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Monday, June 30, 2014

G20 and countries including Australia need to re-open the whistleblower protection file

This survey of Whistleblower Protection Rules in G20 countries (pdf) notes that the group declared in 2010 that they would have adequate measures in place by 2012 to protect whistleblowers and provide them with safe, reliable avenues to report fraud, corruption and other wrongdoing. 

The report acknowledges some advances but concludes the G 20 countries have fallen short of meeting the commitment. In many, "whistleblower protection laws fail to meet international standards, and fall significantly short of best practices." One of the authors, Professor AJ Brown told The World Today.
It's very much a job that is less than half done in terms of protecting the whistleblowers in the public sector and it's a job that's less than a third done when it comes to protecting whistleblowers in the private sector ..
Australia does reasonably well on public sector rules, with room for improvement, but is way short of the mark when it comes to the private sector.

The adequacy of protections requires attention because of costs to the economy and other reasons:
Serious wrongdoing can lead to wasted taxpayer money, unsafe consumer products, public health threats, financial instability and environmental damage. Lacking strong legal protections, government and corporate employees who report wrongdoing to their managers or to regulators can face dismissal, harassment and other forms of retribution. With employees deterred from coming forward, government and corporate misconduct can be perpetuated
As Transparency International points out, collective and individual country initiative and ambition is required if the G20 is serious about anti corruption measures.

Should Australia, as G 20 President this year chose to lead from the front, a senate committee, almost on cue, has recommended a number of steps to improve private sector whistleblower protections.

The recommendations include a review of the adequacy of Australia's current framework for protecting corporate whistleblowers, expansion of the definition of whistleblower and the scope of information that can attract protection, establishment of a special whistleblower office within the corporate regulator, and closer alignment between public and private sector protections.

Also that the government explore options for reward based incentives for corporate whistleblowers including qui tam arrangements that would enable someone who assists a prosecution to be eligible to receive all or part of any penalty imposed.

The senate committee also made recommendations (Chapter 22) on the need for greater transparency at the corporate regulator ASIC for a number of reasons including to counter perceptions that is captured by big business.  ASIC should publish more of its internal policies and keep the business and academic worlds better informed about developments and trends  by providing and disseminating information it receives from a range of sources, as well as ASIC's analysis of this information.

The G20 survey comments about Australia include:

Wednesday, June 25, 2014

FOI commentaries: two for the money

Alison Sandy who found her FOI feet with the Courier Mail and is now Freedom of Information Editor at Seven News, compares our governments on the secrecy-transparency scale, well mainly FOI law and practice, and gives Queensland the gold star and South Australia the wooden spoon.

Experience rather than detailed research and analysis of all the variables here, but generally close to the money for mine.Tasmania and Western Australia don't get a mention. The former is in good FOI law territory while the latter should be marked down because it sat out the 2009-2010 reform era that elsewhere brought more pro-active disclosure and other positives for information access.

Paul Farrell in The Guardian is close to the money as well in asserting that the sound of closing doors in Canberra, with changes on the way, indicate a "new and deliberate assault is now being launched on one of the pillars of access to federal government information: the Freedom of Information (FOI) Act. We risk losing one of our most valuable tools to help open governments." The string of published comments includes this from me on the Budget announcement that the Office of Australian Information Commissioner is to be abolished:
The changes proposed are a giant step backward. FOI was an orphan in government for close to 30 years without an independent champion and advocate, someone to nurture, safeguard,and promote the idea that the citizenry has a right to access government information. That gap was filled by the reforms of 2010 although the Commissioner was never properly empowered or resourced. Now the position is to be abolished. Review of a government decision not to disclose information in response to an FOI application, now available after an inordinate delay from the Information Commissioner will in future only be available by application to the Administrative Appeals Tribunal. From 1 July the fee is $861, the process is unlikely to be speedy and you would be game venturing there without a lawyer because the government agency arguing against you will have a good, expensive one. In future advice and guidance on the interpretation of the legislation for government agencies, now with the Commissioner, will be in the hands of the Attorney General's Department. Talk about fox and hen house! The claim that these changes will improve transparency and accountability is laughable, not based on evidence, and runs counter to the trends around the world where independent office holders champion the cause and provide non litigious review of decisions. Finally whether the changes will produce the claimed savings of $10 million over four years is uncertain to say the least.That the public are the losers isn't I'm afraid.
Farrell notes the role played by the media coalition Australia's Right to Know in leading the 2007 campaign for FOI reform that bore fruit in 2010, suggesting now is the time for the coalition's long silence since to be broken. That's on the money as well.

Tuesday, June 24, 2014

Trust in politicians Episode XXX: "Democracy for Sale"

On ABC Four Corners last night Linton Besser illustrated how a deal to win partial control of a major public utility opened the door on a web of alleged corruption, impacting both State and Federal politics and players on both sides of the political divide, and how the rules that are supposed to regulate political donations can be ignored or corrupted right across Australia. 

It's not just that the Federal and state rules relating to political donations are weak, and as shown, ineffectual. So too those that relate to lobbyists. NSW rules on that front may be ahead of other jurisdictions but recommendations from the ICAC in 2011 still await a response

And as the program points out while we have anti-corruption bodies in the states there is no Federal commission to fight corruption. 

The Greens introduced the National Integrity Commission Bill into Parliament last year. When it came up for debate in May Liberal and National party senators who spoke dismissed the idea out of hand. As Senator O'Sullivan put it:
This government is proud of Australia's position and reputation. Australia is consistently ranked by Transparency International as one of the least corrupt countries in the world. This is a recognition of the net measure of respective coalition governments in this place and in states right across this country. As a political movement, we have a sub-zero tolerance to corruption.
Watch or read the Four Corners transcript. A couple of extracts follow including Senator John Faulkner's call for a lower threshold for reporting political donations and close to real time disclosure, and adding his voice at least to the national integrity commission cause.

Monday, June 23, 2014

Civil society puts it to the G20: open, transparent government part of the growth equation.

The C20 Global Summit has called on the G20 to tackle endemic corruption, confront the challenges of climate change and urgently address the social and economic time bomb represented by the world’s unemployed youth.

Governance was one of the four key policy issues preoccupying the Summit. 

The decline in trust and the associated issue of lack of transparency and accountability were constant refrains in various sessions including open government, anti-corruption and tax transparency.

Chair of the C20 Steering Committee Tim Costello said
“Good governance includes transparency and accountability to citizens.” 

Relevant policy 'asks' from the Summit aimed at tackling corruption and addressing the  transparency issue include the development of a new focused and measurable G20 Anti-Corruption Plan, and public registries required to disclose accurate beneficial ownership information – in open data format – of companies, trusts and other legal structures, to tackle tax avoidance, tax evasion, corruption, money laundering and terrorist financing.

The Summit Communique was handed to the Prime Minister, the chair of this year's G20 leaders, yesterday.

In the lead up to the Summit an economic analysis on the potential of open data to support the G20’s 2% growth target was released in Canberra by Martin Tisne of the Omidyar Network. The analysis Open for Business was undertaken by Lateral Economics and illustrates how 
"an open data agenda can make a significant contribution to economic growth and productivity. Combining all G20 economies, output could increase by USD 13 trillion cumulatively over the next five years. Implementation of open data policies would thus boost cumulative G20 GDP by around 1.1 percentage points (almost 55%) of the G20’s 2% growth target over five years."
The C20 Communique calls for G20 members to "release data and statistics used to inform the G20 working groups as open data where legally possible and include open data requirements within G20 policy recommendations." 

The Open for Business Report calls on G20 governments to sign up to the Open Data Charter, as the G8 urged a year ago.

Minister for Communications Malcolm Turnbull noted earlier in the year:
Unfortunately, in Australia, the private sectors interest in leveraging public data has been limited simply because of the lack of data that has been made publicly available. We are committed to working with agencies to ensure the publication of data becomes a routine government function. And importantly, if we are to catch up with  the United States, which has published more than 200,000 data sets, we must ensure that data is not only published regularly but in a machine readable form. We are committed to turning around our slow start to empower the private sector to capitalise on the disruptive potential of information, of data...
The current Australian Government's Principles on open public sector information state that open access should be our default position. And this approach is reflected in the United States too where President Barack Obama, on his first full day in office, who issued a presidential memorandum that,"in the face of doubt, openness prevails [when it comes to the release of agency data]."
And, as recommended by the Government 2.0 Taskforce, the information must be truly open. So unless there are good reasons, to the contrary, government information should be:

  • free
  • easily discoverable
  • based on open standards and, of course, machine-readable
  • properly documented and therefore understandable, and
  • licensed to be freely reusable and transformable."
So terrific that government might do more to make data holdings publicly available, giving effect to Parliament's intention in the (2010) objects section of the Freedom of Information Act "to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource." 

However opening up the data side of the shop with more discretionary disclosure while leaving unattended the broader issue of transparency and accountability would lead to one door open and the other half (or more) shut.

Let's open both doors wider by commiting to the Open Government Declaration on the way to membership of the Open Government Partnership. 

Thereafter fully engage in a meaningful partnership with civil society to develop a national action plan that addresses open data, and improved transparency for accountability, public participation, anti-corruption and a myriad other purposes. 

There's a dollar sign as well somewhere for improving trust, confidence, and ultimately government's capacity to make and stick with hard decisions that advance the public interest.
uphold the principles
uphold the principlesthe Open Government Partnership,

“Key policy asks to come out of the Summit aimed at tackling corruption and recognising the need for transparency, included the development of a new focused and measurable G20 Anti-Corruption Plan.
“Also needed are public registries required to disclose accurate beneficial ownership information – in open data format – of companies, trusts and other legal structures, to tackle tax avoidance, tax evasion, corruption, money laundering and terrorist financing.
“Good governance includes transparency and accountability to citizens,” Costello said.
- See more at:
“Key policy asks to come out of the Summit aimed at tackling corruption and recognising the need for transparency, included the development of a new focused and measurable G20 Anti-Corruption Plan.
“Also needed are public registries required to disclose accurate beneficial ownership information – in open data format – of companies, trusts and other legal structures, to tackle tax avoidance, tax evasion, corruption, money laundering and terrorist financing.
“Good governance includes transparency and accountability to citizens,” Costello said.
- See more at:

Thursday, June 19, 2014

The trust thing-where to from here?

The absence of trust and confidence in politicians, government and institutions is striking.

 The Readers Digest Survey of who is held in high regard for integrity and substance sees politicians ranked 49 of 50 professions, with no politician ranked higher than 68 in a list of 100 public figures. The Prime Minister is at 79. Roughly confirming the Morgan Poll.
in April where 12% of Australians rated Federal (and state) parliamentarians highly for ethics and honesty beating out three of 50 30 professions. The trend line before the Budget according to the Essential Report was that trust in political leadership dropped 13 points since February.

Then there's the Lowy Poll 2014:
"... 60% of Australian adults, and just 42% of 18-29 year-olds say ‘democracy is preferable to any other kind of government’. Only a small majority of the population (53%) choose ‘a good democracy’ over a ‘strong economy’. For those who do not see democracy as the preferable form of government, the strongest reasons are that ‘democracy is not working because there is no real difference between the policies of the major parties’ (45% citing this as a major reason) and ‘democracy only serves the interests of a few and not the majority of society’ (42%)."
Then Leader of the Opposition Tony Abbott was on the money in September 2013
when he identified the trust deficit as the biggest deficit facing the nation. But things have got worse not better.

Lack of trust translates to a major governance problem. Government in a democracy occupies a position based on the notion of a public trust. As well lack of trust complicates the making of difficult decisions and government's capacity to see them through.

It is not a unique problem to Australia.

Books are being written about why it is so but among many contributing causes are lack of honesty and consistency, overuse of spin, excessive secrecy, failure to genuinely consult and test ideas, and pre-occupation with short termism and political advantage.

The Oxford Martin Commission report Now for the Long Term explores some of these issues. 

Chair Pascal Lamy visited Australia two weeks ago. Canberra was on his itinerary and he met at least one minister, Andrew Robb, Treasury Secretary Parkinson and officials involved in the G 20 process.

Let's hope Lamy was able to refer them to the Agenda for the Long Term section of the report, page 59 and the recommendations for Innovative, Open and Reinvigorated Institutions that include:
Optimise new forms of political participation, transparency and accountability, whilst amplifying the voices of global citizens. The Commission recommends renewed commitment to transparent government and deeper political engagement...
The report describes the Open Government Partnership as "a particularly welcome development" bringing together government, civil society and private enterprise in member countries to address governance and means to improve transparency, accountability and public participation with independent international oversight of their efforts. 

It's such a good model
The Commission calls for the OGP platform to be adopted by other institutions and governments, and for the platform’s work to be expanded to strengthen coordination between citizens across countries.
Readers will know of Australia's dithering over whether to join the OGP now running without resolution for close to three years. When I checked with the Office of the Minister for Finance this week on the current position before heading off to the C20 Summit in Melbourne:
the government has made no decision to join or withdraw the Labor government's May 2013 notice of intention to join.
Not of its own a decision likely to reverse the trust decline, but the penny should drop sometime that a journey starts with a step in the right direction.

Wednesday, June 18, 2014

First report card on operation of NSW GIPA act

It's taken a while-three years in fact-but the NSW Information Commissioner's report on the operation of the Government Information (Public Access) Act 2009, the first since commencement, has been tabled in Parliament and is available here.  

The current commissioner Elizabeth Tydd took up the post earlier this year and clearly attached a priority to compliance-finally-with this mandatory annual reporting requirement.

I'm yet to have a close look but the Commissioner reports that three years of information about agency performance
"..confirms the Act is achieving its goal of improving the general approach of decision makers in providing timely and proactive access to information, giving the citizens of NSW confidence in Government decision making. The report indicates that the strategic intent of the Act is largely being met with most agencies complying with the Act’s requirements.
  • consistent and credible levels of information release
  • high levels of timeliness
  • increasing number of valid applications
  • the application of public interest considerations
  • greater release of information through agency reviews."
The  high level snapshot reveals:
  • 50,318 applications were lodged across the five sectors
  • 82% of those applications were lodged with government agencies, state owned corporations or Ministers
  • 17% of the applications were lodged with NSW councils 
  • 61% of the applications lodged with government are attributed to three agencies: Police (36%) RMS (15%) and WorkCover (10%)
  • 87% of decisions made by agencies were processed within the statutory time frame
  • There is a positive trend with 2,245 invalid applications received in 2010 – 2011 reduced to 1,699 in 2012 – 2013.

Tuesday, June 17, 2014

C20 Global Summit this week in Melbourne.

The C20 Global Summit will take place in Melbourne this Friday and Saturday so a big crowd can be expected to chew over the four key policy themes: inclusive growth and employment; infrastructure; climate and sustainability, and governance. Position papers on each topic are here.

I'm on a panel on Friday on Open Government to be chaired by Greg Thompson, Executive Director International, Transparency International Australia and Member C20 Australia Steering Committee. Others panelists are

  • Natalia Soebagio – Chair, Executive Board Transparency International Indonesia
  • Martin Tisne – Director of Policy, Omidyar Network (major funder of the Open Government Partnership to the tune of $1.48 million)
  • Eloise Todd – Advocacy Director, ONE International.
Hope to catch you if you are there.

Monday, June 16, 2014

Victoria rejigs privacy law

An important step forward on legislating for protective security standards but national harmonisation of privacy principles is drifting even further over the horizon.

Victorian Attorney General Robert Clark introduced the long awaited Privacy and Data Protection Bill in Parliament last week.
The Bill merges the existing roles of Privacy Commissioner and the Commissioner for Law Enforcement Data Security to create a single Commissioner for Privacy and Data Protection with responsibility for the oversight of the privacy and data protection regime in Victoria. The Privacy and Data Protection Bill 2014 also addresses a number of the data security issues identified by the Victorian Auditor-General in his 2009 Report on Maintaining the Integrity and Confidentiality of Personal Information, including measures to ensure that government handles personal information securely and consistently.
The Bill provides for the development of a new protective data security framework for the Victorian Government. The Commissioner for Privacy and Data Protection will be responsible for issuing protective security standards as part of the framework.
The Commissioner will also develop guidelines to assist Government agencies to develop plans and help ensure changes to current processes are implemented smoothly.
The framework will include protective data security standards, protective data security plans prepared by public sector bodies to implement the standards, and specific law enforcement data security standards.
The Bill provides for departments and agencies to seek a determination about whether a particular use of personal information that it holds is authorised or required by law.
The Bill will also allow public sector organisations to seek approval for arrangements allowing them to handle or share personal information in ways that vary the application of certain information privacy principles, if that use of the information is clearly in the public interest.
“These reforms enhance privacy protections for individuals while giving public sector agencies greater clarity about the appropriate use of personal information,” Mr Clark said.
The Bill also re-enacts key provisions of the Information Privacy Act, including the Information Privacy Principles. Those principles are based on what were the IPPs in the Commonwealth Privacy Act, substantially changed along with other provisions such as the definition of personal information with effect from 12 March 2014.

Six years ago the Australian Law Reform Commission recommended that the principles it put forward for new Federal legislation "also be applied to state and territory government agencies through an intergovernmental cooperative scheme—so that the same principles and protections apply across Australia no matter what kind of agency or organisation is handling the information." 

In 2009 then minister Ludwig in announcing the Phase 1 Federal government response to the ALRC report undertook to
"work with the states and territories to harmonise privacy law across the nation. The first stage response will create a platform from which the Government can pursue national harmonisation through discussion with the states and territories. Ultimately, the aim will be a consistent set of privacy standards for the Commonwealth, state and territory public sectors, as well as the private sector. The Federal Government will be looking to the states and territories to repeal privacy laws including health privacy laws that apply to the private sector. Additional national consistency issues will be considered in the second stage response."
Harmonise? National consistency? Not in 2014 or anytime soon if Victoria is any indication.

Bruce Arnold has done the spadework on the provisions of the bill.

Victoria proposes to improve FOI commissioner model not abolish it

Following a mention here a few weeks ago of the Victorian government's plans, the Freedom of Information and Victorian Inspectorate Acts Amendment Bill 2014 was introduced into Parliament last week. 

The main FOI purpose as outlined in the Explanatory Memorandum is to allow for the appointment of Assistant Freedom of Information Commissioners; to provide greater guidance in relation to time limits and notification requirements by, and to, the Freedom of Information Commissioner; facilitate the effective and informal resolution of reviews and complaints; and ensure that many of the functions of the Freedom of Information Commissioner may be undertaken by, or delegated to, members of staff.

The Attorney General said two assistant commissioners would be appointed with an additional allocation of funds for this purpose.

(The Office of Australian Information Commissioner didn't get anywhere with requests for additional funding to cope with similar high demand for FOI review work. Last year the Office raised with the Hawke Review as efficiency measures some of the matters addressed in the Victorian legislation including allowing for delegation of review and complaint handling functions and powers to remit a matter to an agency or minister for reconsideration. Dr Hawke made some recommendations along these lines. The government however said not a word in response before announcing plans to abolish the OAIC in the name of 'efficiency.' Other options to make the commissioner model work more efficiently and effectively don't appear to have received any consideration.)

This analysis of the provisions by Bruce Arnold captures the essence of the proposed changes. 

That the Commissioner is limited to recommendatory rather than determinative powers in concluding review of an agency decision, to my mind, continues to be a weakness in the scheme. 

Victoria continues to sidestep comprehensive FOI reform.

As Professor Johan Lidberg of Monash University said

“Victorian Freedom of Information is one of the poorest functioning access to information laws in the country,” Mr Lidberg said. “It’s slow, cumbersome and expensive to use.”
You can add very dated to that.The 1983 act shows the finest thinking of the nineteen seventies and eighties.
One of these days.... 


Friday, June 13, 2014

Prime Minister's travels: missed opportunities galore

What Prime Minister Abbott and President Hollande talked about in their one on one in Paris is hard to find other than what is covered in this statement issued by President Hollande.  But it seems it didn't extend to a bond we could share through common membership of the Open Government Partnership. France is an enthusiastic new joiner. The Abbott government hasn't decided to join or not join.

In Ottawa, the Prime Minister said "No two countries on earth are so similar. No two countries on earth are more like-minded." Again no mention of standing shoulder to shoulder with Canada for transparency, accountability, open government and citizen participation which would be the case if we committed to the OGP. Canada is a foundation member.

In Washington President Obama said he and Prime Minister Abbott "had the opportunity this morning to discuss a wide range of issues, many of them focused on the importance of the Asia Pacific region." Later, that the US and Australia "share foundational values about liberal democracies and human rights, and a world view that’s governed by international law and norms." (Addendum-many other shared viewpoints outlined in their joint op-ed in the LA Times.) 

But no mention of how we together might pursue these interests through the OGP, an international initiative that extends to 63 countries and led initially by the US. And how such action on Australia's part would be a welcome response to this recent call by President Yudhoyono for regional support for the OGP:
We want to see more countries from our region to join this movement, so that our voice can be sufficiently represented in the OGP. Asia-Pacific participation is important because OGP’s greatest strength lies in its facilitation of the exchange of ideas, learning, and experiences on open and good governance... I believe our region must play a critical role in promoting OGP. Asia-Pacific remains one of the most dynamic regions in the world..
So zilch from the Abbott-Yudhoyono, Abbott-Hollande, Abbott-Harper or Abbott-Obama talks along the lines of the fulsome commitment to the OGP reflected in the Obama-Harper-Nieto talks in February 2014.

Perhaps not surprising the Australian side had nothing to say about the OGP on this visit to Indonesia, France, Canada and the US, all members, given the admission by the Secretary of Foreign Affairs and Trade recently that our foreign policy experts would only take an active interest in the international dimensions of the OGP.... if we were a member.



Thursday, June 12, 2014

SA Ombudsman's FOI wisdom should travel beyond state borders

The report (pdf) by South Australian Ombudsman Richard Bingham tabled in Parliament last week after a comprehensive review of how 12 government agencies manage their responsibilities under the Freedom of information Act identifies a whole raft of problems and issues that should attract the attention of the SA government. More on that in a moment.

The Ombudsman also raises issues relevant elsewhere. 

For example just as the Federal Government proposes to abolish the Office of Australian Information Commissioner which among other negative impacts on transparency and open government, will remove the independent oversight body, the 'champion' of open government, and wipe from the Federal Government statute book non litiguous merits review of FOI decisions, the Ombudsman recommends for SA: 
an independent oversight body with investigation, audit and recommendatory powers to issue FOI guidelines, ensure public awareness, provide advice and conduct training, deal with complaints, monitor and audit agency performance, conduct merit reviews with determinative powers, recommend reforms and report to Parliament.
"This body should also be responsible for the oversight of state privacy policies and legislation..", an aspect of the model the Federal Government plans to dismantle.
The Ombudsman concludes (along with just about every other review of FOI that has taken place around the country) that the absence of a dedicated independent ‘champion’ is a significant shortcoming in the FOI framework. 
The Federal Government is yet to explain its counter intuitive decision to abolish the function to deliver the transparent and accountable government to which it claims to be committed.
 South Australia and FOI shortcomings
 The Ombudsman highlights:
  • the "disconnect between stated government policy regarding proactive disclosure in the digital age and agency approaches to  information disclosure";
  • "the Act is outdated and its processes belong to pre electronic times";
  • "agencies’ implementation of the Act is wanting, and demonstrates a lack of understanding or commitment to the democratic principles which underpin the Act.";
  • "evidence provided to the audit strongly suggests that ministerial or political interference" is brought to bear in decision making and "FOI officers may have been pressured to change their determinations in particular instances"; (See these observations last year about this issue on a broader scale.)
  • agency chief executives are not providing appropriate leadership on FOI and open government.
The Ombudsman recommends many changes to the act including a clear objects section weighted in favour of disclosure, reducing the number of exemption provisions, removing the 'Howard factors' from the public interest calculus, and the introduction of offence provisions. 

Richard Bingham is long on experience  with the way agencies go about their FOI business, in Tasmania before SA since 2009. His counsel should be welcomed and provide the impetus for change in SA which, along with Victoria and WA sat out the FOI reform period in 2008-2010. Those serious about transparency and accountability in Canberra in particular (there have to be some?) but also in the other states and territories should heed his wisdom. as well.

Monday, June 09, 2014

DFAT waiting for Finance to ring before opening the OGP file.

 Silly old duffer!

Here I've been rabbiting on for three years about Australia stepping up to join the Open Government Partnership, thinking that apart from the value we would derive from a civil society-government partnership to improve transparency accountability and public participation in Australia, that there were good foreign policy reasons why we should stand with (currently) 63 other countries who share this commitment.

I wasn't put off when it emerged that Secretary of State Clinton received no response to her invitation in August 2011 to then Foreign Minister Rudd to join; that then minister Brendan O'Connor rejected an AGD recommendation that Australia announce its intention to join in October 2011 when President Obama visited, and DFAT apparently was nowhere to be seen or heard; or when DFAT took 10 weeks last year to tell me it had no document that listed the pros and cons of Australia joining.

No I was simply heartened when then Foreign Minister Carr said he agreed in principle that Australia should join, when Secretary Varghese told Senator Faulkner that he would ensure the department went into meetings of officials to get the membership issue sorted quickly, and when then Attorney General Dreyfus made the announcement of our intention to join in May last year.

True I've been worried since about silence and disappointed with the 'clarification' of Australia's position by Minister for Finance Cormann in Estimates that "we have not decided yet on whether we will or will not proceed with that intention to join..."

But I'd thought as the Prime Minister headed to Indonesia, France, Canada and the US - all members of the OGP and Indonesia the current lead co-chair - that DFAT would ensure there was something in the briefing book about this, given that President SBY at a conference a month ago to which PM Abbott was invited but couldn't attend called on others in the Asia Pacific to join, and Presidents Obama and Harper of Canada put their names to a statement of support for the OGP when they met earlier this year.

DFAT-well at least when I was there for 14 years a long time ago- was good at linking the foreign and domestic policy dots, I thought.

Wishful or dated thinking as it turns out. DFAT only thinks about the international dimensions once we decide to join!

Senate Estimates
Senator Faulkner in Estimates for Department of Foreign affairs and Trade last week asked  "how DFAT is engaging on this OGP issue, which obviously has foreign policy implications." 

DFAT Secretary Varghese flicked it to Ms Katrina Cooper, First Assistant Secretary, Legal Division: 
Ms Cooper:... it is being handled by the section which takes care of freedom of information and privacy.(Comment: With all due respect hardly likely to have policy heft or influence on an international organisation issue)...We are standing by waiting to see where the process heads now. Obviously we are still waiting to see whether or not we will join the OPG and, if we do, we will be engaged....
 Senator Faulkner:....could I ask, Mr Varghese, if there are any resources at all in DFAT being used to look at the international policy, the foreign policy aspects of the OGP. The OGP is something that has developed a head of steam in the international community—I think that is a fair thing to say. My question to you just goes to whether DFAT has got any engagement at all on the international policy issues.  
Mr Varghese : I would defer to Ms Cooper, if she is able to assist on that. It is not something I have spent time on personally...  
Ms Cooper : Senator, we are not engaging in any separate process as an agency. We are engaging with other agencies and through the lead agency on this process. 
Senator FAULKNER: So that means you have 60-odd nations having a major international conference on Australia's doorstep—it does not matter where it is, but it is our near neighbour with whom we have such a very important relationship—in Bali. Our prime minister is invited to it. We have, as you would know, Mr Varghese, from previous evidence at this estimates committee, seen the Secretary of State of the US encouraging Australia's involvement. We have had a senior minister in the UK government doing the same. I am surprised that those elements effectively receive no focus at all from the Department of Foreign Affairs and Trade. So here we have a movement that appears to be growing in strength in the international community—and that is the only point I am making—but no assessment or analysis—except involvement is not a core issue for your department. Involvement and being the lead agency belongs to another department—the Department of Finance. It is those international elements that I am referring to. And I would have thought within DFAT those sorts of assessments would be made as a matter of course, but you are assuring me that is not the case? 
Mr Varghese : Yes, I suppose it is a bit chicken and egg. If we were a member of the Open Government Partnership then obviously we would be taking a much more active interest in its international dimensions. You could equally argue that in order to assess whether and when to become a member we should be au fait with the international dimensions.
Well at least the questioning prompted some reflection by the Secretary on DFAT's contribution to a big hole in the policy development process.

Three years of water under the bridge, but it is never too late. Secretary, don't wait for Finance to call. There are foreign policy issues relevant in making up our minds to join. Get a seat at the table and put someone with some vision in the chair.

We missed the opportunity to do something on this in Indonesia. 

The Prime Minister is in Canada and the US this week... ah dreaming again.

The relevant extract from the transcript follows including questioning about the PM's invitation to the Bali conference

Friday, June 06, 2014

Parallel 'open government' worlds on display

Attorney General Brandis, Senate Estimates:"The government is committed to transparency and openness.." 

(Addendum: For completeness,from Coalition Election Policy 2013:
"Encouraging Australians to Work Together: “The Coalition will do the right thing for Australia and deliver a strong, stable, accountable government that puts the national interest first and delivers a better future for all Australians. We will restore accountability and improve transparency measures to be more accountable to you. We will govern for all Australians, not favour any particular group. We’re all in this together and we’ll encourage all Australians to work together..”)

Emeritus Professor) Rodney Tiffen Inside Story: "The Abbott government's war on transparency." (Even this long list of valid reasons for concern isn't the complete picture.The planned abolition of the Office of Australian Information Commissioner not only will impact on FOI merit review as mentioned, it will remove the independent monitor and open government leadership functions from the picture as culture change veers sharply back in the wrong direction.Then there's the 'no we haven't decided to join or withdraw the Labor government's notice of intention to join' the Open Government Partnership; the government's 'poor' record in responding to Senate orders to produce documents according to the polite people who produce the Senate Procedural Information Bulletin even if things have now taken a turn for the better; and plenty of other inventive/creative FOI knockbacks to add to the couple cited in this article, a number from the Attorney General's Department set to become from 1 January the lead agency for 'guidance' on the interpretation and application of the act.)

Oh dear....

moves to reduce public transparency and public knowledge - See more at:

of decisions that mean public scrutiny of its policies and their implementation is more difficult. - See more at:
the government has made a series of decisions that mean public scrutiny of its policies and their implementation is more difficult. - See more at:
the government has made a series of decisions that mean public scrutiny of its policies and their implementation is more difficult. - See more at:

Thursday, June 05, 2014

The time and cost equation for AAT review of FOI matters

Jonathon Holmes in The Age yesterday bought the line that merits review by the AAT will help journalists obtain FOI access, in the words of ABC FOI Editor Michael McKinnon, more quickly, and more fairly. 

"We’re journalists, not historians. We need to know now” said McKinnon in drawing attention to the long and unacceptable delay in FOI review matters at the OAIC.

The Administrative Appeals Tribunal timeline may prove better than some achieved by the underfunded OAIC. After all $1.8m over four years, the sort of money the OAIC never saw, will be transferred to the Tribunal to assist with the processing of FOI reviews.

Will the "need to know now" cause get a boost in the coming new/old era with agencies reaching the correct decision more often and with fulsome embrace of spirit and intent of the legislation? You're more of an optimist than me if you think so given the absence of an FOI champion to maintain the effort to move culture change in the right direction, something that disappears with the abolition of the OAIC from 1 January 2015, and with AGD providing 'guidance' on the interpretation of the act.

 With a long or short queue, AAT processes aren't likely to be speedy in any event.

According to the AAT's 2012-13 Annual Report (a period when it had a limited FOI role) the tribunal's overall caseload performance target was 85% of matters to have their first conference within 13 weeks, and 60% of matters to progress to hearing within 40 weeks. (Table 3.8) 

The performance measures in the 2014--15 Portfolio Budget Statement are 75% of applications finalised by the AAT within 12 months of lodgement, 80% of matters finalised without a hearing.

Then there's the cost. According to the AAT in 2012-13 the cost (to the taxpayer) per matter that went all the way to an AAT decision was $16, 641.

The costs incurred in an AAT FOI review by the applicant who will be up for $816 (and due to rise by CPI on 1 July) for starters from 1 January, and the government agency involved in a matter is unknown.

 But some information about AAT costs generally is contained in the Draft Productivity Commission Report on Access to Justice. The mean cost to a party that brought proceedings regarding workplace compensation was just under $20,000 (median around $15 000). On the other side according to Comcare its average costs per case were $15,500 when matters were withdrawn, $23 000 when matters were resolved by consent, and $48,000 in matters that went to hearing.

Halve, quarter it for FOI if you like.

But  in time and cost the new FOI 'efficiencies' much loved by Attorney General Brandis are going to take a while for those who 'need to know now' or give or take in six months or so, and to cost the taxpayer and the citizen a pretty penny as well.

Prime Minister's travels: missed opportunity No 1


Prime Minister Abbott Joint Press Statements 4 June:
I want to congratulate Bapak President Yudhoyono for the leadership that he has shown - not just here in Indonesia, but in this region and in the wider world over the past decade. President Yudhoyono has been one of the senior statesmen – perhaps the senior statesman – of ASEAN and has helped to make ASEAN strong and more influential in the councils of the world. I want to stress that a strong ASEAN is important to our region; it’s very important to Australia...Finally, may I say that when President Yudhoyono leaves office, Indonesia will have lost a statesman and Australia will have lost a friend....President Yudhoyono has been a great President and a good friend to Australia. I believe that when the history of Indonesia is written, the Yudhoyono presidency will be a watershed - marked by peace abroad, prosperity at home, the consolidation of democracy and the strengthening of national unity.

The missed opportunity (my words):
A sign of your commitment to democracy and your standing as a leader is evident in the key role Indonesia as the current lead co chair has played in the Open Government Partnership   The OGP now includes 63 countries committed to open, transparent and accountable government and to increased citizen participation. I very much regret that I was unable to join you in Bali recently for the first Asia Pacific Regional Conference. As you said on that occasion, other countries in the region should stand with Indonesia in promoting the OGP particularly in this dynamic region. I am pleased to announce today that Australia will proceed forthwith to join you and other partnership members in this important work.
So, onto France.