Now for the good news

Stephen Horne Managing Director of the NSW Internal Audit Bureau and a stalwart involved in many "better public sector management" organisations and initiatives over the years, finds mostly good news in discussing trends in transparency and accountability- Can I see clearly now? Public sector transparency and accountability

Privacy and press freedom to do what you like

I've just updated-retracted-my comment last Wednesday that you won't read about media invasions of privacy in The Australian as follows:

(Further Update: on 30 July prompting my strike-through in the heading to this post, Amanda Meade in the Media Section of The Australian wrote extensively about the family's complaints to the regulators and plans to take legal action against Seven, WIN and The Illawarra Mercury over their coverage of 13-year old Molly Lord's death. Avenues being explored included trespass, intentionally inflicting emotional harm, breach of confidence and breach of privacy. Space was also given to Molly's father to detail the invasion of privacy by reporters photographers and camera crew.

But will OZ Legal Affairs track down News Limited lawyer Jason Quill for a quote to remind as he has in the past, that there is no existing right to legal action for breach of privacy, and any move to create one by statute would strangle freedom of speech?)

Late addition: Media Watch tonight canvassed the issues as well.

Policy costings should be disclosed-if they're someone else's

Eraser Girl

Mathew Franklin in The Australian reported this week on the Treasury knockback (paywall) to an Opposition Freedom of Information application for documents concerning Greens policies submitted for costing, an arrangement agreed at the time of the formation of the Gillard government. Today Franklin gave the Greens a hammering for hypocrisy given their strong advocacy for open government as Senator Milne defended the Treasury decision to refuse access:

If such costings could be obtained under FOI, Senator Milne said, it would mean parties would be unable to "get a reliable costing to make a decision". The comment was neither logical nor consistent with the Greens long-claimed devotion to openness.

When Franklin rang on Wednesday to seek a comment on the Treasury FOI response I said refusal of access on cabinet document grounds seemed strange. How would the Greens costings end up in a document submitted or proposed to be submitted to cabinet, and prepared for that dominant purpose? So too the Treasury claim the documents were deliberative documents.

Perhaps The Greens shouldn't have been surprised FOI came into play. Senator Milne in the Senate last November in debate on legislation to establish the Parliamentary Budget Office said:

One of the important reasons for the Parliamentary Budget Office is that those costings that you get done between elections remain confidential. If you have to put them to Treasury then they do not remain confidential, and you run the risk in that circumstance of the government anticipating what your election policies might be.

But as to hypocrisy..

Franklin quoted the FOI applicant, Liberal MP Jamie Briggs:

“I don't think that taxpayers should fund the costings of policies of a political party absent the public being able to see those costings,” and  “If the taxpayer is funding the costings of minor parties, they should be able to access the results.”

A far cry from last November when confidentiality for policy costings was the biggie for the Opposition.

For one, all sides agreed so the Parliamentary Service Amendment (Parliamentary Budget Officer) Act 2011 exempts the PBO entirely from the Freedom of Infiormation Act.

For two, Opposition speakers at the time were troubled at the prospect that their policy costings would be released during the caretaker period before an election. In fact front bench senators Mathias Cormann and Scott Ryan then sounded remarkably like Senator Milne now.

UK committee stands with FOI, withstands blowback

Despite Tony Blair's preference to go down as a "nincompoop" rather than the courageous leader for introducing freedom of information in the UK, and all sorts of concerns from current and former ministers and senior public servants, the House of Commons Justice Committee concluded FOI has been worth the effort:

(Chairman Sir Alan) Beith said the legislation had enhanced Britain's democratic system and made public bodies more open, accountable and transparent: "It has been a success and we do not wish to diminish its intended scope or its effectiveness"..

The Committee's Conclusions and recommendations are here.

The Campaign for Freedom of Information which sensibly has stood guard and sought to protect the act and the principles that underpin it, rather than fade into the sunset thinking the job was done years ago, generally welcomed the report-with a sigh of relief I imagine.

Principles for journos dealing with the grief-stricken-stories you won't read (strike-through "in the OZ")

Admissions, sometimes forced, of journalists going over the top in pursuit of the story are common place in the UK  these days with some destined soon for an airing in the courts. But less so here, with assurances from media bosses that everything's rosy. Any attempt to rein in the hounds will see News boss Kim Williams for one off to the High Court.

Crikey yesterday published an account by an anonymous former commercial TV current affairs reporter suggesting the genre regard grieving families as fair game because of a lack of clear guidelines on privacy. And the public is to blame in any event because they love to watch people in distress:

The problem is that for the media it’s just another day at work. But families such as Molly Lord’s may only interface with the media like this once and only during tragic circumstances. What we think is normal and ethical, can often feel is shocking and insensitive. The trouble is, there is no accepted industry-wide standard about how to handle these things. So as is often the case when the rules are unclear, those willing to push the boundaries usually benefit, creating more pressure on those who want to act ethically. A lack of clear guidelines benefits the dodgy and the desperately ambitious in our profession. We also need to have a better discussion around the ethics of interviewing someone who you know is probably in a state of shock. We’ve all done it and nine times out of 10 people are much more likely to talk in this state  But is it ethical? Would they be as willing to share their story 24 hours from now? If the answer is “no” you probably shouldn’t be putting them to tape. And let’s not forget the audience also plays a part. If they didn’t watch, this stuff wouldn’t get to air. They do, and it does."

Sounds a bit like that deputy editor of the Daily Telegraph justifying publication a few years back of  photographs of an unknown red-headed woman wrongly identified as a politician, as in the public interest. The measure? The number of papers sold.

New Zealand Law Commission completes FOI review

The New Zealand Law Commission today released the final report, The Public’s Right to Know: Review of the Official Information Legislation, concluding its 2009 reference. The report evaluates the Official Information Act 1982 and the Local Government Official Information and Meetings Act 1987 in the light of 30 years experience and changing times.

(Media Release).

The report reinforces the main principles of the Act but makes 137 recommendations including measures to encourage more proactive publication, improving operational processes, bolstering the leadership role and functions of the ombudsmen and ahem, attention Attorney General Roxon who may be still intending to fix an "anomaly" here, that the parliamentary departments be covered by the OIA.

I'll leave commentary to the kiwis-the government has welcomed the report but that's all so far. (Update: See No Right Turn-"An appalling conclusion"- among other things, lamenting the absence from the debate of OIA users. Know the feeling.)

Some of the 137 recommendations that attract the eye this side of the ditch include:

Opinion not always the basis for a reasonable expectation

The phrase "could reasonably be expected" features in Australia's freedom of information laws in provisions available to justify a refusal of access. It describes the degree of confidence required in assessing the likelihood of potential harms to the public interest that could arise from disclosure. While the law is reasonably settled, recent decisions in the NSW Administrative Decisions Tribunal illustrate that opinion of an official won't necessarily constitute evidence sufficient to justify such a conclusion.

Australia, a cocky on the OGP tin

According to the Centre for Law and Democracy:

"Since its launch in September 2011, the Open Government Partnership (OGP) has become the most high profile international movement for greater government transparency in the world."

But Australia (and New Zealand and every country in Asia and the Pacific regions except Indonesia, Republic of Korea, Mongolia and the Philippines) isn't one of the 55 Participating States.  Some in the region won't meet the eligibility criteria, others won't want to fly this particular flag. In our case our reasons haven't been stated, publicly at least. When I raised this earlier in the year, a government spokesperson said we were still considering and consulting. What, and who, who knows?

A contact who follows these developments closely recently suggested that foreign policy considerations- not wanting to be part of a group embracing aspirations that China doesn't share-played a part in our lack of involvement. I'd be surprised. That consideration didn't hold back founding governments such as Brazil and South Africa who share interests with China, for example through BRICS. India did back out after initial enthusiasm, but China's views or sensitivities, if they exist on this question wouldn't have been a consideration. Apparently India's concern was scrutiny that would accompany government self-assessment, and possibly, reluctance politically to engage in a public consultation at home on transparency.

My guess is those considerations loom large in Canberra as well when the hard nosed question "what's in it for us" is asked. Far easier to avoid international nosey-parkers and leave to others leadership in the search for best practice, and international heavy lifting to encourage improved standards in this area.

The Centre for Law and Democracy is already drawing attention to deficiencies in the Action Plans lodged by many participants.

I'm pulling together at present some information about right to information in the South Pacific. It's not a great story in the only region where Australia and New Zealand loom large and are well placed to lead through words, resources and example. The Cook Islands is the only country with an FOI law, Tonga is on the move and there are occasional references to good intentions in a couple of other countries as well. 

But Australia and New Zealand could both benefit directly, and indirectly have influence, from mixing more with those involved in "the most high profile international movement for greater government transparency in the world."

Who ministers and minders talk to about what

Jack Waterford in The Canberra Times compares some aspects of transparency in the UK as practiced by the PM and other ministers concerning meetings with lobbyists, with our very own, echoing observations here about the quite word in the ear approach that slides under the radar in this part of the world. "Spot on, Jack"  I say in a comment just published.

In a related matter, an important decision in the Victorian Civil and Administrative Tribunal last week saw Vice President Judge Jenkins take a broad approach to what constitutes an official document of a minister and within scope of the Victorian Freedom of Information Act.

In The Herald and Weekly Times v Office of the Premier [2012] VCAT 967 Judge Jenkins ruled that the diary of Premier Baillieu's former chief of staff Michael Kapel was a document in the constructive possession of the premier and that many entries in a sample provided to the Tribunal related "to the affairs of an agency" even where they did not directly concern departmental business but were relevant to the Ministerial responsibilities of the Premier or any other Minister, as a Minister of the Crown. The range of entries which Judge Jenkins found would qualify for release (subject to any exemption claim) include:

• (a) attendances involving a range of stakeholders, both with and without the Premier; and both with and without public servants;
• (b) interaction with public servants, both with and without the Premier;
• (c) attendances involving Parliamentary colleagues; the media, unions; community, business and ethnic parties and organisations;
• (d) attendances involving foreign dignitaries, including politicians and diplomats;
• (e) other entries which may record events, whether or not attended by the Chief of Staff; and
• (f) entries in the nature of descriptions, observations or outcomes.

While welcoming this new potential extended torchlight on what ministerial advisers get up to, I expect lawyers will be pondering Judge Jenkins finding [at 75] that

"the expression ‘relates to the affairs of an agency’ does not connote direct involvement by an agency in the document per se, but rather whether the document records any act, matter or event which falls within the Minister’s responsibilities as a Minister of the Crown." 

Information of the kind outside scope where similar words appear in legislation, as in this decision by the Australian Information Commissioner, because it relates to party political activity can still be distinguished. But  it seems to me Judge Jenkins has nudged things forward a notch or two.

As Jack Waterford points out, however, you won't find in these parts anything like that published by 10 Downing Street at "Who ministers are meeting'":

 It lists the diary appointments of all British ministers, and of their senior minders, and of their department heads and senior executive officers. It also lists meetings with journalists, and their organisations. Mostly, it gives some clue about the nature of the discussions (David Cameron, October, met with Joe Lewis to discuss redevelopment of Tottenham Hotspur stadium, or, Lockheed Martin, to discuss Warrior upgrade program.) In some case, little lobbying is said to have occurred: Archbishop of Canterbury, general discussion or Bank of England, discussion of economic outlook.

Tribunals not courts, but if it looks like....

You may have been thinking I got to 2500 posts and dropped by the wayside. 

Or off the perch. Not quite.

I've been busy with other things including representing an applicant in a Government Information (Public Access) Act review in the NSW Administrative Decisions Tribunal. That  involved a few visits to John Maddison Tower in Goulburn St where the Tribunal has been located since moving south from long time digs in Elizabeth St in October last year. The former home was in an office block near Sydney's heavyweight legal precinct. The John Maddison Tower and the Downing Centre next door are court buildings in the next tier, with John Maddison home to the District Court including the civil registry and several floors of courtrooms, the Federal Magistrates Court and the Chief Industrial Magistrates Court. These days with the ADT, the Dust Diseases Tribunal, and the Medical Tribunal for company making it a mix of parts of both the executive and judicial branches of government.

Citizens jostling with barristers and solicitors passing through the security check as they enter on the ground floor, and who consult the day's tribunal listings in the foyer affixed to a notice board headed "District Court" may find this a somewhat intimidating, heavily legal environment.

Managing not misspending time

Just passed 2500 posts here since this odyssey began in February 2006. Youth aren't the only ones!

Lobbying 101 in Australia: a word please, privately of course

Sharona Coutts at the Global Mail (Rinehart's reach) illustrates what is wrong with our  approach to money and clout being used in the exercise of influence on government decision making- the lack of transparency about who is doing what, to whom, and why.

Registration of third party lobbyists and the requirement for parliamentarians to register interests are laughably light touch. 

Coutts found ministers and parliamentarians who enjoy Rinehart's largesse (not the only one in the game) made the point they are under no obligation to do anything more than comply with the limited legal obligation to declare (trips to India and around the country for instance) but as to who they meet and what they say, that's "private."

It's hard to describe how backwards Australia is in this respect. In the United States, lobbyists are required to lodge regular reports saying who they work for, with whom they've met, what they discussed, and how much they were paid. And all that information is freely available online....

Public officials who meet with these players have a moral duty to disclose the details of all those meetings, so the public can see the links between lobbying and decisions that are made. That duty should also be enshrined in state and federal laws, as it is in countries around the world that have shown they're serious about holding public officials accountable.

Read Who's lobbying in the UK for example, but don't expect to find anything there about the local scene.

In March when Federal parliamentarians took a look, they concluded our current system is just fine.

Now where's that ticket for the Rinehart express, and my Fairfax paper?

LOL.

I spoke to Coutts, and on a similar theme, to The Wire on 2SER.

Information commissioners by name, and nature

The Office of Information Commissioner Queensland has recently revamped the website, drawing attention to:

• A user-centric layout with three primary content sections: Online services, Information for, and Information about

• Dedicated pages for information rights practitioners, public sector employees, community members, media and students/researcher

• Improved site searching options

• Access to annotated legislation to provide critical or explanatory notes relevant to information rights

• Quick links for popular resources and new decisions

• Automated email form to submit a question to OIC

• A friendly design for mobile device users.

"To improve our service, we have collated and organised in one online location, our research tools and information resources, case law and decisions from Queensland and other jurisdictions."

Sure to be useful for those who dig in these ditches.

As are the recently published 16 pages of FAQs and Answers from the Office of Australian Information Commissioner. Aimed primarily at those involved in dealing with Freedom of Information in government agencies, they won't come as a surprise to most. Pointing out that text messages and social media such as instant messaging (IM) that support the business of an agency fall within the definition of ‘document’ might give rise to a collective groan across Canberra. 

That FAQ and A and some others caught the eye:

Treasurer Wells a long way from time in the stocks

Majorly

President Obama's resort to executive privilege in support of the refusal by Attorney General Holder to release documents to a congressional committee, a first for his administration, didn't protect Holder from a subsequent contempt motion. Closer to home, we have our own argument over parliament's powers to order production of documents.

Victorian Treasurer Kim Wells refused last year to comply with a Legislative Council motion requiring the tabling of a review report by consultants Deloitte of Myki, the controversial public transport smart card system. The Treasurer responded by advising that the report was prepared for consideration by a cabinet committee, that the council did not have power to require its production, and that the government had decided not to provide it.

Nothing happened in parliament thereafter but the matter is now in court. Greens MLC Greg Barber initiated action in the Supreme Court in March seeking a declaration that the council has power to order production of documents prepared outside cabinet and considered by cabinet. Not surprisingly all sorts of issues arise before the court gets to that point.

In a submission lodged last week the Solicitor General seeks an order that the proceeding be dismissed or stayed, or judgment be given for the Defendant on the grounds that the claim has no real prospect of success or is an abuse of process, based on legal principles concerning the order sought, the nature of privilege in Victoria, and the separation of powers. In essence:

• there is no justiciable dispute to which determination of the existence of parliamentary privilege is a necessary incident;

• the Legislative Council has not yet considered whether to assert any power to compel production, and the Court should not intrude into the workings of parliament unless compelled to do so;

• the relief sought is merely hypothetical or advisory  and should not be entertained in the abstract and apart from a justiciable controversy.

The case is listed for 14 August. The Solicitor General has also given notice that the proceeding involves a matter arising under the Constitution. As s 78B of the Judiciary Act requires notification to the Attorneys-General of the Commonwealth and the States, some  may choose to join in.

So It will also take quite a while, if ever, to get to the underlying issue of access to the report prepared by consultants which the government claims was prepared for consideration by cabinet or a cabinet committee. If it was a freedom of information issue, which it isn't, the relevant exemption (s 28) turns on whether the report was prepared by or for the Minister or by an agency for the purpose of submission for consideration by the Cabinet.

NSW is the only Australian parliament that has a system for dealing with disputes concerning parliamentary orders requiring production of documents. An independent arbiter determines whether a claim for privilege has merit.  Some in federal parliament were keen to address the issue at one point but passed the opportunity in February 2010. 

In 2007 Victoria had a system of sorts (Sessional Order 21-Submission by Legislative Council: Inquiry into Independent Arbitration of Public Interest pdf) but apparently the current parliament has never got around to addressing what to do in circumstances where a minister says no, according to Mr Barber's Affidavit.

The general issue of parliament v the executive over access to documents will get an airing at a forum at the Castan Centre for Human Rights Law, Monash University on 9 August featuring Mr Barber and Clerk of the Senate Dr Rosemary Laing.

Blanket FOI exclusion for federal courts complaint handling

Vmenkov

Blanket exclusions from freedom of information laws for some government agencies and blanket exemptions for information or documents of a certain kind held by agencies covered by the law constitute a hole in our accountability and transparency frameworks. Such provisions have the effect of putting beyond usual access rights, all information held by an agency or all information that relates to a particular aspect of operations for 20 to 30 years until  records (might not will) emerge from archives. The case for such exclusions or exemptions regardless of other considerations needs to be strong and compelling

Legislation debated in the House of Representatives last week, the Courts Legislation Amendment (Judicial Complaints) Bill 2012, would provide a statutory basis for the relevant heads of court jurisdiction to deal with complaints about judicial officers and also to provide immunity from suit for those involved in the complaints handling process. It would also provide broad exclusions from FOI for documents that relate to the complaints handling processes within the Federal Court of Australia, the Family Court of Australia and the Federal Magistrates Court. Beyond a matter of fact mention in the Attorney General's second reading speech in March, and another by one of the seven speakers (Craig Kelly) on 28 June, no one thought the need to justify or query the amendment. 

The Explanatory Memorandum explains the machinery provisions [218-225] but the only justification offered is in the Statement of Compatability with Human Rights which suggests a major objective is to protect the "privacy and reputation" of those who handle a complaint:

25. The consideration and handling of complaints about judicial officers may give rise to sensitive or personal reports or other documents about a judicial officer or another person. These documents require a degree of confidentiality to avoid improper interference in the complaints handling process and the possibility of the damage to the reputation of a judge and the operation of the court before the investigation has been completed. The potential to disclose sensitive information concerning a judge’s performance of their judicial duties may undermine judicial independence and impact on future performance and discharge of the judicial function itself.
26. In excluding these documents from the FOI Act, the Bill advances human rights by protecting the privacy and reputation of those involved in internal handling of complaints about judicial officers within the courts.

Maybe, but that's all there is?

The existing s 5 limits application of the FOI act to documents held by the courts that relate to matters of an administrative nature. Presumably the advice is that existing exemptions aren't sufficient to protect whatever must be protected in the management and investigation of complaints. Belt and braces protection of this kind hasn't surfaced as an issue elsewhere. Why the courts need complete and all encompassing protection for complaint handling functions not available to other commonwealth agencies who get by with the standard exemptions when dealing with similar matters might be an interesting discussion.

There are weightier issues in contention as the bill and the companion piece, the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill await final passage in the House and go to the Senate where the Senate Legal and Constitutional Affairs Committee is to report by 13 July. 

But someone might ask about the FOI aspect. And get a compelling or not so compelling answer.

Sunshine in shaded parts of Parliament House

While we await further news from Attorney General Roxon about that "anomaly" that the parliamentary departments turn out to be subject to the Freedom of information Act, up pops a report from a parliamentary committee that has been quietly looking over the last 12 months at strange goings on in the Department of Parliamentary Services. All prompted by Senator Faulkner's questions about what happened to the billiard tables. 

The Interim Report of the Senate Finance and Public Administration regarding the  Performance of the Department of Parliamentary Services commences:

The Senate referred the inquiry into the performance of the Department of Parliamentary Services (DPS) to the committee in June 2011. The committee received both public and confidential submissions which raised significant issues particularly in relation to the employment culture of DPS, the issue of bullying and harassment within DPS, management of heritage values and, of course, the sale of the billiard tables from the Staff Recreation Room.

Hmm, transparency, disinfectant, all that. The committee continues to dig.

Reminder from September 2010.

Prime Minister Gillard:

"What the Australian people told us, and they told us this in no uncertain terms on that day and on the days that have followed, is this: that we will be held more accountable than ever before, and more than any government in modern memory. We will be held to higher standards of transparency and reform, and it's in that spirit that I approach the task of forming a government......To quote Rob Oakeshott, sunshine is the best disinfectant, and we've agreed to far-reaching reforms that make me as Prime Minister and our government and how it functions more accountable to the Australian people. So, let's draw back the curtains and let the sun shine in; let our parliament be more open than it ever was before."

FOI in South Australia not healthy

South Australia, one of our non-reform FOI states, gets a drubbing in this Sunday Mail editorial detailing a two and a half year battle to access documents on crimes reported on public hospital grounds in the preceding five years:

THE culture of secrecy, evasion, obfuscation and cover-up demonstrated by the Health Department, as reported today, is anathema to South Australia's proud tradition of being a free and open society whose democratic ideals include the public's right to know what is going on in our public hospitals. 

And more detail of the time and cost involved here.

Not sure when the assist from the Ombudsman occurred-no Health determination listed for quite a while. (Update-since posted. It's quite a saga, with the Ombudsman concluding that  much of the delay arose because the applicant could have done more to describe in less open-ended terms what was being sought (73), and that the Department had fallen short of what is expected under the FOI Act in relation to engaging with the applicant to clarify the scope of the application (74)).

SA needs a freedom of information act fitting for the 21st century. And the attitude to go with it.