Vietnam vet with a good cause enters difficult territory with broad FOI applications

In Q&A on ABC last night questions were raised about government policy regarding veterans pensions, drawing acknowledgement from panelists including former Deputy Prime Minister Tim Fisher that more has to be done to get things right. 

As reported in The Australian Vietnam veteran Don Tate also "questioned the faith Australians could place in accounts of the nation’s military history. He claimed a number of omissions by The Australian War Memorial, including the existence of one platoon he fought in, had led to further stress over the subsequent years."

Private Don Tate, Vietnam-ABC 7.30 Report

Mr Tate referred to Administrative Appeals Tribunal Freedom of Information proceedings in which the Australian War Memorial refused him access to information sought about the "D&E Platoon” in which he served, and claims by others in the light of the secrecy that he had lied about his participation in the Vietnam War.

The decision he referred to is Tate and Director Australian War Memorial [2015] AATA 107
handed down by Deputy President Tamberlin in February. 

The Tribunal upheld the agency decision that the work involved in dealing with two applications by Mr Tate would involve substantial and unreasonable diversion of resources. The evidence was that one application would require at least 150 hours of processing time after taking into account the work involved in producing 90 documents already furnished to the Applicant and at least 48 hours for the second application.

(The issue about the D&E platoon seems to be whether it existed as a discrete unit. It has been widely canvassed previously.)

I'm sympathetic to Mr Tate's cause, the more so as he represented himself in the case, up against the Australian Government Solicitor's office, but the Tribunal decision on substantial and unreasonable diversion of resources appears sound. 

All inclusive applications unbounded by time periods such as these (see below) will always raise the substantial and unreasonable diversion of resources question. Mr Tate declined the opportunity to narrow his applications other than exclude his own correspondence when properly consulted about ways the requests might be revised in an attempt to remove the practical refusal reason.

The FOI act (s 24AA (3)) provides that in deciding such matters no regard is to be had to any reasons that the applicant gives for requesting access so Mr Tate's submissions in this regard were not considered.

Here are examples of how to run into difficulty if FOI requests are framed in the broadest catch all terms, difficulties that arise even before the agency dives into the exemption provisions:

They'll be talking about Australia at two international conferences this week

But it's unlikely to extend to praise or admiration for leadership and performance in the open, transparent and accountable government space.

On the contrary the lead question when Australia is mentioned at the Open Government Partnership Steering Committee Meeting in Mexico will be "what's going on down there?" And at the Ninth International Conference of Information Commissioners in Chile, "where are they?"

Australia's dithering about membership of the OGP won't escape attention at the meeting in Mexico.

And those attending the information commissioners gathering in Chile are certain to be puzzled at the absence of anyone from the Office of Australian Information Commissioner, let alone the explanation: that the government has been unsuccessful in achieving its plan announced last year to abolish the office with the bill stuck in the Senate without majority support since October, and that the freedom of information functions of the office have been unfunded since 1 January.

Open Government Partnership
At the OGP Steering Committee Meeting in Mexico, a ministerial level meeting from 21-23 April, the agenda item Criteria & Standards includes discussion of a proposal clarifying OGP rules on how to deal with delays in developing new Action Plans. The proposal looks into what should be done where countries do not meet OGP process requirements.  

A related agenda item is an update on several countries, including those that received letters at the end of last year for being late with their Action Plans.

Australia is one of these countries.

The OGP Support Unit wrote to the Department of Finance in November last year pointing out that Australia had acted contrary to the OGP process in failing to meet deadlines for lodgement of a national action plan.

In March Finance Minister Cormann told a Senate committee the government was 'positively inclined' to join the OGP but the minister stuck to the still under consideration line.

For those like Prime Minister Abbott who aspire to 'good government' OGP membership and participation should be a walk up. After all

"The Open Government Partnership (OGP) is a multi- stakeholder initiative focused on improving government transparency, accountability and responsiveness to citizens. OGP brings together government and civil society champions of reform who recognize that governments are much more likely to be effective and credible if they open their doors to public input and oversight."

Sixty four countries have joined the OGP or are in the process of doing so. Australia was invited to join in September 2011. OGP countries represent one third of the world’s population and have made more than 2,000 open government reform commitments.

Documents (pdf) released under Freedom of Information reveal Prime Minister Abbott in October last year wanted to see the detail of what Australia might commit to in a national action plan before deciding whether Australia should join the OGP.

In a letter to Finance Minister Cormann, Prime Minister Abbott instructed that no announcement of Australia's position on the OGP should be made "until a draft national action plan is submitted for my consideration. The action plan must give effect to practical measures that align with the Government's overall policy objectives in this area and that take into account the work of the (Redacted: s 34(3) Cabinet) and the timeframes for Government decisions on that work."

A brief to Minister Cormann advised that Finance had commenced work on a draft plan scheduled for completion by the end of November, Finance in March refused access to the draft plan citing those great old time APS support players "Frank and Candid" who are getting a heavy workout in agencies these days.

The redacted words in the PM's letter and the briefing note might refer to work that led to the announcement by the Prime Minister and Minister for Communications Turnbull in January of the intention to establish the Digital Transformation Office. Minister Turnbull in launching the office two weeks ago reaffirmed "one of the commitments of our government is greater transparency and accountability" and in answer to a question said Australia intended to reach out globally for ideas and to assist others. He later indicated Australia would join the D5. 

The D5 is a network-United Kingdom, South Korea, Estonia, Israel and New Zealand- that will "meet annually to work together and showcase the best digital government activity around the world."All D5 countries are members of the OGP. (Update: it's no accident. Thanks to the NZ reader who points out the D5 Charter (pdf) at 3.5) requires members to belong to the OGP.)

In fact the movers and shakers in this field are all members of the OGP including all nine countries ranked above Australia (10th) in the World Wide Web Foundation Open Government Index 2015-UK, US, Sweden, France, New Zealand, Netherlands, Canada, Norway and Denmark.

Membership and participation in the OGP and a genuine partnership in developing a national action plan that results in commitment to improved transparency, more open government and increased citizen participation should be high on the government's 'good government' list.

Information Commissioners.
But that list shouldn't include abolishing the Office of Australian Information Commissioner, a move out of step with best practice internationally and among the Australian states and territories. 

The Federal government's unprecedented plan will be a talking point in Chile on 22-23 April where one of the topics for discussion is “Access to Information Enforcement Bodies: Institutional Design, Jurisprudence and International Exchanges.”

If anyone's there from the Information and Privacy Commission NSW, the Office of the Information Commissioner QLD, the Freedom of Information Commission Victoria, the Office of the Information Commissioner WA, or the Office of the Information Commissioner NT, maybe they can give Federal Attorney General Brandis a short summary of best practice on return. 

It won't include removing the independent office that oversights FOI, undertakes non litigious review of agency decisions and champions transparent, accountable, open government.

Ditching the bill, and adequately funding the office while engaging minds inside and outside government on how to deliver the goods in an efficient and effective manner should be the next step in this ill fated saga.

Budget time in Canberra the chance to get back on track towards 'good government.'

I'm away from Australia until 19 April but I'm hoping those with heads down in Canberra nutting out repairs to the policy framework and developing the 2015-16 budget decide to join a few dots on the path towards good government:
1. Withdraw the ill fated Freedom of Information Amendment (New Arrangements) Bill that has been sitting on the Senate bill list since October. There is no majority to support the bill.
2. Restore funding for the Office of Australian Information Commissioner to pre 2014-15 levels as a temporary measure.
3. Appoint a panel of government and non government experts to examine the efficiency and effectiveness of the OAIC, particularly its FOI and related functions and report within three months on scope for improvement including other models and funding levels for oversight and review that could deliver better results.
4. Proceed to membership of the Open Government Partnership, in line with Minister Turnbull's recent reaffirmation of the government's commitment to greater transparency and accountability and to Australia taking a global approach in moving ahead on digitisation and open data.
5. Enter into a meaningful partnership with civil society to develop the required OGP National Action Plan to be finalised within six months.

Federal Parliament without the means and will to deal with contentious public interest immunity claims

A year ago the question was "Is this the Senate to sort out public interest immunity claims?"

The answer is no to this point.

But the ATO refusal to disclose to a Senate committee the names of ten resources companies that transferred a combined $31.4 billion to Singapore in the financial year 2011 – 2012, backed up as a public interest immunity claim by the Treasurer, might give it another kick along.

"Labor Senator Sam Dastyari will write to the Clerk of the Senate to see what power the Senate has to appeal against the public interest immunity claim .."

Hmm, I think the Clerk is likely to repeat what she told another committee in February last year: it's all about the need

"to balance competing public interest claims by governments on the one hand, that certain information should not be disclosed because disclosure would harm the public interest in some way, and by parliament's claim, as a representative body in a democratic polity, to know particular things about government administration, so that the parliament can perform its proper function of scrutinising and ensuring accountability for expenditure and administration of government programs.."

The Clerk said Senate powers to enforce an order, if it comes to that, are limited. Failure to respond to an order to produce is treated as a "a political question."

"We have no powers to sort out the political questions. We suggest the parties go away and do what they can to sort the matter out." 

Hardly satisfactory you would think, particularly in light of the failure over the years to sort many such matters out even when the Senate seeks to impose procedural penalties as the Clerk explained in this (see correspondence) letter of advice. But preferable apparently to the other available options, for the Senate to vote to impose a term of imprisonment for a contempt or impose a fine, powers that have never been exercised. 

The Senate Procedural Information Bulletins faithfully record the stand-offs. 

In response to questions then about what else could be done, Dr Laing identified the NSW Legislative Council as having

"the best system around at the moment for adjudicating these matters They have chosen a system of adjudication and the council has a process whereby if there is a claim like a public interest immunity claim made in response to an order for production of documents, the process nonetheless involves the documents being handed into the custody of the Clerk and if there is a contested subset of those documents then an independent arbiter is appointed to assess the documents in the light of the claim of public interest immunity that is made and then to provide a report. It is then a decision of the council whether to publish the arbiter's report and a further decision of the council whether to then publish any of those documents.

Might this senate grasp the best practice nettle?

NSW Premier Baird needs no hand with intergrity

Premier Baird had a good win in the NSW election on 28 March and has since announced a new ministry "A Fresh team for Rebuilding NSW."  The team consists of 22 ministers who between them carry 45 titles (Minister Goward has five) plus 16 parliamentary secretaries. 

Regrettably no one is singled out for special responsibility for integrity and related matters.

The Premier has previously stepped up on political donations and lobbying but there's still much to be done  and a co-ordinated approach would be a sign of serious intent. Maybe Catherine Cusack who has no specifics in her job title of Parliamentary Secretary to the Premier may take this on board?

During the campaign Premier Baird declined to sign the Politicians' Pledge promoted by the St James Ethics Center. 

So did all but three of his Liberal/National Party colleagues. Two of the three feature in the front bench lineup: Mark Speakman Minister for the Environment, Minister for Heritage, and Assistant Minister for Planning and John O'Dea Parliamentary Secretary for Major Events and Tourism.

Prior to the election the Liberal Party did respond to questions from the Accountability Roundtable confirming no plans to diminish the powers of the ICAC; support for further reform of political donations law; commitment to open data and open government; acknowledging "public office is a privilege and that the exercise of power as a public office holder should and will always be made in the public interest"; and vowing "to clean up politics in NSW."

All to the good. 

But in a state with more than its share of dodgy business in recent years from those in both major parties NSW should follow the lead of the two other new state governments where the premier assigned specific responsibilty for integrity and transparency matters.

In Victoria Gavin Jennings is Special Minister of State, operating within the Premier's portfolio  to "oversee government transparency, integrity, accountability and public sector administration and reform." In Queensland  the Premier is supported by Assistant Minister Stirling Hinchcliffe who will "directly assist me on integrity and accountability issues."

Good luck to us all.