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Monday, January 28, 2013

Who chimed in and said what to the Hawke Review?

The webpage for submissions to the Hawke review of the Freedom of Information Act displays a note, "Further submissions will be published on this site shortly." So although the deadline was 7 December, more submissions may be in the wings. And unknown others may have taken the confidential submission route.

Submissions from 56 organisations and individuals have been published. A few submitters lodged more than one. My somewhat arbitrary categorisation is:
  • 24 government agencies (that includes the OAIC, the AAT and the parliamentary departments);
  • 16 individuals (that includes academics such as Rick Snell and Moira Paterson, and for want of a better word, activists, me included, and others with expert credentials such as Megan Carter);
  • 13 interest groups and political parties (that includes the media, librarians, archivists, scientists, lawyers, and The Greens and the Pirate Party)
What to make of the line-up?
Overall it is a pretty disappointing response on an issue of citizen rights concerning a law that seeks "to promote Australia's representative democracy" by "increasing public participation in Government processes." (FOI objects).

The citizenry failed to stir. Busy listening to Les Mis???
(Update-and a sharp contrast to the 240 submissions on proposed consolidation of anti-discrimination laws)

Perhaps this was to be expected given the review's low visibility. A single media release by the AG, no speeches, events or issues paper, sparse mention in the mainstream media. And limited buzz or encouragement for discussion and debate in the terms of reference that are as dry as dust.

And of course November- January is hardly a great time for such stuff, given most of us tend to be otherwise preoccupied.

In one of my "Dear Dr Hawke's" (and in remarks at the National Information Law Conference in Canberra in November) I wondered if any government agency would bring the review to the attention of those with whom they have dealings, particularly those that take a close interest in issues covered by the agency including FOI applicants. Or mention the review on their website. Not any as far as I can see.  

Citizen perspectives, satisfaction, disappointment, how the agency has used FOI to enhance public participation or engagement, or lessons learned about how the law might work better for the public don't rate a mention in agency submissions.

Some agencies with a direct interest because they, or matters of prime concern to them, are specifically mentioned in the terms of reference - Department of Prime Minister and Cabinet (cabinet documents) and the intelligence agencies ( currently a blanket exclusion) aren't anywhere to be seen so far. (Update: a joint intelligence community submission has now been published). PM&C, along with Treasury, another no show, have been long-time close friends of Frank and Candid, who also have a special place in this, thanks to Attorney General Roxon's terms.

Maybe in the confidential file?

Other notable absentees from the debate include big business, maintaining its silence on this important good government issue, much the same as it has for the last 30 years except emerging from time to time to argue why business information needs solid protection. Nothing at all from any business industry association or top end company this time around.

Ditto the union movement, prominently involved in the lobbying for a freedom of information act thirty years ago but rarely sighted since.

Civil society organisations are thin on the ground but the Public Interest Advocacy Center, the Australian Privacy Foundation, the Accountability Roundtable and the Environmental Defenders Network made submissions. Not so other civil liberty and human rights bodies. (This post last year found civil society actors engaged in this territory hard to spot.)

The media coalition Australia's Right to Know, leaders of the reform charge in 2007-2008 didn't manage a submission, but most coalition members subscribed to a joint submission. One member, the Nine Network made an additional submission, while another, SBS made its own own. The ABC and APN didn't bother. (ARTK, hardly visible since 2009 has completely disappeared from its previously hard to find website.)

Open Government/Open Data groups and individuals other than Craig Thomler have stayed outside the discussion.

And a handful of citizens who have tried their hand at FOI recounted something about their experience.

What to make of the submissions?
Most submitters took the Attorney General's bait and limited their contribution to responses on the matters Dr Hawke must consider as listed in the Terms of Reference. As I tried to point out, the statutory terms - which stipulate a review of the operation of the FOI and Australian Information Commissioner acts-can't be limited by the Attorney General's terms. In my view the statutory requirement extends the review to the effectiveness of the law and its provisions in attaining the policy outcomes stated in the objects section of the FOI act,  culture, resources and efficiency issues associated with the implementation of the law, and  the outcomes and results in the light of what the government said it was trying to achieve.

 It isn't just about the reforms of 2010. But that is the focus of most submissions.

Rick Snell, Megan Carter and a few others among us (I'd include the OAIC in this) raise big picture issues including the need for rethinking and redrafting information access to produce law fit for the 21st century, in place of a current act that reeks of pre-internet days, and is turgid complicated stuff, even if some of us revel in it. The reality is such a task is beyond this review that must be completed by 30 April. My submission suggested Recommendation No 1 should be full-scale re-examination probably best passed to the Australian Law Reform Commission.

Submissions from outside government generally argue for changes that broaden access rights, extend coverage, limit charges, streamline the review model.

From the inside on the other hand there is plenty of special pleading for more protection (NHMRC, Superannuation Complaints Tribunal, the parliamentary departments, the Ombudsman, the OAIC (in respect of applications it receives) to name a few), for no weakening in the current protections (for example NBN Co, CSIRO, SBS), and across most agencies, arguments for winding things back through charges and other changes apparently in order to stem the tide of requests for non-personal documents
(Comment: while agency and OAIC resourcing is an issue, other factors should be under the microscope: cultures that pervade agency decision making and what this adds to cost and time; efficiency, another great unknown; estimated cost including the $41 million figure bandied about needs closer examination. And the need to bear in mind that improving rights of access was, and presumably remains the government's objective. Only around 5000 requests of this type were received in 2011-12 across the entire government sector, hardly a staggering number.)

There is a lot of rats and mice stuff in submissions as well.

I'll pick up in other posts on some of the submissions and significant issues raised.

In a telephone conversation with Dr Hawke a week ago, I urged on him the potential value of some kind of roundtable discussion. Hope he has the time and interest.

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