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Thursday, January 21, 2016

Attorney General Brandis unhappy with the Tribunal over his diary and still intent on wiping out the Office of Information Commissioner

The Attorney General is to appeal the Tribunal decision against his office handed down by Justice Jagot in December and the subject of three posts here earlier in the week. 

No surprise, the appeal to the Federal Court is "in the public interest" according to a spokeswoman for Senator Brandis, quoted in Fairfax:
"the tribunal's findings had "wide-ranging implications for the FOI system. Accordingly, it is in the public interest that there be judicial clarification of how the FOI system operates," she said. Senator Brandis' lawyers will argue that Justice Jagot "erred" by not deciding that FOI decision makers needed to consult all third parties named in diary entries, where "there was some prospect that such an entry might be exempt [from disclosure]," court documents say.
Not sure how the appeal advances the Attorney General's concern expressed before Christmas that "as a general rule minister's diaries ought not to be the subject of FOI Legislation."
Fairfax Media also reports that former Australian Information Commissioner Professor John McMillan said the almost two-year battle between the Coalition and Labor over the diaries could have been avoided with better disclosure rules.
"There is something to be gained by having more predictable standard practises about disclosure rather than tying up enormous resources in disputes of this kind," he said. (McMillan) is renewing calls for Federal Cabinet ministers to regularly publish their diaries on the internet, after they have been edited to remove sensitive information such as private phone numbers.Doing so, he said, would remove the need to ask for diaries under FOI laws and put the information into the public space without a political battle.
Meanwhile the Attorney General apparently was happy to leave it to the Office of Australian Information Commissioner, picked up by ItNews and others that Acting Commissioner Timothy Pilgrim had his term extended for three months until April 2016, the third short term extension since Professor McMillan left.

It's 20 months since the AG announced the intention to ask parliament to abolish the Office which the numbers in the Senate are against with good reason. In the meantime the government has used control over funding to limit OAIC funds for FOI- not a bean for such things as own motion investigations for example- and provide none for information policy functions.

 The top level Organisation Chart from the OAIC website sadly summarises

The contrast between then Senator Brandis in Opposition and as the minister responsible in 2016 couldn't be more stark:
Senate Hansard13 August 2009
Senator Brandis.....The coalition’s commitment to open, responsible government is well known. It was the Liberal Party which pioneered freedom of information legislation in Australia. The Freedom of Information Act.. is the act of a Liberal government—the Fraser government. It is a vital measure to ensure that government remains open, responsible and accountable for its decisions.....The true measure of the openness and transparency of a government is found in its attitudes and actions when it comes to freedom of information. Legislative amendments, when there is need for them, are fine, but governments with their control over the information in their possession can always find ways to work the legislation to slow or control disclosure. That is the practice we are seeing now under the Rudd government, whose heroic proclamations of commitment to freedom of information are falsified by the objective evidence of their practice.

Crikey today has later grand rhetoric:
Brandis transparency greatest hits. 
"Following the news yesterday that Brandis had appealed an Administrative Appeals Tribunal ruling that his office would have to process a freedom of information request for his diary for his first eight months in office, a tipster told us to check back on what Brandis had been saying in opposition about transparency. As the tipster wrote: “Hansard has it all ... And it is very different from what he is saying now.”

Quite right.

Brandis in 2013, on Labor’s failure to make FOI more expansive in government:
"Operation Sunlight, you might recall, was the much vaunted policy that the Labor Party took to the 2007 election that was designed to promote transparency in the field of both whistleblower protection and freedom of information laws. It has produced this result: information is more restricted today than it was then and whistleblower protection has been delayed through the life of two entire parliaments."

Brandis in 2012 on the Coalition agreeing to exempt the Parliamentary Budget Office from FOI:
“We in the opposition of course take a more expansive view of freedom-of-information laws than the government; nevertheless, we are persuaded that, in certain circumstances, the protection of confidentiality in a process such as this is a more important policy consideration than freedom of information.”

Brandis in 2010 when the Rudd government greatly expanded the FOI Act and introduced the Australian Information Commisioner that Brandis is now trying to shut down:
“Freedom of information laws operate on the assumption that, unless cause is shown by government why information ought to be withheld from a citizen, the information should be available to the citizen.”

And again:
“The Coalition’s commitment to open, responsible government is well known….[the Freedom of Information Act] is a vital measure to ensure that government remains open, responsible and accountable for its decisions.”

It is worth noting that the Office of the Australian Information Commissioner was handed another three-month lifeline yesterday as the government still struggles to get legislation through the Senate that would shut the office down. An interesting point from the passage of the 2010 amendments to the FOI Act is that it was Brandis who forced the government to reverse the onus of proof when someone challenges a refused FOI request in the AAT from the person seeking the documents to the government. That certainly backfired on him."

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