FOI transparency and accountability for parliamentary departments an "anomaly"?

Well, according to the Attorney General, it seems so.

Sean Parnell reports in The Australian today that the departments of the House of Representatives, the Senate, and parliamentary services are understood to have challenged the OAIC interpretation that they are subject to the Freedom of Information Act, have taken the issue up with Attorney General Roxon, and that she supports their view that the act was not intended to extend to these bodies:

"It has been long-accepted practice that the parliamentary departments are exempt from FOI," a spokesman for Ms Roxon said yesterday. "The government is currently considering its options to correct this anomaly."

This will be interesting, at a time when regard for politicians and parliament is at a low ebb, and "integrity" in public life in some respects at least seems missing in action. And when parliamentarians are only asked "voluntarily" to certify that use of entitlements is in accordance with the rules, and 52 still haven't done so for the period January-June last year.

The Greens Senator Rhiannon has fired off a media release this morning expressing concern about what may be coming:

 “Public money is what keeps the House of Representative and the Senate functioning and the public have a right to know how that money is spent. Parliament should not be beyond the reach of FOI...“Greater disclosure of the workings of parliament and the work of MPs is critical to a healthy democracy...“The Australian Greens have welcomed the news that the Australian Information Commissioner has found that parliament is subject to FOI laws, and that has been the case for the past decade...“While it is good news that the FOI laws apply to parliament, the information still needs to be made more accessible for the public. All parliamentary department websites should include up to date, easily searchable records of expenditure by MPs,” Senator Rhiannon said.

Couldn't agree more-that raises the unacted upon recommendations of the Belcher committee report as well.

But of course all it needs is for the major parties simply to vote together to amend the law to put the parliamentary departments beyond the reach of the FOI act. The opposition when in government between 1996 and 2007 did nothing to advance openness, but are yet to say anything on this one.

However while the OAIC opinion came as a surprise, arguing that the parliamentary departments should be exempt from FOI should require at least passing attention to the following:

1. The Australian Law Reform Commission recommendation in Report 77, December 1995, that the parliamentary departments be made subject to the FOI Act. The relevant section of the report reads:

1.8 The parliamentary departments are currently excluded from the coverage of the FOI Act.[23] In 1979 the Senate Standing Committee expressed the view that the 'parliamentary departments should be encouraged to act as if the legislation were applicable to them'.[24] DP 59 proposed that the parliamentary departments should be brought within the scope of the FOI Act on the basis that documents that warrant protection would be adequately protected by the exemption provisions, for example s 46 (parliamentary privilege).[25] A number of submissions, including that of the Clerk of the Senate, support the proposal.[26] The Department of the Senate has, in any case, always acted as though it were subject to the FOI Act, releasing documents unless they would have fallen within an exemption. In contrast the Department of Parliamentary Reporting Staff considers that it should remain outside the Act because it does not have a public policy role or provide services to the public. It claims that extending the FOI Act to the parliamentary departments could expose them to lengthy and costly legal challenges in respect of material they would claim to be exempt under s 46.[27] The Department of the Parliamentary Librarian also opposes extending the Act to the parliamentary departments for similar reasons.[28] The Review is not persuaded by these arguments. It remains convinced, particularly in light of the experience of the Department of the Senate, that there is no justification for the parliamentary departments to be excluded from the Act and that being subject to the Act will not cause any greater inconvenience for them than is caused to other agencies subject to the Act. Accordingly, it recommends that the parliamentary departments be made subject to the FOI Act.

2. Why the law should apply to the executive and judicial branch (in respect of matters of an administrative nature) but not the agencies that support the work of the legislative branch.

3. Why the Federal Parliament should remain outside the act while one jurisdiction that engaged in a wholesale review of the kind yet to be undertaken in Canberra, Tasmania, extended its act to cover state parliament on matters of an administrative nature.

4. Why the parliament should be excluded while respected bodies that promote accountability and transparency internationally such as the Carter Center advocate as a standard that all three branches of government should be subject to FOI law. The Australian FOI act was marked down on this in an international survey last year that saw it ranked 39 of 89 laws examined. And why in contrast to the home of Westminster, and elsewhere  where parliaments are covered, our's should be beyond the scope of FOI.

5. Why expenditure by parliamentary departments of funds allocated or administered on behalf of other agencies, around $230 million in this year's budget, by my reckoning (see 1.20), should not be subject to the same accountability and transparency requirements as other government agencies. Apart from what the 800 plus employees of the three departments do with public money, the allocations appear (it's murky territory) to include funds for salaries and electorate allowances of parliamentarians, additional salaries of parliamentary office holders, superannuation entitlements, resettlement allowance payments, and services and facilities to support parliamentarians in Parliament House including the cost of office accommodation, computing and other equipment, telephones, newspapers and stationery. And perhaps while the Speaker Mr Slipper who is accountable for the Department of House of Representatives is under investigation regarding travel as an MP, travel and entertainment for office holders such as the speaker and deputy speaker when on business connected to that office.

Let's hope common sense and good public policy prevails.

Privacy law reform stage 1 in parliament's safe hands

Attorney General Roxon introduced the Privacy Amendment (Enhancing Privacy Protection) Bill 2012 in Parliament last week, outlining some of the changes in a second reading speech and this media release- Ensuring your right to privacy prevails (pdf)

Media headlines were mostly positive, although you wonder how many made it beyond the media release to the 236 pages of amendments that have to be read in conjunction with the act to make sense of it all. (Admission-I didn't get through to the end either.) (Addition: Canberra academic Bruce Arnold writing for The Conversation says "too early to cheer.")

The marketing industry doesn't like what it sees. Most other commentary welcomes the bill as a (exceedingly slow) step forward on the issues the government carved out as "first stage" reforms from the ALRC report delivered four years ago. With the notable exception of the Australian Privacy Foundation.

While the Attorney General says the "bill will bring Australia's privacy protection framework into the modern era" and will tighten up the rules around how companies and organisations can collect, use and disclose personal information, the APF describes it as a backward step, and sets out why the 'Anti-Privacy Bill' Should be Scrapped (pdf). 

 I doubt if there will be many takers for that option. The bill is yet to pass the House and then face the Senate. Let's hope it's somewhat familiar territory there, although in Senate Estimates last week Shadow Attorney General Senator Brandis had a bee in his bonnet about the size of the ALRC report, regardless of its scope and the complexity of the issues:

It has seemed to me for quite a long time now that, although the Australian Law Reform Commission does wonderful work of the very highest standard, it does, if I may say so, somewhat overcapitalise its research. Let me give you an example of what I mean. The privacy report of a few years ago was nearly 2,700 pages long. I am not aware of anyone—academic, government body, think tank; any institution in the world—that has produced a 2,700-page document about privacy.

Provisions in the bill as passed won't come into effect until nine months after assent.  E-health is being dealt with separately and other major issues await stage 2 consideration including exemptions including for smaller business, media organisations in the conduct of journalism and political parties, serious data breach notifications and a statutory cause of action for serious invasion of privacy. Privacy law reform still has a long way to go.

Knowledge of subject and FOI both needed in reaching decisions on access

In the Senate Estimates hearing last week with the Department of Prime Minister and Cabinet, Australian Greens Senator Ludlam raised the handling of his freedom of information application for documents including communication with the governments of the United States and Sweden on the potential extradition or temporary surrender of Julian Assange. 

The request had been refused on the basis that processing would involve the substantial and unreasonable diversion of agency resources. The decision maker, Mr Peter Docwra, then the chief information officer had been deputy head of the WikiLeaks task force set up in PM&C following "cablegate". This wasn't mentioned in the FOI correspondence with Senator Ludlam who said he found out from the newspapers about Docwra's previous involvement.

(Update: Philip Dorling of Fairfax has obtained some heavily redacted documents.)

Senator Ludlam queried whether a decision on an FOI application should be made by the same person who authored the documents or was substantively involved in the matter in question, and in any event whether such an "interest" should be disclosed to the FOI applicant.

As officers and the minister at the table Senator Evans explained, the usual approach is for a request to be directed to the senior executive service officer most familiar with the subject matter who is then required to manage an effective search for documents and make a decision on access. 

So it is common for the decision maker to have been involved in work of the department that is reflected in the documents which are subject to the request. That said, a decision maker, in order to perform their functions properly, needs to be in a position to meet all the requirements of administrative law, including bringing an impartial mind to their functions. So, from time to time, if the subject matter of a request goes particularly to the personal involvement of the decision maker, the decision maker might say that they do not think it appropriate for them to make a decision. In that case, we would look for an alternative decision maker.

 

Senator Evans added it would be unrealistic to exclude anyone involved in a matter from consideration of an FOI request but the point raised about disclosure of a connection with the events themselves was a reasonable one that he would refer top the responsible minister (the attorney general.)

I do not think that it is an unreasonable point you raise and I am happy to refer to the minister for FOI the issue. I think it is the case though that where there is some expertise in a department the request tends to go to the officer with that expertise or in that particular section. To exclude people who have worked on those policy matters from being involved in an FOI request is, I think, unrealistic, particularly in small departments. The other thing I would say is I have had a concern, as have other cabinet ministers, that sometimes these decisions have been made at too low a level of officers without the appropriate sort of experience and broader understanding both to refuse and to release—and a couple of them have come as great surprises to the ministers who have not been told they had been released. But I think the point about potential conflict of interest is a fair one and I suppose I am happy to raise it with the minister. I do though make the point that in a smaller section everyone would have been involved in dealing with the issue. If you have got a section of four people who have expertise in the area they all would have been involved in dealing with it, so it is not quite as simple as might first appear. But I am happy to do that. I think it is a reasonable point. I think the officer was explaining that it is a sort of decision that the officer themself made and I guess you are looking for reassurance that that is the appropriate way of dealing with it.

Deputy Secretary Leon had the last word:

I only wanted to make the general point that the officer does not make this decision on their own. They are in regular communication and in receipt of advice from the FOI experts in the department led by Mr Amson who carefully explain to the decision maker the application of the act and the way the relevant exemptions have to be interpreted, so it is not a decision that a person is taking in the absence of guidance about the FOI Act itself.

It's one of those great debates-whether FOI decision making should be centralised with officers steeped in FOI but without necessarily much background in the subject matter of requested documents who do this sort of thing on a regular basis, or decentralised with responsibility resting with officers familiar with the subject matter but perhaps limited knowledge of FOI and who may make an FOI decision infrequently.

The decentralised PM&C model makes sense in most instances-along the way to making the management of information access a routine function across the public service. Disclosure of previous involvement in the issues at hand however might remind decision makers to the need for objective decisions that will withstand scrutiny, and alert applicants to look for signs of self-interest in any decision to refuse access.

Lack of inquisitiveness in Canberra about parliamentarians' entitlements

Who's surprised?

Questions asked in Senate Estimates of the Department of the Senate and Department of Parliamentary Services about accountability and transparency of payments to and on behalf of parliamentarians, about the many recommendations for reform in the Belcher committee report commissioned two and a half years ago and released in April last year that have received no response from the government or parliament to date, or about the implications arising from the surprise recent news from the Australian Information Commissioner that both departments are subject to the Freedom of Information Act despite years of denials:

                                                  (This space intentionally left blank.)

Questions asked in Estimates of the Department of Finance and Deregulation about anything to do with parliamentarians' entitlements administered by that department, or the Belcher reform proposals, or for any explanation offered by 52 members, senators and former parliamentarians (including Senator Conroy, Tony Abbott and Joe Hockey to name just three) who have still not certified that their entitlements usage for January to June 2011, the first period covered by the decision to publish certification information, was in accordance with the provisions legislated for each entitlement. Or even more puzzling, why certification of proper use should remain "voluntary" :

                                                 (This space intentionally left blank.)

Senate estimates a breeze for OAIC

Nothing remarkable from the Office of Australian Information Commissioner half hour appearance before Senate Estimates on Wednesday. Resources are tight, about three quarters of what was promised, and the review backlog was 356 cases at mid-may, with the longest outstanding on the books for 15 months. Overall Professor McMillan is pleased with agency performance. As to concerns:

Among the problems that have been raised with us are publication only of details of information and not the documents online. Secondly, there is the problem—not so much under the disclosure log but under the Information Publication Scheme—of information that was one published being taken down. We are investigating a couple of complaints about that at the moment to see whether it was just part of normal archival practices within the agency or whether there was something more sinister, as the complaint alleges. We have also had complaints, particularly from journalists, about same-day publication under the disclosure log—that is, documents published on the disclosure log on the same day that they are released to the journalists. The complaint is that they can lose the benefit of their request. And we have had agencies raise with us the practical challenges they face in converting hard-copy documents into a web-accessible online form, particularly the costs. So they are among the challenges that have been raised.

On cultural change:

I think there have been substantial moves across government. If one looks, for example, at the disclosure logs and at the type of information that is now published; if you look at the changes in agency practice—for example, the Defence practice of now proactively releasing its Hot Issues Briefs; if you look at the staffing levels in agencies, in terms of both the number of staff and the seniority of staff now devoted to FOI and publication; if you look at the level of engagement of senior agency officers now in FOI and publication issues, I think there has been a large cultural change. But, wherever one draws the line between openness and secrecy, you can always move it just a little further towards greater openness, and that is our perpetual challenge.

 In some agencies more than "just a little further" seems necessary.

Privacy Commissioner Pilgrim had it easy-no questions-although he had a big day on the other side as the Privacy Amendment (Enhancing Privacy Protection) Bill 2012 was introduced in the House of Representatives,.Just two and a half years after the government announced its "first phase" acceptance of many of the recommendations of the ALRC 2008 report.

Information Commissioner NSW and Administrative Decisions Tribunal differ over "right to appear and be heard"

A significant difference emerged late last and earlier this year between the Information Commissioner NSW and the NSW Administrative Decisions Tribunal concerning the commissioner's role in cases before the tribunal. It's not known whether the Commissioner is sticking to her guns that her rights are broader than two tribunal members envisage, and resolution of the issue by the courts is problematic. But applicants may find themselves without the same level of support than hitherto particularly in those cases where the Commissioner prior to ADT consideration undertook a review, and would bring that knowledge and a view about the merits of the case to the table.


The GIPA act (s 104) provides that the Information Commissioner (and the Privacy Commissioner in review cases that concern a privacy-related public interest consideration) "has a right to appear and be heard" in matters before the tribunal. (Unique I think in Australian FOI schemes, as are other aspects of the NSW review model.)  The act and the Administrative Decisions Tribunal Act do not mention the commissioners in listing those who are parties to proceedings, although the tribunal (ADTA s 67) may make any person a party in certain circumstances. 

The issue is whether the "right to appear and be heard" is subject to implied limitations. In separate decisions the tribunal has said the Commissioner's right does not extend to making submissions in relation to the merits or contentions of a review application. Or to be given access when evidence is given in the absence of the applicant, the applicant's legal representative and the public. The tribunal in both cases ruled the commissioner's role is limited to submissions in relation to the applicable law and policy to assist the tribunal in the conduct of a review.

 In neither however did it undertake detailed analysis or cite precedents to support its interpretation.The Information Commissioner in a submission in a later case argued the right goes further than making submissions relating to questions of law and extends to adducing evidence relevant to the application. The published decision in that case contains no mention of the the issue although the points raised certainly deserve consideration. The Commissioner hasn't said anything publicly about the matter as far as I'm aware.

The commissioners had a couple of hours on Monday with parliament's Ombudsman and Police Integrity Commission Committee so interesting to see, when the transcript emerges, what came up there.

Climate change innuendo beats dull law issues every time

The barbs continue to fly concerning media reporting of threats made to climate scientists, in this round, sparked by access to documents as a result of the decision by Privacy Commissioner Pilgrim that 11 documents held by the ANU were not exempt under the Freedom of Information Act, with Jonathon Holmes on Media Watch last night concluding

One news outlet comes out of it, in our opinion, almost unscathed: Fairfax Media's The Canberra Times. The ABC doesn't look so great, and The Australian looks worst of all.

Chris Merritt Legal Editor at The Australian (subscription) isn't letting go:

Holmes also criticised The Australian, but the basis of his criticism was in error.
Holmes gave the impression that the newspaper's reports debunking death threats at the ANU had extended to other alleged death threats at other universities.
The Australian's reporting of the issue has focused on tracking the progress of Mr Turnill's FOI request, which focused only on ANU.
Holmes also mistakenly asserted that The Canberra Times had not reported there had been death threats at ANU. But articles to the contrary were published by that newspaper on June 4 and 5 last year.
The June 5 report, which is available online, says: "Security has been tightened at the Australian National University in Canberra after several climate change scientists received death threats."

(Update: And kept on in the days since.)

Silly old me-weeks ago when the OAIC decision was published I thought the comparative law issue was interesting. It hasn't attracted a mention in the back and forward since.

Transparency given the bum's rush in Budget papers

SMH

Ross Gittins economics editor Sydney Morning Herald provides this assessment:

The hiding of the headline deficit is just one example of the way the budget papers are becoming less informative rather than more, and the way the government's spin doctors are turning them into an exercise in media management rather than transparency and accountability. The budget speech used to be a thorough and trustworthy exposition of the new measures announced in the budget; these days it's a made-for-television rave about the budget's good points....
Spin doctors work on the assumption journalists are both dumb and lazy, meaning they'll focus on whatever news you give them and not think to go looking for the things you conceal. They also assume journalists who benefit from background briefings and selective leaks won't be game to complain publicly about the way they're led around by the nose.
Journalists turn a blind eye to the rank hypocrisy of the Treasurer and Finance Minister piously refusing to comment on what may or may not be in the budget, while the Prime Minister's press office leaks much of its content to selected journalists, then quietly confirms the story's accuracy to those journos who missed the exclusive.
Unfortunately, there are head office-based journos who aren't part of the club and so feel no such inhibition. There are also, believe it or not, economists and even the odd private citizen who read the budget papers in the hope of enlightenment. They're getting the bum's rush.

Make your own, against the Declaration of Open Government of July 2010 that commences

The Australian Government now declares that, in order to promote greater participation in Australia’s democracy, it is committed to open government based on a culture of engagement, built on better access to and use of government held information..

Heather Brooke in Sydney

Today's session at the Sydney Writers Festival with Richard Aedy facilitating a discussion with Heather Brooke from the UK and veteran journalist Alex Mitchell about journalism in the digital age was terrific. Brooke enjoyed it, tweeting it was great. You can catch an edited version on Radio National's Media Report tomorrow Friday at 5.30pm or anytime thereafter. 

Austen Tayshus-Manly Daily

Mitchell's story about donning the budgie smugglers to run dead in a swimming race with Idi Amin in order to get an interview is hilarious. I presume someone explained "budgie smugglers" to the non-plussed Brooke afterwards.

Brooke's later session with Waleed Aly posing the questions, was less successful. Aly seemed keener for an intellectual arm-wrestle than a conversation about the advertised privacy related topics. All a bit of a struggle.

At both sessions Brooke while welcoming the advent of WikiLeaks, poured a bucket on Julian Assange, on the basis of her dealings with him-difficult, devious, dictatorial, reckless- someone who fails to live up to the standards he expects of others. This Guardian review- a paper incidentially that Brooke thinks has to go broke because of its "free" on-line business model-of The Revolution will be Digitised, gives the flavour.

Brooke acknowledged some aspects of what WikiLeaks does might constitute journalism but that it is best described as a source/publisher. Mitchell, an old school, shoe leather, contact book journo who thinks there is much more to the craft than sitting at a computer screen or regurgitating what is put on the desk, didn't express a view but it was pretty clear that what Assange does is a million miles from journalism as Mitchell practiced it.

No one seemed to have the heart to mention that the MEAA gave Assange a Media Alliance union card, "confirming that he is a member in good standing with the Australian journalists." And that Wikileaks received the Most outstanding contribution to journalism award
at last year's Walkleys. 

Sydney Writers Festival

I'm ducking into a few sessions at the Sydney Writers Festival  at Walsh Bay over the next few days, including two today featuring Heather Brooke of UK "expense scandals" fame: one free at 11.30 at Sydney Dance 2 with Alex Mitchell talking about journalism in the digital age; the other at 2.30 at Pier 2/3 Main Stage on privacy related challenges.

ASIO secrets mean indefinite legal limbo for refugees

Wikimedia Commons-Phillip Halling

Instances of lack of transparency can give rise to groans and moans here and there from the likes of me but often the issue doesn't amount to a row of beans.

Others however have life-changing effects. This example is truly shameful.

As Professor Spencer Zifcak in last Friday's Australian (subscription) reminded us, 50 or so people judged to be genuine refugees are now in indefinite detention after receiving an adverse security assessment from ASIO.

"They are not permitted to know the evidence on the basis of which the assessment is made. Nor are they permitted to know the reasons for it."

 The criteria for assessment is also not publicly available.

"Adverse assessments, therefore, are made by reference to secret criteria applied to secret evidence."

As non-citizens they have no right to AAT review. And

"Judicial review is impractical because the courts cannot order the production of material upon which adverse assessment decisions have been made.

There is little or no prospect that a third country will accept any such person for resettlement, given that the person has been determined to be a security risk. That is why, following the High Court's deplorable decision in al-Kateb, detention may be indefinite, perhaps for life. In a very real sense, this is Kafkaesque. The Attorney-General, Nicola Roxon, should lift this scandalous abuse of human rights to the top of her list."

Last month the Joint Select Committee on Australia's Immigration Detention Network (Chapter 6) reached a similar conclusion- "The impossible situation these people are in is perhaps one of the greatest challenges currently facing the immigration detention system."
And "The evidence before the Committee outlines why .. legal experts specialising in security, human rights and refugee law have concluded that Australia is in breach of its obligations under international law." Professor Saul, from the University of Sydney for example, contended that not providing evidence upon which the assessment is based is a violation of article 9(4) of the International Covenant on Civil and Political Rights (ICCPR):

Where detention is purportedly justified by a State on security grounds, the requirement of substantive judicial review of the grounds of detention under article 9(4) necessarily requires a judicial inquiry into the information or evidence upon which a security assessment is based. Without access to such evidence, a court is not in a position to effectively review the substantive grounds of detention.

But the government record in staring down the intelligence/national security/international relations agencies to insist the line be drawn at necessary and appropriate secrecy and not a jot further, regrettably isn't impressive.Just another example- in a separate case, the Attorney General is poised to certify that the case for access to 34 year old records from the Australian Embassy in Jakarta, not released by Archives, revealing shocking conditions in East Timor can't be argued in the AAT in the presence of the applicant or his lawyer for unspecified security, defence or international relations reasons.

Allan Kessing on display

By Yiyang Liu-with permission.

Allan Kessing has plenty to be disappointed about, but not this outstanding piece. He and the artist Yiyang Liu are philosophical that it didn't make it into the Archibald Prize this year or even the Salon des Refuses. Currently on display at Sydney's Tap Gallery, next step is a crack at the Moran Portraiture Prize.

Of course Kessing has plenty of experience with raw deals-charged and convicted under a draconian law that in this form should have been erased from the statute book years ago; disclosures after the event of information that should have been made available to his lawyer during the trial and appeal, and if made available would have materially affected the way the case was handled; years of maintaining his innocence of the offence as charged, but an admission after his conviction that he did pass on information to the office of a then opposition parliamentarian, now a government minister, about a report on the parlous state of security at Sydney Airport that had languished in his boss' in-tray for two years ; continued silence from some who know the full story of the disclosure to journalists at The Australian that led to his conviction, and incidentally, to urgent attention to the security issues identified, to the tune of $200 million; and with some reluctance, to apply for a pardon in 2009 and to have the issues raised publicly by Senator Xenophon in 2010 and listed in the incoming brief for the attorney general that year as a "Hot Topic", to be left wondering as it disappeared from sight ever since.

Kessing told me some time ago he is past caring, "happy" to smell the wattle instead. The rest of us need to do both.

Nothing can right the wrongs, but it would help if Attorney General Roxon called for the file, and asked questions about the Kessing case. Here is a reminder what the ALP was saying about the importance of whistleblower protection and Kessing-in 2007! Come to think of it Special Minister of State Gray who appears to be struggling on the corporate memory front should be interested in that as well.

A win in the Moran for Yiyang Liu who accurately portrays Kessing as a proud, courageous man would be icing on a bittersweet pardon cake.

 Best wishes.

Australian Information Commissioner accused of lacking "teeth and ticker"

The 2012 Report on Press Freedom in Australia released by the Media Entertainment and Arts Alliance, Kicking at the Cornerstone of Democracy (see the full report here pdf), includes four articles on Freedom of Information. One unattributed (p 22) and one by academic Johan Lidberg (p 29) make reasonable points about shortcomings in the law and the system. Another by Christian Kerr of The Australian (p 20) provides a couple of FOI war stories. Then there is an article by Michael McKinnon, FOI Editor at the Seven Network (p 26) that makes some valid critical comments about the state of play but over-reaches in a couple of respects.

Michael McKinnon

McKinnon, a Walkley award winner in 2009 for leadership in this field, (and a winner for investigative journalism as well) has a great record as a vigorous applicant, has blazed many FOI paths, and is an exceedingly able advocate in his own cases in the tribunal and courts. He knows his FOI oats, so his observations about the state of the game deserve attention. However...

The heading, "An Unwelcome Freedom Rider" (probably not McKinnon's doing), is one of those ambiguous sub-editor smarty jobs, but in the context of what follows comes across as a personal shot about lack of ticker:

Freedom of information requests are all too often subject to unwarranted delays, bureaucratic wrangling and nit-picking refusals, writes Michael McKinnon The reformed FoI Act announced three years ago was to have its own watchdog, the Commonwealth information commissioner. But Seven Network’s FOI editor Michael McKinnon has found the watchdog lacks both the ticker and the teeth for the job

The watchdog could do with more teeth for sure in the form of powers to lay down the law and pull some out there on board, or in line. But the lack of "ticker" charge is unwarranted.


As to the article itself, the Commissioner Professor McMillan doesn't need me to defend his administration, or his views, but the following is a summary of what McKinnon had to say, with a few counter-points of my own.

(I notice Professor McMillan responded to recent commentary about the charges review by Perrin Brown of Monash University on The Conversation,. He is welcome to respond to this, as is Michael McKinnon.)

History of commitment to whistleblower protection airbrushed?

Special Minister of State Gary Gray made the following reference to public sector whistleblower protection in his second reading speech in March in introducing the Public Service Amendment Bill 2012:

Whistleblower reports
The act currently provides protection for whistleblowers in the APS. The regulations provide the framework under which whistleblower reports are handled.The bill makes two small amendments to the scheme. It provides a specific regulation-making power and allows for matters to be excluded from inquiry, including those that relate to an employee's own employment. Such complaints are better directed to the existing review of action scheme.

There has been no further debate.

The minister can buy an argument with the first proposition.

What is proposed are changes to processes associated with a whistleblower who reports a breach of the APS Code of Conduct. There are more than two proposed changes but the minister's reference to "small changes" was well chosen. "Comprehensive" or "far-reaching" would not have come to mind- see below for relevant extracts from the Explanatory Memorandum.

Of course major inadequacies in the Public Service Act protections, including the absence of any protection for public disclosures, were the reasons why much time and energy was spent since 2008 examining comprehensive whistleblower protection legislation

Minister Gray's four sentences air-brush the following history:

• ALP commitment to act on whistleblower protection prior to 2007 election. (They also talked then about justice for Allan Kessing, but that's another incomplete story.)
• House of Representatives Standing Committee on Legal and Constitutional Affairs (Dreyfus) asked to examine models in 2008 and reported in 2009.
• Government responded to the recommendations in March 2010 in a reasonably positive manner and went a bit further than the committee in some respects, including on public disclosures. Then attorney general McClelland said at the time “The Government supports a pro-disclosure culture in the Australian public sector, underpinned by enhanced whistleblower protection mechanisms, as part of its commitment to integrity in Australian governance. Whistleblower protection is about ensuring that there are appropriate processes in place, and protections offered, to facilitate the disclosure of wrongdoing, misconduct and corruption. The Government is committed to providing best-practice legislation to achieve this end. The Government will develop legislation reflecting this Government response for introduction during this year.(ie 2010). A further announcement about the legislation will be made in due course.”
• The Gillard agreement in September 2010 with Andrew Wilkie to enable formation of her government included a commitment that parliament would pass the law by July 2011.
•  The Australian Public Service Commission State of the Service Report 2010-2011 released in November 2011: "The government is finalising the Public Interest Disclosure Bill. The legislation is intended to set up a scheme that provides for the investigation of unacceptable conduct in the Australian Government sector and extend the protections available to people reporting wrongdoing. The legislation is expected to be introduced to parliament in 2011."

In March 2012 "two small amendments" proposed to the existing scheme, and nothing since.

What gives???

  
Explanatory Memorandum  

Surprise, as parliament within FOI scope all along

Well it turns out I have been off the money for years, bemoaning the fact that the Department of the Senate, the Department of the House of Representatives and the Department of Parliamentary Services, the three agencies that service the parliament and parliamentarians, are outside the scope of the Freedom of Information Act. And arguing that they should be brought within scope as recommended by the Australian Law Reform Commission in 1995.

The departments have never been listed in any annual report on the operation of the act. No-one ever suggested I was off-target.

Bill Hoffman of the Sunshine Coast daily as recently as March was being rebuffed in attempts to get hold of documents concerning Peter Slipper's time as deputy speaker, the Sergeant at Arms as head of the House department telling him that  details of expenditure for services provided to individual members would not be released. 

But out of the blue, revised Guidelines today by the Office of the Australian Information Commissioner include this paragraph for the first time (Part 2-Scope)

2.5 Three of the Commonwealth Parliamentary departments (the Department of the House of Representatives, the Department of the Senate and the Department of Parliamentary Services) are subject to the FOI Act because they were established by, or in accordance with, s 54 of the Parliamentary Service Act 1999 and they have not been exempted. The fourth Commonwealth Parliamentary department, the Parliamentary Budget Office, is exempted because it is expressly deemed not to be a prescribed authority (s 7(1) and Division 1 of Part I of Schedule 2.)

No explanation, but perhaps the penny was dropping as legislation for the establishment of the Parliamentary Budget Office developed to insistent cries that it be specifically exempt from FOI. Of course legislation to this effect was necessary because a parliamentary department otherwise was a prescribed authority, a body corporate established for a public purpose by, or in accordance with the provisions of an enactment, and subject to the FOI act unless otherwise exempt.

As mentioned in previous posts these departments pay in addition to entitlements paid by the Department of Finance and Administration, salaries and electorate allowances of parliamentarians, additional salaries of parliamentary office holders, superannuation entitlements, resettlement allowance payments, and for services and facilities to support parliamentarians in Parliament House including the cost of office accommodation, computing and other equipment, telephones, newspapers and stationery. 

Of particular current interest is what documents held by the departments might reveal about payments to or on behalf of office holders such as the speaker, including perhaps travel, entertainment and other services when on business connected to that office.

And what other hitherto tightly held documents about expenditure for and on behalf of all other members and senators might reveal.

The FOI applicant queue starts here. 

If parliamentary leaders or Special Minister of State Gary Gray had been ahead of the game they might have headed all this off ages ago with moves toward pro-active disclosure along the lines advocated here rather than sitting on most Belcher committee recommendations for years. The Scottish model -on-line, comprehensive, searchable records of expenditure by parliamentarians still beckons.

More transparency for the private sector should be on the cards, not just for trade unions

In the light of what members of the HSU didn't know the Federal Government plans to force  trade unions to be more open:

The Government has announced that it will take action to enhance the accountability and transparency of registered organisations and to strengthen penalties, and improve Fair Work Australia’s investigation processes following the conclusion of the Fair Work Australia investigation into the National Office of the Health Services Union.

Good stuff, but a broader issue concerning the adequacy of transparency obligations of private sector bodies generally cries out for attention as well.

As Johan Lidberg of Monash University concludes his piece on freedom of information in the 2012 MEAA Press Freedom report (pdf) (p 29):

However 2011 saw no movement at all in the most challenging areas of independent information access – corporate information. This is noteworthy as actions of big corporations arguably have as much influence (at times more) over our daily lives, as do governments. Access to corporate information remains the final frontier in the information access battle .

Elsewhere, almost on cue, George Monbiot writing in The Guardian yesterday tried to fire this up in the UK, reflecting on News International's previously tightly held secrets:

In this column I will make a proposal that sounds – at first – monstrous, but I hope to persuade you is both reasonable and necessary: that freedom of information laws should be extended to the private sector.....
The purpose of this monstrous proposal is not just to shine a light into the rattling cupboards of private companies, but to change the way in which they behave. A body that acts as if the world is watching presents less of a threat to the public interest than a body that knows it won't get caught. Would News International have acted as it did if its emails could have been revealed as a matter of course rather than a matter of chance? If it is true that "governments don't rule the world, Goldman Sachs rules the world", should we not be entitled to know what Goldman Sachs is up to? Is that not the only means we have of preventing its unelected power from becoming tyrannical?

It's not that monstrous. Readers might recall that a gutsy minister of our own raised the issue of FOI for the private sector in 2009.

In a post last June (and this earlier post in January 2011) I gave a rundown on Senator Faulkner's attempt to give the issue oxygen through an ALRC reference when he was Special Minister of State. The publicly announced cabinet decision to take that step came to nothing once Faulkner went to Defence that year. Then Attorney General McClelland showed no interest, and the public service in advising on ALRC references, said "move on."

No one in government or the opposition has said a public word on the topic since. 

Examination of transparency standards and how disclosure of information held by the private sector could enhance public knowledge and debate on issues of importance to the community should be on someone's agenda, given:

• the power corporations exercise over the every day life of most of us,
• the privatisation of functions previously in the hands of government but now carried out by the private sector,
• the emergence of new private sector services that resemble public utilities in their scope and importance,
• the adequacy/inadequacy of available information about private sector environmental impacts, or public health and community safety issues,
• sectoral issues concerning, for example, disclosure by financial institutions that governments effectively guaranteed as a result of the GFC, and other corporates that might be in the "too big to fail "category.

 Any takers? Not holding my breath.

MEAA makes valuable contribution to press freedom discussion

The 2012 Report on Press Freedom in Australia by the Media Entertainment and Arts Alliance released last Friday provides a valuable summary of the state of play on a wide range of topics and is well worth a read. (See report here-pdf)

Kicking at the Cornerstone of Democracy devotes plenty of space to the Finkelstein and Convergence reviews and associated media ownership and diversity issues. But it also highlights that the high ideals and reforming zeal evident when Labor took office is hard to spot now in some key related areas. Two cases in point are the two years (and counting) silence on the ALRC Secrecy Laws and Open Government in Australia report with more than 60 recommendations for dealing with the crazy crowded secrecy quilt consisting of  506 secrecy provisions in 176 pieces of federal legislation, including 358 distinct criminal offences; and the oft promised still to be delivered protection for public service whistleblowers with the last in a long line of missed deadlines, June 30, 2011. 

The states have plenty to do as well particularly regarding an improved framework for court suppression orders.

The summary of submissions to a NSW statutory review of defamation law by Joseph Fernandez is the first coverage I have seen of this.

Several articles include some welcome balance on the privacy front and others cover Freedom of Information developments-I'll pick up on the latter in separate posts.

AAT pulls the shade on FOI access to Australian Honours guidelines

Administrative Appeals Tribunal Deputy President Hack in Kline and Official Secretary to the Governor General [2012] AATA 247 upheld the decision by Freedom of Information Commissioner Popple that documents sought concerning the operation of the Australian honours system were not subject to the Freedom of Information Act. 

For shades of Sir Humphrey, read on.

Ms Kline had sought access to documents concerning unsuccessful nominations by her of another person for an award in 2007 and 2009, and two other categories of documents: "Working manuals, policy guidelines and criteria related to the administration of awards within The Order of Australia", and "Documents relating to review processes i.e. right of appeal in cases of maladministration."

The issue before the Tribunal was whether the Office was required to deal with the application in the light of  s 6A: the act "does not apply to any request for access to a document of the Official Secretary to the Governor-General unless the document relates to matters of an administrative nature." If the application came within s 6A a separate question not raised in this case would arise concerning any relevant exemptions.

Deputy President Hack rejected what he described (without elaboration) as "sophisticated arguments" on the applicant's behalf, that the words relate to "matters of an administrative nature" should be interpreted broadly. He preferred to use his words, a "simple answer": any documents that relate to any substantive functions of the Governor-General including the award of honours are outside the scope of s 6A. :

 ".. documents generated in connection with the conferral of honours do not ordinarily relate to matters of an administrative nature...While it is possible to conceive of exceptions to this general proposition (correspondence with the supplier of medals and insignia, or with a caterer providing refreshments at the awards ceremony come to mind), the documents in question do not relate to this sort of matter. If the Act was intended to apply to documents generated in connection with a wider view of the Governor-General’s functions, it would have done so using clear words.

(Comment: An even simpler approach might be that "relates to matters of an administrative nature" means "relates to matters of management and administration" but we won't go there.)

In reaching his decision Deputy President Hack drew on the decision of Justice Gray in Bienstein v Family Court of Australia, a Federal Court case involving s 5 and the same FOI limitation as it applies to  documents held by the courts. The Deputy President saw similarities between the functions of the Governor General in making decisions on award nominees, and those of a judge exercising a judicial function. In both cases closed doors were necessary.

22. Choices have to be made between the nominees, and unsuccessful nominees may be upset when they are overlooked. Making those choices is akin to a judicial function that involves the exercise of delicate judgement. The Governor-General has the benefit of the advice of the Council of the Order when making her decisions; the Council is comprised of independent persons who bring a range of experiences and perspectives to bear on their work. That frank advice is essential to the process. While judges give reasons for their opinions, the decision in Bienstein confirms the courts are not expected to expose internal documents that might compromise the integrity of the process in the public mind, if only because they could be misunderstood or muddy the waters. That approach applies equally to documents held by the Official Secretary in relation to the system of honours.
23. The award of honours remains part of the Governor-General’s function, and – like a good deal of the work of the Governor-General – that process has occurred behind closed doors for good reason.

if Deputy President Hack is correct in taking a narrow view of s 6A, this analogy may be correct as far as it goes, putting beyond FOI reach documents held by the Office concerning individuals nominated for awards.

But the reasoning doesn't explain how this "closed doors" imperative is a relevant consideration when it comes to the manuals, guidelines and criteria for awards, and any documents held concerning review procedures. Why such documents need protection because disclosure would impact on "frank advice", "compromise the integrity of the process in the public mind" or "muddy the waters" remains a mystery. Au contraire, disclosure might have a positive rather than a negative impact.

I understand the applicant in this case has preliminary legal advice that there are grounds for appeal.

The broader public policy issue that deserves further consideration is why criteria and guidelines used in determining Australian Honours awards are not published or accessible. 

Arguably documents of this kind are the type that Parliament intended should be made publicly available by every government agency. "Operational information" (defined in s 8A to include rules, guidelines, practices and precedents relating to decisions and recommendations) must be published as part of each agency's Information Publication Scheme- unless exempt.(Government House has no published operational information.)

In line with this decision the Office of Official Secretary won't have to bother dealing with any application for documents for anything to do with the Governor General's substantive functions.

It raises the question how properly to categorise Honours manuals, guidelines and criteria and any similar documents held at Government House if they are not policy or related to matters of an administrative nature? Contributions by sir humphreys welcome.

That said it reminds of the exchange on the BBC's Yes Minister program as Sir Humphrey and the minister darted and weaved to avoid questions before a parliamentary committee- by distinguishing policy and administration.

Betty Oldham: Look, Sir Humphrey, whatever we ask the Minister, he says is an administrative question for you, and whatever we ask you, you say is a policy question for the Minister. How do you suggest we find out what is going on?

Sir Humphrey Appleby: Yes, yes, yes, I do see that there is a real dilemma here. In that, while it has been government policy to regard policy as a responsibility of Ministers and administration as a responsibility of Officials, the questions of administrative policy can cause confusion between the policy of administration and the administration of policy, especially when responsibility for the administration of the policy of administration conflicts, or overlaps with, responsibility for the policy of the administration of policy. 

Privacy law reform on the agenda, again

Attorney General Roxon's Media Release yesterday about privacy law reform received a good run in the media but the detail will only be apparent when the legislation foreshadowed for the winter sittings is introduced. The Senate Finance and Public Administration Committee made 59 recommendations in its reports last year on the  Exposure Draft of the Australian Privacy Principles. and the Exposure Draft on Credit Reporting and there were plenty of other suggestions raised in consultations. The Attorney's release doesn't go into explanation of what has been accepted or rejected, simply listing these benefits to consumers:

• clearer and tighter regulation of the use of personal information for direct marketing
• extending privacy protections to unsolicited information
• making it easier for consumers to access and correct information held about them
• tightening the rules on sending personal information outside Australia
• enhancing the powers of the Privacy Commissioner to improve the Commissioner’s ability to resolve complaints, conduct investigations and promote privacy compliance

The Government will also modernise credit reporting arrangements. Benefits for consumers include:

• making a clear obligation on organisations to substantiate, or show their evidence to justify, disputed credit listings
• making it easier for individuals to access and correct their credit reporting information
• prohibiting the collection of credit reporting information about children
• simplifying the complaints process by removing requirement to complain to the organisation first, complaints can be made directly to the Privacy Commissioner, and by introducing alternative dispute resolution to more efficiently deal with complaints."

In a separate release Australian Privacy Commissioner Timothy Pilgrim elaborated on what the proposed extension of his powers will allow:

• Accept a written undertaking from an organisation that they will take or refrain from a specified action. This will be enforceable in the Federal Court or Federal Magistrates Court.
• Make a determination following an investigation conducted on the Commissioner’s own initiative. Currently, the Act only allows a determination to be made when investigating a complaint from an individual about an act of practice.
• Seek civil penalties in the case of serious or repeated interferences with privacy.
• Conduct performance assessments of private sector organisations handling personal information. Currently the Commissioner can only conduct audits of government agencies and credit reporting agencies.

I'm sure the Attorney General didn't mean to make it sound as if this is game set and match on privacy law reform:

These changes.... will implement the Government’s response to the Australian Law Reform Commission’s report – For your information: Australian Privacy Law and Practice."

The first stage response more like it.

As the government said way back in 2009 a whole raft of other ALRC recommendations were to be considered in stage two including exemptions generally and in particular removal of exemptions for small business and political parties and tightening up the media exemption; mandatory data-breach notification; a statutory cause of action for serious invasions of privacy (on which there has been a consultation of sorts); telecommunications privacy; decision making issues (such as authorised representatives and children’s privacy); and further national harmonisation. We aren't anywhere near done with a process that kicked off in 2006 with the reference to the ALRC.