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Thursday, February 27, 2014

Cut back on published contracts in the name of cutting red tape?

In order "to pursue the deregulation agenda and reduce red tape for agencies in their reporting processes" Department of Finance officials in Canberra told Senate estimates this week of a proposal to increase the threshold for publication of information about government contracts online on Austender from $10,000 to $20,000. 

The change would mean non publication from 1 July of contract details that represent four per cent by value of total contracts but a much higher percentage in terms of the number of contracts.

While the administrative burden for agencies would ease, what it means for transparency is also clear: less not more. 

What other cutbacks on the publication of information in the name of the deregulation and reduce red tape agenda are in the pipeline remains to be seen. 

Austender publication of contract information quarterly is a Department of Finance requirement that rests on policy not legislation. A Senate Order requires reporting of contracts over $100000 including on the extent of use of confidentiality provisions. The Senate Finance and Public Administration Committee has a current reference on this.

Former Finance Minister Penny Wong pointed out in Estimates the lack of consultation with the parliament about the Austender proposal and raised the possibility of changes down in the Senate Order threshold if the Austender level is raised.

The Auditor General and others have been calling for rationalisation and improvement in the systems for years. Poor search capabilities are another issue.

Disclosure obligations for contracts (grants and a range of other information we expect or should expect agencies to make available as a matter of routine) should be incorporated in legislation as a publication requirement - a highly desireable Freedom of Information reform waiting to happen.

The Q&A in Estimates follows. 

In a busy Estimates week Information Commissioner fails to draw a crowd

It's been a big week for the estimates committees operating simultaneously in Canberra with hard decisions for senators about where to spend time asking what. 

But for all the (legitimate) concern about transparency and accountability, The Greens Senator Lee Rhiannon was the only senator in addition to the chair to make it for the 15 minutes in total spent quizzing the Office of Australian Information Commissioner in Attorney General's Estimates on Monday.

About half the time was spent revealing little (revealing in itself) about Australian membership of the Open Government Partnership with an associated exchange of barbs between Senator Rhiannon and Attorney General Brandis - over who is closer to Russia.

No questions at all to Information Commissioner Timothy Pilgrim despite the big changes to privacy legislation to commence on 12 March, which might have prompted interest in preparedness and adequacy of resources for the exercise of enhanced powers that include pursuit of civil penalties of up to $1.7 million for serious or repeated privacy breaches. 

And a myriad of other privacy issues relevant to the operation of the OAIC passed without question. Including what one of the biggest known privacy breaches, details of thousands of asylum seekers in Australia inadvertently made accessible online at Immigration,tells us about compliance, and the need for mandatory data breach disclosure legislation which failed to make it through parliament last year. (Presumably the bill is battling for oxygen amid behind the scenes discussion about reducing rather adding to the regulatory burden on government and business.)

Australian Information Commissioner Professor McMillan put the best light on published statistics about the delays experienced by review applicants and complainants:
"....the office battles gamely to deal with a growing workload and, as far as possible, to meet the stated objectives of the FOI Act, which..emphasises a prompt dispatch of FOI matters." 
The resource situation at the OAIC and the generally dark cloud hanging over information access went unexplored.

When questioned about the extent agencies game the system Professor McMillan said his public comments on this were aimed at  discouraging behaviour of that kind, that naming names would require a lot more digging beforehand, and in any event 80% of cases are resolved and documents released without the need for a published OAIC decision. However it is a concern if perceptions of gaming are out there and third parties seeking review of an agency decision to disclose may also be part of any problem.
(Comment: those perceptions are out there, based on experience. It might help the cause if, with or without names. agency decisions based on a wing and a prayer that are in effect reversed when challenged but before a formal OAIC decision are highlighted publicly. And in future reforms, provision is made for some sort of disincentive or discouragement such as payment of OAIC/applicant costs by the agency concerned where a decision with little or no merit or less than adequate understanding of the law, its spirit and intent is uncovered.)

Professor McMillan remains positive overall:
 "Our experience is that, for the large part, agencies and ministerial offices do strive to meet the objectives of the FOI Act. As I have also said on a number of occasions, my view is that the changes over the last three years have caused quite a significant cultural change in government. It is apparent that considerably more is released not just in terms of volume but also in terms of the range of documents. A quick glance at FOI disclosure logs on agency websites indicates that."
(Comment: ah yes, but......)

Tuesday, February 25, 2014

Foot dragging continues over Australian membership of OGP

In the last week the Open Government Partnership has been referred to in a joint statement by President Obama, President Pena Nieto of Mexico and Canadian Prime Minister Harper, and by Secretary of State Kerry and Indonesian government leaders. An Asia Pacific Regional OGP Conference in Indonesia in May has been announced with President Susilo Bambang Yudhoyono to give the keynote. Recently UK, New Zealand and Irish ministers have spoken up publicly about the importance of the OGP.

But here the lofty objectives of the OGP are yet to experience the full warm embrace of an Abbott government minister.

Australia was invited to join in September 2011 and took until May 2013 to respond with an announcement of intention to join in April 2014.

 It's been close to silence since.

The foot dragging over signing on to a multilateral initiative that promotes transparency in government, encourages citizen participation and tackles corruption that has the support of 62 like-minded governments is perplexing. While we are still to enter the starting gate, OGP participating  countries have made over 1000 commitments to make their governments more open and accountable.
OGP participating countries have made over 1,000 commitments to make their - See more at:
OGP participating countries have made over 1,000 commitments to make their governments more open and accountable.   - See more at:
OGP participating countries have made over 1,000 commitments to make their governments more open and accountable.   - See more at:
OGP participating countries have made over 1,000 commitments to make their governments more open and accountable.   - See more at:

In Canberra yesterday the top table in Senate Estimates for the Attorney General's portfolio managed a few short answers to questions from The Greens Senator Lee Rhiannon about the current status of Australia's application to join. But as the minions who knew about such things had left the building, they said anything much in the way of detail would have to be taken on notice. 

Those on the receiving end were Australian Information Commissioner Professor McMillan who said he couldn't say as he had no recent formal involvement; Secretary of the Attorney General's Department Roger Wilkins who managed two sentences ("All I can tell you is that it is progressing and there has been some discussion amongst departments. There is some issue about which department should ultimately be charged with taking it forward, but that is about all I know of (sic) the top of my head"); and Attorney General Brandis who after these two efforts and informed by a piece of paper said there had been three inter-agency meetings, one in July and after the September election, in October and November, and a national action plan (a requirement of membership) is "in development." 

When Senator Rhiannon asked about timing and the announced plan to file for membership in April 2014, Mr Wilkins pointed out that April "was not a deadline." 

Seeing that the OGP rules are for the national action plan to be developed in partnership with civil society and there hasn't been a peep heard to date by interested parties on the outside, membership in April 2014 looks out of the question.

Compare and contrast this low key, nay barely visible approach with the recognition elsewhere that the OGP deserves attention at the highest levels of government.

Last week following the annual meeting of the Leaders of North America, President Obama, President Pena Nieto of Mexico and Canadian Prime Minister Harper, who must have had plenty to talk about, included a reference in their Joint Statement to support for the OGP, their commitment to transparency and open government and to promoting democracy, human rights and respect for international law throughout the world.

US Secretary of State Kerry and Indonesian Foreign Minister Marty Natalegawa co-chaired the fourth Joint Commission Meeting of the U.S.-IndonesiaComprehensive Partnership. The US included in a long list of joint endeavours, support for "Indonesia’s chairmanship of the Open Government Partnership in 2014 by expanding engagement with youth and private sector entities with interest in OGP."

Separately, the OGP Asia PacificRegional Meeting was announced and will take place on 6-7 May 2014 in Bali. President Yudihono will deliver the key note address. 

Just a month or so ago Francis Maude UK Minister for the Cabinet office and Chris Tremain New Zealand Minister for Internal Affairs were publicly talking up their OGP plans and Brendan Howlin Ireland's Minister for Public Expenditure and Reform was calling European countries together for an OGP conference in May.

Meanwhile in Canberra, no doubt the matter is progressing through further discussion amongst departments.


'Yes Minister' proves handy in Senate estimates

There are always lots of Yes Minister moments during Senate estimates hearings and they were there by the bucketload yesterday in Attorney General estimates.

This from the Yes Minister files:
'What's the difference between "under consideration" and "under active consideration"?' I asked. '"Under consideration" means we've lost the file. "Under active consideration" means we're trying to find it!'"
From yesterday (emphasis added)-Senator Singh ALP Tasmania, Mr Wilkins Secretary AGD, Senator Brandis Attorney General:
Senator SINGH: I am interested in the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. I understand that it released its latest assessment (on Australia) in October 2012, which included a working group on bribery, recommending a number of sufficient resources be given to prosecute foreign bribery cases, of which there were some 33 recommendations needing to be implemented. Has the government looked at the implementation of those recommendations and the issue of facilitation payments in relation to that convention?
Mr Wilkins : Yes.
Senator SINGH: Have we implemented those recommendations?
Mr Wilkins : It is under consideration. Are you talking about facilitation payments?
Senator Brandis: That is under active consideration. It is something that I have discussed at some length with the department with a view to law reform.
Senator SINGH: And would that law reform look at introducing a ban, in line with the UK?
Senator Brandis: I think it is unwise to anticipate what the final shape of proposed law reform will be until the process of consideration within government has arrived at a final set of proposals. So, for that reason, I will not respond to your question.
Senator SINGH: But part of your consideration will include looking at the UK law?
Senator Brandis: Particularly in an area like this, which has important cross-jurisdictional dimensions, when the government or the department develop law reform proposals they would routinely look at the law of comparable jurisdictions, including the United Kingdom.
Senator SINGH: Do you have a time frame on that law reform proposal?

These Q&Non-A sparked by The Greens Senator Ludlam ran a close second:
Senator LUDLAM: ....I have one for you, Mr Wilkins. Can you update us on what work the department has done on data retention and matters attendant on that since the election?
Mr Wilkins : No, I cannot do that off the top of my head. I think I will have to take that on notice.
Senator LUDLAM: Are you aware of any work at all having been done?
Mr Wilkins : No, I will take it on notice.
Senator LUDLAM: Is there anybody at the table or in the room who can deal with this?
Mr Wilkins : No, I do not think so. We will take it on notice.
Senator LUDLAM: You do not need to check? Mr Wilkins, how long will it take for you to identify if there is anything you would like to tell us?
Mr Wilkins : I will do it as soon as I can, actually.
Senator LUDLAM: If we could come back to it later today, that would be good.
Mr Wilkins : It will take more than today. I do not—
Senator LUDLAM: Just to establish whether any work is being done.
Mr Wilkins : I am conscious of the fact that I do not want to give you a half-baked answer—
Senator LUDLAM: Because there is a bit of a history of that regarding this matter, in particular.
Mr Wilkins : You have said that, not me.
Senator LUDLAM: There is a history of questions being—
Senator Brandis: That is a very unfair reflection on the department.
Senator LUDLAM: In this particular matter of data retention I have put questions that have then had to be repeated for corrections, clarifications and contradictions provided on notice, so I do not think it should take more than a day to establish whether the department has done any work in this area. To me that seems a little unreasonable.
Mr Wilkins : I will do it as soon as I can.
Senator LUDLAM: Chair, I will come back a little later when we are in the national security bracket.

Senator LUDLAM: Mr Wilkins, is there any update on whether the department is progressing data retention since I was here an hour or two ago?
Mr Wilkins : No.
Senator LUDLAM: You still do not know?
Mr Wilkins : We are still making enquiries. It will be sometime. We are trying to prove a negative.
Senator LUDLAM: Just try and tell me if anybody is working on it or not.
Mr Wilkins : I need to ask everybody and make sure that there is nothing happening in any corner of the department that I do not know about on this one.

Sunday, February 23, 2014

Cabinet documents and release to the Royal Commission

Former prime ministers Malcolm Fraser and Bob Hawke are alarmed and the talk is how 113 years of history will be overturned if the Government makes the previous government's cabinet papers available to the royal commission into the abandoned home insulation scheme.

This is flagged in media reports about a letter from Attorney General Brandis to his predecessor, Labor's Mark Dreyfus. The letter said the documents ''will include documents over which a claim for public interest immunity might be made, such as cabinet documents''. In providing the documents the government will indicate that it does not waive its right to claim public interest immunity from their contents becoming public.

At this stage the circumstances - whether the Royal Commission has ordered production, or the government has volunteered - and what will be made available (submissions, decisions, notetakers note books) is not known. What might become public is way down the track.
Cabinet proceedings are not recorded verbatim. The notebooks are "handwritten notes" (yes!) of the proceedings  recorded by the three Cabinet Office staff members in attendance. 
Amid the shock horror and suggestions the government is playing politics in this, it's worth noting that a royal commission has powers to compel production that are at least the equivalent of any judge and probably go further.

 And as Odgers' Australian Senate Practice 12th Edition conveniently summarises, cabinet documents are not extended absolute protection from discovery:
The claim often loosely made that “cabinet documents” are immune from production in the courts is not supported by recent judgments. Only documents which record or reveal the deliberations of cabinet are immune (Commonwealth v Construction, Forestry, Mining and Energy Union 2000 171 ALR 379; NTEIU v the Commonwealth 2001 111 FCR 583; see also Secretary, Department of Infrastructure v Asher 2007 VSCA 272).
Odgers' quotes from the High Court in Sankey v Whitlam and others 1978 142 CLR 1) and refers to other decisions:
In 1984 the High Court ordered the production of Australian Security and Intelligence Organisation (ASIO) documents for its inspection in a criminal trial, Alister v the Queen 154 CLR 404. In The Commonwealth v Northern Land Council 1993 176 CLR 604, the High Court held that the Commonwealth should not have been ordered to produce notebooks containing records of cabinet deliberations to legal representatives of the Northern Land Council. The Court held that: "The production to the court of documents recording cabinet deliberations should only be ordered in exceptional circumstances which give rise to a significant likelihood that the public interest in the proper administration of justice outweighs the very high public interest in the confidentiality of such documents."
In that case the Court went on to say:
 "When immunity is claimed for Cabinet documents as a class and not in reliance upon the particular contents, it is generally upon the basis that disclosure would discourage candour on the part of public officials in their communications with those responsible for making policy decisions and would for that reason be against the public interest. The discouragement of candour on the part of public officials has been questioned as a sufficient, or even valid, basis upon which to claim immunity. On the other hand, Lord Wilberforce has expressed the view that, in recent years, this consideration has “received an excessive dose of cold water”.
(That dose of cold water isn't counting for much in some quarters at the moment-see the reference here to FOI refusal of access to incoming government briefs and the recovered status of 'Frank and Candid.')

Public interest immunity claims refusing to comply with parliament orders to produce are the subject of a current Senate committee inquiry. Former Clerk Harry Evans in a note circulated in 2005, and still accorded weight (by parliamentarians at least) was of the view  that a cabinet document did not automatically qualify.(See Odgers.)

With regard to public access, the FOI act exemptions work to protect cabinet documents The 30 year rule  is dropping in stages to 20, and now at 28. The 1950 Cabinet notebooks, released in 2001, were the first notebooks to be released for public access.

Friday, February 21, 2014

Transparency light in the dark world of surveillance and intelligence

Stephanie age 6
I didn't include surveillance and intelligence matters in my 'straws in the wind' list but they deserve a mention in the context of the government's approach to transparency. 

To generalise, the government doesn't talk publicly about such things. And all Australian intelligence agencies are entirely exempt from the Freedom of Information Act.

 It's quite a contrast elsewhere, even among most of our 'Five Eyes' partners.

Maybe whistling in a dark corner, but the issue of getting the balance right between secrecy and disclosure deserves more discussion than it has received so far.

Spying and surveillance
So far the public response here to the Snowden leaks is the familiar 'in line with longstanding practice we don't comment on intelligence matters.' With fingers crossed things can't get worse in our relations with Indonesia, and biding our time until the International Court rules on the case brought by Timor Leste. 
(Raoul Heinrichs of the ANU writing in The Canberra Times suggests something completely different:"One option may be to pre-emptively come clean on the damaging material we know Snowden possesses. That may sound a bit like committing suicide for fear of death, and it would be painful and embarrassing in the short-term. But the alternative is to cede the initiative, to stay on the back foot while Snowden's leaks are drawn out over months or even years and timed to maximise damage.")

Closer to home the government has had little or nothing to say about PRISM and reports last year about collection of phone and internet data from other countries by the NSA in accordance with deals with organisations like Telstra, as revealed by the Washington Post.

It goes without saying that surveillance and intelligence gathering are both necessary and important and that there are strong and legitimate reasons for not being completely open about such things.

But that doesn't mean silence. As President Obama said:
" ..there is an inevitable bias not only within the intelligence community, but among all of us who are responsible for national security, to collect more information about the world, not less. So in the absence of institutional requirements for regular debate -- and oversight that is public, as well as private or classified -- the danger of government overreach becomes more acute. And this is particularly true when surveillance technology and our reliance on digital information is evolving much faster than our laws."
He outlined in that speech steps to rein in some intelligence gathering activities as well.

(US) Director of National Intelligence James Clapper later told the Senate Intelligence Committee 
"The major takeaway for us, certainly for me, from the past several months is that we must lean in the direction of transparency, wherever and whenever we can.."
In Europe German Chancellor Merkel continues to lead a strong response in public to reports of US activities.

Here, well mostly silence.

Neither major party supported an attempt by The Greens Senator Ludlam in December to establish a Select Committee to inquire into electronic surveillance and governance of the Australian Intelligence Community, thus scuppering that idea. With ALP (but not government) support Senator Ludlam did succeed with a motion for a Senate committee to look into the Telecommunications (Interception and Access) Act, something recommended by the ALRC six years ago but not acted upon previously.

Freedom of information
And while FOI will never likely deliver anything of the Snowden variety, this also is an area of contrast.

In Australia all intelligence agencies are exempt entirely.  

In all other 'Five Eyes" countries with the exception of some UK counterparts, intelligence agencies generally are subject to access to information laws.

In the US, the FOI act extends to the NSA and the CIA, the latter proclaiming:
The CIA releases millions of pages of documents each year. Much of this is material of historical significance or personal interest that has been declassified under Executive Order 12958 (a presidential order outlining a uniform system for handling national security information) or the Freedom of Information Act and Privacy Act (statutes which give US citizens access to US government information or US government information about themselves, respectively). The Agency handles thousands of cases each year and maintains the CIA’s FOIA Electronic Reading Room to release this information to the public and to provide guidance for requesting information. Some released information of significant public interest or historical value is also available at the National Archives and Records Administration.  
The same goes for Canada and NZ and in the UK for MI5 (Correction-UK security services are exempt-thanks Andrew) but not MI6 and others.

The Hawke review recommends we keep things the way they are as argued by the Australian Intelligence Community (pdf). Bear with me-mostly in their own words:
this level of protection is vital and necessary; relying only on other exemptions in the act concerning national security, defence or international relations on a case-by-case basis would involve decisions that are potentially subject to internal and external review; this review process removes the authority for decisions from those responsible for the protection of particular documents; this can have implications for the intelligence that foreign partners are willing to share with Australia; decisions on whether the exemptions in these sections apply may be difficult to take; the disclosure of apparently innocuous pieces of information relating to the activities of the AIC could result in damage to Australia’s security; such information can aid in building a detailed picture of Australia’s security and intelligence agencies and their activities and can alert groups, individuals or hostile intelligence agencies to a specific intelligence interest in them; any change to the existing exemptions could have serious implications for our information-sharing arrangements with allies, several of which are treaty-level; the confidence of our allies in our ability to protect information that they share with us remains fundamental to our intelligence sharing arrangements; we need to maintain this confidence; this could also have a bearing on the level of trust they extend to us and the undertakings we can make; it could diminish the level of access to important intelligence on which we rely for coverage of threats to Australia’s national interest...

The review accepted this without any meaningful public discussion and debate.
Australian Information Commissioner Professor McMillan for one isn't convinced. 

You can add quite a few of the rest of us who think blanket exemptions - including for the parliamentary departments - leave large unacceptable holes in the transparency and accountability framework.

The attachment to secrecy isn't just out of concern about current activities. 

The government no doubt at the urging of an intelligence agency or two is currently arguing against disclosure of Australian diplomatic papers and intelligence on Indonesian military operations in East Timor more than 32 years ago. 

Obviously it is a difficult time to disclose what we knew, when we knew and how we knew about the massacre of several hundred East Timorese civilians.But you have to wonder how long is long enough.

A few suitable topics in all this for Attorney General Brandis' debate about freedoms?

Thursday, February 20, 2014

Ill wind in Canberra on the transparency front

It's still summer, it is not completely dark and gloomy (this Freedom of Information disclosure by Defence to Sean Parnell of The Australian is one to keep hope alive) but these straws plucked from the mist are telling:

.Tone at the top - public servants (and the rest of us) are yet to hear an Abbott government minister on the public record about the importance attached to transparent, open government. Au contraire, the impossible to miss messages from Minister Morrison. Leadership along the transparency and accountability path is crucial. It stopped coming from Labor after a good start in 2007 and Prime Minister Gillard's 'let the sun shine in' proclamation in 2010. Prime Minister Abbott and Attorney General Brandis, their interest in "Freedom wars" to one side, have not put T&A up in lights in five months in office.

. Silence during this period also on the previous government's commitment in May last year to join the Open Government Partnership. As Attorney General Dreyfus said at the time
The Open Government Partnership is a multilateral organisation that promotes transparency in government, encourages citizen participation and tackles corruption. ”Australia shares the values of the Open Government Partnership and we have a wealth of knowledge and experience to share with other nations in the partnership,” Mr Dreyfus said. “We believe that greater openness and accountability in government promotes public participation in government processes and leads to better informed decision-making.The Open Government Partnership provides an international forum for countries, civil society and the private sector to stand together to address the challenges of governance in the 21st century.....  
Hard to imagine that this could be seen as anything but a bi-partisan cause. Of comfort to the Abbott government should be that similarly disposed conservative governments including the UK, Canada and NZ are among the 63 members or intending members. The OGP has Australia down to formally complete preparations to join in April 2014 when the Steering Committee meets in, ahem, Indonesia, the current lead co-chair. An intending member needs to endorse the Open Government Declaration and submit a national action plan developed through a government-civil society partnership. We appear to have no chance now to meet this deadline as any work undertaken within government in preparation of a draft has not been shared with those interested on the outside. An about face and withdrawal from the OGP would see Australia join Russia as the only countries to do so. 

.The impediment to 'prompt access' to documents - one of the objects of the Freedom of Information Act - occasioned by the usual agency runarounds, compounded now by long delays in external review at the OAIC extending beyond a year in many cases and two in some.
. Refusal of access to the incoming minister briefs- a complete uniform turn around by all agencies from  2010. That turning point (Treasury (pdf) led the way) has seen renewed public service take up of the argument that 'frank and fearless' advice depends on confidentiality, drawing on words used in two decisions from the Office of Australian Information Commissioner (Crowe and  Cornerstone). The Treasury model has been sharpened as in this internal review decision (pdf)  (thanks Delimiter) by the Department of Communications. A class claim is in the making here: in effect disclosure of anything in advice documents such as the brief  (now six months old) would endanger the development of a trust relationship with the minister, mean public servants in future will offer limited bland rather than frank honest advice, and operations of the department will suffer substantial adverse effect. The countervailing public interests for example in transparent accountable government, in all of us knowing what the experts within government know about the real state of the game, and the contribution disclosure of information of this kind would make to informed public discussion of the issues don't get much of a run.

. Non-compliance with Senate orders to produce documents, not just in relation to Operation Sovereign Borders but in nine of ten instances to date.

. Some always doubtful exemption claims only exposed after the applicant waited 12 months or more in the queue for a decision from the OAIC, and the Australian Information Commissioner's admission that some agencies are gaming the system. The extent of this is unknown to any of us on the outside. Apparently because of resource constraints the OAIC has undertaken only one Own Motion Investigation since it commenced at the end of 2010.

. Inventive, creative reasoning. As in NBN Co's claim in response to the Sydney Morning Herald that releasing the names of directors who attended a board meeting last September could "damage a given director's personal reputation and ability to sit on other boards" and "negatively impact on NBN Co's ability to attract top-level directors" which could in turn affect NBN Co's commercial activities.. and as such put the names of the directors outside the scope of the FOI act. For good measure, so too the names of staff and third parties who attended because disclosure might enable someone to work out agenda items for the meeting. The article cites other recent knockbacks: to the Foreign Investment Review Board's 37-page report on the proposed takeover of GrainCorp, and Airservices Australia's refusal of access to the flight records of a private jet which "has in the past been a routine matter."
(Minister for Communications Malcolm Turnbull for one won't be surprised at the NBN Co decision. During debate in Parliament in 2011 on amendments designed to bring NBN Co partially under the FOI act he said The Greens Adam Bandt, who moved the amendment with ALP government support had been conned. Mr Turnbull said because NBN Co is a business, all of its activities are conducted on a commercial basis and it would remain "exempt in respect of documents right across its entire business." NBN Co may be proving the minister right. An experienced FOI user told me last week "since the Coalition came on board it's been a shocker with FOI. Everything is locked up as tight as possible. NBN Co is the worst.... To my mind, unless you're after very basic, non-sensitive materials, the FOI Act is basically useless at this point...Truly a New World Order.")

.  'New world order', wither the spirit? A query prompted by countless overly bureaucratic agency responses on display at Righttoknow. And by this Department of Health refusal of a request from Delimiter for a report reviewing the Federal Government’s Personally Controlled Electronic Health Records project, claiming on 31 January that it did not have a copy of the document on 5 January when the FOI application was received. Some head scratching given the fact that Health Minister Peter Dutton issued a Media Release on 20 December on receiving the report. Maybe the minister hadn't passed on a copy by the fifth; yes relevant documents are those held at the time an application is received not those that are created or received at a later date, so if it was received in the department on the sixth or any time before the thirty first, technically access could be refused on "not held' grounds. But the decision letter(pdf) is as curt, short, sharp and unhelpful as they come. 

Autumn, a brilliant time of the year in Canberra, is near at hand. May it prove somewhat kinder to the cause.

(Republished with permission at

(Update: on related issues of transparency/surveillance/intelligence)