ALRC Freedoms Inquiry-no place for freedom of information

Submissions close today on the Issues Paper issued as part of the Freedoms Inquiry
by the Australian Law Reform Commission. 

Attorney General Brandis asked the ALRC to "review Commonwealth legislation to identify provisions that unreasonably encroach upon traditional rights, freedoms and privileges." 

The inquiry reflects a commitment made before the 2013 election. As noted at the time common law rights and freedoms are limited. Judges, rarely, 'find' new rights not previously uncovered.

Other rights (the FOI right to access government information and the right to privacy are two of many examples) find their way into law through statute and international instruments. You won't find this sort of thing in the Magna Carta. Legions of Sir Humphreys managed to ward off Freedom of Information legislation in the UK until it finally took effect in 2005. 
 
Thus while freedom of speech got a specific mention in the terms of reference list of traditional rights, and in the Issues Paper, freedom of information didn't. 

I dropped a short note to the commission:

While a fundamental right and freedom recognised in international law, the common law in Australia, drawing on British traditions, does not recognise a right to information. 

This freedom is not listed in the terms of reference for the inquiry. However freedom of information and Commonwealth laws that encroach on this right should not pass without comment in your report.

For example, Secrecy Laws and Open Government in Australia (ALRC Report 112) identified 506 secrecy provisions in 176 pieces of legislation and made 61 recommendations for reform. The report refers to the chilling effect this complex framework has on open government, transparency and the right to access information. The report was tabled in March 2010 and has not, as yet, been implemented.

Many aspects of the Freedom of Information Act fall short of emerging international standards.

The statutory review of the FOI act conducted by Dr Allan Hawke in 2012-13 recommended a comprehensive review of the kind he was unable to undertake. There has been no government response.

As to freedom of information and its place in the law, UNESCO describes freedom of information as 

"an integral part of the fundamental right of freedom of expression, as recognized by Resolution 59 of the UN General Assembly adopted in 1946, as well as by Article 19 of the Universal Declaration of Human Rights (1948), which states that the fundamental right of freedom of expression encompasses the freedom to “to seek, receive and impart information and ideas through any media and regardless of frontiers”.

FOI has also been enshrined as a corollary of freedom of expression in other major international instruments, including the International Covenant on Civil and Political Rights (1966) and the American Convention on Human Rights (1969)."

The United Nations' Human Rights Committee (General Comment 34) states that freedom of information is integral to human rights under international law "essential for the promotion and protection of human rights." Access to government information, which the committee considers an element of freedom of expression, is an "indispensable condition for the full development of the person" and "the foundation stone for every free and democratic society."

The right of access to government information isn't absolute and must be balanced and adjusted over time to reflect other rights and public interests. 

But not taken away or without reason diminished. 

I didn't mention the potential encroachment on the enjoyment of the right arising from the Attorney General's intention to legislate the Office of Australian Information Commissioner out of existence. 

Maybe the Senate will stop that one.

AG Brandis not for turning on bid to abolish Office of Australian Information Commissioner

Senator Brandis at Senate Estimates late on Tuesday said he's still aiming to get rid of the independent statutory officer responsible for championing transparent government, an officer who undertakes other important functions including non litigious free review of agency decisions under the FOI act.

This despite the fact that votes from Labor, The Greens and the crossbenches to support the move weren't there last December and its difficult to discern any change in sentiment since. 

Just about everyone outside government who looks into the proposal thinks it's a bad move unsupported by evidence and out of step with trends in good practice thinking about open transparent government in Australia and internationally.

Monday and Tuesday were long days as the Senate Estimates hearing for the Attorney General's portfolio proceeded. 

The Australian Human Rights Commission with the president in the line of fire, proposed national security legislation and a myriad other issues were traversed in the course of many hours of Q and occasional A.

But at 9.48 pm on Tuesday the Office of Australian Information Commissioner finally got the call.

Interest in proceedings had diminished  by this time with Chair Senator McDonald, ALP Senator  Collins and Liberal Democrat Senator Leonhjelm the only committee members left standing. Well sitting to be more precise.

You can read the 24 minute hearing here.

Attorney General Brandis and Matt Minogue of the AGD made it clear that the the bill to abolish the Office of Australian Information Commissioner still before the Senate continues to reflect the government's position; that the office, funded in the 2014-15 budget until 31 December and now with whatever funds were left for general functions from that date and for privacy functions until 30 June must continue to do what it can to carry out its statutory FOI, privacy and digital information policy functions without supplementary funding; and things will stay that way until the bill comes on for consideration and its fate determined. 

When that might be Attorney General Brandis has no idea. It's "a matter for the Manager of Government Business."

The OAIC has closed the Canberra office, the Information Commissioner works from home and the office has seven staff working on FOI matters. A year ago it had 20.

"The office continues to receive inquiries, complaints and IC review applications under the FOI Act, and these are dealt with under arrangements that we have published on our website. FOI matters are currently being handled by a small team in the Sydney office under the supervision of the assistant commissioner for dispute resolution and the Information Commissioner. In summary, FOI complaints are being transferred to the Ombudsman's office; Information Commissioner reviews are being triaged by our office so that where we can expedite a matter we do so; and, for the more complex or voluminous ones, we work with the applicants for these to be referred to the AAT."

With the sword of Damocles hanging over the OAIC since the unexpected announcement in May 2014 of intention to close the office Acting Information Commissioner Pilgrim (the only member of the top echelon not working from home) saluted the staff that have battled on regardless:

in respect of all of our functions, I would personally like to take this opportunity to acknowledge the ongoing commitment and professionalism of the staff in our office, who have continued to work tirelessly during very uncertain times. And I will add that in my 31 years in the Public Service I have not seen a better demonstration of and upholding of the Public Service values.

As for the Attorney General it's nothing to do with him. It's all Labor's fault

if these are perceived to be problems, then these perceived problems would all disappear if the opposition would support the bill so it could be passed...
As I was saying, if the government had an indication from the opposition of what its position was, and if the opposition, which has had plenty of time to consider this, indicated its support for the bill, then the bill could be progressed through the Senate very soon.

Senator JACINTA COLLINS: I do not think there has been any uncertainty about the opposition's position here. I think the issue is—well, I will ask: is it true that the government has offered crossbenchers a comprehensive review of the FOI system if they support the bill? And why instead will you not conduct that review before you abolish the Information Commissioner?

Senator Brandis: Surely you would not expect me to reveal private conversations that the government might have had with individual Senators. Surely you would not expect that.

Senator JACINTA COLLINS: I would not be surprised by anything that you might do after today, Senator Brandis. I would not be surprised by anything.

If the government isn't prepared to bring the bill on for debate, maybe Labor, The Greens and the crossbenches should. 

If its voted down the government might finally be shamed into adequately funding our champion of open transparent government despite its distaste for such ideas.

In an answer tabled in response to Question 204 from Senator Collins taken on notice in December about funding for the OAIC beyond December, that didn't get a mention during the hearing, the Department  stated

"The cost implications from the continued operation of the Office of the Australian Information Commissioner beyond 1 January 2015 will be determined as part of the Government’s Budget processes."

In light of yesterday's testimony they can't mean 2014-15 budget processes.

AGD appears to be struggling with an answer to another Senator Collins question from last December - the other countries that have an independent FOI commissioner. Q57 remains one of few unanswered two months later. 

Last time I did some digging it was around the 40 mark, although with 100 countries now having an FOI act it might be much higher. 

Oh and they don't have to look far for local adherents to the idea: Queensland, NSW, Victoria, Western Australia, Northern Territory and the ACT have information or FOI/RTI commissioners. In Tasmania the Ombudsman carries the can while in South Australia the Ombudsman has the review function and the former ombudsman there now Queensland Integrity Commissioner recommended adoption of the FOI commissioner model.

It's clear who is out of step here.

"Respect independent statutory bodies as central to democracy"

Professor Danielle Celermajer of the University of Sydney on The Conversation: independent statutory bodies such as the Australian Human Rights Commission and the Office of Australian Information Commissioner are established by laws passed by Parliament to ensure that all arms of government respect the full range of laws.

"If we are to continue to reap the benefits of this system, we all need to keep in mind the value of democracy. When our highest political representative moves to undermine the legally constituted organs of democracy, all Australians have something to worry about. Respect for independent statutory bodies is not a matter for party politics or personality differences. Democracy is not a partisan issue."

Good governments recognise integrity and accountability are part of the package

Evidence that those who win public office have sniffed the breeze: the new governments in Victoria and Queensland have each appointed a special minister of state responsible for integrity and accountability issues. 

Hopefully a pointer for those running for office next in NSW on 28 March.

And for a federal government now almost half way through its term whose leader declared a week ago "good government starts today." 

The government has virtually nothing positive to show on the integrity and accountability front after 17 months. 

And its bill to abolish the independent statutory office established to oversight the public right to access government information remains on the bills list while the office operates with "reduced resources in anticipation of closure."

In a poll four months ago 46.5 per cent believed the Federal government to be untrustworthy, a lower level of trust than enjoyed by state and local counterparts.

 It's likely to have gone to new depths since.

Good government includes recognition that integrity and accountability are part of the package.

Followed by action to match on political donations and lobbying reform; transparency, supporting open government instead of closing down the information commissioner; an anti corruption plan to include an anti corruption body; upgrading whistleblower protection to best practice standard; a code of ethics for parliamentarians; and signing on to the Open Government Partnership.

All the while going beyond the public servants in the parliamentary triangle to engage with the broader community on these and related issues.

Will Queensland's Palaszczuk lead a return to integrity?

Professor AJ Brown of Griffith University writing at The Conversation looks at the issues in Queensland as the new Premier Annastacia Palaszczuk takes office having committed to “restore integrity and accountability” and forge a path of “consultation and consensus, rather than the division of the past three years”.

Update: In announcing her ministry on 15 February no mention of specific responsibility for integrity and accountability issues. Presumably they're with Attorney General d'Ath. Good sign though that they appear in the first sentence of the Premier's first media statement:

Premier Annastacia Palaszczuk says her new Cabinet will be focussed on job creation, listening to Queenslanders and acting on their concerns, while restoring integrity and accountability to government in Queensland.

Update on the Update: Even better - The Mandarin reports the one assistant minister Stirling Hinchliffe "will work on integrity and accountability issues for the Premier while also serving as leader of the house."

During the campaign Labor promises included

• Committing to the Fitzgerald Principles for good governance.
• Reforming political donations rules, including restoring a lower $1000 disclosure threshold.
• Holding an inquiry by Queensland’s Crime and Corruption Commission (CCC) into the “links, if any, between donations to political parties and the awarding of tenders, contracts and approvals”.
• Upgrading and advertising the chairmanship of the CCC, held on an “acting basis” by former bureaucrat Dr Ken Levy in what Labor brands an “abuse” of the position.

Ms Palaszczuk went further in a letter of intent to win the support of Independent Peter Wellington.  

Not mentioned but waiting for the incoming government also is a dusty file marked "Review of Right to Information and Information Privacy Acts 2013" a review launched by the Attorney General in August that year but which sank from sight after submissions on a discussion paper closed. Neither the review report nor submissions have been published.
Action didn't match the talk in 2013 about Open Government.

A short sharp review against best practice information access standards in 2015 should be part of the Palaszczuk plan.

AAP: "FOI changes likely dead in the water"

Lisa Martin for AAP reports the move to abolish the Office of Australian Information Commissioner "appears doomed, leaving a Commonwealth agency in limbo." 
 
Not just any Commonwealth agency. 

It's the independent office established to oversight the implementation of the law that confers our right to access government information among other important functions.

Good government requires government support and funding for the OAIC to end the spell in limbo, pronto. 

Then discussion about how to improve efficiency and effectiveness in delivering open transparent and accountable government to a standard that makes a good government proud. 

The sort of discourse that would would follow a government decision to end uncertainty and over three years of dithering about whether Australia will join 64 other countries in the Open Government Partnership. 

Last November Finance Secretary Jane Halton told a senate committee that her department was doing 'quite a lot of work' on the required national action plan, should the government proceed to full participation.

That work, due to be finished in December 2014, wasn't informed by a dialogue with the citizenry, something you'd expect from a good government, but we live in hope.

 

The new 'listening' Abbott government should scrap the plan to scrap the Australian Information Commissioner

There are 51 Government bills before the Senate as Parliament today gets down to business for 2015, including the Freedom of Information Amendment (New Arrangements) Bill. 

While still on the Bills list the bill is not included in the indicative Senate program for this week.

As currently drafted the bill would abolish the Office of Australian Information Commissioner by 31 December 2014 - at least that small detail requires amendment. 

As Privacy Commissioner Pilgrim and Australian Human Rights Commission President Triggs say the provisions to transfer the Privacy Commission functions to the Commission are unworkable, that's another.

Then more importantly, other parts of the bill the government hasn't talked much about include the removal  from the scene entirely of the independent monitor, champion and advocate for open, transparent government. And changes that

• abolish the non-litigious free external merits review process for review of agency and ministerial FOI decisions, mandate internal review for an aggrieved party, and move the external review function exclusively to lawyers' territory at the AAT where the application fee for those who do not qualify for a concession is currently $861;

• fracture the synergies established only four years ago between FOI, privacy and broader government policy on information management in the digital age; 

•  place the attorney general in the position of government wide influence on the interpretation and application of the FOI act through authority to issue guidelines in the stead of the independent commissioner.

The move to abolish the office runs counter to public sentiment regarding the importance of transparency and accountability.

A reader tells me that the Australia Institute Exit Poll in Queensland showed 73% said accountability, transparency and trust in government had a large impact on how they voted; half (51%) of those polled heard or read about Tony Fitzgerald who promoted the Fitzgerald Principles during the campaign; and of those, 62% said Mr Fitzgerald’s comments prompted them to give more weight to the need for governments to be open and transparent when they voted.Oh, and almost 9 in 10 (88%) Queensland voters believe that the results from the recent Queensland State election have implications for the Abbott government.

As a Queenslander, Senator Brandis (pictured) surely knows this.

Meanwhile back in Canberra the last we heard, the Australian Information Commissioner  was working from home, the OAIC Canberra office had closed and the Freedom of Information Commissioner was off the books following his appointment to the AAT.

The uncertainty about intentions arises because of silence from the government and this comment from a spokesperson for the Attorney General after  the bill did not come on for debate before the Senate rose for the year on 4 December:

“The Government is committed to implementing its budget measure to streamline arrangements for the exercise of privacy and freedom of information (FOI) functions.”

At a Senate committee hearing the next week Attorney General Senator Brandis claimed the reason the bill wasn't considered in December was simply pressure on time and higher order priorities. (In reality, with Labor and The Greens opposed, the six of eight crossbench votes needed to pass the bill weren't there.) 

Despite plenty of opportunities Senator Brandis said nothing then about reintroducing the bill or the Government's plans. However AGD FAS Matt Minogue said:

The bill reflects the government's intention. If the matter were brought on and progressed and passed in February it would be pointless to gear up the full FOI machinery again. If the bill is not passed, government can make decisions in light of that. But, as I said, the bill reflects the government's expectations. 

My applications to Attorney General's and the OAIC for documents about 'discussions' concerning funding and resource issues post 31 December await a response.

The government in its current mode of rethinking and in line with a renewed commitment to consult, listen and lift its game should see the folly in proceeding with legislation to abolish the office, a move not only out of line with public opinion on the importance of transparency and accountability but out of line also with emerging international best practice, and as reflected in state jurisdictions in Australia as well.

Simply pull the bill, get the OAIC back in running order, and as part of a broader new direction on integrity issues, engage on how and in what way we can improve efficiency and effectiveness in delivering, open transparent and accountable government.

When a Senate committee allowed five working days for submissions during its consideration of the bill in November, after the government itself had talked to no one outside before or after the announcement in May 2014, the advice from just about everyone who had time to respond was 'wrong way, go back.' 

The future of the OAIC will be an important indicator of the extent of new listening and thinking in the 'new' Abbott government.

An FOI Masterclass

A rare opportunity in my experience: Paul Farrell of Guardian Australia invites allcomers to a surveillance, encryption and freedom of information Masterclass on 13 March. As 'on the job' learning dominates for media types and others seeking to match wits with well trained public servants on the other side, might be well worth the money.

For the pollies who listen, time for the Minister for Integrity.

The whiff of interest in such things is getting stronger. Except on the Federal scene where we have a trust deficit disaster.

Victoria put integrity up in lights with the appointment of a Special Minister of State responsible for a wide range of integrity measures. Gavin Jennings ranks third in the ministerial line up, not as an add on at the bottom of the list.

Integrity and accountability are certain to feature in the forthcoming NSW campaign with the major parties both desperate to ditch the baggage opened up by the Independent Commission Against Corruption.

Labor made much of these issues in the incredible Queensland campaign. 

Commitments to improve integrity measures there proved crucial in winning Independent Peter Wellington's support for a Palaszczuk government, announced today.

In an exchange of letters the leader of the opposition, within two seats of a majority, reaffirmed the commitment to the Fitzgerald Principles; undertook to reintroduce a $1000 disclosure threshold for political donations and to work with the Electoral Commission to develop a real time online disclosure of donations; ensure the anti corruption watchdog, to be headed by a new independent chair, holds a public inquiry into the links if any between donations to political parties and the awarding of tenders, contracts and approvals; will make all public service appointments on merit; and explore a possible Bill of Rights In Queensland.

But not a word about such things so far in Prime Minister Abbott's look into the future with the emphasis on a 'safe and secure Australia', strong economy, jobs, families, and budget repair (without pain). 

This despite the pre election acknowledgement by Mr Abbott that the trust deficit was bigger than the budget deficit, and that commentators including Lenore Taylor now call it a trust deficit disaster.

The Abbott government should sniff the breeze: political donations, lobbying, transparency, supporting open government instead of closing down the information commissioner, an anti corruption plan to include an anti corruption body, upgrading whistleblower protection to best practice standard, a code of ethics for parliamentarians, signing on to the Open Government Partnership, engaging with the broader community on these and related issues. 

Best led and sheperded by a minister for integrity in name or in practice.

Federal Labor, about to see Senator for Integrity John Faulkner walk out the door any day now, shouldn't wait a moment to follow the Victorian brothers and sisters by tagging a top performer on the opposition front bench with these responsibilities. 

Victorian FOI should take the leap into 21st Century

Victorian Special Minister of State Gavin Jennings tells The Age that FOI initiatives in the government's plans are:

• The FOI commissioner will be converted into a new Office of the Public Access counsellor, which will have the authority to review decisions made by ministers and departments and deemed cabinet-in-confidence.
• The time limit for departments to respond to FOI requests will reduce from 45 to 30 days, and the time limit (for the FOI commissioner) to consider review decisions will be reduced from 60 to 15 days.

No detail that I've seen yet about the full scope of the Office of the Public Access counsellor.

Presumably the office will be adequately resourced to meet that ambitious review deadline.
 
Minister Jennings should also get out the 'best practice' book with the intention of a thorough review to modernise and bring the FOI act into line with contemporary Australian and international thinking. 

In the broad, apart from the FOI commish role and wherever that might be heading in the next iteration, Victorian FOI law represents the best thinking....of 1983.

(Memo Federal Attorney General Brandis-plenty of ideas worth discussing about FOI/ information commissioners, their role and functions, and how to make the FOI system more effective. Abolishing the office isn't among them elsewhere.)