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Thursday, January 30, 2014

Whisteblower law commences, to mostly silence, little applause

The Gazette of Law and Journalism (subscription) has published my article on the Commonwealth Public Interest Disclosure Act. 

The act came into force on 15 January 2014. 

To almost no acclaim, despite the fact it brings the Commonwealth public sector somewhat into line with all the states and territories, was first recommended by a parliamentary committee in 1994, and is seen by the experts (with various qualifications) to be a reasonably good shot at a scheme of this kind. 

Parliament passed the bill through the final stages in the last days of sittings prior to the September election, six years after Labor put in on their agenda. The Coalition supported the bill through both houses. Now in government, it has the task of implementing the law.

The Prime Minister is the responsible minister. On leave at the time, neither he nor then acting prime minister Warren Truss issued a media release regarding commencement of the scheme, or commented then or since. SBS was one of the few media outlets to mention it.(The Ombudsman issued a media release in June.)

This was a missed opportunity to set tone at the top by drawing to the attention of officials and the public the worthy objects of the act: to promote integrity in government by encouraging officials to make public interest disclosures, ensuring those who do so are supported and protected from adverse consequences, and that disclosures are properly investigated and dealt with.

The only reference to whistleblowers from Abbott government ministers to date concern the 'treacherous' Edward Snowden.
(By the by an Australian in similar circumstances wouldn't find any solace in this law as going public with any intelligence information or information about intelligence agencies is not a protected disclosure. Sections 70 and 79 (based on provisions of the Official Secrets Act 1911 (UK)) of the Commonwealth Crimes Act impose a duty to treat this type of information as secret, full stop. Four years ago the ALRC identified over 500 other secrecy provisions in the law book and recommended changes. No minister in any government since has said a word in response. Meanwhile those in Australia who work at the Guardian and the ABC who have accessed Snowden's documents can ponder what they would do if a Snowden showed up here with Australian material: s 79 as it stands provides for between two and seven years imprisonment for a person receiving information knowing or having reasonable ground to believe, at the time when he or she receives it, that our official secrets have been communicated to him or her without authorisation. I digress..)

The absence of high level, visible and forthright leadership on this integrity measure, in the current context - Snowden the 'traitor', the absence since assuming office of government statements about the importance of transparency and accountability, the closed shop regarding "border security," the uniform shift away from publication of incoming minister briefs, silence on the previous government's commitment to join the Open Government Partnership - will see public officials draw their own conclusions about the significance that should attach to it.

That's even before any attempt to come to grips with exceedingly complex legislation.

Guidance material concerning the PID act has been published by the Ombudsman.

But more guidance, awareness, training and evidence or scuttlebut that conveys the general impression over time to those gathered around the water cooler that the scheme works will be needed to counter the view that many of the public spirited who have trod this path in the past have done so with career ending consequences.

In the article I work through the definitions of "disclosable conduct" and "protected disclosure" to illustrate that any public official inclined to seek the protections will need to tiptoe carefully through a minefield, where missteps and mistakes could prove costly. 

You might like to test your own level of understanding of the definitions in Part A Division 2 of the act.

There are lots of questions that arise about what constitutes disclosable conduct. One, the scope of “an abuse of public trust.” The term is not further defined in the Act or the published guidance so far and could prove to be a lawyer’s picnic, given the notion that something akin to a trustee describes the relationship between the government and the people in a democratic society.

Wednesday, January 22, 2014

New information commissioner and a new external review tribunal in NSW.

And with the GIPA act up for statutory review this year, 2014 could be a big one here.

Information Commissioner
Elizabeth Tydd replaces Deirdre O'Donnell who stood down last July. Ms Tydd was most recently the executive director of the Office of Liquor, Gaming and Racing, a real hot seat in Sydney in recent times. And before that assistant commissioner of the Compliance and Legal Group at the Office of Fair Trading, and deputy chairperson of the Consumer, Trader and Tenancy Tribunal, now part of the newly minted NSW Civil and Administrative Tribunal

It's a big job with much to be done to lead the open government 'revolution' foreshadowed in 2010. How far things have moved in that direction is an open question with plenty of suggestions from users that it's not far and certainly not enough.

But information about agency performance in NSW is patchy, and anecdotal. No reports on the operation of the GIPA act across all agencies required each year of the commissioner by section 37 of the Government Information (Information Commissioner) Act have been published. As to the much mooted 'culture change', ???
The commission annual report (pdf) 2012-2013 is as thin as those that have gone before regarding the performance of the commission and the effect and impact of a no doubt busy year.

The basic stats are 46 formal GIPA matters finalised, 237 information access reviews, one investigation, 50 ADT matters, 58 complaints, 388 requests for assistance, and 161 privacy internal reviews.

The measures cited in the report as performance measures provide little insight into what has been achieved or efficiency, effectiveness, or quality in delivering the goods. Timeliness in dealing with GIPA reviews is an acknowledged source of agency and applicant dissatisfaction. 

On this score the restructure referred to in the report, with employee numbers down to 25 from 33 a year ago must have played a role.The financials assign $496, 370 to 'voluntary redundacy'.

However after ploughing through the report this reader is none the wiser about the state of the game. A sample of unanswered questions: the state government agencies, local councils or ministers' offices at the upper end of the scale for GIPA review applications and complaints; the number/% of finalised review decisions or negotiated resolutions that substantially affirmed the agency decision or recommended or flowed from reconsideration; the % of GIPA review matters where the agency accepted the OIC recommendation to undertake further review and the names of agencies that did not act on those recommendations (the IPC is limited to recommendations and does not make determinative decisions-therein lies a problem); the correlation between the OIC view and the ADT where a matter followed that course; the average cost of an IPC review and time taken in resolving review and complaint matters and the duration of matters that make up the backlog.

NCAT commenced operating on 1 January 2014 replacing more than 20 of the State's existing tribunals including the Administrative Decisions Tribunal. (Super tribunals are the Admin law flavour of the decade: the establishment of NCAT, follows the creation of VCAT, QCAT, and (WA) SAT. And SA was thinking about it some years back.)

Mr Robertson Wright SC, the inaugural NCAT President,was sworn in as a Supreme Court Judge before assuming the position. Prior to his appointment Mr Justice Wright was a barrister for 30 years and a part time judicial member of the Administrative Decisions Tribunal since 2007. 

The ADT deputy president (full time from commencement of operations in 1998) Magistrate Nancy Hennessy heads the Administrative and Equal Opportunity Division which will handle GIPA and privacy merits review. Judge Kevin O'Connor, the ADT president for the duration, is listed as Deputy President of NCAT responsible for management of the internal appeals list. 

Most members of the merged tribunals are probably making the transition but for whatever reason deputy president Higgins isn't listed. Members include experienced FOI/GIPA and privacy hands Steve Montgomery, Peter Molony and Naida Isenberg in addition to Deputy President Hennessy.

In the final ADT annual report Judge O'Connor's reflections include that in 1998, ten years after the FOI act commenced in NSW with the FOI review function allocated to the District Court, there was no body of FOI case law to guide decision making. The ADT in 15 years published around 400 FOI decisions.

In 2012-2013, the ADT had 96 GIPA filings and 43 privacy matters, around the same number as the previous year. Average disposal time 28 weeks. 

The significant appeal cases noted in the report include two GIPA decisions: NSW Office of Liquor Gaming and Racing v Fahey [2012] NSWADTAP 55, and Department of Family and Community Services v Edwards [2013] NSWADTAP 17.

Monday, January 20, 2014

US 'hand on heart' intentions regarding surveillance leave Australia trailing, again

President Obama's speech regarding the NSA and associated surveillance reforms hasn't gone as far as many would want. Stilgherrian's take seems close to the money.

But in his speech President Obama at least paid lip service, maybe more, to the importance of some reforms and the need for a degree more transparency regarding privacy intrusive practices.

The speech includes an attempt at reassurance for those at home ("I’m confident that we can shape an approach that meets our security needs while upholding the civil liberties of every American") and abroad ("I have taken the unprecedented step of extending certain protections that we have for the American people to people overseas.."), and for some foreign leaders ("unless there is a compelling national security purpose, we will not monitor the communications of heads of state and government of our close friends and allies"), while putting 'big data' and privacy firmly on the agenda for comprehensive review including examination of whether "we can forge international norms" on how to manage data and promote the free flow of information in ways that are consistent with both privacy and security."

I may have missed it but I haven't heard a word from our leaders on revelations about the collection and sharing abroad of our metadata; the Prime Minister was sorry for the embarrassment caused by reports about tapping the phone of the wife of President Yudhoyono but that's all and President Yudhoyono now reveals he felt betrayed; and we have tried to let bugging the cabinet room in Timor Leste and the seizure of documents held by a Canberra solicitor go through to the keeper or at least to the International Court of Justice, while it remains is big news there and in Jakarta

On "big data", while it is a subject of interest and concern to the OAIC, according to this search the words are yet to be uttered together in Parliament, let alone in the context of privacy.  

The Greens Senator Ludlam, with support from Labor (but not the Government), succeeded in December before Parliament packed up for the year in moving for an inquiry by the Senate Legal and Constitutional Affairs References Committee that might touch on some of these matters :
Comprehensive revision of the Telecommunications (Interception and Access) Act 1979 (the Act), with regard to: (a) the recommendations of the Australian Law Reform Commission For Your Information: Australian Privacy Law and Practice report, dated May 2008, particularly recommendation 71.2; and (b) recommendations relating to the Act from the Parliamentary Joint Committee on Intelligence and Security Inquiry into the potential reforms of Australia's National Security Legislation report, dated May 2013.
Keep an eye on that space, it might be the best we can hope for.

Friday, January 10, 2014

Closed shop war footing for Australia??

The Prime Minister this morning likened his mission to stopping the boats to a war, and said it should therefore be understandable that his government was a closed book on asylum operations so as to not give vital information to the "enemy"...
"In the end we are in a fierce contest with these people smugglers and if we were at war we wouldn't be giving out information that is of use to the enemy just because we might have an idle curiosity about it ourselves," Mr Abbott told Network Ten's Wake Up breakfast program. (Herald Sun)
Who could ever have imagined this?

'Idle curiosity.' Really?


Thursday, January 09, 2014

FOI applicant marooned by comings and goings in Treasurer's Office

Smoke may still be coming out the ears of those at Phillip Morris Ltd as they reflect on recent experience of close to three years spent pursuing Freedom of Information access to documents from the Treasurer. 

More than two of those years involved waiting in the queue for review by the Information Commissioner of a determination by the office of then treasurer Swan in June 2011 to refuse access to documents claimed to be exempt. By the time the decision came up for IC consideration in 2013 the treasurer was a different treasurer and the current incumbent said he didn't have the documents or access to them. Freedom of Information Commissioner Popple decided in December that the FOI act no longer applied to the documents. 

The Commissioner noted that the Treasury department now acknowledged that it held the documents. 

PML is unlikely to be be overjoyed at the prospect of making a fresh FOI request to start the process all over again.

I don't know how many other FOI applicants seeking documents from a minister or in the line for IC review of a determination by a minister found themselves marooned as a result of a ministerial reshuffle or the wholesale replacement of the ministry following the election in September. But with three administrations in 2013, ministerial comings and goings reached record levels.

In the PML case the FOI act applied to the documents (not described in the decision) when PML made the FOI application in March 2011.The Treasurer's office (Wayne Swan at the time) claimed eight of 13 relevant documents held were exempt. In August 2011 PML sought Information Commissioner review of the knock-back. 

Nothing much seems to have happened by the time almost two years later in July 2013 when a new treasurer Chris Bowen was appointed. Bowen was replaced by Joe Hockey following the September 2013 election. 

In October 2013 in response to a query from the OAIC the Treasurer's Office advised that the ‘documents relating to the review are not in the possession of the Treasurer and cannot be accessed by the Treasurer.’ 

On this basis in December Commissioner Popple decided [14-16]  that the IC review cannot continue to be undertaken as the documents were not in the possession of the current treasurer and as a result were not at this time ‘official documents of a Minister.’ The FOI Act no longer applied.
18. Furthermore, I cannot make a decision on this IC review that PML be given access to the documents it has requested. Section 55K of the FOI Act provides that, in making a decision on an IC review, I may ‘perform the functions, and exercise the powers, of the person who made the IC reviewable decision’ (s 55K(2)) and my decision ‘has the same effect as a decision of the agency or Minister who made the IC reviewable decision’ (s 55K(3)). In this case, a previous Treasurer was the person who made the IC reviewable decision, but (because of s 20 of the Acts Interpretation Act) the current Treasurer is that person for the purposes of s 55K. This means that I can only make a decision on this IC review that could be made by the current Treasurer. The requested documents are not in his possession, so I cannot decide that he give PML access to those documents. (This would be the case even if I had possession of the documents myself.) 
Treasury may have had copies of the documents all along and PML might have had a decision on the merits of any exemption claim by now if the original application was made to the agency not the minister, but that didn't happen. A decision by the IC before July 2013 would have determined the merits of the refusal determination but that didn't happen either.

The decision makes no reference to what did happen to the documents when the baton changed hands first in July 2013 and then again in September. Or to the only published guidance on handling documents when a minister leaves office, published by the Department of Finance in the Ministerial Handbook on Entitlements:
"It is normal practice that a Minister will, on ceasing office:

  • return departmental records (both electronic and hardcopy) to his or her portfolio department;
  • destroy Cabinet papers issued to him or her, keeping a record of documents destroyed (including copy numbers) and advising the Cabinet Secretariat (as outlined in the Cabinet Handbook). The Cabinet Secretariat will provide detailed guidance on disposal procedures when the Minister’s departure is imminent; and
  • deposit other official records, including those that originated in the Minister’s office, with the National Archives of Australia. The National Archives seeks to acquire the personal papers of Prime Ministers, Ministers and Parliamentary Secretaries, to ensure the retention of valuable official records and related private material."
(As an aside 'normal practice' seems a loose standard for ministerial conduct in the handling of records-apparently unsupported by legislation or oversight.)

PML and its interests mightn't attract widespread public support but they like anyone else are entitled to a fair go.Two years waiting for IC review isn't just or fair. 

 And if normal practice was followed and the unfinished FOI file and relevant documents were passed back to the Treasury in July as seems likely you would hope someone there might have let the applicant know and discuss where to from there but that level of civility, service and willingness to help appears to have been lacking in this case as well.

    Tuesday, January 07, 2014

    Appointing a privacy commissioner low priority for most states

    Privacy is a hot topic just about everywhere with a whole raft of issues bubbling away that go to the adequacy of policy, legislation and oversight, if any at all, of what is going on. Amid other concerns about skinny and contracting resources available to those charged with the last mentioned responsibility. 

    Yet state governments seem relaxed if the line up, or more correctly, gaps in the ranks of privacy commissioners is a guide to priorities.

    Hardly consistent with community attitudes in a survey that was taken before the Snowden related revelations of wholesale harvesting and sharing of phone metadata and other recent developments which have probably pushed concern further up the scale.

    Queensland has had an acting commissioner for two years. As this reader points out

    this may be contrary to the act:
    Hello Peter, Thank you for creating this blog on FOI matters. Yes, Queensland was over a year without an appointed Information Commissioner, after Julie Kinross left the position in August 2012. The OIC website notes that Rachel (Rangihaeata) was appointed in September 2013. And Clare Smith and Jenny Mead have been re-appointed as RTI Commissioner (shared role). However, as yet a Privacy Commissioner has not been appointed; after more than two years without one. Mr Lemm Ex acted in the role for 2 years, and now Clare Smith is acting in the role. The Information Privacy Act (under which the Privacy Commissioner is appointed) clearly states that "there is to be a Privacy Commissioner" (s141) "appointed by the Governor in Council" (s144); and that someone may be appointed to act in the role only during a vacancy or absence/inability of the appointed Privacy Commissioner (s152). Such a long period without an appointed Privacy Commissioner appears to be contrary to the requirements of the Act.
    The website of the Office of the Victorian Privacy Commissioner reveals Victoria tops that  - almost a three year gap there:
    David Watts was appointed Acting Privacy Commissioner from 13 April 2013. Mr Watts is also the Victorian Commissioner for Law Enforcement Data Security. Following the Attorney-General’s December 2012 announcement of the creation of a new office of the Privacy and Data Protection Commissioner, Mr Watts is leading the transition project to bring the two existing bodies into the one new entity. Legislation to establish the new Privacy and Data Protection Commissioner will be introduced into Parliament in 2013... Dr Anthony Bendall was Acting Victorian Privacy Commissioner from 13 March 2012 until 12 April 2013.
    South Australia and Western Australia go one better, make that worse. 

    Neither has a privacy commissioner nor a privacy act. The SA Information Privacy Principles Instruction was issued in 1992 as a Premier and Cabinet Circular and SA has a Privacy Committtee. Putting it ahead of the west where legislation appears to have been considered last in April 2007. 

    In Tasmania the Ombudsman is a virtual privacy commissioner.

    NSW is the only state with an appointed privacy commissioner at present. But....

    It is a part time appointment.

    Thursday, January 02, 2014

    Annual cabinet papers released-alas, still plenty of dark secrets

    Communications Minister Malcolm Turnbull may have choked for a moment on his breakfast cereal when browsing the list of 1986/87 cabinet papers released and withheld.

    Particularly at the news that Cabinet Memorandum 4456 "Australian intervention by affidavit in UK Attorney-General v Heinemann and Peter Wright", the famous Spycatcher case, remains secret in its entirety all these years later on the grounds that disclosure "could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth."

    Turnbull in 1986 took on and won against the might of the Thatcher government, Wright's right to publish in Australia "The Candid Autobiography of a Senior Intelligence Officer" written while Wright was living in Tasmania after retirement from MI5. Turnbull in 1989 wrote his own account of the trial - a bargain these days at $2.98 from Amazon.  

    The book contained revelations not quite up there with Edward Snowden but it was a big deal at the time. Some aspects still, according to Archives. 

    The number of withheld documents this year, in line with the recent years, is small in comparison with the number released.

    However you have to wonder why so many of those released needed blanket freedom of information exemption for so long- most state government laws limit the application of the cabinet exemption to 10 years although other exemptions may still then apply to protect sensitive information. No such provision in the Commonwealth act where the cabinet exemption applies until the open access period, moving towards 20 years, kicks in.

    Apart from the Spycatcher memorandum, another notable withholding is Submission 4207 "Project Nulka." The Department of Defence in October 2013 was very pleased to commend the book Nulka: A Compelling Story about an Australian ship defence system that is our largest regular defence export.

    In the current climate of revelations about US and Australian intelligence gathering, and difficulties in our relations with Indonesia and East Timor the withholding of all or parts of cabinet papers concerning Security and intelligence, and Foreign Affairs ("Australia–Indonesian relations – prospects and approach"; "Australia–Indonesia maritime delimitation negotiations") will lead to plenty of speculation about what is still sensitive 27 years on.
    (Update: See Paul Chadwick in The Guardian for an interesting comparison of issues of the 80's and current Snowden related matters. Welcome back to journalism Paul.)

    Again this year there are a number of partial withholdings about Antarctica-probably confirming what most who take an interest in the subject know, that Australia's sovereignty claims are shaky if not quite as thin as a melting ice shelf, but we wouldn't want to let on at any time if we can help it.

    The list of withheld documents follows. 

    OWE – open with exception - means partial release, 'Closed', wholly withheld. 
    Section 33 (1)(a) of the Archives Act provides exemption for "information or matter the disclosure of which under this Act could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth." As with other exemptions in this part of the act there is no public interest test. Decisions to withhold are subject to review by the Administrative Appeals Tribunal