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Friday, June 29, 2012

Sun shines on parliamentarians' expenditure

Yan Zhang
In cold, wintry Canberra (not pictured) at least.

The Department of Finance and Deregulation has published reports of expenditure against entitlements it administers for parliamentarians and former parliamentarians, and overseas study travel reports, this batch for the period July to December 2011.

For those still looking for evidence that transparency can be a useful compliance tool, proof in the form of the associated list of certifications that expenditure was properly incurred, consistent with the rules.  Almost a full house with just a handful of exceptions including Minister Senator Conroy and Bob Katter MP.  When Finance commenced this publication practice in January the list of non-certfiers for the relevant period extended to 100 names, dropping quickly thereafter. (I'm still wondering why certification is voluntary.)

On the related issue of information on payments by the parliamentary departments (none pro-actively published to date) and the comment by Attorney General Roxon's spokesman that FOI coverage was an anomaly that needed fixing, not a word said or question raised in parliament in this session, and they've now packed up for the six week winter recess. A sign things should stay as they are?

Contrast sunny Canberra with the states-a dark subject I'm warming to, hopefully next week.

"Public interest" no simple matter

In the context of the Rinehart interest in Fairfax, Murdoch's troubled times and faint rumbles from Canberra, Richard Ackland in the SMH and elsewhere today muses on the imprecision of terms currently being bandied about such as "public interest" and ''fit and proper person'' tests for media ownership. In a broader context, those who ply the legal practitioner trade have passed the latter. And access to information folk are well acquainted with the former.
''The public interest'' is a phrase sprinkled through legislation with gay abandon. It sounds democratic and noble, but at the end of the rainbow it has to be interpreted by a judge, or a cluster of judges - a recipe for uncertainty, because the judges themselves are uncertain...In the government's issues paper on a cause of action for serious invasion of privacy, ''public interest'' appeared 57 times. In the Finkelstein report, it was 85 times, the same number of times it was mentioned in the Convergence Review (including 13 times on one page). No doubt it is a popular rubric because it artfully allows plenty of imprecision and circularity in its application....Really, a public interest test is fine, as long as no one tries to define it."
Definition starts with the notion of what action or decision best contributes to the good order and well being of the community as a whole, but that opens all sorts of trails and branches in search of factors relevant to the matter at hand.

Hence all that rubbery stuff, Richard, and the struggle with grey when black and white would be preferable- if only we could find it.

Of course in his trade some have worn the public interest badge proudly, apparently oblivious of what it means. Who will forget the Deputy Editor of Sydney's Daily Telegraph defending the publication of what at the time, the Telegraph insisted were photos of Pauline Hanson some 30 years previously:
the ‘public interest.’
When questioned about the precise public interest involved in old photos of compromising positions she said ‘That's for our readers to tell. That will be determined by the number of people that buy the paper’.  (Media Watch, 23 March, 2009). And of course they weren't of Hanson at all.

Freedom of information reforms in Australia in recent years have seen parliaments to varying degrees have something of a go at definition, or at least an attempt to spell out considerations that favour disclosure in the public interest (still leaving open other possibilities), those that favour non-disclosure, and some that are irrelevant in deciding whether to grant or refuse access. Within certain parameters still plenty of room for argument and lawyering, but something of an improvement on pre-reform days.

The Queensland Information Commissioner for example has reams of guidance but it's not for the faint-hearted. OAIC Guidelines include this non-definitive list of public interest factors favouring disclosure. And of course there is a statutory list of factors on the other side.

Tuesday, June 26, 2012

Open Australia, great to see you're back

After six months terrific to have the fantastic hansard service back to assist in keeping up with federal parliament. In the interim, having to rely on parliament's own newish and expensive website without similar search capabilities was painful and inadequate, so hats off to the volunteers at Open Australia, particularly John Wells and Henare Degan for righting things once again.

One little gem uncovered in a "freedom of information" search was a question on notice in March from the shadow minister Senator David Johnston to the Minister representing the Minister for Defence that included:
"For the period 1 July to 31 December 2011... How many conclusive certificates were issued in relation to FOI requests."
I'm sure the public servants and the minister were tempted, but they dead-panned, simply answering in May:
"Conclusive certificates no longer exist. They were abolished under the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009."
Passed by the Senate on 13 August 2009 to be precise.

Sunday, June 24, 2012

Pen and paper FOI applications make jaws drop

From the (Toronto) Globe and Mail
"Toby Mendel, president of the Centre for Law and Democracy, recently returned from Rabat where he spoke with officials devising an access law for Morocco. They asked him what the Canadian government had proposed in the area of access reform as part of the global Open Government Partnership initiative. Mendel told them Canada had suggested allowing access requesters to apply electronically, dispensing with the current cumbersome practice of a paper form and a $5 cheque. “Literally, I could see their jaws dropping,” Mendel said in an interview. “Because it was incomprehensible to them that a country like Canada would not already have electronic requesting possibility.”
Well at least Canada is a member of the OGP along with around 60 other countries. Australia continues to sit on the outside- Indonesia, the Philippines and Korea are the only torch-bearers from this region.

Of course if the issue of comparisons with Canada was raised, our government could point out that these days Federal agencies all seem to accept an email application.

But many state governments are still back in the stone age as we found from a quick look around last year.

South Australian Police still take the gold boulder- asking that you personally front up to a police station with your application. Narrowly ahead of those such as NSW Roads and Maritime providing the option of dropping your application into an office or dropping it in the mail. To be fair some NSW agencies such as Finance and Services  appear to have moved into the 1990s in the last year. But there are plenty of other agencies in NSW, SA and Western Australia still opening the stamped  envelopes each morning. And trusting you followed the guidance to pay the application fee-strictly cash, cheque or money order, thank you. (Memo: Once upon a time, long before there were Apps.......)

Victoria still failing to deliver

Add this Sunday Herald Sun Editorial "Premier needs to open doors on Freedom of Information" to the Victoria file marked "disappointing":
The Sunday Herald Sun urges Mr Baillieu to revert to the view he held in Opposition; that governments should be open and accountable.
I'm in Melbourne speaking at the Managing Patient Confidentiality and Information Governance Conference tomorrow so hope to catch up with a few of the locals.

(Update:further grist from the Hun.

But wait-Opposition joins in.

Still more.

Friday, June 22, 2012

Transparency and the food business

Last year a comment here about developments regarding transparency and food hygiene standards in Queensland and the ACT- both in the news again recently. I haven't kept track of developments across the board in this area in recent times. (Update: a reader draws attention to the SA Food Act Prosecutions Register- but publishing convictions in court is no big deal, as recent developments in Queensland show.)  There is a research project  for someone interested in looking into this at the national level, or on a comparative basis across state jurisdictions, to see what effect various degrees of transparency have on compliance with hygiene standards, and importantly, on outcomes in terms of public health.

Wednesday, June 20, 2012

Sydney Olympic deals still commercially significant

 Ah remember the days..revisited recently in a Government Information (Public Access) Act case in the NSW Administrative Decisions Tribunal concerning the relatively rare issue of access to cabinet information ten or more years old. The decision involved something not quite as rare, a win (mostly) for the Sydney Swans (8-3, midway through the season).

The conclusive presumption that there is an overriding public interest against disclosure of cabinet information ( GIPA Schedule 1 Clause 2) does not apply if (a)  public disclosure of the document has been approved by the Premier or Cabinet, or (b)  10 years have passed since the end of the calendar year in which the document came into existence.

Nevertheless, depending on content, context and the effect of disclosure, there is scope on other grounds to claim an overriding public interest against disclosure. 

Deputy President Higgins in Hall v Department of Premier and Cabinet [2012] NSWADT 46 decided some withheld parts of a 1999 cabinet minute prepared in the lead up to the 2000 Olympics should be released, affirmed the decision (with a confidentiality order attached to the reasons) to refuse access to other parts that had continuing commercial significance to the Swans and the Stadium Australia Management Limited (SAG), and referred other disputed parts of  the document back to Premier's for reconsideration. (The document as released is yet to appear on the department's disclosure log.)

Few points of law arose in the case. The order that some information withheld by the department should be disclosed resulted primarily from the failure to satisfy the tribunal that disclosure would have the adverse effects claimed. For information of this kind it was unnecessary to consider whether the public interest considerations against disclosure, on balance, outweigh the public interest considerations for disclosure. However with regard to some, Deputy President Higgins commented "there are a number of public interest considerations in favour of disclosure of the information in the disputed paragraphs. The stadium is an important public asset and disclosure of the disputed information (now 13 years old) could reasonably be expected to enhance Government accountability and ensure effective oversight of the expenditure of public funds" [52]. Other information of this kind "appears to be purely factual and uncontroversial" [72]

Tuesday, June 19, 2012

World conference snaffles... Dr Solomon

A comment from Andrew, just over the ditch, explaining what will be keeping Dr Solomon busy 12-16 November while some of us will be in Canberra (just kidding):
Overlapping with the AGS conference in Canberra is the World Conference of the International Ombudsman Institute, being held in Wellington. Dr Solomon will be speaking there, along with Prof. McMillan, Rick Snell and others. FOI sessions, as well as others relating to ombudsmanship and human rights. More details on the conference website:
Plenty of other top-liners there including Professor Alasdair Roberts, Jerome L. Rappaport Professor of Law and Public Policy at Suffolk University Law School, and Faculty Director of the Rappaport Center for Law and Public Service on "Freedom of Information: the current challenges and the future directions freedom of information might take", and  Bruce Barbour, New South Wales Ombudsman on "The effect of removal of FOI jurisdiction from an Ombudsman."

Monday, June 18, 2012

Australian conferences call, and not just David Solomon!

Managing Patient Confidentiality and Information Governance (IIR Conferences) -Melbourne 25-26 June, so hurry. I'm a speaker-as if that will get you across the line! For the record, David Solomon (see below) isn't.

Integrity in Administrative Decision Making  (Australian Institute of Administrative Law)-Adelaide 19-20 July. "An opportunity to consider the concept of the integrity branch, the institutions that constitute it and its health in 2012." Includes sessions on integrity issues featuring Queensland Integrity Commissioner, Dr David Solomon, Professor A.J Brown of Griffith University, and Australian Information Commissioner Professor John McMillan (on "Jurisdictional facts and the Malaysian solution (!)). Julie Kinross, Information Commissioner, Queensland will speak to “Get off the couch!” - The transmission of the public value of transparency through independent merits review, Queensland style".

Creating Open Government (New South Wales Information and Privacy Commission)-Sydney 20-22 August. Program yet to be posted. Early bird rates on offer. Follows the two Right to Know Day conferences in Brisbane in recent years and the Information Policy Conference in Canberra last year. Includes the Solomon (see above) Lecture inaugurated in Queensland in 2009, this year to be delivered by Dr Geoff Gallop, Professor and Director at Sydney University's Graduate School of Government and former Western Australian Premier.

International Council on Archives Congress-Brisbane 20-24 August. Savings for registration before 15 July. I'm exhausted just reading the program! "Rub shoulders ..with internationally acclaimed archivists, information managers, audiovisual and preservation specialists." Two of many offerings of interest are Professor McMillan (see above), Canadian Privacy Commissioner Jennifer Stoddard, and Director of the (US) Office of Government Information Services at the National Archives and Records Administration Miriam Nisbet, as keynote speakers on 23 August on "Public Rights to Information and to Privacy" to be chaired by.... Dr Solomon (see above); and Ann Steward of AGIMO chairing a panel session on "Open Government, right to information and recordkeeping: interdependencies and interconnections" that includes Julie Kinross (see above), Queensland State Archivist Janet Prowse, and Miriam Nisbet.

Update-2nd National information Law Conference (Australian Government Solicitor)-Canberra 14-16 November. See here-scroll down, to pdf top right. Early bird rates to 30 June. "Privacy law, freedom of information and related topics, as relevant to all Australian jurisdictions. Digital privacy will be a particular focus, as will be the key issues and practicalities of freedom of information, and recent reforms in both areas at a Commonwealth level." A lot of territory to be covered over three days and plenty of big names-but not Dr Solomon. Richard Ackland of the SMH after dinner, Sean Parnell of The Australian and Geoff Thompson of ABC Investigative Unit (on a topic broached here in January) sure to add valuable "outsider" perspectives. I'm on, with Rick Snell, University of Tasmania and Justin Davidson of AGS, assessing "Australian information law: what kind of shape are we in?"

Friday, June 15, 2012

Australian Press Council goes for quality.

Professor Julian Disney's term at the Australian Press Council has been marked by efforts to try to get ahead of the council's critics, and clean up media self regulation to the extent possible before the case for government hopping further into the game becomes compelling. The Australian reports two moves in this direction. The appointment as public members of the council of the highly respected Andrew Podger (mentioned here a few times over the years including as one of our best when it comes to knowing how government works and should work) and Philippa Smith, a one time Commonwealth Ombudsman, and many other things beside. And a new executive Director, Linda Matthews, formerly Queensland Privacy Commissioner.

 Not sure when Mathews left the job in Queensland-nothing on the Information Commissioner's website and this may be old news but "Lemm Ex, Principal Privacy Officer, Office of the Information Commissioner is currently the Acting Privacy Commissioner."

The appointments were an important step in strengthening the Council, said chairman Julian Disney. "We are greatly looking forward to working with Andrew Podger and Philippa Smith and to the major contribution which Linda Matthews will make to the operations of the Council," he said.


Like to be a fly on the wall at Holt St when news filtered through that Mathews with a strong privacy protection background was to join the ranks on 9 July. And at APC meetings when privacy issues are on the agenda. New and differerent perspectives, anyone?

Victorian FOI commissioner will be busy in 2012-13

The Victorian Parliament passed legislation to establish the office in February. No appointment has been announced and there is nothing I can find in the public domain about where things stand. Except the start date for the legislation is no later than 1 December 2012.

There is a scrap or two in the  Budget papers. Nothing like last year when the plan received headline status with an announcement of $7.9 million to establish the office, although the fine print (Budget Paper 3 (Chapter 1 Election Commitments p 54) revealed this was spread over four years with $1million allocated in the first year, $2.3 million in 2012-2013, and $2.2 million in each of the next two years.

This year the only mention is at pages 179 and 181 of Budget Paper no 3, where "enhancing government transparency through the establishment on an independent Freedom of Information (FOI) Commissioner" is bundled together in two sets of disparate outputs of the Department of Justice. It's unclear what the money situation is as there is nothing specific about past or future expenditure on the office. The combined allocations come with a note: the "2012-13 Target has been reduced due to efficiencies reflecting government savings." 

But somewhere, someone must be gearing up to deliver.

At page 182, performance measures for the office are mixed in with those for others but in 2012-13 the office of the commissioner is to complete 100 complaints, undertake 20 training and education activities, achieve 100% compliance with statutory and other agreed time limits, and rate "high" on applicant satisfaction with review and complaint processes. What this note means for commencement of the scheme is unclear: "The 2012-13 Target takes into account the legislation’s default commencement date of 1 December 2012."

The Office of the Victorian Privacy Commissioner (page 183) was allocated $2.4 million ("reduced due to efficiencies reflecting government savings"), $2.6 million, $2.6 million and $2.5 million in each of the next four years. In 2012-13, performance targets for that office are 700 "compliance activities", 195 "Privacy Awareness activities", high rating in client feedback of satisfaction with complaint handling and training services provided, and 90% statutory or agreed timelines met-perhaps reflecting (in contrast to the FOI commissioner's 100% target) some realism that comes from a presence at the table when these things are settled.

Wednesday, June 13, 2012

Stuart Morris QC coming to grips with NBN and FOI

On 16 April Attorney General Nicola Roxon announced that an "eminent person" would undertake a statutory review of the application of Freedom of Information to NBN Co, the company responsible for implementing the National Broadband Network. The review is to be completed by 30 June 2012, and the report tabled in Parliament. Terms of reference were published but user experience in dealing with NBN Co didn't get a look in.The  NBN Co website makes no mention of the review.

On 20 May, I emailed the Attorney General's office asking if an appointment had been made, if so , who, and if not when could this be expected? No reply but having asked again this week, the name, Stuart Morris QC, former justice of the Supreme Court of Victoria and President of the Victorian Civil and Administrative Tribunal, appeared yesterday on the Attorney General's Department website. 

His surprise early resignation as President of VCAT generated media interest in 2007, The Age describing him as "colourful and controversial." While his main game appears to be planning law, Mr Morris had his share of FOI cases in VCAT, and memorably, had his decision in the Osland case stand up to High Court scrutiny. 

NSW budget squeeze to tighten information??

The NSW treasurer's order of the day to agencies in the 2012-13 budget handed down yesterday was to live with an annual 1.2% "labour expense cap" over four years expected to lead to 10,000 job cuts, and to "rein in expenses" so await with interest to see what this does to resources across the public sector devoted to information access and privacy protection. Less spin, more information perhaps....

The Office of Information and Privacy Commission (Budget Paper No 3 Attorney General and Justice, page 2-28) will remain on tight rations: $5.406 million available for operating costs and $150k for capital expenditure in 2012-13 compared to the revised allocation of $5.503 million and $366k in 2011-12.

Service measures listed for the office are straight output numbers-undertake 350 reviews, investigate 100 complaints, handle 435 formal privacy matters - and in anticipation, expect 280k website hits. Outcomes don't rate a mention and there are no published quality or efficiency measures or indicators.

Hopefully Ross Gittins of the SMH will repeat his federal budget performance, testing the treasurer's claim that this government "has restored openness and transparency to the Budget." Plenty of sceptics out there on that one, pondering the treasurer's observation that leaving the detail of program cuts of over $1 billion to portfolio ministers and agencies is  "normal" practice.

Tuesday, June 12, 2012

Senator Xenophon's FOI message: fair roll of the dice!!

"Independent Senator for SA Nick Xenophon has slammed the Government for its pathetic response to his Freedom of Information Request relating to the cost of converting poker machines to be maximum $1 bet capable.The Government charged Senator Xenophon $465 for 34 pages of documents, with huge slabs of potentially critical information blacked out. (The documents can be provided on request from Nick’s office – at no charge).“If this wasn’t such a serious issue it would be laughable. They might as well have just sent me 34 pieces of blank paper,” Nick said.Senator Xenophon sought access under the Freedom of Information Act to documents relating to the work done by the Department on the cost of implementing the $1 bet scheme with $120 an hour losses – as recommended by the Productivity Commission.Senator Xenophon made the request after the Government repeatedly claimed it would cost $1.5 billion to make poker machines $1 maximum bet ready.“The Australia Institute has already analysed the costs as being in the order of $200million over a number of years. Given problem gamblers lose $5 billion a year on pokies, that’s chicken feed. Instead the Government’s given me a load of chicken poo.”“It seems the Government has plucked the figure out its head.”“This is a serious matter of critical importance to public policy that affects the lives of hundreds of thousands of Australians who are deeply damaged by poker machine addiction.”Senator Xenophon will lodge an appeal under the public interest provisions of the FOI Act for the release of the blacked out information and other documents which the Department has refused to release.“What has the Government got to hide?” Nick asked. “And why will their watered down draft legislation only allow for machines to be mandatory pre-commitment ready, not $1 bet ready as well? It’s absolutely absurd.”
We here love to see reasons given as to why this sort of disclosure would be the end of the world as we know it, Senator.

Monday, June 11, 2012

Radio National, Tuesday morning

I'll be talking Freedom of Information with Natasha Mitchell on Life Matters, ABC Radio National- AM 576- tomorrow, Tuesday morning a little after 9 am. (Update-you can listen here.)

Queen's Birthday gongs

Even this staunch supporter of an Australian Republic takes the day off, and eyes the list!

Congratulations to all worthies.

Two gongs relevant to this patch in the Member (AM) Order of Australia category:
Ken Taylor (left) former NSW Health Care Complaints Commissioner, former NSW Privacy Commissioner and former Acting Information Commissioner NSW, and Ian Reinecke, long time information/technology guru and member of the Gov 2.0 Task Force in 2009.

Judge Taylor stepped down from both privacy and information commissioner posts in November 2009.He has been back in the hot seat as acting district court judge in a couple of recent controversial cases.

Update: and a Public Service Medal for Tony Corcoran at Defence for "outstanding public service in managing the Freedom of Information function." From my comments after last year's National Information Policy Conference:
At the same session and right in this groove Tony Corcoran Asssistant Secretary Freedom of Information and Information Management gave a  terrific run down .. on (relatively) new thinking in Defence that brings together various information management and disclosure threads including FOI in a service context. In answer to a question about the result of this branch assuming responsibility for FOI from a legal area, Corcoran said compliance with statutory time frames had gone from 12% previously to 100% currently, reinforcing my view that Legal should provide advice when required, not control and manage the FOI function these days.
Full citations follow:

Friday, June 08, 2012

I'm feeling sorry for Nicola Roxon

Well just a titch.

The Attorney General's re-entry into FOI-land with her fix the "anomaly" comment following publicity that the act covers the three parliamentary departments, coincided with the Sydney Morning Herald publishing information some days later about payments by the Department of House of Representatives to Speaker Peter Slipper. The comment by Ms Roxon's spokesman appears to have been made in the context of questions raised by the Australian FOI Editor Sean Parnell in a follow up concerning scope of the act, and seemingly was not related to the SMH Slipper story.  But the two have been conflated since in the media, public comments and cartoons (Moir for example) with the the Attorney General being pilloried for considering options to block access entirely to information about parliamentarians' expenditure.

This clearly isn't so, for reasons that follow. The timing was terrible and the attorney general's point of view (with respect etc) that this is an anomaly that needs fixing, is disappointing and unfortunate to say the least. As argued in "Say it isn't so" there are strong reasons why the parliamentary departments should be subject, give or take, to the same degree of transparency and accountability as other government agencies. Information about parliamentarians' entitlements is just part of a bigger accountability and transparency picture.

The main reason for the debate going off in this direction, apart from the timing issue, is that given the complex system of administration of entitlements and the half light thrown on the detail, it is easy to get things muddled. The system is still waiting for reform years on from recommendations that would nudge transparency in the right direction, although hardly as far as it needs to go. Special Minister of State Gary Gray and the various presiding officers of parliament (one of whom now of course is the same Mr Slipper) should carry the can on that. Reform in this area was a case study in slow motion a year ago. Now it's a masterclass.

To elaborate on entitlements and the transparency issues..

The Australian on privacy law, both right.. and wrong

Nick Leys in The Australian (subscription) today "New privacy laws a long way off":
CANBERRA is no closer to implementing privacy legislation, despite calls for it by government whip Joel Fitzgibbon following criticisms of the media's handling of the Craig Thomson affair.
Mr Fitzgibbon said yesterday that reports by Nine's A Current Affair and the Today Tonight interview on Seven with the prostitute at the centre of claims against Mr Thomson were "extraordinary" and "not the path for journalism" in Australia. "The sort of Fleet Street approach will be rejected by the community," he said, calling for greater media regulation on two fronts.
"(They are) the establishment of a tort of privacy, and greater government regulations of the media," Mr Fitzgibbon told ABC radio. "This gives weight to the government pursuing those initiatives."
But despite lengthy consideration of such a tort and strident criticism within legal circles, a spokeswoman for Attorney-General Nicola Roxon said there was no timeline for such legislation.

(Sorry about the photo Nick, cute but not your best-speak to your webmaster.)

Nick's definition of "new privacy laws" doesn't obviously extend to the Privacy Amendment (Enhancing Privacy Protection) Bill introduced with flourish by the Attorney General recently (after a glacial development process) and now before the House  Committee on Social Policy and Legal Affairs. He's right that new laws, this and other aspects such as the media exemption yet to get any attention, are still a "long way off."

But on the privacy issue that pre-occupies journalists at The Australian, Nick is off the mark in claiming that "strident criticism within legal circles" is a reasonable summary of reaction to the issues paper on a cause of action for a serious and unwarranted breach.

Here was my take in February:
Almost all legal experts who lodged a submission in response to the government's Issues Paper published last year accept there is a gap in the law. Most agree legislation is the best answer, although some think that judges rather than policy makers will have more and better wisdom. I'm with Professor Moira Paterson of Monash University:
The creation of a statutory tort is arguably preferable because it provides scope to craft a law which clearly addresses the complex policy issues involved (for example, by providing guidance concerning the balancing of privacy with competing interests such as freedom of expression). It also provides an opportunity to provide detailed guidance concerning the operation of the new law.
The Law Council of Australia has shifted from opposed, in a submission to the ALRC privacy inquiry, to open minded in this case. Two members, the Law Society of NSW and the Law Institute of Victoria are now publicly in favour of legislation.There is plenty of support from others as well-the privacy foundation, rights groups, advocacy bodies such as the Public Interest Advocacy Center, state privacy law regulators. All accept the tricky part is to get the balance right-and there are plenty of ideas about that including whether to set the bar low or high, and whether to frame freedom of expression as an element of the cause of action or as a defence.

In media ranks the ABC and the MEAA don't have a view one way or another on the need for legislation..(but) other media organisations including those who have the muskets at the ready in house (Comment: with The Australian and other News publications in the front line) and big business-the banks, finance companies, the advertising industry-are strongly against.

ACT Assembly moving on whistleblower reform, FOI changes still to come

The Canberra Times report on the introduction of the Public Interest Disclosure Bill in the local assembly yesterday includes a tick from Professor A.J Brown-always a good sign - who like many is still hopeful despite missed deadlines that the Federal government will come good finally after promised deadlines for action last year came and went.

A Sydney Morning Herald editorial earlier in the week, Raising our voices for openness noted the dithering  in Canberra, on the big hill at least, while pointing to evidence that a public mindshift is underway with four in five Australians now believing whistleblowers should be free to reveal wrongdoing and to take concerns to the media, without fear of workplace retribution.

(Update:See ACT Hansard and and the exposure draft in March.)
I notice that while I was away in March the ACT Assembly resumed debate on the Freedom of Information Amendment Bill.

Wednesday, June 06, 2012

Show us the money...sometime, please

Tim Andrews of the Australian Taxpayers' Alliance in Fairfax National Times today:
More than a billion dollars of our taxes are spent daily, yet there is little transparency, accountability or public disclosure of how and where...Taxpayers who wish to discover how their money is being used must trawl hundreds of pages of budget documents and submit time-consuming and costly freedom-of-information requests. Even then, information is scant. Ask any journalist. And these requests, as a Herald report showed on Monday, could be rejected in future as certain parliamentary departments are rendered exempt to FOI laws. But it does not have to be this way. A transparency revolution is under way overseas, empowering citizens, opening governments to scrutiny, and transforming governance. In 2006, in the US, the senators John McCain and Barack Obama co-sponsored the US federal funding accountability act. Its premise was simple: that taxpayer expenditure be placed online in an easily searchable database, so all taxpayers can find out how their money has been spent. Since then, the City of London, the European Union and 38 US states have enacted similar online portals - many with no thresholds, so every cent of taxpayer expenditure is publicly available...The benefits are obvious: not only are taxpayers empowered, but also savings can be easily identified, waste exposed and unethical behaviour discouraged.... It is time Australia joined this revolution. .... Corruption and rorting cannot occur when the records are freely available - sunlight truly is the best disinfectant. Such portals should be a ''no-brainer'' for policymakers.
In December 2007 in "US transparency reform should be emulated here" we were saying much the same thing. Four and a half years on, it's a "no-brainer" whose time is yet to come.  This effort on stimulus spending in 2009-10 was a toe in the water not dipped since.

Amber light for democracy?


Who or what is trashing the democracy brand?

Rohan Callick in The Australian (subscription) this week, writing about the just published Lowy Institute Public Opinion and Foreign Policy Poll 2012, singled out
 "..the shock result.. that only 39 per cent of young Australians are prepared to unequivocally back democracy. Lowy chief Michael Wesley may be partly right in attributing our lack of trust in democracy to perceptions of poor behaviour by our politicians. But the poll was conducted before this became the major media talking point it is today. The broader context is a turning away from the teaching of subjects such as civics in schools, and a rejection of earlier generations' values, not because they have been proven wrong in rational debate, but because they come from a world view of values and discernment now deemed culturally inappropriate. Winston Churchill, if mentioned in educational circles, is as likely to be denigrated for his political incorrectness as celebrated for asserting that "democracy is the worst form of government, except for all those other forms that have been tried from time to time."
Callick didn't mention a possibly more alarming result that "fifteen per cent of Australians say ‘for someone like me, it doesn’t matter what kind of government we have', with a quarter (23%) of 18 to 29 year olds holding this view."

Those of us over 60 (74% back democracy) need to have a go explaining to 18-29 year olds of our acquaintance-that in itself may be a challenge-why democracy warts and all, even ours at the moment, is not just wallpaper or an abstract idea. Governments, federal, state and local also need to reinforce their democratic credentials by living the dream.

A fundamental of course is open and transparent government. Hence the Freedom of Information Act (some state equivalents have something close) gives access to government information a relevant public purpose by stating right up front
The Parliament intends, by these objects, to promote Australia's representative democracy by contributing towards.. increasing public participation in Government processes, with a view to promoting better-informed decision-making.. increasing scrutiny, discussion, comment and review of the Government's activities.
Sentiment echoed in the Declaration of Open Government:
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, and sustained by the innovative use of technology. 
Interesting to speculate on the extent of public awareness of these grand democratic ideals. And how public perceptions of what federal, state and local government says and does (Attorney General Roxon for example currently looking to fix the "anomaly" that parliament is subject to the FOI act ), or disappointing personal experience in taking government at its word plays into the narrative that democracy isn't all its cracked up to be.

This is the extract-the first time these questions have been asked in the annual poll- from the Lowy Institute Report (emphasis added):

Letter writers eye on FOI

More letters in the Sydney Morning Herald today about Freedom of Information and the Federal Parliament.

Nick Franklin of Katoomba is a master:
Mr Slipper's coat and tails: $1248.

Mr Slipper's tucker bill: $8500.

Mr Slipper's travel expenses: $18,000.

Publication of the above: priceless.

Two more follow-and (Update) plenty of comment as well on Paul Farrell's article in New Matilda

Tuesday, June 05, 2012

State parliaments far less transparent than Canberra

With a fair degree of outrage running about any plan to re-establish an exemption for the parliamentary departments from the Commonwealth Freedom of Information Act (see letters in the SMH today, copied below), folks out there should save some for our state leaders where the situation is even more opaque.

In most, the state parliament is its own paymaster with the fine detail of what administrators do with public money and payments to parliamentarians hidden behind a specific exemption from the FOI/Right to Information Act. 

Much of what our Federal parliamentarians receive is paid out by the Department of Finance and Deregulation, well and truly subject to FOI, with much published online these days.The current kerfuffle in Canberra is about separate payments made by the parliament itself. 

At state level it's a far darker story.

Tasmania's RTI act extends to information held by the parliament regarding matters of an administrative nature, but I don't know what is published there about payments to  parliamentarians. Elsewhere it's no go.

NSW is typical-both houses are specifically excluded from the RTI act (Schedule 1 Clause 2(3)). 

In round figures the NSW parliament is allocated $160 million a year. Exactly what is spent on and for parliamentarians isn't clear. The only published information for payments are global figures for categories of annual sums paid to each member buried away in appendices to the annual reports, the latest here at page 80 for the Department of the Legislative Assembly 2010-2011 pdf-Appendix G) and page 133 for the Legislative Council (Annual Report 2010/2011 pdf-Appendix 2).
When the issue of the exemption was raised in the context of FOI reform in NSW it fell to the ground as the then presiding officers ran up arguments that don't hold water including that sufficient public scrutiny comes from publication of these same annual reports.

In 2010 after an allowance scandal, ICAC recommended the NSW Parliament look at its anti-corruption measures regarding payments to parliamentarians. ICAC's general approach to anti-corruption highlights, ahem, the need for proper accountability, and appropriate transparency.

The South Australian Parliament publishes online an annual report on members interests and an annual report on travel by individual members, although not even close to real time.

None of this is good enough. Reserve some of that outrage for your state parliament. Give your state MP's office a chance to explain-I'm all ears.

Today's SMH letters follow.

Monday, June 04, 2012

Parliament beyond FOI reach: Attorney Roxon, say it isn't so

Matthew Moore and Linton Besser in The Sydney Morning Herald (published also in other Fairfax papers) today report on what appears to be the first Freedom of Information release of documents by the Department of the House of Representatives, detailing payments to and on behalf of Speaker Peter Slipper including expenses of office for the period to 30 April. I was happy to contribute a quote.

This "first" arises as a result of news last month that Australian Information Commissioner Professor John McMillan had cut through years of denial and uncertainty to rule that departments of the House of Representatives, the Senate, and parliamentary services are subject to the FOI act. Followed last week by Attorney General Roxon indicating the government is "currently considering its options to correct this anomaly."

The SMH may have achieved a first and last at the same time if amending legislation to put the parliamentary departments beyond the scope of FOI is on the way.

Say it isn't so Attorney. 

FOI for parliamentary departments is no anomaly, a deviation from the norm. It is what we should expect from any government agency. More pointedly, as far as Parliament is concerned, Prime Minister Gillard put it well when she said in 2010 "let our parliament be more open than it ever was before."

I'm sure it hasn't escaped your attention that parliament and parliamentarians are struggling a bit with integrity issues these days. Arguments for less rather than more transparency should make interesting reading. Public reaction more so.

Regardless of the recent and perhaps unexpected realisation behind the scenes (in the context of making sure the Parliamentary Budget Office was exempt from the act, an Opposition pre-requisite to even consider playing ball), that the departments are subject to FOI, you know it makes good policy sense for government agencies to be subject to the highest standards of accountability and transparency.

For all the reasons you could roll out without even glancing at a departmental briefing note- the fundamental importance of transparency and accountability in a democratic society, how public scrutiny is an essential anti-corruption measure, the government's Open Government Declaration of 2010, and the Prime Minister's words that fateful September day:"let's draw back the curtains and let the sun shine in; let our parliament be more open than it ever was before."