Tony Fitzgerald's prescription for good government

On ABC 7.30 last night Tony Fitzgerald who headed the inquiry into corruption in Queensland 25 years ago said the LNP Newman government represented the low point for best practice government in all the years since. 

Fitzgerald has written a more comprehensive critique on The Drum.

He has put forward four principles of good governance, now picked up by others as in this Open letter, asking political parties for a commitment and a clear explanation how they would be implemented if elected:

1. Govern for the peace, welfare and good government of the State;
2. Make all decisions and take all actions, including public appointments, in the public interest without regard to personal, party political or other immaterial considerations;
3. Treat all people equally without permitting any person or corporation special access or influence; and
4. Promptly and accurately inform the public of its reasons for all significant or potentially controversial decisions and actions. 

You might wonder where's the hard part here, but it was proving a big task for the LNP until Premier Newman murmured yes during last week's Leaders Debate.The implementation details are in short supply, surprise, surprise.

As Fitzgerald explained, the principles are simply asking politicians to behave democratically

"They're really requirements of what we call representative democracy, which is a system in which a parliament is elected to represent the people and to govern on behalf of the people. Whereas the political parties of today see it rather as a contest in which whichever one wins does pretty much what it likes. And so I suppose if we're ever going to get back to the proper representative democracy, it will have to come through pressure from the public to force the parties to acknowledge these requirements and it seemed appropriate in the present circumstances to start that pressure going forward."

Fitzgerald acknowledged the principles can't be legally enforced."To be held accountable, they can be held politically accountable." That's a collective responsibility for us at the ballot box and thereafter as well.

The Fitzgerald principles should be waved in front of contenders for political office at all levels of government starting with those contesting the NSW election in March. And before those already exercising legislative or executive power in the people's name.

For our government in Canberra, determinedly keeping its head down on the whole range of integrity, transparency and accountability issues except its plan to abolish the Office of Australian Information Commissioner, Fitzgerald had this to say about the need for a federal anti-corruption agency, something the government opposes:

I think it's self-evident. The people who go into State Parliament, who go into the major political parties are the same people who go into those parties and go into Federal Parliament. I don't think they're any different in one group or the other. They're people who, for one reason or other, are prepared to buckle down and do what the party wants, to advance the interests of the party, to advance the ideologies of the party and to advance their own interests. I can't understand why they'd be corrupt at one level - or be corruptible at one level and not at the other. So, that's not to say I know of any corruption in the federal system at the moment, but I'm pretty sure you'd find that if the digging started, there'd be bones at the bottom of the hole, you know.

Finally Fitzgerald on the skills and experience of the political class:

.. I'm concerned on a wide range of things about government in Australia, but in particular, the idea that the people who are now running politics are professional politicians, learning all the bad habits in political office. Nearly all members of Parliament now will have done a stint in the party office, a minister's offers or an associated entity's office. We need to get people who are independent, who've taken - who've learned and exercised values outside the political system. So that's my broad concern

OAIC continues to operate while bill to scrap it awaits the return of the Senate.

The Office of Australian Information Commissioner wouldn't be in business these days if the government had its way in the Senate late last year. 

But as the OAIC explains, it is soldiering on with reduced resources still in anticipation of closure because the bill to abolish the office remains on the Senate Notice Paper and Attorney General Brandis apparently intends to bring it on for debate after Parliament resumes on 9 February:

The Bill proposing the closure of the Office of the Australian Information Commissioner (OAIC) on 31 December 2015 was not considered before the end of the 2014 parliamentary sitting period. The OAIC continues to process Information Commissioner reviews and Extension of time applications. We are operating with reduced resources in anticipation of closure and we will continue to review our processes to provide a limited service within our reduced capacity.  The Commonwealth Ombudsman will continue to handle all FOI complaints. The OAIC continues to administer the Privacy Act 1988 (Cth) (Privacy Act).

Australian Information Commissioner Professor McMillan told Senate Estimates in December that the OAIC Canberra office had closed and he was working from home. The same day Freedom of Information Commissioner Dr Popple was appointed to the Administrative Appeals Tribunal from 1 January.

At that hearing it emerged the OAIC while it continued to operate had available the resources allocated in the budget including $1.4 million surplus from the first six months of operation, and around $2.7 million for the Privacy Commissioner for the second half of the year, funds that would transfer with those functions to the Australian Human Rights Commission if/when the amendment bill passed.

At the time AGD FAS Matt Minogue said the Department was in discussions with Professor McMillan as to how best to deal with the consequences arising from the fact the Bill had not been considered by the Senate. "(W)e are in discussion with Professor McMillan" about the best way to deal with external review mechanisms "given that it is not just the interests of the department or the office but the interests of applicants as well. And those conversations are continuing." He later referred to ongoing discussions about the retention by the OAIC of the surplus funds held by the Office as at 31 December 2014.

I lodged FOI applications today with Attorney General's and the OAIC for documents concerning these discussions including proposals for funding and staffing and any agreement or understanding reached on these and related matters. 

Disclosure would contribute to public discussion about an important topic, the exercise of citizen rights of access to government information. That's a weighty public interest consideration. Let's see what they say.

Justinian's take on AG's plan to take down OAIC

Richard Ackland in Justinian - News Desk Special Monday 19 January 2015.
(Republished with permission.)

FOI still wagging

The end of last year saw more hopelessness from AG Soapy Brandis.

He was supposed to guide through the Senate the Freedom of Information Amendment (New Arrangements) Bill, but failed to do so.

The legislation seeks to abolish the Office of the Australian Information Commissioner from January 1. Under the plan announced in the budget the AG's department is to take over the task of "guiding" FOI policy, while the AAT will handle merits reviews -  $861 fee for starters.

The Privacy Commissioner is to be transferred back, as an independent statutory officer, to the government's pet punching bag, the Australian Human Rights Commission.

This jiggery-pokery was said to save $10 million over four years.

The Bill passed the House in October and was sent to a hurried Senate committee inquiry, which reported on November 25.

There was a strong Labor and Greens minority report opposed to the government's changes, with the Coalition Senators waiving it through.

It never looked as though it was going to get the support of six crossbenchers consequently it didn't come on for debate.

Since the budget announcement the FOI side of the OAIC shop has been in wind down
mode. The commission had only been funded until December 31, but because the Bill did not pass it still has statutory responsibilities.

Soapy made no effort to sell the proposal, but probably will have a crack at using his magnificent persuasive powers in February to get the legislation through.

In the meantime, the FOI commissioner Dr James Popple has been appointed to the AAT.

According to Peter Timmins, the lawyer and blogger who follows these things, that leaves FOI law being overseen by one man working from home.

The whole thing is a frightful mess. The Information Commissioner Professor John McMillan told the senate committee:

"There are practical questions, obviously, about the administrative support
that would be needed to discharge functions if the normal budgetary
allocation has expired but the legal reality is that the commission still exists,
the commissioners still continue in office and the functions conferred upon
them by the various acts are still relevantly conferred and are exercisable."

Update: A shorter version appeared in Richard Ackland's Gadfly column in The Saturday Paper 24 January

Amid the stench of political donations, a whiff of reform

 Well in some places at least.

You may have missed the final report delivered to NSW Premier Baird on 24 December on options for long term reform of political donations by a panel chaired by Dr Kerry Schott.

By Martin Kingsley from Melbourne, Australia (Cashmoney) [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons

NSW already has the strictest election funding laws in Australia, but the report puts forward 50 recommendations for legislative change and a new more vigorous approach to implementation of the law and oversight by the regulator.

 Nicole Hasham in the Sydney Morning Herald said the report revealed 

"a political donations system riven with loopholes, weaknesses and corruption opportunities. ...The panel ... found "systemic failures" in laws that govern electoral funding disclosure, spending, caps and bans. It called for an immediate review. The archaic, paper-based system of delayed donation disclosures should be replaced by an online system where disclosures were made in real time, allowing meaningful scrutiny of potential relationships between donations and government decisions, the panel said.

No media release from the Premier accompanied publication but Hasham reports Premier Baird said "the government would consider the report and respond before the March election" adding that it "is understood that most recommendations will be supported."Nothing from Labor so far but NSW Greens welcomed most recommendations
 
NSW with an election on 28 March, ten Liberal members of parliament sidelined by the party because of revelations about breach of the donation rules as a result of revelations in ICAC last year, and Labor carrying the dead weight of former ministers Eddie Obeid and Ian McDonald, the integrity issue is unlikely to sink from sight in NSW as is the fate of most Christmas period releases. 

Some Schott recommendations are subject to the outcome and impact of a High Court decision later in the year in the McCloy case which is challenging an existing NSW prohibition on donations by developers.

That case has the potential to slow down national action on political donations also, something the Panel regards as essential for meaningful reform. (Alas the Federal government is yet to show a flicker of interest in this or anything else on the integrity front.)

As long as the rules governing political donations differ across Australia, there is a risk that any NSW law will be circumvented. The evidence brought to light by the ICAC in Operation Spicer shows how the lack of regulation of political donations at the federal level can be exploited to avoid the bans and caps on political donations that apply in New South Wales. We note that the Premier has recently introduced a new anti-circumvention provision targeted at those who deliberately seek to avoid the election finance laws, as recommended by the Panel in its Interim Report. The federal structure of some political parties creates opportunities for avoiding NSW restrictions on political donations. We believe that the Premier should support greater co-ordination of election funding laws across jurisdictions. A co-ordinated approach to disclosure would be a useful start. We recommend that the Premier seek to put the issue on the agenda at COAG. We also recommend that the Premier report to the NSW Parliament on progress against implementation of our recommendations, to ensure that the current momentum for change is maintained.

Labor and others are pushing integrity and accountability issues in the Queensland campaign leading to the election there on 31 January, just prior to this conference  on the subject in Brisbane on 9 February. Plenty of big donations are being accepted by the LNP Newman government from companies pushing controversial resource developments, caps on donations have been scrapped and disclosure thresholds increased twelvefold.

Unlike NSW and Queensland, Victoria does not regulate political donations and disclosure except for a cap of $50,000 on donations from casino proprietors. But on the good news side perhaps the Andrews government includes Special Minister of State Gavin Jennings listed third in the cabinet line up who will oversee government transparency, accountability, integrity and public sector administration and reform, supported by the Department of Premier and Cabinet.

In addition, the department portfolio now includes providing support in relation to the Auditor-General, the Commissioner for Privacy and Data Protection, the Freedom of Information Commissioner, the Independent Broad-based Anti-corruption Commission, the Local Government Investigations and Compliance Inspectorate, the Public Interest Monitor, the Victorian Electoral Commission, the Victorian Competition and Efficiency Commission, and the Victorian Inspectorate.

Political donations, lobbying, getting the BACC fit for purpose, and long overdue freedom of information reform have to be in there somewhere.

Timely reminder:“Democracy dies behind closed doors.”

David Cole, the Honorable George J. Mitchell Professor in Law and Public Policy at Georgetown University Law Center writing in The New York Review of Books reflects on drone strikes and surveillance, and given the incredible extension in what technology can deliver, the importance of transparency. 

Professor Cole while acknowledging secrecy is sometimes necessary, ticks various boxes about the extent to which a degree of forced transparency has had a subsequent restraining influence on US policy and programs, but needs to go further:

We won’t have a chance to arrive at defensible policies on surveillance and targeted killing if the questions are not fully and fairly debated. When the balance between individual rights and security is struck in secret one-sided determination, as has been the case with both drone killing and electronic surveillance, as well as the CIA’s enhanced interrogation program, it will inevitably be skewed. Increasingly, our governments seem to be insisting that our lives be transparent to them, while their policies remain hidden from us. For the sake of democracy itself, we must do all we can to resist that impulse.

Australian readers might ponder the situation here in light of this Business Insider list in June 2014 of what the world learned in a year of Snowden leaks.

We had or are having something of a debate about the powers given to Australian security services, metadata and data retention. 

But as Martin Place and Paris are sure to raise questions about the need for ever more information about all of us in the search for the deranged, driven and malevolent, let's plug for Professor Cole's full and fair debate. 

Something we missed here following revelations for example about Australian involvement in those drone strikes and the PRISM and XKeyscore programs, spying on our friends and in this case their lawyers, the shared arrangements we have entered into to pool information about citizens, and who here in government let alone the rest of us knows what is going on.

More from Professor Cole here:

Annual release of cabinet records - our ancient history not all fit for public consumption

The 1988-1989 cabinet records released on 1 January provide plenty of interest for the buffs and interesting pickings for the mainstream at a slow news time of the year.

As to the admittedly small amount of information still withheld after all these years, a plus that no document is withheld in its entirety.

But still plenty of room for head scratching.

What passes for usual (see last year), parts of various documents concerning Antarctica are withheld. All interested parties no doubt guess those parts don't sit well with our sovereignty claim. 

What officials judge shouldn't be revealed about what cabinet and senior officials knew then concerning the South Pacific, Papua New Guinea, Indonesia and China is another matter, probably to do with spooks and intelligence matters. 

Clearly that's the case with withheld parts of "People's Republic of China intelligence services activities in Australia" and "Eastern European and Cuban intelligence activities in Australia." As to the withheld part of the title of the submission "Measures to improve Australia's High Frequence (HF) Signal Intelligence Capability.." - any guesses?

Parts of submissions still relevant to the current Mr Fluffy asbestos problem in the ACT and NSW are disclosed but other parts of Memorandum 6034 and Submission 6037 on the subject are withheld for a range of reasons. Including yes, believe it or not, because of likely damage Australia's security, defence or international relations.  legal privilege not outweighed in the judgment of officials by the public interest in disclosure.

Parts of "Cape York spaceport – Commonwealth support" are withheld because of damage to security, defence or international relations.

You have to wonder at what point officials are comfortable for our ancient history to become our publicly known and acknowledged ancient history.

From National Archives Australia, the section dealing with withheld records: