Big day in Canberra for whistleblower protection as well

Apart from all that drama at the highest level, yesterday saw the Senate pass the Public Interest Disclosure Bill 2013 without amendment, despite moves by The Greens and Senator Xenophon to improve the bill passed by the House. 

One of those amendments would have opened the way to address in a small way the injustice done to Allan Kessing. In speaking to the amendment Senator Milne drew attention to the continuing silence from Minister Albanese soon to be Deputy Prime Minister in the second Rudd era on the contact between his office and Kessing before material found its way into The Australian:

Our amendment is for the minister to have broad, non-compellable power to make payments to those who expose wrongdoing. Jurisdictions providing whistleblowers with a cut of any recouped public money has been very successful as both an integrity and a public review measure. This clause would simply allow an act of grace payment in these circumstances or where there is a public interest in doing so.

The example I want to give here is following home affairs minister Jason Clare's refusal to grant a pardon to Allan Kessing. The Special Minister of State could make a payment in recognition of his contribution to public safety and his $70,000 of legal expenses. I still believe a major injustice was done to Allan Kessing, who blew the whistle on security concerns at Sydney airport. It cost him $70,000 in legal fees and he has a criminal conviction. He applied for a pardon for that criminal conviction because it was shown that his issues were not vexatious. What he stood up and said occurred was actually shown to be so.

I have said in the Senate before and I say again today: there should be an explanation from Minister Anthony Albanese, but it has not eventuated. Mr Kessing has always maintained that he did not publicly release the material that resulted in his criminal conviction. He went to his local member for Grayndler with that information, then somehow it made it into the Australian. The ALP used Mr Kessing in their 2007 election campaign to hammer the Howard government's treatment of him. Then they tossed him away, effectively, after he served their purpose and refused him a pardon. I find that disgraceful. To this day I say that Allan Kessing ought to be given a pardon. The amendment the Greens are putting forward would allow not just for him to receive a payment but for the minister to have an act of grace capacity to make payment to anyone who does blow the whistle in the future and is subsequently financially disadvantaged.

As noted in the debate, the bill has shortcomings but six years on from a Labor commitment to act, it has done so, thanks in large part to Attorney General Dreyfus. Back then addressing the Kessing injustice was a priority as well, but alas...

Immigration draws a long bow in lumping 85 FOI requests into one

The Global Mail reports that  the Department of Immigration and Citizenship is moving to reject more than 100 Freedom of information requests lodged through the Open Australia Foundation righttoknow website, as part of the Adopt-An-Incident campaign
concerning arrivals held in detention.

DIAC has written to each FOI applicant (see standard letter) stating it is treating 85 separate requests as a single request as they "relate to documents the subject matter of which is substantially the same." As a result the request, which DIAC estimates individually would take three hours, will take approximately 225 hours. That DIAC contends, would substantially and unreasonably divert resources from other functions and provide grounds to refuse access under s 24AA.

Each applicant has been issued a notice to this effect under s 24AB and invited to revise the request. DIAC will then issue a determination. At that stage rights of review arise.

There are a few problems with DIAC's claims.

DIAC's reliance on Section 24(2) seems wrong for two reasons.

The section states:

(2)  For the purposes of this section, the agency or Minister may treat 2 or more requests as a single request if the agency or Minister is satisfied that:
(a)  the requests relate to the same document or documents; or
(b)  the requests relate to documents, the subject matter of which is substantially the same.

First, the requests have been made by different people. Section 24 is silent on whether the relevant "2 or more requests" must come from the same person. Arguably that's the case. This is supported by the Office of Australian Information Commissioner Guidelines which state that the section is relevant "where the same applicant makes two or more requests" in which case they may be treated as a single request - if they relate to documents the subject matter of which is substantially the same..
 
Agencies must have regard to these guidelines in performing a function or exercising a power under the FOI Act (s 93A(2). 

"Must have regard to" probably means nothing stronger than "can't be ignored" but as the DIAC notice makes no reference to the guidelines, they seem to have done just that.

"Must have regard to" doesn't mean have to followed and can't be contested. It would still be open to DIAC to argue their preferred interpretation in any proceedings before the OAIC or elsewhere.
 
DIAC's next problem in seeking to rely on s 24(2) is that the 85 requests do not relate to documents the subject matter of which is substantially the same. Each request (presumably) relates to a different incident report involving different people at a different time, often in a different place. The argument that all 85 requests relate to documents concerning subject matter substantially the same seems weak.

There is a separate point concerning substantial and unreasonable diversion of resources. DIAC only get into that territory if they treat the requests as a single request-overcoming the difficulties above.

If things get to that stage, DIAC is wrong in claiming that 40 hours is some sort of line in the sand. It isn't.

Two hundred and fifty five hours, if it holds up to scrutiny would be a different kettle of fish. That might be a substantial diversion of resources, but that alone isn't enough. The diversion must also be unreasonable. The nature of the request(s) and public interest considerations then come into play- as DIAC acknowledges in the notice. But there is an argument at least that the public interest in disclosure outweighs the 'harm' from diversion of resources contrary to DIAC's assessment.

(Disclosure: I've commented along the lines above in the last day or so when asked by some of those involved.)

DIAC are no doubt under a lot of pressure on many fronts and resources are certain to be stretched. But that doesn't justify stretching provisions in the act in the way that seems to be the case here. Of course DIAC has some less than stellar FOI form, brought to light by the OAIC and Cornall reports last year. As to the promised new approach.... 

(Addendum: Gaming the system?

Hawke FOI report in the bag, to be unveiled at another time

Maybe...

Senator Rhiannon's motion calling for the tabling of the Hawke report passed the Senate yesterday. Minister Senator Wong explained the Government doesn't have the report.

Thus end of section for this parliament without discussion or debate about the state of freedom of information and how things stand two and a half years after the 2010 reforms.

Oh, almost forgot, Parliament did manage to pass legislation, Hawke report or no, to provide a blanket exemption from the FOI act for the parliamentary departments that spend $170 million to support that august body and the senators and members there who, ahem, guard our interests.

 Senator WONG (South Australia—Deputy Leader of the Government in the Senate and Minister for Finance and Deregulation) (15:46): by leave—In relation to the motion that the Senate has just dealt with, the government has opposed the motion on the basis that the documents in question do not exist. In October 2012, the then Attorney-General released the terms of reference for the review. The legislation requires that a written report of the review be prepared and be laid before the parliament within 15 sitting days after the minister receives the report. I am advised that the report has not yet been completed, though I am advised by the Attorney-General that Dr Hawke is at an advanced stage of work on the report. As I understand it, the Attorney-General's office has advised Senator Rhiannon's office of this fact—that the Attorney-General is yet to receive the report in question, let alone have an opportunity to prepare a response. Therefore the government is not in a position to table either the report or the government response at this time.

Onward and upward......

Hawke FOI report in the doctor's bag or the AG's intray?

Two weeks ago Attorney General Dreyfus indicated the report on Dr Hawke's review of the Freedom of Information Act had not been received, despite the fact the review had been completed by the end of April. Senator Rhiannon yesterday sought to test whether two weeks in Canberra is as long as it seems to the rest of us watching on, giving notice of intention to move today Tuesday 25 June:

That there be laid on the table, by the Minister representing the Attorney-General, no later than noon on Thursday, 27 June 2013, the report of the review into the operation of the Freedom of Information Act 1982 and the Australian Information Act 2010 and the government response to the review.

The report may have been received, we'll see. At least the minister might formally put on the record where things stand as our representatives complete the mad scramble in this last week of sittings before heading off in the direction of the ballot box. As to a government response, another time, perhaps another era.... 
(Update- predictably, no report.)

Information Commissioner job in NSW up for grabs

Advertisements appeared in The Australian and the Sydney Morning Herald (p5) on Saturday for the position of Information Commissioner (NSW) to replace inaugural commissioner Deirdre O'Donnell. Visit this website to apply.

Back in March Laurie Glanfield, Director General of  the Department of Attorney General and Justice announced that Ms O'Donnell was stepping down. And, that "recruitment action to appoint a new Commissioner is underway." 

Under transitional arrangements for the last month, Ms O'Donnell has been "operating remotely" and will finish up on 5 July.

No headhunters apparently involved. Mr Glanfield himself is fielding inquiries - the advertisement invites calls on 02 8688 7313. 

Good luck!

The only reference in the selection criteria to subject knowledge-information access, open, transparent government-is what is implied in "ability to lead the implementation of the legislation."

Law credentials aren't mentioned. And aren't essential. But the commissioner will be operating in a world full of lawyers who continue to have a tight grip on the information access function in many NSW government agencies.

Highly relevant is the ability to speak with confidence and authority to this audience about the law. And to a wider audience, as "independent champion", about the law's spirit and intent.

 The advertisement reads: 

Information Commissioner $300,480 per annum The Information Commissioner is an independent statutory position accountable directly to the NSW Parliament. The Information Commissioner acts as an independent champion of the open government regime established by the Government Information (Public Access) Act 2009. The Information Commissioner has a range of functions under the legislation including promoting an open government culture; building public awareness of information access rights; reviewing agency decisions and investigating complaints about agencies in relation to their information disclosure obligations. The Information Commissioner advises and assists agencies, including local authorities, to meet their legislative obligations, which include mandatory publication of prescribed ‘open access information’; informal release of other information and a residual requirement to respond to formal access applications. The Information Commissioner drives cultural change throughout the public sector so as to facilitate and encourage, promptly and at the lowest reasonable cost, public access to government information. The Information Commissioner will lead and manage the staff and other resources of the Information and Privacy Commission NSW, to effectively and efficiently meet strategic objectives and fulfil reporting requirements. Selection Criteria: Outstanding achievement in administration and management at an executive level. Very high level of personal integrity and commitment to the objectives of the legislation. The ability to lead the implementation of the legislation and proven strategic and business planning skills. Thorough background knowledge and understanding of the machinery of government including administrative and legislative processes. Experience or demonstrated ability to exercise statutory powers and fulfil associated obligations, including reporting to Parliament. Experience and demonstrated expertise in the handling of complaints and dispute resolution. Well developed communication skills for stakeholder engagement, including with the general public, media and government agencies and leaders. The appointment will be for a term of up to five years. Inquiries: Mr Laurie Glanfield, Director General, Department of Attorney General and Justice, (02) 8688 7313. Please visit www.lawlink.nsw.gov.au/appointments to apply. Applications in Word or PDF addressing the selection criteria, accompanied by a detailed curriculum vitae and the names of at least two referees, must be completed online by 12 July 2013.  ...............................

 

Whistleblower protection through the House, now all up to the Senate

Rob Oakeshott's concern earlier in the week that the Public Interest Disclosure Bill might disappear in the morass of the last weeks of parliament proved unfounded. Or his raising the subject may have had the right effect in ensuring it saw the light of day?

The House of Representatives passed the bill yesterday along with 73 late in the piece government amendments, some of which came from this recent Senate committee report, and just one of a number proposed by The Greens Adam Bandt. 

Mr Bandt's amendment will extend circumstances that allow for a protected external disclosure, for example to a journalist or a member of parliament, without prior internal attempts to bring the matter to attention where there is a substantial threat to the environment. 

Andrew Wilkie struck out on an argument put from the floor for changes close to his heart, including extension of protection for disclosures about parliamentarians or by those who work for them, and for "the careful disclosure of wrongdoing by intelligence officials."

The Attorney General Dreyfus emphasised:

A main purpose of the bill is to establish clear procedures for allegations of wrongdoing to be reported by public officials and for findings of wrongdoing to be rectified. The emphasis on the scheme is on the disclosure of wrongdoing being reported to and investigated within government... A well-implemented and comprehensive scheme should lead to a discloser having confidence in the system, and remove incentive for the discloser to make public information to parties outside government. Recourse for making disclosures outside government should be exercised with reserve when reported wrongdoing is not being properly investigated and rectified, and when other public interests will not be undermined

Despite some reservations about how the bill could have been improved further, there was

praise all round from speakers in the debate for the Attorney General and his work back in 2008-9 as chair of the Standing Committee on Legal and Constitutional Affairs that got things moving, and for forcing the issue over the line finally following his appointment earlier in the year. And for Professor AJ Brown of Griffith University (and TI Australia) and Tim Smith QC and Howard Whitton of the Accountability Roundtable for valuable inputs. 
(Update: AJ Brown highlights key elements on The Conversation.)

Whether the bill and a consequential amendments bill will make it to the top of the pile of around 200 bills on the Senate list is not known, so Mr Oakeshott (who didn't take part in the House debate) and others concerned over the six years of slow progress on this issue still have cause to be nervy for the next week or so.

What the Attorney General had to say about intelligence matters- no protections for the like of Mr Snowden here (or in the US) - and about the more significant government amendments follow.

Parliament in top gear to protect its own from FOI scrutiny.

Government and Opposition senators were at one last night in voting to pass the Parliamentary Service Amendment (Freedom of Information) Bill to exempt from the Freedom of Information Act, the Department of Parliamentary Services, the Department of the House of Representatives and the Department of the Senate.The House had already passed the bill. As some legislation takes months or years to make it through this bill was supercharged, needing only one day in the House and two sitting days on the Senate bills list. The reasons advanced for the complete exemption from FOI  are totally unpersuasive.

Minister Senator Conroy for the Government, and Senator Scott Ryan for the Opposition were the only major party speakers. Both sang, albeit briefly and repetitively, from the same song sheet: legislation was necessary, presumably urgently, to restore the longstanding and previously understood position that the departments were not covered by the FOI act, that the discovery that they were covered had caused problems for the parliamentary librarian at least, that this issue be placed beyond doubt, and the move should be seen as an interim measure only.

All regardless of the fact that the terms of reference for the Hawke review of the operation of the FOI act include consideration of "the appropriateness of the range of agencies covered, either in part or in whole", Dr Hawke has completed the review and his report is expected shortly (Minister Conroy at one point, presumably by mistake said the report had been received) and that the three departments in a joint submission to the review did not argue for a complete exemption: 

As publicly resourced agencies, the parliamentary departments support the principle that the administrative documents of any taxpayer-funded agency should be open to scrutiny subject to any claim of appropriate immunity (which the FOI Act exemptions generally reflect).

Those points were put by The Greens Senator Rhiannon. 

Along with the more general argument that the accountability and transparency framework should apply to all government agencies in principle (and for anti-corruption purposes given the departments administer over $170 million in taxpayers funds); that some of this is spent on entitlements and support for members and senators; that FOI coverage of parliament is accepted in the UK, Scotland, South Africa, India, Ireland, Mexico and Tasmania; and that the Australian Law Reform Commission and former clerk of the Senate Harry Evans to name just two supported extension of the act to the departments. Then there's the Prime Minister's 2010 breezy, "let's draw back the curtains and let the sun shine in; let our parliament be more open than it ever was before.."

Given government and opposition unanimity on the issue it was destined to sail through the Senate.

The Greens senators, Senator Xenophon and the DLP Senator Madigan registered the only votes in support of a series of amendments proposed by Senator Rhiannon to try to salvage some element of credibility and a baseline for public trust in the parliament. 

But their 11 votes were no match for the combined 30 on the other side on each of these motions:
First shot:
That FOI coverage be limited to matters of an administrative nature, specifically:
a) statistical information about the activities of the Department; 

(b) information about the expenditure of public moneys; or

(c) information about payments to a Senator or member of the House of Representatives; or

(d) information about services and facilities provided to a Senator or member of the House of Representatives; or

(e) information about assets, resources, support systems and other administrative matters of the Department.

With all the things the government and opposition said they were worried about  also specifically excluded.

Hard to oppose? No, no dice.

Second shot: 
That the FOI act does not apply to any request for access  unless the document relates to matters of an administrative nature.

(2) For the avoidance of doubt, the reference to a document of an administrative nature  does not include research or advice provided to a Senator or a member of the House of Representatives by the Parliamentary Library.

A bit easier to support? No, no dice. 

Third shot:

That the Parliamentary Allowances Act be amended so that a member is only entitled to allowances if the member includes a link to the Department of Finance and Deregulation website in their biographical details on the Australian Parliament website; and the link directs the user to the individual expenditure report of that member.

Surely? No, no dice. 

At least on this one Minister Conroy acknowledged the amendments had merit, but "we believe they should be considered as part of a whole package and so we will not be supporting them."  

Three years ago the Belcher committee review of entitlements made many recommendations that dropped like a stone quickly thereafter including:

1. That the government’s decision to publish details of all expenditure on parliamentary entitlements administered by the Department of Finance and Deregulation be underpinned with a legislative basis.
2. That all senators and members be required to provide a link on their official parliamentary websites (at www.aph.gov.au) to their individual expenditure reports on the Finance website.
3. That the presiding officers be encouraged to publish on a regular basis details of expenditure on services and facilities provided to individual senators and members by the chamber departments.(Recommendation 11.)

As to when this or any parliament formed after the September election or beyond will return to the subject of this so-called interim measure, I won't be holding my breath.

Public confidence in politicians and parliament was at an all time low before this. To the extent the public come to know of this legislation, how low might it go?  

 

Rear guard rumbles over whistleblower protection

Rob Oakeshott sounded the alarm in Parliament late last night that the mix of years of enthusiasm and prevarication may come to nought unless the whistleblower protection bill progresses in these last two weeks of sittings. 

Will he be heard? (Update-yes at least in the House.)

I rise tonight to talk about the Public Interest Disclosure Bill 2013 and trying to progress it over these final two weeks as a matter of priority and urgency. I am increasingly worried that we may not get there, for all the wrong reasons, such as senior executives within government potentially worrying that this is somehow an attack on them, is somehow going to encourage employees in the APS to run some sort of public sector revolution by leaking every single issue that they deal with, and in some way will lead to poorer government. On the contrary, the reason I rise tonight is to say that nothing could be further from the truth and to try and put in place some reminders about the first principles of the importance of whistleblowing reform for best practice within the public sector....

Oakeshott reiterated-if anyone was still wondering-the case for whistleblower protection, noting in addition, revelations in the US about PRISM:

That is of great concern and for that reason, as well as all the reasons of best standards within the public sector, we should not put ourselves in the position of just trusting government. We should invest in people as part of being government and by investing in people, through mechanisms like whistleblowing, we are doing the best that we can to minimise corruption and build a culture of a governance standard that taxpayers and Australian citizens quite rightly expect. My call tonight is to urge government to progress the public interest disclosure legislation. Do not let it lapse. This does matter. It is good practice. It sits well alongside existing reforms and it is a good opportunity to progress a long-lasting reform that really does matter.

Civil society engagement in G20.. and OGP as well?

With the chair of the G20 coming our way in September, welcome news yesterday that the Government is establishing the Australian Civil Society 20 (C20) Steering Group:

The Australian Government is strongly committed to ensuring that G20 deliberations in Australia next year are fully informed by the expertise and knowledge of civil society....
This year, Rev Costello and the C20 Steering Group will be engaging with Australian civil society, working closely with their counterparts in the C20 during Russia’s presidency, and developing a process that will facilitate effective and productive engagement between civil society and G20 leaders in 2014. The C20 must be civil society-owned and civil society-led...

The Group of 13 from across the CSO spectrum will be chaired by Tim Costello and includes Greg Thompson of Transparency International Australia.

In the light of this initiative, more than interesting to see what emerges as government seeks to engage civil society in development of Australia's National Action Plan, required in connection with our application to join the Open Government Partnership. The C20 initiative is recognition that more than consultation as per usual is required to fully realise the benefits of partnership and engagement in these endeavours.

Dr Hawke's FOI report may get lost in pre-election hubbub

My ears pricked up at the Privacy Reform and Compliance Forum in Sydney today when in answer to a question about the OAIC from the audience, Attorney General Dreyfus said in passing '"we are waiting for the report from Dr Hawke."

I had been working on the basis that Dr Hawke's report on the operation of the Freedom of Information Act had to be finished and the report submitted by 30 April and tabled in Parliament within 15 sitting days. In my mind this was any day in the next week or so.

Here is why. The text of the relevant section of the FOI act reads:
Review of operation of Act

             (1)  The Minister must cause a review of the operation of this Act to be undertaken.

             (2)  The review must:

             (a)  start 2 years after the commencement of this section; and

             (b)  be completed within 6 months.

Note:This section commences immediately after the commencement of section 3 of the Australian Information Commissioner Act 2010 .

             (3)  The Minister must cause a written report about the review to be prepared.

             (4)  The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives the report. 

But prompted by the Attorney General's comment, a close reading of the provision suggests the review must be completed within six months of commencement on 1 October, ie 30 April. 

However there is nothing that stipulates when the report must be submitted to the Attorney General thereafter.

It seems Dr Hawke has whatever time he likes or needs after completing the review, to write the report and hand it over to the Attorney General. Who then within 15 parliamentary sitting days must table it.

With Parliament to sit for eight days commencing on 17 June and perhaps not again before the September election, strictly speaking the Hawke report may not see the light of day until well after election day on 14 September.

Privacy cause of action: reference redux for ALRC

At 9 this morning I gave the Opening Address to the Privacy Reform and Compliance Forum in Sydney titled "Privacy Law Reform – Is that all there is?"

On the statutory cause of action for breach of privacy I said:

As part of the media reform package the Minister announced in March it was to be sent off to the ALRC, from whence it came, for further examination. Now presumed dead?  Not quite. But highly likely. Senator Brandis in a series of exchanges with Professor Croucher of the ALRC in Senate Estimates two weeks ago led with over 70 queries, corrections and challenges on where this stands at present. My short summary of all this:

'There has been discussion about terms of reference with the Attorney General's office and the Department in the context of the Commission's future work program; a draft or two was kicking around at some point; the reference may or may not eventuate, at the Attorney's call; and Professor Croucher is confident if it does, that it would involve more than simply a rerun of the same issue considered in detail in the Commission's 2008 report'...

I added:

Given the announcement last week of a new inquiry for the ALRC—a review of the Native Title Act 1993 -  and release of terms of reference for an inquiry into Legal Barriers for People with Disabilities, another ALRC look at this issue anytime soon seems long odds.  Ring Tom Waterhouse."

Great predictive powers! (Not).

At 10, Attorney General Dreyfus addressed the forum....
Announcing he has asked the Australian Law Reform Commission to conduct an inquiry into the protection of privacy in the digital era.The inquiry will address both prevention and remedies for serious invasions of privacy - a cause of action inquiry with digital age tags attached, if you like. In line with the intimation from Professor Croucher about the nature of any inquiry if the AG went ahead.

The inquiry isn't framed in terms of should we or shouldn't we - for this reason, sure to strike terror and alarm in Holt St-but to prepare a detailed legal design of a cause of action, among other innovative ways to address the problem of invasion of privacy in the digital age.

The commission has been asked for recommendations by June next year regarding:

1. Innovative ways in which law may reduce serious invasions of privacy in the digital era.
2. The necessity of balancing the value of privacy with other fundamental values including freedom of expression and open justice.
3. The detailed legal design of a statutory cause of action for serious invasions of privacy, including not limited to:
   1. legal thresholds
   2. the effect of the implied freedom of political communication
   3. jurisdiction
   4. fault elements
   5. proof of damages
   6. defences
   7. exemptions
   8. whether there should be a maximum award of damages
   9. whether there should be a limitation period
   10. whether the cause of action should be restricted to natural and living persons
   11. whether any common law causes of action should be abolished
   12. access to justice
   13. the availability of other court ordered remedies.
4. The nature and appropriateness of any other legal remedies for redress for serious invasions of privacy.

Australia, international relations and the OGP

Back in February I mentioned Samantha Power senior director for multilateral affairs and human rights in the White House had said President Obama has a personal interest in the Open Government Partnership initiative, having launched it in the UN General Assembly in 2011.

Power said at the time President Obama often brings the subject up, spontaneously, with foreign leaders and described the OGP as "President Obama’s signature governance initiative." 

I wondered if the Australian Embassy in Washington had twigged to this at a time when the issue of Australian membership of the OGP had disappeared off the radar and whether what Power had to say cut much ice in Foreign Affairs and Trade in Canberra.

Power is now the nominee for US Ambassador to the UN. Global Integrity describes Power as an architect of the OGP

A briefing note including some discussion points for the Australian Mission to the UN about our thoughts on the OGP now we have decided to join might be helpful when paths cross?

To quote Attorney General Dreyfus on the international dimension:

”Australia shares the values of the Open Government Partnership and we have a wealth of knowledge and experience to share with other nations in the partnership,” Mr Dreyfus said.
“We believe that greater openness and accountability in government promotes public participation in government processes and leads to better informed decision-making.
The Open Government Partnership provides an international forum for countries, civil society and the private sector to stand together to address the challenges of governance in the 21st century.....  
“Membership of the Open Government Partnership will complement Australia’s leadership internationally in promoting democracy, transparency and good governance,” Mr Dreyfus said. “It will also assist Australia to spread the values of transparency and accountability in our region.”

In Senate Estimates on  6 June Senator Faulkner asked DFAT about the OGP. They hardly sounded full bottle but the good news is that the department is "very supportive of the OGP."

The Hansard extract follows:

Australia's first shot at mandatory data breach notification

The Privacy Amendment (Privacy Alerts) Bill 2013 reached the second reading stage when introduced in Parliament last week but still has a way to go to get through the House and Senate. It has taken five and a bit years to get to this stage since legislation was recommended by the Australian Law Reform Commission. Hopefully the looming end of this parliament will be the prompt to passage not the cause of further delay. If passed the legislation will commence along with the broader reforms to the Privacy Act on 12 March 2014.

(Update: the bill passed second and third stages in the House on 6 June and is now before the Senate Legal and Constitutional Affairs Committee. In the second reading, Opposition front bencher Michael Keenan expressed support, reserving on amendments in the Senate and raised concerns about resources at the OAIC and the March 2014 start date for the reform package.)

The Attorney General in the second reading speech gave this broad overview:

The bill provides that when an agency or organisation has suffered a serious data breach, it must notify the affected individuals and the Australian Privacy Commissioner. Prompt notifications will allow individuals to take action to protect their personal information. Individuals will be able to reset passwords, cancel credit cards, improve their online security settings, and take other measures as they see fit. The notification requirement will provide an incentive to businesses to store information securely. No business wants a reputation for not keeping its customers' personal information safe.
Agencies and organisations will only have to provide notification of serious data breaches. A requirement to provide notification of all data breaches would impose an undue regulatory burden on businesses, and it would unnecessarily alarm many customers. The notification must include information such as a description of the breach, the kinds of information concerned, recommendations about steps that individuals should take, and contact details of the entity.
The bill provides that the commissioner may direct an agency or organisation to provide affected individuals with notification of a data breach. This is a necessary measure in cases where an agency or organisation is recalcitrant or has simply made the wrong decision.
The bill also contains public interest and law enforcement exceptions. These are necessary where there are countervailing interests that outweigh the need to inform individuals about the data breach.
Where there is a failure to comply with a notification requirement, all the commissioner's enforcement powers to investigate and make determinations will be available. This could result in personal and private apologies, compensation payments and enforceable undertakings.
In the case of serious or repeated noncompliance with notification requirements, this could lead to a civil penalty being imposed by a court.

I haven't seen anything from the Opposition, independents or The Greens. The Australian Privacy Commissioner welcomed the legislation. Publicly at least, responses from business have been hard to spot.  (Update: in the continuation of the second reading Labor backbencher Michelle Rowland said the bill had been "subject to consultation in a discussion paper in October 2012 with a number of key stakeholders" so don't know who that involved. Attorney General Dreyfus in summing up said the bill had the support of Microsoft, OzHub, the OAIC, Electronic Frontiers Australia and Choice, leaving unspoken the very big end of town.)

The bill doesn't measure up in a number of respects to what the Australian Privacy Foundation(pdf) advocates.

From a closer look at the bill:

NSW cabinet documents

Sean Nicholls in Fairfax papers on Saturday reminded NSW Premier O'Farrell of freedom of information commitments made in Opposition that haven't been heard of again in the two years since the government was elected:

... the ''proactive'' release of contemporary cabinet documents was a recommendation of a 2009 Ombudsman's inquiry into freedom of information laws. O'Farrell, as opposition leader, told parliament: ''The Coalition will implement the Ombudsman's recommendations regarding the proactive release of certain cabinet information.'' He also said: ''We believe that the quarantine period on cabinet documents should be reduced to the completion of two terms of Parliament - that is, eight years. In other words, we strongly believe that cabinet information should be out of the public domain for only eight years.''

NSW was first to put a 10 year limit on the application of the FOI act to cabinet documents way back in 1989. There things have stayed while Queensland, the ACT and South Australia have nudged a little further.

Bipartisan support for overkill, and a shared blindspot in quarantining parliament from FOI

Fairfax papers gave prominent coverage - "Secrecy law veils MP perks" the front page lead in the Sydney Morning Herald and elsewhere on Saturday - to the other result of the outbreak of bipartisanship in Canberra last week: legislating without dissent in  the House to exclude the departments that support the Parliament from the Freedom of Information Act

Not in the 11 minutes that it took to debate and pass the bill in the House last week, or elsewhere publicly since has there  been any attempt to explain why the legislation is needed now as an interim measure a year after the situation emerged. And with the report on the operation of the FOI act by Dr Hawke still under wraps but due to be tabled any day soon..

Nor why the exclusion is total and retrospective when in a joint submission to Dr Hawke, the three departments argued for less than what the bill gives. Simply for FOI coverage to be restricted to matters of an administrative nature , along with a few other specific amendments.

Something less than the proposed Government-Opposition complete FOI wipeout might be acceptable although you have to wonder how they've coped at Westminster with the full nelson for the last eight years (no, we know the answer, uncomfortably-see Robert Hazel), and in parliaments also subject to FOI in Scotland, Wales, Northern Ireland and elsewhere.

I'm wary of  the inclusion/exclusion "in relation to matter of an administrative nature" because these words used in a number of exemption provisions are being interpreted narrowly in the courts. Decisions regarding the Governor General's office and the FOI act for example in effect mean (paraphrasing) any document that relates to supporting, assisting, facilitating, or implementing what the Governor General does as part of her functions is beyond the reach of the FOI act. The Federal Court  in that case said the bright new shiny objects of the act were not relevant, so there was no leaning in favour of a broad interpretation of words such as this to assist the exercise of rights of access, and scrutiny of decision making. (There is an application for leave to appeal to the High Court awaiting to be heard.) 

A turf war over what "matter of an administrative nature" means in the context of the parliamentary departments is to be avoided. Certainly where payments to, for, in support of or on behalf of  parliamentarians are concerned.

A better approach if there is to be a carve out would be to legislate with some degree of specificity what is or isn't subject to the act . And ensuring payments to members and senators, and expenditure incurred in providing support are part of the publication requirement. Something recommended generally as a transparency initiative by the Belcher committee way back in 2010:

1. That the government’s decision to publish details of all expenditure on parliamentary entitlements administered by the Department of Finance and Deregulation be underpinned with a legislative basis.
2. That all senators and members be required to provide a link on their official parliamentary websites (at www.aph.gov.au) to their individual expenditure reports on the Finance website.
3. That the presiding officers be encouraged to publish on a regular basis details of expenditure on services and facilities provided to individual senators and members by the chamber departments.(Recommendation 11.)

Last time I looked two only of the many Belcher committee recommendations, and not No 11, had been acted upon.

Back to Parliament and the FOI act.....

In an interview on ABC Radio AM on Saturday Keith Breene asked what could be potentially hidden as a result of the FOI move:

PETER TIMMINS: Well, these three departments have an allocation of about $170 million-odd a year, so I guess like any government department there are important scrutiny issues about how government agencies go about making decisions, spending public money, letting contracts. In this case, some of this money is spent on our parliamentarians.

A lot of that information about their entitlements is published by the Department of Finance, but there are other payments made by the Department of the Senate and the Department of the House of Representatives to our parliamentarians, and I guess that's a bit of a strange anomaly in the system, that that should be given special protection by not being subject to the FOI Act.

KEITH BREENE: Are there any reasons apparent to you why these three departments should be treated differently to other parts of the Parliament or the government?

PETER TIMMINS: No, not really, and there's some very strong reasons why they should be subject to scrutiny. I mean, we live in a democratic society; in a democratic society, transparency and accountability are important values.

Public scrutiny is essential for anti-corruption purposes. The Government has on the record an open government declaration of 2010, and importantly, on the day that the Prime Minister formed government - Julia Gillard formed government in 2010 - she said that day, and I quote: "let's draw back the curtains and let the sun shine in, let our Parliament be more open than it ever was before."

So all this seems to be a rather strange move at this stage.

KEITH BREENE: And what do you think it says about the attitude of Parliament to openness generally?

PETER TIMMINS: I think it sends a pretty strong message that they'd like to leave things the way they used to be, and in the modern context, I think the demand for transparency and accountability runs quite counter to that idea.

This is the source of that quote from Prime Minister Gillard (7 September 2010) which reads

Throughout this process of forming a new government we've been open with the Australian people. To quote Rob Oakeshott, sunshine is the best disinfectant, and we've agreed to far-reaching reforms that make me as Prime Minister and our government and how it functions more accountable to the Australian people. So, let's draw back the curtains and let the sun shine in; let our parliament be more open than it ever was before. That's real reform, and that's the direct result of the election.

 The Prime Minister also said that day:

 Well this is an opportunity for the nation.. to listen to what the Australian electorate told us at this election. I've heard the message loud and clear. People do wanna (sic) see us more open, more accountable, more transparent. I am going to be held to higher standards of accountability than any Prime Minister in the modern age. I'm well aware of that, and I'm going to focus on being up to that challenge. And I'm also well aware that when we go to the polls next time in 2013, Australians are going to hold me to account and I wouldn't have it any other way.

Ah, those were the days: