Happy happies

Lots that could be said but I know right across the country you have better things to do than listen, so best wishes and thanks for your interest and contributions throughout the year. Back soon.

Jacques-Wikimedia Commons

Australian Information Commissioner speaks out

In a recent speech Australian Information Commissioner Professor John McMillan flagged important developments since the Freedom of Information reforms of 2010. In addition to highlighting some positives he also explored a couple of gloomier themes including the absence of government leadership on the transparency and open government fronts at a time when these issues enjoy more prominence than before in international affairs. 

Time for others to speak up as well.

 A few comments on aspects of what Professor McMillan said:

"The number of requests to agencies and ministers has increased, from an historic low of 21,587 in 2009-10 to 24,944 in 2012-13, including an 85% increase in the number of non-personal requests. which includes requests from journalists, parliamentarians, researchers, lawyers and community groups.."

( An 85% increase sounds impressive but the total number of non-personal applications in 2012-2013 was around 5000 across the entire government. Pathetically low in my humble.. Given the fact the FOI act proclaims Parliament's intention "to promote Australia's representative democracy by contributing towards..increasing public participation in Government processes, with a view to promoting better-informed decision-making and increasing scrutiny, discussion, comment and review of the Government's activities" maybe we should be pleased with small steps in this direction.)

"The estimated cost of administering the FOI Act rose from $27.5M in 2009-10 to $45.3M in 2012-13, plus an additional $3.1M for the Information Publication Scheme and approximately $5M for OAIC FOI and information policy work.."
(The $45 million represents agency estimates. How much of the cost can be attributed to inefficiency, failure to invest in technology, refusal to make sought after information available promptly and at lower cost without the need for formal applications, gaming the system by putting applicants through the run around, we don't know.  Dr Hawke apparently didn't inquire. Probably the tip of an iceberg but take a look at the pedantic, bureaucratic and no doubt costly to the taxpayer correspondence generated by applications made through Righttoknow.)

"The number of applications for external merit review has risen – from 110 applications to the AAT in 2009-10 to 456 to the OAIC in 2012-13.. In 2010 the Government estimated that the OAIC’s budget would support 100 staff to cover privacy, FOI and information policy functions. This staffing level has never been met..there has been a steady increase in the OAIC’s caseload – in the last year alone, a 20% increase in FOI and privacy phone enquiries, a 28% increase in written enquiries, a 9% increase in privacy complaints, a 13% increase in FOI complaints and a 10% increase in IC review applications. Another new unfunded OAIC task is to prepare for major reforms to the Privacy Act that commence in March 2014 and that require the OAIC to prepare more than 50 legislative instruments, codes, guideline statements and guidance notes. The inevitable consequence is a delay in throughput. At the end of September 2013 there were 60 unresolved FOI complaints, 451 unresolved privacy complaints, and 510 unresolved IC reviews. More worrying is that new FOI complaints were not being allocated to a case officer until 196 days after receipt, and IC review applications until 228 days after receipt. This is contrary to a declared object of the FOI Act, ‘to facilitate and promote public access to information, promptly and at the lowest reasonable cost’ (s 3(4)).
(Over seven months delay until a case officer is assigned to an FOI review application is not just contrary to an object of the act it's the sign of a system not working. Dr Hawke doesn't seem to have put the ruler over how they do things at the OAIC, but resources are clearly inadequate. Labor carries the blame for this failure to September 2013. The Abbott Government has maintained silence on the subject since. )

"Cultural change is occurring within government.."
(Maybe. But users of the act could cite many indications that it's patchy at best. Evidence, in particular something more than the Commissioner's observations, would be welcome on this one.)

"A related concern is that agencies may seek to game the system by denying access in the expectation that review applications will sit in an OAIC queue (a perception that we counter by active management of cases from the date of receipt).
(From personal experience DFAT and AGD have form in this respect as does Immigration. The OAIC knows more about any gaming going on than the rest of us - it could name names to good effect; repercussions, something more than a 'tut tut', would be even better.)

The Commissioner was right to draw attention to two other major failings:

Government leadership in promoting FOI and open government:
".... It has been disappointing that the special Executive position of Minister for Privacy and Freedom of Information was discontinued in November 2011; there was no Government response to the report, Review of Charges under the FOI Act, which the OAIC was asked to prepare for Government in February 2012; there was no government response to other seminal OAIC publications, such as the Principles on Open Public Sector Information and the survey of proactive publication practices, Open public sector information: from principles to practice ; there was no ministerial contribution to or representation at the OAIC event to mark the historic 30^th anniversary of the FOI Act in 2012;[8] there was no take-up of a suggestion in an IC review decision that ministerial appointments diaries be published on the web, as they are in some other jurisdictions;[9] legislation to entirely exempt the Parliamentary departments from the FOI Act was moved quickly through the Parliament in May 2013 before the Hawke review had reported, and contrary to a submission to that review from the Parliamentary departments;[10] and in three IC review decisions in 2012-13, I had to reverse decisions in the Prime Minister’s Department and Office, declining to release correspondence from a former Prime Minister, diary entries concerning meeting dates with cross-bench MPs, and the acquittal of Parliamentary entitlements.[11]"
(Some positive words from the top about transparency and accountability followed by meaningful deeds are three months overdue and counting.)


Australia falling behind world leadership: 
"A third area of disappointment is that Australia, one of the first countries to enact FOI legislation and more recently to launch Gov 2.0 strategies, is now falling behind the open government momentum in some other countries.[12]. We have been slow to join the international Open Government Partnership that was formed in September 2011 and that now boasts 61 member countries. We do not have a detailed national open government action plan, as do the UK, Canada, the US and many other countries. Nor have we adopted the Open Data Charter launched by the G8 nations in June this year.
It is important also that we echo messages from abroad that point to the profound philosophical shift occurring in the open government agenda. An example is the opening sentence of the 2013 Communique of the G8 nations – ‘As leaders of the G8, we are committed to open economies, open societies and open governments as the basis of lasting growth and stability’. Another illustration is the observation of UK Prime Minister David Cameron in opening the annual summit of the Open Government Partnership in London in November 2013:
[F]or years I’ve argued that there is a golden thread of conditions which allow countries to thrive: the rule of law, the absence of conflict, the absence of corruption, the presence of strong property rights and institutions. And open government should be woven deep into the heart of this thread."
(As chair of the G20 we need to get our act together, pronto, reaffirming our commitment to the OGP, setting up a partnership with civil society to develop a national action plan that contains 'stretch commitments' across a range of transparency, accountability and open government priorities including endorsing and acting upon the Open Data Charter. The only country to date to join the OGP and then back out is Russia. Not desirable company or a lead to follow.)

Freedom wars: preparations underway

In Opposition both Prime Minister Abbott and Attorney General Brandis spoke of the freedom wars. 

The guns are now being primed.

The announcement by Senator Brandis of the appointment of Tim Wilson of the Institute of Public Affairs as a Human Rights Commissioner follows last week's Freedoms reference to the Australian Law Reform Commission to review Commonwealth legislation to identify provisions that unreasonably encroach upon traditional rights, freedoms and privileges including freedom of speech.

With regard to the Wilson appointment, Senator Brandis explained:

During the election campaign, I promised to create at least one “Freedom Commissioner” at the Australian Human Rights Commission. Next year, I intend to bring forward reforms to the Commission. In the meantime, I have asked Mr Wilson to focus on the protection of the traditional liberal democratic and common law rights, including, in particular, the rights recognised by Article 19 of the International Covenant on Civil and Political Rights.

Article 19 states:
1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

Article 19 includes the right to seek information.

So it remains to be seen whether the ALRC and Mr Wilson interpret their respective briefs as encompassing the Freedom of Information Act - Dr Hawke acknowledged a more comprehensive review was needed than he had undertaken - and the chilling effect of hundreds of secrecy provisions in Commonwealth laws identified close to four years ago in an ALRC report that has been undisturbed and gathering dust in the Attorney General's Department ever since.

The Institute of Public Affairs is strong on freedoms but less so on other rights, arguing earlier this year that even self regulation should be optional for the media. (Since 2000 media organisations in the conduct of journalism have been exempt from the Privacy Act if they self regulate with no reference to the adequacy of self imposed standards. There are plenty out there that don't consider they do this anywhere near well enough. I'm sure in any event that the Attorney General and Mr Wilson know the ICCPR contains provisions other than Article 19 including Article 17 which puts protection of privacy up there as a human right as well.)

Mr Wilson is no slouch at utilising his right to access information, attracting the ire of one government agency in 2011 for making 750 FOI applications in a four month period including 440 on one day.

High Court wraps Honours and Governor General's functions

The High Court in Kline v Official Secretary to the Governor General [2013] HCA 52) ruled that documents concerning the operation of the Honours system are not within scope of the Freedom of Information Act. The decision ends a long running legal tussle regarding interpretation and application of s 6A which places the Official Secretary's office (among its other support functions, it is the Australian Honours and Awards Secretariat) outside the operation of the act "unless the document relates to matters of an administrative nature."

The unanimous decision follows earlier decisions in this case to the same effect by the Freedom of Information Commissioner, the Deputy President of the AAT and the Full Court of the Federal Court. The law as it stands therefore is now well and truly settled. 

However some may struggle with the distinction made by the High Court and in the earlier decisions between a document held by the Office of Official Secretary concerning administration of the Order of Australia, not subject to FOI, and a document that relates to matters of an administrative nature undertaken by the office, which are subject to the act;  with the analogy drawn between the Governor General's functions and the judicial functions of the courts [45-47]; and with the view [53] that relevant "criteria for the making of awards are explained in the nomination form, which is a document that is available to the public."
(See what you think- Nomination form (pdf)).


The Court upheld the decision of the Full Federal Court in ruling that s 6A does not extend to documents concerning processes and activities associated with the exercise of the Governor General's substantive powers and functions.

In policy terms the decision raises the question whether section 6A delivers adequate and sufficient transparency and accountability regarding the Office of the Governor General. The office supports the Governor General in the exercise of her powers and functions which include representative in Australia of the head of state, President of the Federal Executive Council and Commander-in-Chief of the Australian Defence Force, as well as Chancellor of the Order of Australia. The window of FOI scrutiny is limited to matters of an administrative nature - except where they are associated with the exercise of the Governor-General's substantive powers and functions. For this reason for example working manuals, policy guidelines and criteria used in making Honours Award decisions are not publicly available.

In their joint judgement Chief Justice French and Justices Crennan, Kiefel and Bell relied upon

• the context- attaching weight to the fact that the Governor General is not an agency or prescribed authority for the purposes of the act: "Thus the processes and activities of government, which are opened to increased public scrutiny by the operation of the FOI Act, do not include those associated with the exercise of the Governor-General's substantive powers and functions, many (even most) of which are exercised in public. Independence from government and the public is important in relation to the exercise of the various responsibilities of the Governor-General, including, but not limited to, the making of decisions. Furthermore, freedom from interference or scrutiny by members of the public (or other branches of government) is an essential aspect of the making of decisions in relation to the General Division of the Order. [34]

• the words used in s 6A: observing that the common connotation of the words "matters of an administrative nature" mean documents which concern the management and administration of office resources [41].

• and statements in relevant secondary materials: "In brief, s 6A(1) of the FOI Act, which was inserted in 1984, drew upon the language of ss 5(1) and 6, which were included in the FOI Act as originally enacted. In the relevant parliamentary debates, Senator Evans described the operation of ss 5 and 6 and explained their object. He said [70]:"courts, judicial offices, certain industrial tribunals and their registries..are not exempt from the operation of the[FOI]Act so far as their administrative procedures, properly so-called are concerned.[49]. The Senator went on to explain that the inclusion of ss 5 and 6 would secure a legitimate public interest in "efficient administration" and was not intended to intrude on the independence of the judiciary. [50]. 

In a separate judgement Justice Gageler after examining the history of s 6A and related matters in more detail reached the same conclusion: all requested documents relate to the "administration" of the Order of Australia," but none relates to matters of an "administrative nature" within the meaning of s 6A of the FOI Act. None, therefore, falls within the scope of the FOI Act." [79]  

Both the judgments ([41] and [72]) conclude that Beinstein v Family Court of Australia [2008] FCA 1138; (2008) 170 FCR 382 was wrongly decided where it took a broader view of the meaning of "relates to matters of an administrative nature" in s 5 of the FOI act.

Accountability Roundtable Integrity Awards

Mark Dreyfus QC carried off the Button and Melissa Parke and Judith Moylan jointly the Missen - more from AAP.  

The late Alan Missen by the way not only crossed the floor 41 times as noted in the report but was a loud and persistent voice for a freedom of information act among many other causes. As chairman of the Senate Standing Committee on Constitutional and Legal Affairs he played a key role in the shape of legislation as passed in 1981 and kept a close eye on it until his death in 1986.

Who's up for Integrity awards?

The Accountability Roundtable Parliamentary Awards for the 43rd parliament, that is the pre September election parliament, will be announced tomorrow at an event  at 5.30 in Committee Room 2S3, Parliament House, Canberra.  

The Button and Missen awards are respectively to the minister and backbencher who "have demonstrated an outstanding commitment to the public interest in the performance of his or her role with
 Honesty
 Civility
 Independence 
and/or
 Political Courage, in one or more of the following areas

• Supporting the principles and practice of transparent and accountable government
• Contributing effectively and constructively to parliamentary debate, committee deliberations and/or policy development in a way that promotes and/or supports good parliamentary practice and the institution of parliament.
• Pursuing a change in government policy or practice whether generally or in response to a constituency issue or injustice.
• Protecting peoples’ political and civil rights."

Then Defence Minister Senator John Faulkner and then backbencher Petro Georgiou were award recipients in 2010. 

Picking winners in this sort of contest is of course a no win game.

But Senator Faulkner would have to be in with a strong chance for the Missen to match his Button, along with Senators Xenophon, Ludlam, Rhiannon and from the House, Andrew Wilkie, Tony Windsor, Melissa Parke and Judith Moylan.  

Then Attorney General  Dreyfus may grab the Button for meritoriously rescuing whistleblower protection legislation from the too hard box.


If you are interested in attending the event email joannamesiti@tpg.com.au with name and contact details.

Trust further impaired when secrecy preferred to transparency

Oh dear, that 'restore trust' pledge was vitally important to Mr Abbott in pre-election mode when he thought it amounted simply to 'say what we do and do what we say'.

It's hard to recall another new government over the last 30 years that didn't bother to at least say it was going to be more open, transparent and accountable. Even if it just amounted to paper thin rhetoric. But 80 days in, that seems to be the case with the Abbott government

Sure there have been a couple of specific promises, as part of Treasurer Hockey's deal with The Greens to scrap the debt ceiling, and in Communications Minister Turnbull's plans for NBN Co.

But Operation Sovereign Border laid the foundation stone for closed shop. And building the edifice hasn't stopped there.

The stock standard 'we don't comment on intelligence or security matters' is proving a convenient shield in light of developments at home and abroad concerning what our intelligence agencies get up to, and the vacuuming of our meta data by Telstra and others. That's just for starters, as Deborah Snow outlined on Saturday. 

The Greens Senator Ludlam moved a motion in the Senate to establish a committee to look into electronic surveillance overreach. Sounds sensible and in line with developments elsewhere but as Senator Ludlam said    

I will make this statement because I understand that there is no support either from the government, the Liberal-National Party, or from the Labor Party for a fairly simple committee reference into electronic surveillance overreachThe story started obviously with the United States government where inquiries are well and truly underway. Congressional hearings have been held, bills have been drafted, votes have been taken and inquiries are underway. It is the same in the UK. It is the same in France, Germany and countries in South America including Brazil—everywhere in fact except here in Australia where this bipartisan denial and conspiracy of silence to avoid the issues are yet again on display here today. This is the second time I have put a reference and, in defiance I would say to the majority will of the people of this country who want to know what is being done in our name, it is about to be voted down again. It will not be the last time I bring a motion such as this forward. I commend it to the chamber.

Government public interest immunity claims or refusal to respond to questions had a real workout in Senate estimates. Not for the first time of course, but perhaps scaling new heights. Following a refusal to produce documents in respect of OSB the Senate yesterday 
referred the matter to the Legal and Constitutional References Committee.

Government agencies have fallen into line in refusing FOI access to incoming government briefs, the latest Communications with the Treasury template proving useful. You have to say a stunning uniform turnaround across government agencies by 'independent' decision makers!

The government response to weeks of revelations about dodgy or misuse of parliamentary entitlements was weak and half hearted. A further serve for cynics is that that neither major party has said a word on the subject in Parliament since. The Greens Senator Milne continues to push for a National Integrity Commission which could help to a degree. As Paul Farrell recounts in The Guardian, trying to dig deeper than published information involves the FOI runaround - giving up seems easier and certainly less costly. Proving 'following the money ain't easy.'

On that FOI review file sitting on his desk, Attorney General Senator Brandis told Senate Estimates the government intended to move ahead and agreed with Dr Hawke that the legislation should be reformed.  But Attorney, if I may: 
the Hawke review was a flawed process-no discussion or dialogue with users and experts, skewed terms of reference, no investigation into how the legislation is being administered, no examination of best practice on the home front let alone internationally. And as Dr Hawke observes in Recommendation 1, the review fell short of the needed comprehensive review of the operation of the act and the OAIC. Be wary of advice to cherry pick recommendations before you find a place at the table for some from outside government who have another perspective. Thanks.

Then there is the continuing silence from the government on the Open Government Partnership.

Despite it all, good to be back on Terra Firma.