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Monday, November 12, 2012

Dear Dr Hawke...

Congratulations on your appointment to review the operation of the Commonwealth freedom of information and information commissioner acts. The Attorney General obviously has confidence in you, as do others in government who have appointed you to undertake various inquiries in the past, drawing on your long and successful career and many years in the top echelon of the public service.

However those of us on the outside know that FOI, despite being a backdrop to public administration for 30 years, and a basic element in the accountability system, hasn't been uniformly or enthusiastically embraced by the mandarin class. 

We have no idea what you bring in the way of baggage, scars, or on the other hand, positive experience in enhancing our wonderful democracy through information access.

Of course you were a middle ranking manager, later an agency head in the dark FOI days of the 80s through to the noughties, and must have some interesting first hand experience. Hopefully not along the lines of that referred to by your former colleague Andrew Podger who on leaving the service said "some senior public servants are too concerned to please and serve partisan government interests by failing to keep proper notes, destroying diaries and ratcheting up security classification of documents." Podger's comments about public servants and confidentiality are worth reading as well.

I know you were in Wellington as High Commissioner in 2004, the year, according to Podger's reflections (the Role Of Departmental Secretaries) when a meeting of heads of departments talked through how best to thwart FOI requests while staying just within the law. Some of this might be borderline by my reckoning. Hopefully you weren't involved in these sort of high jinks. Another former agency head colleague of both you and Podger, Rob Cornall then of AGs, now retired and providing advice to Immigration about FOI processing was present, according to Podger's account. 

But to the job at hand.

It would be great to hear what you think are the key issues and your approach to the review.

Of course the terms of reference scope your task. They have a real 'insiders" ring to them by my reading. No "how to make these laws work better for the public", or how to steer towards world's best, rhetoric of a kind that rolls out easily for Special Minister of State Gary Gray when speaking of the APS and integrity generally. And the Attorney General made sure in her media release that you got the message about reducing cost. Not much there that opens up the issue of the adequacy of resources generally, something the Australian Information Commissioner and some agencies have raised.

I have no idea if you or anyone outside the Attorney General's office or department were consulted in the course of drafting the terms. I'm sure The Greens Senator Scott Ludlam who forced  s93B on a reluctant government in 2010 would have something to contribute.

Framing the review into the operation of the legislation around the extent to which "the Acts and related laws continue to provide an effective framework for access to government information" is hardly a clear and direct invitation to look at the big information picture, re-examine the objects of the act, ascertain why use of the act is low, and look for the best contemporary FOI ideas and practices.  Hopefully you'll be able to find a way to look at information access in the digital age- just one of many pressures on a 1982 act based on access to "documents."

It would be of great interest to hear what research you have commissioned or intend to commission.

That reference to "related laws" in the terms might form the basis for at least asking what ever happened to the ALRC 2009 report Secrecy and Open Government that identified 506 secrecy provisions in 176 pieces of legislation, including 358 distinct criminal offences, one of which is the draconian s 70 of the Crimes Act. The "chilling" effect and all that.

Whistleblower protection might be a bit of a squeeze though. The government has all but guaranteed the talk since 2007 will come to an end when it gets around to legislating that one next year. That's a relief.

As to approach to the job, you have plenty of experience in running these things. But the announcement that the review will be serviced by the Business and Information Law Branch of the Attorney General's Department, inviting submissions by 7 December, suggests, well a dry as dust old-style consultation. We know from this that your report deadline is 30 April 2013 and that it will be tabled in Parliament. Full stop.

No issues paper or thought-starters apparently, no blog to toss ideas into the ether to see what others can do to comment and build upon them, etc, etc.

And no outline of any other planned process beyond inviting a submission from anyone so moved to write one after they find the invitation. It's not going to encourage much sharing of experience, and how things might be improved. I'm sure nevertheless that you have innovative ideas on how to get dialogue going- like maybe sitting around with a few people with relevant experience, and not just the usual suspects?

Agencies of course won't need much encouragement to bring certain matters to your attention. 

The announced "tell us what you think and we'll go away and write whatever we think appropriate" approach may be the way they do things in AGs. But something more is generally expected in good practice consultative processes these days. Particularly in this case given the review is about the operation of legislation that has as an object the promotion of Australia's representative democracy by increasing public participation in Government processes

I'll be throwing some thoughts into the ring. Some ideas floated way back in 2009 can be put on the table again, augmented by thoughts and observations since. Others who take this issue seriously are sure to do the same. Last time we had no response to our efforts. The government wasn't interested in a wholesale review of the law, just the things it had decided upon in advance before going through a consultative process. When we all ran the same submissions up to a parliamentary committee, the committee said there were so many different issues and ideas put forward it didn't have the resources to look more closely and waved the government bill through. Back to the grindstone!

Last thing-while there is room for argument about the detail, and about the ranking (48 in a field of 93-how could they do such a thing?) and all the while acknowledging that proof of the pudding is in performance and results, the Commonwealth FOI act is in the fair average quality range at best, by international comparison.

Sorry to have been so windy, but good luck-hopes are riding on you for a comprehensive report a la David Solomon, Queensland, 2008.

If you are dropping into the Information Law Conference in Canberra later this week, may see you there.

Peter Timmins. 

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