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Thursday, March 28, 2013

Further puzzling over NSW conclusive certificates

More today in the Sydney Morning Herald about those NSW conclusive certificates and what they stand for.  

As Sean Nicholls reports the Premier now says the Deloitte report will be released eventually. Nicholls continues:
The power to block the public release of documents using a conclusive certificate had been used only once in the 20 years before the O'Farrell government came to power, but has been applied eight times in the two years since. The power was included in an overhaul of NSW freedom of information legislation by the former Labor government in 2009. The new Government Information (Public Access) Act, which replaced the Freedom of Information Act, removed the power for ministers to issue certificates to block release of documents. But it gave agencies the right to issue certificates over what they deem to be cabinet documents, preventing their release. No certificates were issued under the former Labor government after the GIPA Act came into force in July 2010. But eight have been issued by departments since the O'Farrell government came to power in March 2011.
The following is a bit legal and finicky I'm afraid. But bear with me....

As I commented yesterday there is no provision in the GIPA act for a certificate that blocks access to information sought by an applicant. The issue under that act is whether in a particular instance there is an overriding public interest against disclosure of information. It is to be conclusively presumed that there is an overriding public interest against disclosure of cabinet information, defined by reference to various facts set out in Schedule 1(2).

The relevant provision relied on in the media reports about conclusive certificates is Section 30 of the Government Information (Information Commissioner) Act which appears in Part 3 Division 4, headed Powers of Commissioner.

S 30 includes this reference to a certificate:
(2) "A certificate of the Director-General or Deputy Director-General (General Counsel) of the Department of Premier and Cabinet that any information, record or thing or the answer to any question comprises, contains or would reveal Cabinet information is conclusive of that fact for the purposes of this section."
The certificate can only be issued by specified officers in the premier's department, not by others.

And as s 30 (2) states, a certificate issued by one of those officers is conclusive "for the purposes of this section."

The purpose of the section is to impose a limit on the commissioner's powers as set out in the GIIC act. Specifically the powers do not enable the commissioner to require any person to do certain things if this would involve disclosing cabinet information. The commissioner for example can't demand to see a document to satisfy herself that it is a cabinet document. Section 30(1) states:
This Act does not enable the Commissioner:
(a)  to require any person:
(i)  to give any statement of information, or
(ii)  to produce any record or other thing, or
(iii) to give a copy of any record, or
(iv) to answer any question,
 if compliance with the requirement would disclose information that is Cabinet information, or
(b)  to inspect any such record or thing.
But the certificate would not establish conclusively that the document is a cabinet document for the purposes of refusal of access, or for the purposes of a decision by the commissioner in reviewing such a decision. Both decisions are decisions under the GIPA act.

A  s 30 (2) certificate establishes conclusively that documents are cabinet information for the purpose of limiting the exercise of power by the Information Commission to inquire about or sight disputed information.

Section 30(1) would seem to allow any government agency to refuse to provide information to the commissioner even in the absence of  a certificate from Premier's, simply by asserting that compliance would require a person to disclose cabinet information.  In the event of such a claim, it would be open to the commissioner to argue the toss with the agency about whether doing an act or thing would involve disclosure of cabinet information. The commissioner would no doubt find it difficult to look behind such a claim.  But it would be just a claim in the absence of conclusive evidence. Conclusive evidence that the information in question is cabinet information exists if a certificate has been issued by Premier's under s 30.

Although it's a close run thing, there is no bad old day powers in the NSW legislation to block public access through an official's certificate.

Wednesday, March 27, 2013

NSW conclusive certificate limits Information Commissioner's powers

The front page report by Sean Nicholls in the Sydney Morning Herald and followed up by the Opposition on the airwaves this morning, had me thinking the bad old days of conclusive certificates, those virtually insurmountable road blocks to access, had returned when I wasn't watching. Not quite, just  a reminder of a power to limit the Information Commissioner's conduct of a review application that is not unique to access applications under the Government Information (Public Access) Act.

Nicholls reported on a decision by the Department of Premier and Cabinet to apply "extraordinary secrecy provisions" to suppress a report by Deloitte to assess the potential economic benefits of the Crown proposal for a six star hotel at Barangaroo in Sydney, claiming it is a cabinet document. 

The senior review officer at the IPC Natasha Case was possibly misquoted saying "the Information Commissioner must accept it as ''conclusive evidence that the documents … are cabinet information for the purposes of the GIPA Act and therefore must not be disclosed.''

There are no conclusive certificate provisions in the Government Information (Public Access) Act that prevent disclosure to an applicant.

Here, the commissioner is in receipt of an application for review of a decision by the department to refuse access to the report. In undertaking the review it would obviously be helpful to sight the report and ask questions about the circumstances of its creation in order to test whether it qualifies as a cabinet document as defined in Schedule 1 of the GIPA act.

The effect of the certificate is that the commissioner cannot access the report or other relevant information in carrying out the review. The Government Information (Information Commissioner) Act  (s 30) limits the commissioner's powers in these circumstances, preventing inspection of any record or requiring a person to provide information, answer questions or provide the commissioner with a copy of any document specified. The report is conclusively a cabinet document for the purpose of this limitation.
The commissioner will have to soldier on to reach a decision on whether the report is or isn't a cabinet document without that assistance, relying entirely on whatever information the department has provided to explain the reasons for its decision.

Technically the commissioner could decide that the report is not a cabinet document. You wouldn't want to bet on it. Even then the commissioner's powers don't extend to requiring the report be released, merely that the department may choose to make a new decision in the light of her findings.

The limitation on access to a document the subject of such a certificate is not unique to the GIPA act and the commissioner. The Administrative Decisions Tribunal Act (s 124(4), and the Ombudsman Act (s22) contain similar provisions.

So 'extraordinary' maybe, but not entirely new or novel. 

I've no idea how many such certificates are issued. No mention that I can see in the DPC Annual Report.

Any connection between this development and the Information Commissioner's decision announced on Monday to stand down presumably is entirely coincidental.


Monday, March 25, 2013

Whistleblower legislation: the what, who and when you can go public- in a fashion.

The Government will need votes from the independents to get whistleblower legislation
Mark Dreyfus
through the parliament, and one at least, Andrew Wilkie, speaks with authority when it comes to the subject. 

So differences between the Dreyfus bill of last week and the Wilkie bill introduced into Parliament last year and other best practice standards adopted in Queensland and the ACT, foreshadow further debate both on on big picture issues and fine points of detail. The Attorney General left the door open, in contrast to last week's media reform "take or leave it" debacle: 
"Given the complex nature of the issue I also consider that consultation should continue on the content and structure of the bill. If it becomes clear that the whistleblower scheme would benefit from legislative amendment I will be happy to bring them forward if this bill progresses."
Like most of you I'm waiting for the definitive analysis from Professor A.J Brown.
( Update 26 March: "Serious problems” that must be fixed, according to a report on Crikey (paywall)Currently, I wouldn’t be supporting the bill,” Brown, who is also a director of Transparency International Australia, told Crikey. “There are too many things wrong with it in its current form to achieve its intended objectives. Brown’s biggest beef is that politicians — including the Prime Minister, ministers and the Speaker of the House of Reps — are not counted as “public officials” under the bill despite the power they wield. .It means public servants who blow the whistle on wrongdoing by politicians, including concerns about corruption or bribery, would not be protected. .... Brown’s second major concern is the sweeping exemption for disclosures about intelligence agencies.")

In the meantime a quick look at the big three: what is covered, who is covered and in what circumstances a person can disclose information to an outsider and still be protected.

What is covered
The Dreyfus bill is likely to get close to a tick for the broad range of matters covered by the definition of disclosable conduct. It goes far beyond the standard corrupt conduct, serious maladministration and serious or substantial waste of public money, to include a range of other conduct notably conduct that is "an abuse of public trust", that "unreasonably results in, or increases, a risk of danger to the health or safety of one or more persons", or "results in, or increases, a risk of danger to the environment."

Who is covered
The Dreyfus bill includes a lengthy definition of "public official" that extends to a person employed by a contractor, and under Clause 70, to an individual that an authorised officer determines can be taken to be a public official. 

Whether this is good enough for Wilkie remains to be seen. 

His bill specifically included in the definition senators, members of the House of Representatives and persons employed under the Members of Parliament (Staff) Act 1984. 

The parliamentary committee that Mark Dreyfus chaired in 2009 recommended ministerial and other staff employed under the MoPS act should be covered. The government responded in 2010 : The Bill  "will not authorise employees under the Members of Parliament (Staff) Act 1984 to make disclosures under the scheme. Disclosures will not be able to be made under the scheme about Members of Parliament. Allegations of wrongdoing by Members of Parliament should be addressed by the Parliament.Similarly, disclosures will not be able to be made under the scheme about Members of Parliament (Staff) Act 1984 employees."

External disclosures
Both bills set out circumstances where disclosure outside the system can qualify as a protected disclosure. Dreyfus is broader generally than Wilkie, the former opening up disclosure to any third person other than a foreign government official, the latter limited to disclosure to a journalist. 
(Update: Better wisdom. A.J Brown tells me "Wilkie is broader than Dreyfus on external disclosure -- not narrower... Wilkie makes it explicit that any person includes journalists, but still extends to any person than foreign public official.  Dreyfus is just not explicit on that, and much narrower in terms of other restrictions on when people can go public.")

And there are other differences. 

 For example, the Wilkie bill alone protects disclosure to a journalist without prior internal notification if a public official honestly believes on reasonable grounds that:
  (a)  the public official has information that tends to show disclosable conduct; and
  (b)  there is a significant risk of detrimental action or victimisation to the public official or someone else if a disclosure is made to a person mentioned in section 17; and
   (c)  it would be unreasonable in all the circumstances for the public official to make a disclosure to a person mentioned in section 17.

On a separate issue, the Dreyfus bill alone limits the information that can be disclosed in this way to where disclosure on balance, is not contrary to the public interest. That's quite a tightrope for any public official to walk. What if disclosure would reveal major corruption - say the bribing of officials here or overseas - but would reveal information that (under the FOI act) is the subject of an absolute exemption on grounds disclosure would be contrary to the public interest as a cabinet document, or information that arguably could damage international relations? Disclose that at your own peril by the sound of it.

An exception to this public interest test applies where the information reveals substantial and imminent (another high hurdle) danger to the health or safety of one or more persons.

A companion piece while this is on the table should be a government response to the ALRC
Report 112 Secrecy laws and open Government in Australia that has had no attention as far as those on the outside can fathom since it was tabled in March 2010. The draconian s 70 of the Crimes Act that criminalises unauthorised disclosure certainly fails Wilkie's "Kessing test."

Some extracts from the bills on these key issues follow.

NSW Information Commissioner to step down

No mention as yet on the website (Update: announcement  26 March) but this notice from the Director General of the NSW Department of Attorney General and Justice has just plopped in my in-tray and seems genuine enough. Surprise, and out of the blue as far as I'm concerned.

To all staff
After three years as the inaugural NSW Information Commissioner, Deirdre O’Donnell has announced she will be leaving her role on Friday 24 May 2013 to fulfil family responsibilities in her home state of Victoria.

Deirdre has been a true champion of open government. At a time when the public sector is undergoing large scale change and reform, Deirdre has made a significant and vital contribution to changing the culture of the public service to be far more open and accessible.

During her time as Information Commissioner, Deirdre made substantial progress on raising awareness of the new right to information regime under the Government Information (Public Access) Act 2009. She was also responsible for establishing the new Information and Privacy Commission (IPC) from 2011.

Deirdre has been a proactive and engaging Commissioner who has lead by example, setting the benchmark for clarity and openness in communication with staff, government agencies and the public.

Deirdre leaves with our very best wishes for the future and I am confident that Deirdre’s achievements provide the next Commissioner with the ideal foundations to further progress the work of the Commission.

Recruitment action to appoint a new Commissioner is underway and you will be advised once an appointment has been made.

Laurie Glanfield
Director General
25 March 2013

Friday, March 22, 2013

Whistleblower legislation emerges after three year hiatus

Amid the tumultuous events of the week Attorney General Mark Dreyfus introduced the Public Interest Disclosures Bill 2013 placing it squarely in the context of the government's commitment "to building and maintaining a culture of transparency."

"An open and transparent government is a key feature of a healthy democracy" the Attorney General said, and we all agree with that. 

Of course it has taken years to get to this point, enough time for Dreyfus himself to go from committee chair to the big chair.

Haven't had a chance to look yet at what might have changed since the last time-three years ago-that a government responded to the Dreyfus Committee report by accepting some but not all its recommendations. And indicating at the time it would go a tad further than the committee recommended.

(Update: Chris Merritt in The Australian reports (paywall) it fails Andrew Wilkie's "Kessing test"
 Whistleblower bill risks new fight;
Wilkie was right:whistleblower bill comes up short)

The media and publication "in the public interest"

In the argy bargy this week over media reforms there were many references to the public interest, with criticism that the term was not defined in the proposed bills amid plenty of observations about the vague and uncertain nature of any public interest test in any event.

Some media representatives struggled themselves when asked to define the public interest. It turns out their own rules don't provide much guidance.

It is a complex issue and the "public interest" term is probably overburdened by use in many different contexts.

Those in the Freedom of Information world who encounter it all the time obviously deserve a medal for coping with the complexity of balancing public interest considerations.

At the Senate Committee hearing on the now ditched media reform bills, Campbell Reid from News Ltd, in response to an invitation to define the public interest said this "is dependent very strongly on who is leading the conversation at the time." 
(Perhaps in this vein, various editors of News' Daily Telegraph in the past have equated the public interest with "how many papers we sell.")

When asked about the professional conduct policy for News Limited newspapers, Reid said it "sets out the professional standards of our journalism that we require under the headings: 'accuracy', 'mistakes', 'privacy', 'covert activity', 'confidential sources', 'harassment', 'discrimination', 'grief and distress', and so on." But, Mr Reid said, there was no definition in this document.

His boss Kim Williams later elaborated
"I think the term 'public interest', as I have already said, is not defined in the bill itself—probably because of the very great difficulty involved in arriving at a uniform and consistent definition of that which constitutes the public interest. Therefore, what we have done is to set out inside the code of conduct with journalists the relevant issues in terms of accuracy, mistakes and how they are dealt with, misrepresentation, privacy, covert activities, confidential sources."
On privacy the News code July 2012 version states:
4.1 All individuals, including public figures, have a right to privacy. Journalists have no general right to report the private behaviour of public figures unless public interest issues arise. The right to privacy diminishes when the suitability of public figures to hold office or perform their duties is under scrutiny and such scrutiny is in the public interest.

4.2 Unless it is in the public interest to do so, do not identify the family or friends of people accused of, or convicted of, a crime.

4.3 The publication of sensitive personal information — such as taxation details, Family Court records and health and welfare matters — may be prohibited by legislation. Seek legal advice.

4.4 Private investigators will not be contracted to provide editorial services without the approval of the group editorial director.

4.5 Private investigators conducting work on behalf of the company will be required to comply with our editorial code of conduct and provide a written assurance that they will not engage in unlawful surveillance.
A 2006 version of the News Code that came to light in 2011 included a definition:
4.1 All individuals, including public figures, have a right to privacy. Journalists have no general right to report the private behaviour of public figures unless public interest issues arise. The right to privacy diminishes when the suitability of public figures to hold office or perform their duties is under scrutiny and such scrutiny is in the public interest. "Public interest" is defined for this and other clauses as involving a matter capable of affecting the people at large so they might be legitimately interested in, or concerned about, what is going on, or what may happen to them or to others.
This left open publication where the public might find something interesting- a la the Daily Telegraph interpretation. Despite many findings that public interest does not mean of interest to the public.

Neither the current News code nor The Australian Press Council principles attempt definition.The APC principle states:
News and comment should be presented honestly and fairly, and with respect for the privacy and sensibilities of individuals. However, the right to privacy is not to be interpreted as preventing publication of matters of public record or obvious or significant public interest. Rumour and unconfirmed reports should be identified as such.
Perhaps it is not surprising in the circumstances that a sensible discussion about the public interest is difficult even when the term is brandished about in all directions as it was this week.

For starters it means something of serious concern or benefit to the public. In other words publication involving information about an individual, without consent is justified where this will advance the interests of the public through bringing to light information about matters that impact on the community as a whole or a significant section of the community. Publication is justified when it is in the public interest.

Still lots of wiggle room there, but with a bit of work and some specific examples, more useful guidance might emerge.

Competing universes at Senate Committee hearings on media reform

Kevin Rudd's immediate leadership prospects weren't the only things declared dead as the week ended. So too the four media reform bills.

Andrew Wilkie was right to describe the whole process as shambolic, pointing out that all seven crossbenchers were in favour of reform legislation, but not this lot as dished up with a week to take it or leave it, as originally explained.

The failure of the government to make, build, and explain the case for what it was on about, seek some input on what was to be proposed, make adjustments that would improve the bill, and sound out those with vital votes, provides another chapter for that bulging "poor examples" section of someone's policy development case book. What to expect if as has been reported the matter went to cabinet "under the line" without any documentation in advance, after a year or so of silence. It was all downhill from there

What was said in the Senate committee hearings on the reform bills and in submissions won't count for a row of beans now but it was nevertheless insightful into thinking about the media, regulation of any kind, and the current self-regulatory system.

Putting the merits of the fatally flawed proposal to one side, extracts of who was saying what are included below. They include Ray Finkelstein QC and others spelling out the rationale for regulation, self or otherwise, and the use of media power; Margaret Simons defining freedom of speech as a right enjoyed by media organisations only to the extent to which they serve the rights of freedom of speech of citizens; and Julian Disney listing the problems with the Australian Press Council self-regulatory scheme, and others similarly making the point that self-regulation isn't working despite improvements Professor Disney has produced.

On the other hand, we had Kerry Stokes on why the print media should simply be left alone to make money, and the Institute of Public affairs telling the committee the markets are so powerful even self-regulation should just be optional. 

And a couple of others for good measure.

Opportunity lost, big time. Where it goes from here is now entirely in the hands of media organisations themselves. Good luck to us all.

In the meantime these bits shouldn't be confined to the bin.

Thursday, March 21, 2013

The mystery of the IDC on the OGP

Hardly the news of the day from Canberra.

But do we or don't we have an interdepartmental committee beavering away on an application for Australia to join the Open Government Partnership ?

In a speech in the Senate last night Senator Faulkner asked for chapter and verse in light of differing stories that emerged from DFAT and AG's in Estimates in February:
I request that a clear statement be made on this important matter of the Open Government Partnership as soon as possible in relation to, first of all, the existence of an interdepartmental committee on the Open Government Partnership. I also want to know its membership, the dates of its meetings and its work program.
Me too.

Meanwhile the OGP has several meetings scheduled for London April 22nd - 24th, including a working level Steering Committee meeting, a ministerial level meeting and an event to welcome new member countries.

An announcement by us before then would be welcome news, but in any event, it would make sense for Australia to have a presence there to get the lie of the land. Preferably someone with a bit of background and stature not the Third Secretary or similar from the High Commission who might start from scratch and manage merely to shake a hand or two.

An election for three new civil society positions on the Steering Committee is also scheduled. Three of the 24 candidates are from Indonesia, one from the Philippines.Tough competition.


Tuesday, March 19, 2013

Is the longest running FOI case still running?

Michael West began his Business Day column in The Sydney Morning Herald on Saturday as follows, leaving me nodding at the first sentence and scratching the head at the rest:
The Murdoch press had one of its vintage hissy fits this week over the plan to establish a government media regulator, and it was spot on. Let anyone who is tempted to champion the cause of another government agency be reminded of the Office of the Australian Information Commissioner, a bureaucracy supposedly established to enhance freedom of information. As far as we are aware, the information office is yet to even pass comment on the nation's longest-running information battle, the freedom-of-information request from Will Matthews, which celebrates its 10th anniversary without a resolution this year.
Niklas Bildhauer Wikimedia Commons
But a dig into the search engine reminded that I had written about the substantive decision in the Matthews case in May 2010 when it was decided in the AAT a Forgie epic of 486 paragraphs and 402 footnotes. The Applicant in 2003 had sought access to ASIC’s investigation into Otter Gold Limited, Allstate Explorations NL and Beaconsfield Gold NL. ASIC held 35,000 pages of relevant documents.

The decision affirmed most of ASIC's decision but varied parts and left unresolved a charges issue that came back before Deputy President Forgie in January 2012 
after years of back and forward on that issue.  

The Deputy President's decision included the observation that it was the end of the line as far as AAT review rights were concerned. Mr Matthews had in effect pressed the wrong button in all the review and remission requests. Deputy President Forgie said Mathews had "made it clear that he knew his rights when he took some of the steps provided for the review of its decision. He did not choose to take the final step but chose instead to pay the deposit and require ASIC to undertake its task of making a decision. That it has done and it is now too late to permit him to seek review of the charge decision in this Tribunal." [102]

Maybe it has since landed in the lap of the Australian Information Commissioner, who will certainly let pass West's urging to pass comment if it is in the complaints or review basket.

The OAIC statistics for the December 2012 quarter list the age of the oldest FOI complaint at 380 days, and the oldest review application at 707 days.

Monday, March 18, 2013

Australian Information Commissioner on the job

Final decisions on Freedom of Information review applications have been pouring out of the Office of Australian Information Commissioner, relatively speaking. In 2012 the OAIC published 35 decisions. In the first two months this year (to 8 march) it published 20. 

Internal audit reports
A decision of particular interest, and wide import is Besser and Department of Infrastructure and Transport [2013] AICmr 19 concerning an application for 10 internal audit reports for the financial years 2007–08, 2008–09 and 2009–10. 

The Department had granted access to the Executive Summary in each case, including the background, scope of the audit, objective, summary of results and management's response. The remainder were claimed exempt as deliberative documents (s 47C) and documents, the disclosure of which would, or could reasonably be expected to, prejudice or have a substantial adverse effect on its operations (ss 47E(a), (b) and (d)).

With regard to the deliberative documents claim [10-16] Acting Information Commissioner Pironi decided internal audit reports in their final form are by definition not documents of this kind. While a final internal audit report "may be part of an ongoing process of assessing compliance within Australian Government agencies, each individual audit report is itself final and reflects the state of an agency's practices and processes at a particular point in time[14]. 

On the other claims the Acting Commissioner accepted that the disclosure of the sampling methodology used in three of the reports that had not already been disclosed in the summary released, would, or could reasonably be expected to, prejudice the effectiveness of sampling methods used by the Department when undertaking future internal audits. Disclosure of this information would on balance be contrary to the public interest.

No go for Frank and Candid
As to the rest, Acting Commissioner Peroni was not persuaded that the adverse effects claimed would eventuate, and wasn't impressed even by Frank and Candid. The Institute of Internal Auditors won't be pleased.
  1. The Department also relied on s 47E(d) in its decision on the basis that ‘line areas being investigated in audits would not be as candid and forthright in the provision of information to the auditors'.
  2. The (OAIC) Guidelines provide that:
    [t]he predicted effect must bear on the agency's ‘proper and efficient' operations, that is, the agency is undertaking its expected activities in an expected manner. Where disclosure of the documents reveals unlawful activities or inefficiencies, this element of the conditional exemption will not be met and the public interest factors of accountability and transparency are further weighted towards disclosure.[6]
  3. As the applicant noted, the Department should not be dependent on the good will of its staff when undertaking audits. In fact, I would consider it an obligation of APS employees to assist their employer in relation to audits being conducted into the agencies activities in accordance with the APS Values and Code of Conduct.
  4. I am not satisfied that it would, or could, reasonably be expected that, given the release of the executive summaries, the disclosure of the remainder of the reports would result in the outcome claimed by the Department.
  5. In my view, the disclosure of the documents the subject of this IC review cannot reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of the operations of the Department. 
OAIC pressure brought to bear
On an FOI matter that didn't get to a final OAIC decision but in which it apparently played a key role, Linton Besser and Deborah Snow in Fairfax Media on Saturday wrote about the results of a two year battle over access to reports by the Internal Affairs branch of the Customs and Border Protection Service. They reported that Customs, as a result of a year of pressure by the Information Commissioner and the Herald, had released thousands of individual records created by its professional standards staff investigating 930 cases. The documents expose "a stunning range of misconduct and laid bare the scale of the corruption threat facing Customs."

The FOI story of a long drawn out process will sound familiar to many, but Besser and Snow acknowledge the key role played by the OAIC in making these disclosures happen.  But there's no getting away from the fact that two years is a long time to wait. Another illustration that we don't have the incentives and disincentives in place to get the right decision made promptly by the agency first up.

Detail here.

The Greens skirmish in two states over parliament's right to documents

The case brought by Victorian Greens MLC Greg Barber seeking a declaration that the parliament has power to order production of documents prepared outside Cabinet and considered by Cabinet, or prepared by an independent contractor and considered by Cabinet was back in the Supreme Court last month. 

Barber's suit had survived a bid by the State of Victoria last November to have the matter summarily dismissed. This time around Justice Emerton ruled in favour of the Defendant, rejecting Barber's argument for a single hearing, ordering the following question be heard and determined as a preliminary question at an early date:
Should the Court decline to hear the proceeding on any of the following grounds: (i) there is no justiciable dispute between the parties;
(ii) a claim for a bare declaration as to the powers of Parliament is not justiciable;
(iii) the proceeding seeks relief that is merely hypothetical or advisory and would not determine any rights between the parties;
(iv) the plaintiff does not have standing to bring the proceeding?
In NSW the Legislative Council has broad powers to require production of documents and exercises it regularly, and the sun continues to rise each morning despite claims to the contrary seven years ago by NSW Crown Solicitor Ian Knight.

However The Greens Jeremy Buckingham points out that Parliament may not have got the full story when it called for papers in 2009 concerning one of the issues now before the ICAC where former minister Ian McDonald occupies a very hot seat.

Buckingham says "a mountain of important documents that were hidden from the Parliament,”have been unearthed by the ICAC.
“The urgent question is why these documents were withheld, and who withheld them, and why? “Barry O’Farrell must refer this matter back to ICAC to investigate as soon as possible. The Government must not delay ICAC investigating through an internal Parliamentary Committee.
With the issue of parliament and its NSW prerogatives involved I'm guessing it won't be long before 1689 and all that get another run.

Sunday, March 17, 2013

News Ltd makes up privacy rules and threats to democracy as it goes

 Maybe News Ltd CEO Kim Williams on ABC Radio PM last week was just using "shield provisions" loosely. And wasn't confusing the conditional exemption media organisations have had from the Privacy Act for the last 13 years, and the shield law protections introduced by Labor in 2011 after years of lobbying following the prosecution and conviction in 2007 of News Limited journalists Harvey and McManus . On the other hand:
KIM WILLIAMS: Freedom of speech is a fundamental pillar of democracy and the shield provisions that apply to all journalists under the Privacy Act from its enactment in 2000 are fundamental to journalists doing their job. If those rights are threatened, we threaten the very fabric of democratic life in Australia, if you value independent examination, interrogation and review of all of the processes of our democratic life. These are not mild matters. They're being painted as if in fact this is just some mild action. It's not a mild action. This is action of profound seriousness.....I think most people who describe this as reform lite are ignorant of the shield provisions that relate to the Privacy Act. I think they're quite ignorant.....
No-one is talking about removing shield provisions.

Williams' musing that journalists seem to require and deserve a privacy free zone in order to protect the fabric of democracy is inconsistent with what media organisations and journalists have been telling us for years: that they respect privacy, can judge where the public interest lies, and we best leave it to them to get on with it and to get it right.

The exemption from the Privacy Act provisions that relate to the obtaining, keeping and disclosing of personal information by a media organisation ‘in the course of journalism’ is, and always has been, conditional.  

It's just that the conditions aren't onerous although clearly to the media's liking: the organisation must make a public commitment to observe standards of privacy, and the standards must be published in writing.  

The reality is that print media organisations are subject to self made industry rules regarding privacy, enforced as weakly as they choose.

Everyone who has looked at this closely except media organisations and some journalists consider it isn't good enough.

The Australian Law Reform Commission after 28 months research and consultation concluded for example in 2008 (as set out here in Chapter 42 of the report) that in the absence of a definition, ‘in the course of journalism' is too broad and capable of extending the exemption beyond the news and current affairs functions of the media; the existing self regulatory scheme conducted by the Australian Press Council lacks key criteria and there is no independent assessment of the standards; the model itself is inadequate and lacks strong enforcement mechanisms. It recommended modest changes.

The Finkelstein inquiry looked into standards more broadly and concluded there is a  general problem, that the media had failed in its self regulatory efforts and that there is no persuasive evidence that it can or will remedy the situation. The assessment was based largely on evidence from the Australian Press Council and lessons drawn directly from history. It recommended a statutory body.

The Convergence Review concluded Finkelstein got the diagnosis right but thought the media should have another crack at improving things itself before the big stick came out.

Former Prime Minister Paul Keating put the detailed case in 2010 for the media to stop sheltering from privacy behind the cloak of the Fourth Estate, citing in support Ken McKinnon former head of the APC, David Salter long time producer of Media Watch, journalists such as Jack Waterford and academics such as Denis Muller to mention just a few. (Richard Ackland was sounding a little Keatingesque last week: "The self-righteous bloviating from press interests, and the shrill coverage from News Ltd papers in particular, leads to the suspicion that Senator Conroy can't be far wrong with his tiny package of media reforms.")

Interest in the media in this issue since the ALRC report in 2008, discussion of the tweaking proposed by the ALRC, or a recognition that there is an issue that requires consideration:
absolute zero. 

Government marks for informing public discussion, putting ideas out there, acting in good time: the same.

The government is now proposing that news media organisations remain outside the provisions of the Privacy Act on condition they comply with adequate standards administered by a self regulatory body such as the Australian Press Council. An independent statutory officer would declare whether it was up to the job based on a checklist of factors. The statutory officer would keep an eye on how it goes with authority to in certain circumstances revoke a declaration authorising a self-regulatory body.

How threatening to the fabric of democracy is that?

Maybe Williams is concerned to some degree that if the legislation goes forward  the  definition of a news media organisation, somewhat in line with the ALRC recommendation would exclude from the Privacy Act only those parts of the News Ltd empire involved in news or current affairs activities, clearly leaving the rest subject to some scrutiny by the Privacy Commissioner?

The essential elements of the proposed scheme are:

1. A  ‘news media organisation’ will only continue to qualify for the ‘Journalism’ (both terms defined) exemption from the privacy obligations imposed under the Privacy Act 1988 , if it is a member of a declared ‘news media self-regulation body’ and has not had its rights as a member suspended. 

2. The Public Interest Media Advocate has powers to declare a body a 'news media self-regulation body' and to revoke a declaration, but not otherwise to be involved in its affairs.

3. In making a declaration the PIMA must have regard to a number of matters including the extent to which the body has arrangements in place to deal effectively with complaints; and the extent to which the body corporate’s standards deal with privacy, fairness, accuracy and other matters relating to the professional conduct of journalism.

More detail from the bill follows. The reference to 'community standards' (indicated in bold) as a relevant matter is vague and should be sharpened up or dropped. And yes the revocation provisions could do with some work.

But it's not the end of democracy or anything like it. Rather a strong pull and some push to get the media to take privacy and self-regulation seriously.

Friday, March 15, 2013

Media self-regulation legislation contains no threat to democracy

But in providing some incentives and disincentives the proposed changes may mean news media organisations take self regulation seriously.

As references are hard to find beneath the mountain of blather in the media this week, the two bills that set out the proposed scheme which allegedly poses threats to the very pillars of our democracy, and the second reading speech in each case (Hansard 14 March) are as follows. The main legitimate gripe is the government's handling of all this and the two week "take it or leave it" ultimatum. A Senate committee has a few days to examine. No ticks for the process in getting to this point (five years since the ALRC recommended some slight tweaks to the exemption from the Privacy Act) or managing it from here on.

Thursday, March 14, 2013

FOI in South Australia needs a makeover

And it's not just the act that needs an update after 21 years. Recent reports by the Ombudsman suggest agency culture is a  bigger worry.
Ombudsman Richard Bingham's Growth Investigation Areas Report and the failings identified in the engagement of consultants without rigorous and accountable procurement processes to ensure probity and identify and deal with conflicts of interest, attracted plenty of attention in South Australia last week.

Less so the Freedom of Information aspects.

The GIA saga started in 2009 and involved a dogged FOI battle by The Greens MLC Mark Parnell to attempt to access key documents, with the planning agency running interference at every step of the way. Parnell took four knockbacks to the Ombudsman, one after another. Bingham ruled in his favour, that the documents were not exempt, each time. Planning took one case a further step to the District Court, which upheld Bingham's decision. The court did the same in another case, upholding Bingham's decision on review  in an application by Opposition MLC Vickie Chapman for relevant planning documents. 

The information access battles are recounted in FOI Background to the GIA Report.

Someone will surely ask what all this darting and weaving cost the SA taxpayer?  

The prevailing culture speaks for itself.

As to the GIA report produced by the consultants, it has not been publicly released. The Ombudsman (p 66) in an FOI review in 2010 found the report was exempt as a cabinet document. However the 30 Year Plan that it fed into was similarly a cabinet document that the government had released. Bingham intimated at the time that cabinet confidentiality would not be undermined if the GIA report was released, noting the objects and principles of administration of the FOI act. This time it's sharper: given his concerns about the consultants and Planning SA's failure to adequately address the conflict of interest,
 "I consider it would be in the public interest for the government to revisit its views and consider releasing the report."
Other recent reports by the Ombudsman show culture at Treasury and Finance is similarly tight. And the South Australian Tourism Authority was unable to produce persuasive evidence to justify refusal of access to contract information now five years old. It also didn't have a handle on the pro-disclosure public interests that favour release of this type of information in any event.

Wednesday, March 13, 2013

Media reaction says it all about standards

I can't say it any better or add a lot to Bernard Keane on Crikey and Susan Forde on The Conversation who nail for what it is, the over-reaction from News Ltd publications and (slightly less so) other media to the government's response on media reform.

Over-the-top, ridiculous, absurd.

Even biased, inaccurate or unfair, sufficient to warrant a complaint to the Australian Press Council for ahem, breaches of standards?

Nothing from the APC so far. 

Interesting that a fair bit of what the government proposes was in line with what Professor Disney had been saying.

Not surprisingly, News Ltd papers featured at the top of the list of complaints to the APC during 2012. 

Newspaper journalists in 2012 rated at 10% for Very High or High on honesty and ethical standards (14% was their best in 34 years of polling.) 

Bernard Keane to finish:
At the end of 2011, Essential Research asked voters if they thought the quality of newspaper regulation was good or poor. Only 20% of voters thought it was good, 25% thought it was poor. In July 2011, it found 48% of voters thought there needed to be more regulation of the media. By trying to insist newspaper self-regulation actually works, Conroy is in fact giving the industry a chance to avoid actual regulation, or even the “co-regulation” that currently applies to broadcasters. Because if we get a government that decides to act on the apparently widespread conviction among voters that we need more direct government regulation of the media, it really will be a threat to a free press.
The referral of the privacy cause of action to the ALRC is of course ridiculous but at least it hasn't been knocked on the head. It's in for a long hibernation at best.