a first in a long time, from a minister:

Public Sector Minister Michael O'Brien said the increasing number of FOI requests, mostly made by journalists and MPs, was putting pressure on agencies, both in terms of cost and time. He said the Government was looking at ways to alleviate this, including publishing information routinely the subject of FOI requests on the internet. Another idea being considered by the Government was to assign documents a classification at the time of creation, with low-level classified documents made readily available. He conceded the Ombudsman's comments indicated some agencies weren't being as transparent as they should. "The more open the system the better and if the Ombudsman is saying some agencies are far too cautious then that is an issue we are going to have to look at," he said.

Some FOI act mandatory provisions optional in Victoria

Mystery solved, sort of.

In a post last year about cabinet documents I referred to a provision in the Victorian FOI act that  when introduced almost thirty years ago was a long way ahead of it's time. Not that it would, if followed, disclose much about the cabinet process except that a decision had been made:

Those with long memories might also recall s 10 of the Victorian Freedom of Information Act  that came into effect in 1983, and still in force, requiring the Premier to "cause to be published on a continuing basis a register containing- (a) details of the terms of all decisions made by the Cabinet after the date of commencement of this Act; (b) the reference number assigned to each such decision; and (c) the date on which the decision was made. (2) The information referred to in subsection (1) shall be entered on the register at the discretion of the Premier." 

It was heralded at the time as groundbreaking. Notice it doesn't say when or how. (the register is to be published) .There is this reference to cabinet decisions to 1993 at the Public Record Office. A search of the Department of Premier and Cabinet website for something contemporary produces zero results. A Victorian reader may know when it dropped off the radar and, ahem, why..

The question remained unanswered until in the wee hours in the Legislative Council debate on the FOI commissioner bill in committee on Tuesday last week, the following exchange occurred (LC Hansard 28 February pages 63-64). It seems that successive premiers simply decided not to comply with the requirement and no-one has talked about it much since:

Mr BARBER (Northern Metropolitan) — I also raised in the second-reading debate the question of the cabinet register. This is a document that is apparently required to be prepared under section 10 of the principal act. Where is that information publicly available? Where this register, which is required under the act, is even located — if it is prepared — is apparently a secret. That relates directly to a number of the ways in which I might use this very legislation we are debating.
Hon. R. A. DALLA-RIVA (Minister for Employment and Industrial Relations) — I thank the member for forewarning us in the debate. In relation to section 10 of the principal act — and I note the comments made by Mr Barber — it has not been the practice of successive governments to publish cabinet registers. This section of the FOI act is unrelated to the amendments dealt with in this bill, and therefore it would be inappropriate for the government to debate the details of this provision at this time.

There ended discussion. The minister didn't seek to enlighten Mr Barber or anyone else on the discretionary nature of the obligation under s 10 which reads:
"The Premier shall cause to be published on a continuing basis ...."

Since 1983 Queensland and the ACT have decided to do something along these lines. In Victoria the obligation to do so, now 28 years on, simply sits on the statute book with successive premiers simply saying to themselves at least that they didn't like that bit.

Update: this anonymous comment subsequently received from someone with some involvement, and although not surprising, worth prominence beyond the Comments section:

I worked in the Victorian Cabinet Office in the 1980s and the Cabinet register was taken very seriously at that time. It was updated at least annually, and a lot of effort went into getting accurate information onto the (then hard copy) register.  My colleagues and I agonised a bit about 'details of the terms of all Cabinet decisions', especially in cases where the issue continued to be the subject of further Cabinet submissions.  The draft additions to the Cabinet register were very carefully checked by the Parliamentary Secretary of Cabinet before being put to the Premier (then John Cain) for his approval.  I left the Cabinet Office in the late 1980s and am not aware of when the Cabinet register stopped being compiled, but I can easily imagine it was one of the first activities to be dropped if there were staffing or budget issues.  It was one of those activities which appeared high risk with little reward except serving the 'public interest.'

A little devil overlooked in the Fink detail

The Age

These things can happen to anybody, and I sure could use a proof-reader, but the Finkelstein report (paragragh 7.15) refers to the the late Creighton Burns who went on to become Editor of The Age as "Crayton Burns." When he died in 2008, Michelle Grattan described him as "an ornament to his profession." Burns was The Age correspondent in Washington during my time there with the Australian Embassy in the seventies, so I'm ancient enough to remember such things as the correct spelling of his first name.

Finkelstein recommendations based on self regulation failures and gloomy prospects for change

There are many issues raised in the Finkelstein review that deserve close analysis and sensible discussion and debate-which may or may not occur. But a few observations on media accountability and what to do about it, from a quick read of the 477 page report.

The recommendation for a News Media Council to set journalistic standards for the news media in consultation with the industry, and handle complaints made by the public when those standards are breached, emerged from analysis that showed there is a problem with standards, that the media has failed in its self regulatory efforts and that there is no persuasive evidence that it can or will remedy the situation.

This assessment is largely based on evidence from the Australian Press Council and lessons drawn directly from history- that the APC has serious structural constraints, does not have the necessary powers or the required funds to carry out its designated functions, and is vulnerable because publishers can withdraw when they wish and alter their funding as they see fit. Separately regarding television and broadcasting, the report finds ACMA’s processes are cumbersome and slow. And if "legal proceedings against the media are called for, they are protracted, expensive and adversarial, and offer redress only for legal wrongs, not for the more frequent complaints about inaccuracy or unfairness.. The problems with both the external and self-regulatory mechanisms are inherent, and cannot be easily remedied by piecemeal measures."

Someone is wrong here- the APC and many others (supported by the inquiry report) who think change must occur, or those in the media who claim variously, that everything is pretty rosy (Fairfax and News Limited), that self regulation of "print" is worth another shot (the APC's Professor Disney, with a question mark about whether he has even reluctant support from his dominant members, News and Fairfax) or that a body to take over the task of seeking to hold the media to account to be funded by government and as independent as you can make it is a step too far (most journalists who have written on the topic to date and sub-editors everywhere.)

Not that there isn't room for plenty of argument about the detail in this and other areas of the committee's findings.

 But those up in arms about the report's findings, or who offer alternative evidence and other solutions about media standards who wish to be taken seriously hopefully first read the report in its entirety. And look at the annexures as well- B on the widespread consultation that has taken place; D summarising the 10,000 short submissions not previously published which include many apart from those organised by Avaaz and Newstand, as well as hundreds of more detailed efforts; E a bibliography long enough to make your head spin; F public opinion polling data that confirms the media/journalists have a public perception problem not necessarily reflected in sales; G the analysis of a sample of 100 APC complaint adjudications including that 38% of complaints concerning privacy were upheld; H the analysis of articles highlighted in the Victorian Office of Police Integrity Crossing the line report, some of which are cited elsewhere as involving a signficant breach of standards; and I, telling research on media treatment of vulnerable people from a group of academic researchers that include Professor Mark Pearson of Bond University among others highly respected in media circles.

The following extracts are the the summary given of the APC's situation (Chapter 8):

Reaction to the Finkelstein report as reported, or not, by the media

Most journalists particularly those sub-editors responsible for headlines aren't in any doubt: it's all gloom and doom. But the Chair of the Australian Press Council Professor Julian Disney thinks Finkelstein (here with Professor Ricketson) has put his finger on the problem, media standards, but would still like the media itself to have first crack at doing something serious about it. You wouldn't know from the reporting that even News Limited CEO Kim Williams is prepared to talk about this around the Press Council table next week. Or that a number of academics who work in this field generally welcome what Finkelstein proposes. (Admission: I haven't managed to read the 477 page report as yet. And of course it feeds into the Convergence review so it has a long way to run before any government action). But back to the media reporting, all based on reading all that fine print I'm sure..

(Update: Monday and I have read most of it as the discovery of this blooper confirms.l But Margaret Simons in Crikey was the one to selflessly sacrifice her weekend to produce this guide  to what's actually in the report-a sterling effort.)

Lobbying with minimal restrictions to continue despite Treasurer's red flag on vested interest

Members of the Senate Finance and Public Administration Committee probably managed to keep a straight face when the committee's report on lobbying was tabled in the Senate yesterday. According to all government and opposition senators on the committee everything is rosy in the way current regulation in the form of a registration requirement is framed and works in practice. And nothing could improve it- it made no recommendations. The Greens Senator Lee Rhiannon In a dissenting report Senator Rhiannon strongly disagreed with the findings and made eight recommendations for major changes.

Wonderful timing for a no-action report on lobbying as Treasurer Wayne Swan makes news today about the "grave risk" from vested interests on the march, with the few who have enormous resources wielding dangerous influence. When asked by Sabra Lane on ABC AM this morning on how his concern matched the committee's rejection of calls for changes to lobbying rules (4000 in house lobbyists for example aren't covered) including more transparency, the Treasurer said simply that he was proud that this government had introduced the limited registration system. All he wanted to do now in raising the power of vested interests, the Treasurer said, was to " have this conversation with the Australian people." So talk among yourselves, folks.

The committee reached the "everything's perfect "conclusion after considering 17 submissions and one two and a half hour hearing with three witnesses. Not exactly a lot of digging. Suggestions for extending coverage beyond third party lobbyists to those directly employed, applying rules to lobbying parliamentarians as well as the executive branch, banning success fees for lobbyists (Queensland and NSW have done it, Victoria has talked about it), imposing reporting and publication requirements concerning lobbying activity, banning lobbying by ex-ministers for longer than 12 months, or following the lead of peer group countries such as the US and Canada  along any of these lines were dismissed for lack of evidence!

Those who pressed for change including the Accountability Roundtable and Queensland Integrity Commissioner Dr David Solomon mentioned here last month got nowhere. The comprehensive NSW Independent Commission Against Corruption report of 2010 on lobbying didn't get a mention. What happens in the states in this area is another issue that doesn't concern the committee (2.30).

Disappointing doesn't quite capture it. Chalk that one up to the lobbyists or was it all the committee's own work?

(Update: Bernard Keane in Crikey has similar thoughts -"Major parties squib lobbying reforms) 

NSW privacy exemptions just keep rolling along

Three years ago this post included some observations about the opaque nature of decisions by the NSW Privacy Commissioner to issue Public Interest Directions under section 41 of the NSW privacy act that in effect exempt an agency from compliance with some or all of the privacy principles that otherwise apply. And questioned why such exemptions were still necessary years after the act commenced in July 2000. The practice of extending the twenty directions further and not explaining the reasoning for the conclusion that the public interest is best served by the exemptions has continued since, as outlined yesterday in the commissioner's latest newsletter.

The newsletter contains the welcome news that this may not go on forever:

In October 2011 the Acting Privacy Commissioner, John McAteer invited agencies to consider whether they needed to continue to rely on these long-standing Public Interest Directions and whether they should amend their own legislation permit the particular dealing with personal information. Mr McAteer advised that for the time being, the long standing Public Interest Directions would be renewed until 31 December 2013 to give agencies and the government time to consider this matter. In coming Privacy Commissioner, Elizabeth Coombs would now like to thank agencies for their responses on this matter and she takes this opportunity to advise agencies that she will be raising issues associated with the long standing Public Interest Directions.

The stand out in the list is the Direction Relating to Information Transfers between NSW Public Sector Agencies, now extended until the end of 2013, which exempts from all the privacy principles a number of government activities including:

exchanges of personal information which are reasonably necessary for the performance of agreements (whether formal or informal) between agencies, and which agreements operated in the 12 month period prior to 1 July 2000 and have continued to operate since 1 July 2000 under the directions referred to in Paragraph 4 of this Direction.

In February 2009 I suggested it was highly questionable to just keep on exempting practices including "informal" ones simply because they were in place before 2000:

Maybe there are public interest arguments to support this, but the Commissioner doesn't provide them. And what agreements exist between government agencies to share information about us that need to continue in place 9 years after a law was passed by Parliament that imposed new standards and requirements regarding the handling of personal information? Well the Commissioner doesn't publish a list, and neither did his predecessors who like him were satisfied that the public interest required continuation of old pre-privacy law arrangements.

Now make that 12 years. Perhaps they're for the chop in 2014?