Spirits here rose sharply yesterday morning when my email inbox lit up:
Re: Commitment to open government - Whitney Brennan Office of The Hon. Malcolm Turnbull MPOnly to drop like a stone when it turned out to be pretty much the standard boiler plate, pass the parcel reply to an email sent to the PM a week ago about the OGP and the related issue, the continuing saga of the Attorney General's attempt to scuttle the Office of Australian Information Commissioner.
Toby McIntosh reports over one thousand delegates from 94 countries attended the
Civil Society Day in Mexico City yesterday prior to the official two-day OGP meeting.
Meanwhile back in Canberra.......
Emails to and from the PM's office and an earlier exchange with Mr Turnbull in July follow.
My email 19 October
Subject: Commitment to open government
Dear Prime Minister,
Senate Estimates hearings get underway in Canberra today. It is the opportunity to clarify where Australia stands with the Open Government Partnership and the future for the Office of Australian Information Commissioner.
You and your department now have responsibility for the Open Government Partnership. A response is still outstanding to the request from the OGP Steering Committee in July that in light of disappointment at the failure to follow through on the notice of intention to join in May 2013 Australia recommit to membership before the Global Summit in Mexico on 27 October.
As former Victorian Supreme Court justices Tim Smith, David Harper and Stephen Charles write in Fairfax Media today on the OGP issue, "Time for Turnbull to step up on open government."
The Office of Australian Information Commissioner is listed for hearing on Tuesday 20 October.
The day that Privacy Commissioner Timothy Pilgrim's appointment as acting Australian Information Commissioner for a three month period expires. As the Attorney General Brandis said at the time, the appointment was "while the Government considers options for the future of the Information Commissioner position."
Nothing has been said by Attorney General Brandis since about what the government plans with the Freedom of Information Amendment (New Arrangements) Bill that would abolish the Information Commissioner position. The bill remains on the Senate Bills List where it has been since October last year.
Abolishing the office and the Information Commissioner position does not fit with the your ambition to lead an accountable open government.
Let's hope you can clear up these uncertainties this week and get on with it.
Whitney Brennan reply 27 October
The Prime Minister has asked me to respond on his behalf.
Thank you for your word of support and also taking the time to voice your concerns.
I have also forwarded your email onto the Attorney General’s office, so they are aware of your concerns as well.
My email to Whitney Brennan 28 October
Thanks for the reply.
The deadline for the Australian recommitment to the Open Government Partnership sought by the Steering Committee in July passed yesterday with no public response, sending an unfortunate message home and abroad that our disinterest continues.
Could you please ensure that those who advise the Prime Minister on these issues are aware of the email exchange below with Mr Turnbull earlier in the year.
Dick Woolcott has since advocated joining the OGP for foreign policy reasons. In the last week the Managing Director of Transparency International and the Chair of the Australian Press Council both joined others in urging the government to proceed with membership.
Thank you for forwarding my message to the Attorney General. His persistence with the bill to abolish the Office of Australian Information Commissioner is futile given the majority against in the Senate. But with the bill still on the list after 12 months having not been brought on for a vote, it is a continuing black mark against the government's open government credentials.
If as Senator Brandis claims there are problems with the FOI review system there are options to address this short of abolishing the independent watchdog for the right to know.
FOI, with the attempt in the 2010 reforms to move towards pro active disclosure, should be linked with open data and information access policy more broadly in the PM's portfolio.
Historical responsibility for FOI in AGD means it too often is seen as lawyer's work and black letter law territory.
In July Mr Turnbull expressed interest in an FOI review.
Withdrawing the bill, committing to the OGP and listing a review of FOI law and practice as part of the required OGP national action plan might be the way to go.
My best wishes to the Prime Minister and those assisting him with his important work
Open and Shut
100/71 Vitoria St
Potts Point 2011
Email exchange in July with Malcolm Turnbull MP
On 13/07/2015, at 2:05 PM, Turnbull, Malcolm (MP) wrote:
Thanks for taking the time to get in touch. I’ll go through the information you’ve provided – it certainly was a great opportunity to discuss such a broad range of issues.Great to chat and thanks again for the follow up. I will report back.
My email to Mr Turnbull 6 July 2015:
Subject: .. Meeting Follow on
Thank you for the opportunity to ask about a range of issues with you at Dick's place on Friday and for your responses. This is a follow up on two matters raised, FOI and the OGP.
You expessed an interest in the possibility of a thorough ranging review of FOI.
A review by Allan Hawke took place in 2012-13. The terms of reference were skewed, Allan was limited in time and resources, and undertook virtually no research or consultation beyond inviting submissions. His first recommendation was that a comprehensive review-beyond his brief-should be commissioned.
Attorney General Brandis has referred to the report publicly but no action has been taken on any of the matters raised. The only government initiative on FOI was the 2014 budget announcement and the introduction of legislation to abolish the Office of Australian information Commissioner, not action recommended by Hawke who said the OAIC was doing a good job. (On another issue you mentioned on Friday, frank and candid advice, Hawke dismissed agency concerns about the adequacy of protections.)
The bill has been in the Senate since October and not brought forward for a vote because of the absence of a majority in favour. Labor, The Greens and most cross-benchers are opposed. So are those familiar with this area who managed a submission to a senate committee in the five working days allowed late last year.
The bill does away with independent statutory oversight and leadership for open, transparent government, a flaw in the pre 2010 FOI regime recognised as long ago as 1995 by the ALRC; abolishes non-litigious free external merits review of agency and ministerial FOI decisions and moves this function to lawyers' territory at the AAT where the application fee for those who do not qualify for a concession is $861 at present ; fractures the synergies established only four years ago between FOI, privacy and broader policy on information management ; and places the attorney general in the position of government wide influence on decision making through the issue of guidelines in the stead of the independent commissioner.
These steps are out of line with prevailing 'good practice' in all peer group countries and with the systems operating in Queensland, NSW, Victoria, WA, the ACT, Northern Territory and Tasmania.
With the axe hanging in the air since May 2014, funds allocated to the office only to December 2014 in last year's budget and 'transitional funding' of $1.7 million for FOI this year, the OAIC continues to carry out FOI functions at a reduced level. The FOI Commissioner James Popple left in December on appointment to the AAT as the OAIC closed its Canberra Office. Information Commissioner John McMillan has left or is leaving to become NSW Ombudsman. No acting or permanent replacements have been announced.
No one up to the job would take on either while the bill to abolish the office still sits on the bills list.
One way out of this would be to pull the bill and establish a comprehensive review, the first step in addressing efficiency and effectiveness and modernising information access including FOI. Inefficiencies abound at the agency level. And the act reflects the times when the Fraser government introduced it for example providing access to documents not information, with antiquated provisions that refer to computers as we thought about them in the 1980s.There is no mention of data sets ( contracts, grants and much else) in the limited pro-active publication requirements, let alone machine readable formats.
Australia has been dithering about signing on to the Open Government Partnership since Hillary Clinton invited us to be a foundation member in 2011.
There is a sound business case for Australia joining and membership and full participation would be consistent with our foreign policy objectives and development goals.
Sixty four other countries have joined or are in the process of doing so. If Australia "should aim to be the leading digital economy in the world"-I think I'm quoting you accurately- we should be with the movers and shakers in this field. They 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. The grouping overlaps with Francis Maude's D5 that requires its members to belong to the OGP.
In a letter to Minister Cormann last August released under Freedom of Information Prime Minister Abbott said he wanted to see the detail of what Australia might commit to in a national action plan before deciding whether Australia should join the OGP. The letter refers to the need to "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."
Presumably the reference is to the work that led to the establishment of the the Digital Transformation Office earlier this year.
I appreciate the distinction you made on Friday between open data and transparency and accountability through FOI but both are about information access, both require agencies to move away from the default position of non -release/non-publication, and both have an objective to encourage more public participation. While open data is rich with economic and social development potential it too has an accountability dimension.
The National Action Plan required by OGP membership could provide the opportunity to pull these strands together and to include a comprehensive review of FOI.
However there will be mutterings about our bona fides while the government sticks with the plan to abolish the Office of Australian Information Commissioner.
Thank you again for your time on Friday. Happy to talk to you or your staff at any time.
100/71 Victoria St
Potts Point 2011