Search This Blog

Thursday, May 29, 2014

Cost recovery waylays FOI access

A portent of things to come?

The Agricultural and Veterinary Chemicals Legislation Amendment (Removing Re-approval and Re-registration) Bill 2014 is one of a number of bills in the pipeline designed to reduce "red and green tape on business by at least $1 billion per year," in this case, "the burden imposed on the Australian economy and agricultural sector." It's a hot potato involving significant changes to the regulatory system administered by the Australian Pesticide and Veterinary Medicines Authority.

The Bill, introduced in March, passed the House this week. Labor waved it through, reserving its position in the Senate until the Rural and Regional Affairs and Transport Legislation Committee reports by 16 June.

While not the key focus, the Bill includes this amendment, as explained in the Second Reading Speech:

Obliging access to information about chemicals that the APVMA holds
Currently, the APVMA is often asked to provide information to the company that is responsible for a chemical product about its registrations. This information is then provided under the Freedom of Information Act 1982 (FOI Act).
Payments for information sought under the FOI Act are not covering the costs of providing the information. As a result, companies that do keep good records are subsidising the records costs of those that do not.
The bill amendments will allow persons to apply to the APVMA for copies of documents it holds about a chemical for a fee. This provision will not allow release of confidential commercial information unless the recipient was entitled to the information. For example, because they were the person that provided the information.
Schedule 2 of the bill proposes to 'turn off' access under the FOI Act for these documents but will not prevent access to the information. The FOI Act anticipates this by allowing an exemption for access to documents (at paragraph 12(1) (b) of the FOI Act) that is open to public access in accordance with another enactment, where that access is subject to a fee or other charge.
Section 12(1)(b) excludes from FOI access "a document that is open to public access, as part of a public register or otherwise, in accordance with another enactment, where that access is subject to a fee or other charge."

One hundred and fifty FOI applications were received during the 2012-13 year according to the APVMA Annual Report.

But while the Second Reading conveys the impression that more cost recovery is justified because poor record keepers are using APVMA through FOI to find their own documents, the situation as revealed in the annual report is that registrants and approval holders also seek information relating to other companies, and less frequently, individuals, community groups, policy institutions or industry bodies also seek access to documents. Requests for information generally relate to:
  • formulations and product specifications
  • active constituent specifications
  • identity of manufacturing sites
  • manufacturing and formulating processes
  • certificates of analysis and declarations of composition
  • analytical methods, validation methods and batch-analysis results
  • data submitted with applications, including studies, reports and trial results
  • other information contained on relevant files for certain applications, such as application forms, evaluation reports and adverse experiences.
The wording of the amendment is such that anyone seeking a document held by APVMA "in relation to an approved active constituent or registered chemical product" (presumably all of the above) will be required to pay the prescribed fee, something more closely aligned to cost recovery by some government calculation. 

Access is likely to become a lot more expensive, not just for the so called poor record keepers.
8W  Access to certain documents in the possession or custody of the APVMA
 (1)  A person may, in writing, apply to the APVMA for a copy of, or extract from, a document (other than a document in any part of the Record or Register) in the possession or custody of the APVMA in relation to an approved active constituent or registered chemical product.
 (2)  The APVMA must provide the copy or extract to the person if the person pays the prescribed fee (if any).
Note 1:See subsections 17(4) and (5) and 18(4) and (5) for access to the Record and Register.
Note 2:This subsection does not authorise the disclosure of confidential commercial information whose disclosure would otherwise be prohibited by section 162: see section 8X.
 (1)  Engaging in conduct in the performance of functions or duties, or the exercise of powers, under any of the following provisions does not authorise the disclosure of confidential commercial information whose disclosure would otherwise be prohibited by section 162:
                     (a)  subsection 8F(2);
                     (b)  subsection 8S(2);
                     (c)  subsection 8W(2);
                     (d)  subsection 17(4) or (5);
                     (e)  subsection 18(4) or (5);
                      (f)  subsection 34AB(2);
                     (g)  subsection 34AC(2).
            (2)  Subsection (1) has effect despite subsection 162(1A).
It remains to be seen if other moves towards cost recovery for access to documents emerge under the banner reducing "red and green tape on business." To date cost recovery has not been part of the FOI 'right to access' equation.

Tuesday, May 27, 2014

Policy approach in Canberra: Ready, Fire, Aim

The Commonwealth Ombudsman wasn't consulted prior to the announcement of the decision to abolish the Office of Australian Information Commissioner and to reassign the FOI complaints function to that office. No additional resources were allocated in the Budget but some informal talks have started with AGD. Good luck. Extract from Estimates below.

The intelligence agencies, the Inspector-General of Intelligence and Security, and the National Security Legislation Monitor Brett Walker SC weren't consulted either about the abolition of Mr Walker's position and he got to know about it on 13 May, Budget day.

Rest easy in your beds though, we have plenty of oversight of those protecting national security according to Dr McCarthy, the Associate Secretary of National Security and International Policy, Department of Prime Minister and Cabinet:
 Senator JACINTA COLLINS: Why is the government abolishing the position?
Dr McCarthy : The government concluded that there is a range of oversight mechanisms available for national security legislation in addition to the National Security Legislation Monitor. Over the course of his three-year term, the monitor has conducted a very thorough review of national security legislation. At the same time the Council of Australian Governments commissioned a review of counter-terrorism legislation. That was a review that was agreed to when the Commonwealth and the states and territories agreed to new counter-terrorism legislation in 2005. At the moment, the government is considering some 98 recommendations in total from the monitor's second and third reports and the COAG review of national security legislation. There are also oversight mechanisms such as the Inspector-General of Intelligence and Security, the Parliamentary Joint Committee on Intelligence and Security, and of course other committees of the parliament.
Senator JACINTA COLLINS: Why then would the UK independent reviewer of terrorism legislation, David Anderson QC, have cited our legislation as a model for other democracies to follow?
Dr McCarthy : Well, that is the view of the UK monitor.
 Extracts from both Estimates hearings on 26 May below. 

Abolish OAIC, evidence or no.

The Government claims this decision to abolish the Office of Australian Information Commissioner will save $10 million over four years. Not mentioned is the cost to transparency, accountability and the open government cause certain to be of a high order  but impossible to quantify in dollar terms.

Attorney General Brandis announced the decision in the broader context of a move to simplify, streamline and improve efficiency and effectiveness in the conduct of merit reviews.

The claim is that these broader changes will deliver total savings of $20 million over four years.

Government goal
According to Senator Brandis:
The complex and multilevel merits review system for FOI matters has contributed to significant processing delays. Simplifying and streamlining FOI review processes by transferring these functions from the OAIC to the AAT will improve administrative efficiencies and reduce the burden on FOI applicants.
Dismantling the office goes far beyond what would be necessary to achieve this. What is proposed will not reduce the burden, financial or otherwise on FOI applicants.

Other options
The Government has overlooked other available options to improve the significant and unacceptable processing delays in merit review at the OAIC. The Office got nowhere over the last two years on the need for additional resources or at least to get the level of resources identified as necessary before it opened for business in 2010. Or any exemption in full or part from sharp cuts in the form of annual 'efficiency dividends.' Senator Brandis was very interested in exploring these issues two years ago in Senate Estimates. Not these days, apparently. 

The OAIC also put forward suggestions for changes to processes that would free up resources but required legislation to which the government, this one or its predecessor, never responded publicly. One was authority for the commissioners to delegate some functions.

Those of us on the outside also had ideas. Beefing up the OAIC, and limiting further review rights to a question of law, as is the case in WA and Queensland is just one of many that could streamline the multi-tiers. Another that might free up resources could be penalties of some kind or powers to be used that might dissuade agencies from resort to exemptions that have no merit and serve only to bide time and waste resources.

Leadership out the window
More broadly, dispensing with the independent statutory monitor and champion role for information access and open government takes us back to the 1995 Australian Law Reform Commission Open government report that identified the absence of such an office as an impediment to the administration of the FOI act. 

FOI was leaderless and rudderless then and for the next 15 years until this and more than 100 other recommendations were considered and acted upon in 2008- 2010.

So too synergies 
Much was made of the benefits also of combining information access and information privacy functions in the one office, and conferring  strategic information management functions on the Commissioner as well. As stated in the Second Reading Speech
The establishment of an Office of the Information Commissioner not only supports the important outcome of promoting a pro-disclosure culture and revitalising FOI, but also lays new, stronger foundations for privacy protection and improvement in the broader management of government information.
In unwinding the crucial underpinning of the 2010 reforms three and a half years on, none of this rates a mention.

Counter to trends
Abolishing the OAIC runs counter to international trends and to experience (to varying degrees of satisfaction) with information commissioner schemes in Queensland, NSW, NT, and WA and Victoria (FOI commissioners), and under the guise of an Ombudsman with special powers for this purpose in SA and Tasmania.

Not supported by evidence
I'm no fan of the Hawke review process but Attorney General Brandis has had the that report in his in-tray since taking office in September. There is nothing in it that justifies the abolition of the OAIC. Generally (page i)
the Review found the recent reforms to be working well and having had a favourable impact in accordance with their intent.  It (open government) has engaged more senior people in the process and triggered a cultural change across the Australian Public Service, although there is still some way to go on this aspect.  Further effort, driven from the top, will be required to embed a practice where compliance with the FOI Act is not simply perceived as a legal obligation, but becomes an essential part of open and transparent government.
More directly: (page 24):
The Review considers that the establishment of the OAIC has been a very valuable and positive development in oversight and promotion of the FOI Act.
And specifically on the review system cited by the Attorney General as the policy reason for the decision: (page 36)
The current system of multi-tiered review has been in operation for two and a half years.  At this stage there is insufficient evidence to make a decision on whether this is the most effective or efficient model for reviewing FOI decisions, particularly in relation to the two levels of external merits review.  The Review considers this issue warrants further examination and recommends that the two-tier external review model be re-examined as part of the comprehensive review recommended in Chapter 1.
The government chose to reach for the knife rather than look for evidence.

Costs to individual
A direct hit  to the hip pocket is coming for anyone unhappy enough with an FOI decision to want to box on with an external review application. There is no charge for review by the OAIC. But come 1 January complaining types who don't accept often questionable wisdom explained in convoluted and obscure language in an FOI knockback will be up for $816 for starters at the AAT. Demand for OAIC review (pdf) of agency decisions, running at around 500 a year in the OAIC, indicates a high level of ongoing dissatisfaction with agency decisions. Eight hundred and sixteen dollars can be expected to work wonders on the numbers. 

Unacknowledged cost to agencies
If as might be expected one of the changes arising from going back to the pre reform era will involve reinstating mandatory agency internal review before a matter can be taken to the AAT, there will be additional costs to agencies, already subject to resource limitations.

I'm looking forward to the Government's elaboration if the OAIC decision crops up in Estimates this week or when the significant changes to legislation to give effect to the proposal make their way into Parliament. And what Labor, The Greens and the cross benchers make of it all.

If you are concerned drop your local member a line. Mine, Malcolm Turnbull, will be hearing from me.

Relevant media and other comments, for convenience:

Wednesday, May 21, 2014

Estimates might shine the torchlight on disinterest in Open Government Partnership.

Senate Estimates next week will see plenty of probing on a whole range of issues in the transparency and accountability space. One that deserves a run despite the surfeit of competition for precious time is the continuing uncertainty over our intentions regarding the Open Government Partnership.

The OGP is an international initiative by governments, civil society and the private sector to promote transparency, empower citizens, fight corruption, and harness new technologies to strengthen governance. It should be right up the alley of any genuine democracy and those that have that aspiration. 

The Abbott government is fence sitting on whether it will proceed with the membership application foreshadowed by the Gillard government in May 2013. "Matter under consideration" has been repeated ad nauseum in the eight months since the election, but the foot dragging didn't start then.

I guess its long past  the point that any individual or agency can be held responsible for this start/stop/start/meander process.

But the timeline below of close to three years (and counting) of shuffling or standing on the spot shows what can happen when an issue lacks ministerial ownership or interest (this goes all the way back to Kevin Rudd and continues over the years to other Labor ministers and now to Attorney General Brandis and Finance Minister Cormann) leaving the public servants without direction to dabble with it from time to time.


The timeline includes brief commentary along the way. Would love to see the insider's version. Maybe in 28 years. Any senators doing the probing might find this useful.

Of course disinterest in the OGP is just one aspect of the bigger picture of declining interest in open transparent and accountable government. Estimates will have plenty of burrows that need the torchlight including the decision to abolish the OAIC.

Tuesday, May 20, 2014

The Trust Thing

A month before the furore over the Budget and broken promises,12% of Australians rated Federal (and state) parliamentarians highly for ethics and honesty, according to the most recent annual Roy Morgan poll of attitudes towards 30 professions. Nurses (91%), doctors and pharmacists (86%) were way out in the lead.

The pollies were down two (state parliamentarians three) points in a year, and a whopping 11 points since 2008, only matched by Ministers of Religion who dropped 13% in the same period.The ministers' current 37% score however is three times that of the politicians who tied with union leaders and in a field of 30 came in ahead of just three, real estate, advertising and car sales types.

With confidence in politicians to do what is right at such a low level, you would have to think someone in government is thinking about how to reverse the trend. It's not evident anywhere I look. 

Tony Abbott seemed onto this, citing the trust deficit as the biggest of those facing government from the time the election was called in August 2013. But it hasn't proved his strong suit then or since.

The Coalition for example had nothing to say during the campaign about how it planned to restore trust other than the mantra 'stop the boats' etc. The Budget, and denial that any promises have been broken will relegate the 'say what we do, do what we say' part of this to a storage box in the attic

Within a month of being elected, in response to the first integrity blow up, the government initially ignored abuse of entitlements by parliamentarians that came to light then spoke of changes at the margins rather than taking this head on and acting to ensure full transparency and accountability.

Our leader(s) in eight months haven't spoken up about the importance of open transparent and accountable government, leaving Immigration Minister Morrison unchallenged to set secrecy as the prevailing 'tone at the top.'

Agencies seemed to get (in some cases welcome) the message, almost uniformly refusing FOI access to incoming government briefs, a monumental turn around from three years ago. Some, well experienced in gaming the system, have taken this to new levels.
(Addendum: during Labor's last gasp, they and the Coalition rushed through legislation to exempt the parliamentary departments from FOI.)

Against this backdrop (and no response to the Hawke review which said someone should do the job thoroughly, he couldn't and didn't) the FOI framework is set to return to darker days that predate the 2009 reforms with the Budget announcement of the abolition of the Office of Australian Information Commissioner. FOI seems headed back to 'orphan' territory with no high level advocate or sponsor to proclaim, safeguard and nurture its essential elements. Reviews are headed back to the AAT at $816 flagfall plus plenty for help to match the legal resources available to the agency.

As to the goverrnment's intentions about proceeding with its predecessor's application to join 63 other countries in the Open Government Partnership all we hear is the matter is 'under consideration.' After eight months this reminds of Yes Minister where the phrase meant 'we have lost the file.' 'Under active consideration' at least meant 'we are trying to find it.' 

We didn't manage to send a minister to an OGP conference in London last year, and told Indonesian President SBY none could be spared to take up his invitation to Bali earlier this month..

We claim "Global leadership in combating corruption" but having ratified the United Nations Convention Against Corruption in 2005, we are yet to complete the required National Anti Corruption Plan.(The link to the Plan at the bottom of the page on the AGD website leads to "Not Found", no irony intended I'm sure.)

We have heard nothing about political donations and lobbying reforms despite regulations that are inadequate and pathetic disclosure requirements and the fact that the Federal Liberal Party is feeling the heat from the NSW ICAC hearings.

The Greens introduced the National Integrity Commission Bill in the Senate last Thursday. The Bill
"establishes a National Integrity Commission as an independent statutory agency which will consist of the National Integrity Commissioner, the Law Enforcement Integrity Commissioner and the Independent Parliamentary Advisor and provide for: the investigation and prevention of misconduct and corruption in all Commonwealth departments, agencies, and federal parliamentarians and their staff; the investigation and prevention of corruption in the Australian Federal Police and the Australian Crime Commission; and independent advice to ministers and parliamentarians on conduct, ethics and matters of proprietary. Also: provides for the establishment of a Parliamentary Joint Committee on the National Integrity Commission.." 
Three Coalition speakers spoke in the adjourned debate and generally poured a bucket on Labor and The Greens, but did not indicate government support. Labor (see John Faulkner's speech) is generally supportive although yet to decide.

Related issues such as a code of conduct for parliamentarians don't rate a mention anywhere.

Last week, both major parties passed legislation that confirm that refugees subjected to an adverse security assessment by the Australian Security Intelligence Organisation, have no right to know the reasons, can be detained indefinitely and can't challenge the merits of the decision.

Let me know what I've left out.

That 12% in April may prove to be a high point. 

Thursday, May 15, 2014

Press Freedom in Australia stuck in the middle rankings

The 2014 Freedom House report on Press Freedom ranks Australia 33 of 197 countries.We have  hovered around this position since 2006. There is no published country report. The criteria involves 23 questions concerning the legal, political and economic environment. Sweden, Norway and the Netherlands are tied for first; New Zealand 22, Canada 26, the US 30.

The Press Freedom Report 2014 (pdf) published by the Media Entertainment and Arts Alliance doesn't go in for ratings but cites plenty of concerns in particular the need for uniform shield laws to protect confidential sources, the star chambers where current shield laws have no effect, and ongoing excessive government secrecy of the kind we see with 'Operation Sovereign Borders." 

Michael McKinnon's article on Freedom of Information for the third year slams the Office of Australian Information Commissioner, arguing for a direct right of review by the AAT. While some criticisms of the OAIC about timeliness are valid and have been made here as well, others in my view aren't. With the budget decision to abolish the OAIC, assign the FOI review function to the tribunal and complaints to the Ombudsman with no additional resources, 'guidance' functions to AGD, and drop leadership responsibillity for open, transparent and accountable government over the side altogether, McKinnon may have got more than he asked for.

Interesting that Section 18C of the Racial Discrimination Act was and continues to be seen as the greatest impediment to free speech in this country according to both Prime Minister Abbott before and Attorney General Brandis before and after the election. Ardour for repeal may have waned somewhat since but Commissioner Tim Wilson is still on the job, warning that s 18C in its present form is dangerous, potentially discriminatory and must be changed. To be met by other arguments for limited if any change.

But repeal or amendment of s 18C doesn't appear to be high on the journalists' priority list of freedom issues and concerns if the content of the Press Freedom Report is any indication. In 63 pages, it rates four sentences in the Law Summary (page 7) by Peter Bartlett of Minter Ellison who makes a plea for better ways to deal with frivolous complaints against the media, and adds:
"that said, we need anti-discrimination legislation to cover appropriate cases."
David Marr tries to jolt media organisations into action, suggesting government secrecy has reached the same low point of 2007:
There was such a campaign once: the Australia’s Right To Know coalition of proprietors and  the Media, Entertainment & Arts Alliance  (MEAA) formed in the last years of the Howard government which for a while galvanised  attention on problems that still face us today. But  it petered out in the Labor years – and not because  government under Labor was an open book. It’s time to revive the Right To Know. Journalists  will report and mock, but the union and the  proprietors need to insist. MEAA wrote to its  partners in the coalition in early February in the  hope that  “a comprehensive industry approach  may help in getting some movement in this area”.  A month later, not a single media outlet had  replied.  Yet the rhetoric  The Oz used when we were all  fighting for the Right To Know still looks good  today: “Australia has nothing to fear from  transparency, openness and access to information,  except that the workings of government, and our  journalism, will improve.”
In that year Australia was 39th in the Freedom House rankings, prompting media organisations to say 'enough.' 

The ARTK website has been dormant for years. As Marr recounts the MEAA attempt to get things moving came to nothing.

If the beast stirs, there are plenty of potential partners interested in holding government to the hard won improvements from a 30 year battle, and to take things further.

Wednesday, May 14, 2014

NSW lobbying reforms-not quite up to ICAC standards

NSW Premier Mike Baird announced yesterday further detail of changes to lobbying rules, which he said "will immediately implement ICAC recommendations on lobbying that were ignored by NSW Labor." 

Yes, they have been sitting, unattended in someone's in-tray for three and a half years.

But the changes, welcome as they might be, don't quite follow the ICAC recommendations summarised here in 2010 when the report was released.

The Premier said the package will increase transparency and enhance regulation of lobbying by:
. Establishing the Electoral Commission as an independent regulator of lobbyists;
. Applying a set of ethical standards to all third-party lobbyists and other organisations that lobby government;
. Empowering the independent regulator to investigate alleged breaches and impose sanctions, which could result in lobbying firms being removed from the Lobbyist Register and other organisations placed on a Watch List and their access to government restricted.   . Requiring Ministers to publish quarterly diary summaries of scheduled meetings with external organisations on portfolio-related activities; and
. Approving a recommendation from ICAC that the Ministerial Code of Conduct become applicable under the ICAC Act, giving the watchdog the power to investigate and make findings on a Minister’s compliance with the Code.  
(The Media Release is reproduced in full below-the new Premier doesn't appear to have a website for such things yet.)  

The ICAC Report proposed that an independent entity such as the Information Commissioner should maintain, monitor and enforce the rules ( Recommendation 8, and Chapter 9). Just why the Electoral Commission is a better choice hasn't been explained.

Other ICAC recommendations that seem to have been, ahem, overlooked include:
 • establish a public sector meeting protocol for the conduct of meetings with lobbyists, for the minuting of these meetings and relevant telephone calls, and for the retention of records of Lobbying Activity in accordance with the State Records Act 1998 (Recommendations 2 and 3, and Chapter 7)
• amend the Government Information (Public Access) Act 2009 (“the GIPA Act”) to include records of Lobbying Activity in the definition of “open access information”, for which there is no overriding public interest against disclosure. Under the GIPA Act, open access information held by an agency must be made publicly available, including on a website maintained by the agency ( Recommendation 4, and Chapter 7)
• the Lobbyists Register should  disclose the month and year in which they engaged in Lobbying Activity, the identity of the government department, agency or ministry lobbied, the name of any Senior Government Representative lobbied, and, in the case of Third Party Lobbyists, the name of the client or clients for whom the lobbying occurred and the name of any entity related to the client the interests of which did derive or would have derived a benefit from a successful outcome of the lobbying (see Recommendation 7, and Chapter 9)
• enable an interested person to use the information disclosed on the proposed Lobbyists Register, in relation to the date of lobbying and who was lobbied, in order to seek access to further information from the relevant public sector agency through the various mechanisms set out in the GIPA Act ( Chapter 9)
• impose restrictions on former ministers, parliamentary secretaries, their staff and senior government officers from acting as lobbyists ( Recommendation 10, and Chapter 10)

There were separate recommendations (13-17) for a new regime for local councils as well.
Alas, still a long way to go on the journey towards high standards of integrity in public life. 
Maybe more to come Premier?
But NSW is moving more than a tad ahead of Canberra and most other states - not before time of course.

Tuesday, May 13, 2014

OAIC-it ain't over until it's over

Thinking about the government's plans to abolish the OAIC and reorganise and reallocate functions, this is going to require substantial changes to legislation. The Senate is unlikely to be a pushover, but the power of the purse strings may be enough to trump all in the final analysis. 
Morning after update:
Commissioners' statement, listing some of the achievements, and resource limitations.
ITNews-"Commissioner disappointed" (that's putting it mildly, but yeah, me too.) 
The Guardian, earlier in the week: Ludwig-splitting watchdogs 'would shut the door on open government' (well it's certainly being pulled in that direction-tone at the top, mounting evidence of gaming by agencies, resource cutbacks, considering, reconsidering and keeping the Open Government Partnership at arm's length, now abolishing the leadership role and hitting FOI review applicants with $816 for their day in the AAT. Enough already! )
Nine News: "FOI change will favour spin doctors."
The Guardian: "Freedom of Information framework faces radical surgery."

Vale OAIC, you never had much of a chance

The timing of aspects of the decision aren't entirely clear but from tonight's Budget statement:

.The Office of Australian Information Commissioner is to be abolished, with claimed savings of $10.2 million over four years.

.The Office of the Privacy Commissioner will be established as a separate statutory office within the Australian Human Rights Commission.

. FOI review functions will be transferred to the AAT from 1 January 2015. The change "will improve administrative efficiencies and reduce the burden on FOI applicants. The AAT will receive a funding boost to assist with the backlog and to better meet acceptable timeframes."

."Responsibility for handling FOI complaints will be combined with the Commonwealth Ombudsman function" but there is no additional allocation of funds for this purpose.

."The Attorney‑General's Department will take responsibility for the issuance of FOI guidelines, collection of statistics and provision of explanatory material on the operation of the Freedom of Information Act 1982."


All pretty retrograde stuff. The changes wipe the review model adopted in the reform package of 2010, and it's back to where things used to be and we know they didn't work properly then. Not to mention the gaps: in effect no one has the leadership function so essential to the culture change talked about for 30 years but still a long, long way off and going in the wrong direction under this government; and no mention also of the what happens regarding the role the OAIC played in moving towards a government wide information policy. The AAT cannot provide inexpensive FOI review-the flagfall is $816, refundable but for $100 if the applicant meets with some success. And its lawyers at ten paces at least as far as agencies are concerned. As to speedy review, we live in hope.Sadly AGD, now to be charged with responsibility for 'guidance' across the service are no FOI champions, based on what I've seen of their inventive reasoning from time to time.

The OAIC disappointed in a number of respects, particularly the long delay in review decisions and the failure to really get stuck into those not playing fair and square, but it was under resourced and never had a minister who provided the leadership essential to back the message the government was serious about transparency and accountability, presuming it was.

More powers, more resources and strong ministerial backing were what was needed, not the return to the status quo ante 2009. 

The Attorney General's Media Release and an extract from the Budget Papers follow.

(Later thought.)

ICAC heat prompts promise of a peek at ministers' diary

Look forward to the detail but this is a step in the right direction.

 As Sean Nicholls reports in the SMH new NSW Premier Baird sees wisdom in more transparency:
A summary of ministerial diaries will be published quarterly by the NSW government to try to improve transparency around meetings with lobbyists and others, following evidence at the Independent Commission Against Corruption...The information made public will include the purpose of the meeting, which organisation is involved and details of any registered lobbyists present. Cabinet matters, personal information and details deemed "commercial in confidence" will not be included. Nor will "strictly" electorate or party political matters. Mr Baird said the publication of ministerial diaries would "help restore the public’s trust in our political system and the MPs that represent them". "There needs to be better transparency and accountability in the way ministers deal with business," he said. "The public has a right to know who is knocking on the doors and sitting in offices with our senior politicians." He said only Queensland has a similar regime in place. "This is an important step that puts on notice any lobbyist or business thinking about breaking the rules or expecting favourable treatment," Mr Baird said. “We are nailing shut the back door to government, and I will be announcing further measures in due course.”
There is plenty of scope for 'further measures." For example appointments of senior minders, department heads and senior executive officers and even meetings with journalists, and their organisations.This could be brought together in a searchable website that includes use of entitlements, travel, gifts, donations and pecuniary interests. 

And something similar for all parliamentarians?

Canberra and the other states and territories to follow the lead?

Monday, May 12, 2014

Office of Australian Information Commissioner faces the chop

The table published by The Australian today alongside its report about the carnage and turmoil about to hit Canberra as a result of tomorrow night's budget (in the name of abolitions and mergers to "eliminate waste") includes the news that the functions of the Office of Australian Information Commissioner are to be "divided among Australian Human Rights Commission, Administrative Appeals Tribunal, Commonwealth Ombudsman, Attorney General's Department." 

No further detail, so we will see what tomorrow night brings.

But this is a big step in the wrong direction across all three functions of the Office, information access, privacy protection and information policy functions.

At a time when the international trend is greater recognition of the importance of these functions, demand for more transparency and accountability, greater concern about privacy, and appreciation of the economic benefits of more open government as well as the need for strong, visible, well resourced leadership to take things forward, the Abbott government is busy dismantling, dividing, and burying.  

Presumably the Privacy Commissioner will be heading back to the AHRC, information access review matters to the AAT (at the current rate, $816 a pop?) and the Ombudsman, and policy to AGD - where these functions were located before the 2009-2010 reforms that included the establishment of the OAIC.

Some will welcome the demise of the OAIC particularly those in government who are all for "the good old days."

No doubt some savings figures will be plucked from somewhere to justify the decision but there is no sign that it comes from rational, considered, evidence based decision making on how best to manage the public interests at stake when it comes to transparency, accountability and privacy protection.

Advance Australia backwards more like it.

Wednesday, May 07, 2014

While the cat was away......

Glad of any input on the mice at play. Certain to be plenty that I missed.

As noted here, no positive vibe concerning Australian membership and participation in the Open Government Partnership.

The Federal Government Commission of Audit report ventured into the open government space recommending among many 'courageous' initiatives, the non controversial improvement in timely access to data and better arrangements for reuse. Read Craig Thomler's take. The administrative changes noted by Renai LeMay don't seem conducive to this.

The Commission also proposed the merger of various tribunals into the Australian Administrative Appeals Tribunal, the consolidation of  a number of federal ombudsmen into an over-arching ombudsman, and in what is the latest in a long running campaign by the Department  to run it into the ground, that the Australian Law Reform Commission be absorbed into the Department of the Attorney General.

Senator Joe Ludwig in The Guardian wrote "Here's why a strong FOI act matters: it keeps the bastards honest." (An easy shot from the opposition front bench of course, but he's right. Here is a comment on Labor's FOI legacy.) Nothing from the government on the recommendations arising from the Hawke FOI review so, who knows, they may still speak to some outside government before picking up the bits the public servants like.

No major developments regarding the mild tugging (so far) to get the government to table documents in response to senate orders concerning Operation Sovereign Borders although  things on production generally are not as bleak and uniformly negative as they were after the first few months of this parliament. This Senate Legal and Constitutional Affairs Committee report in which the non government majority recommend further examination of the NSW model for resolving issues concerning production of documents came in for limited debate on 6 March. The matter seems certain to be taken further. 

Cai-Wikipedia Commons
Evidence before the the NSW Independent Commission Against Corruption provided new depressing insights into the practice of the dark arts of influence peddling, and factional struggles within the Liberal Party. The Premier and the Minister for Police resigned, and fallout is continuing. Reform of political donation laws, lobbying rules, and disclosure requirements is in the air even before the Commission reports, although there are plenty of relevant Commission recommendations that go back years gathering dust in government in-trays.

The NSW mess has embroiled former Federal assistant treasurer Senator Arthur Sinodinis. As the Liberal Party at the Federal level has opposed previous attempts to do something more on political donations, interesting to see where things go from here in this and related areas. The Greens will introduce a bill next week to establish a Federal independent anti-corruption body. Flow on effects in other states seem likely.

Jack Waterford's account in The Canberra Times of what turned up in his ASIO file is good fun. You would like to think what he found recorded is just a reminder of the paranoia of earlier times, but who knows? The article is an extract from Dirty Secrets: Our ASIO Files, edited by Meredith Burgmann.

Arrived back in Sydney during Privacy Awareness Week and managed to get to a breakfast debate yesterday on aspects of the ALRC Discussion Paper "Serious Invasions of Privacy in the Digital Age." The proposal for a Commonwealth Act to establish a statutory cause of action for a serious invasion of privacy seems a lost cause before things go any further, given reported comment by Attorney General Brandis, reported in The Australian that "the Government has made it clear on numerous occasions that it does not support a tort of privacy." For those who don't give up easily on hopeless causes in the name of good public policy, submissions close 12 May. 

Australian Information Commissioner Professor McMillan outlined an alternative model based on amendments to the Privacy Act and the current regulatory system but this would involve amongst other major changes, removing current Privacy Act exemptions enjoyed by small business, the media and political parties and there isn't any likliehood of this government being interested in that either. Realistically, the far less satisfactory outcome 'leave it to the courts' is likely methinks.

(Addendum: Stilgherrian was there too, and wrote this account.)

Tuesday, May 06, 2014

Australian fence sitting on the OGP: Classic folly

The Official Photo taken a few hours ago in Bali of President Yudhoyono with the OGP Steering Committee "and other dignitaries." For obvious reasons, no Australians are present.

Missing from media reports about the Prime Minister's decision not to go to meet Indonesian President Yudhoyono in an ante room while both are at the Open Government Partnership Asia Pacific Regional Conference is any reference to what the partnership is about and what Australia's foot dragging lack of enthusiasm for the initiative over the last 32 months says about the priority the government attaches to the cause of good government at home and abroad.

The commentators are right in pointing out that by spurning the invitation we are digging an even deeper foreign policy hole in one of our most important foreign relationships.This is a top order snub, having put it around that the invitation from the President was an olive branch extended as his time in office enters the twilight zone. 

Of course the Prime Minister may have said sorry, really busy but the potential for embarrassment over a boat issue at the same time as the vital photo op handshake won't have escaped the Indonesians as the more likely reason.

The Indonesians and others won't miss the point either that that every other potential senior Australian government representative, including ministers Bishop, Brandis and Cormann who were also specifically invited, were just as busy as the PM and couldn't be spared for a couple of days to fly the Australian flag at this regional initiative hosted by the Indonesian government. A public servant John Sheridan from Finance is there apparently, although I've seen no announcement.

What the commentators are missing is that the government's close to invisible presence in OGP forums highlights our lack of interest in exploring how we might advance open, transparent and accountable government in Australia.

The OGP kicked off in September 2011. Sixty four countries have joined or are in the process of doing so, France the latest this week. Australia under Labor said count us in- in May 2013.

Virtually nothing has happened since. Membership involves endorsing the Open Government Declaration, and in partnership with civil society developing a national action plan to address agreed priority shortcomings.

For a government that claims to uphold democratic ideals and keen to advance democracy more broadly in the region, sitting out the OGP is classic folly in Barbara Tuchman's terms: the pursuit of policy contrary to our self interest, against the backdrop of other rational and available alternatives.

Opportunity lost again this time in Bali. Gone are the days when we could claim some leadership credentials in this field.

But long overdue time for a positive statement from the top, and a meaningful dialogue with those outside government about how we can improve democratic governance here at home. There is no shortage of suggestions about where to start to make government more open, accountable, and responsive to citizens.

New Zealand, represented by a minister in Bali has announced it will complete the required national consultation and submit a national action plan by July. 

Hope springs eternal - we might at least get started by then.

(I'm back in Australia, after six weeks away-hope the jet lag isn't showing.)