Andrew Podger on Thodey and the government response

Report on public service overhaul a good start, but parliamentary inquiry is needed

The Morrison government has rejected any recommendations that would strengthen the independence of the public service. AAP/Mick Tsikas

Andrew Podger, Australian National University
The final report of the Independent Review of the Australian Public Service is much more substantial than its interim report. That is hardly a high hurdle, but its 18-page bibliography suggests considerable reflection beyond the (mostly disappointing) submissions and commissioned papers.
However, the report still has an excessive amount of rhetoric and is not an easy read.
Broadly, its themes are:

• a united service
• partnerships beyond the APS
• embracing new technology
• investing in people and capability
• a more dynamic and responsive operational model
• improved leadership and governance.

There are many sensible recommendations, but detail is often missing and analysis weak. Some recommendations reveal a surprising lack of understanding of the public sector.
The central theme of a “united” service is overdone, notwithstanding the case for greater coordination today. The APS does not need “an inspiring purpose and vision” – the first objective set out in the Public Service Act 1999 is clear. It is:

to establish an apolitical public service that is efficient and effective in serving the Government, the Parliament and the Australian public.

The APS Values also define the role of the APS as an institution. The review might have made more of the High Court’s references to these in confirming the constitutional standing of the APS.

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Read more: View from The Hill: Morrison won't have a bar of public service intrusions on government's power

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The review is right to press for a better coordinated service today, retreating from the late 1990s devolution under the new public management model. That Australia went too far is very clear (particularly on pay and conditions). Public expectations in light of modern technology are also demanding much greater connectivity today.
But the review goes too far the other way. The APS performs a wide range of functions, each requiring specialist expertise.
The Secretaries Board is not like a private sector board. Cabinet and ministers are the primary decision-makers under the Constitution, and secretaries’ first responsibilities are within their portfolios, serving and advising their ministers and delivering services and implementing government policies. At the centre it will always be primarily the responsibility of the Australian Public Service Commission (APSC) and the Department of Prime Minister and Cabinet (PM&C) to do the administrative coordination, though necessarily in close consultation with secretaries and other agency heads.
Perhaps the most valuable contribution of the report relates to the application of new technology. It makes a convincing case for very substantial new capital investments over many years and for increasing allocations for minor capital investment. These, and the associated building of skills, are necessary for more citizen-centred services and a more digitally enabled administration.
The report is also on the right track with several other themes:

• invest in people and strengthen capability
• reduce hierarchy and promote more dynamic teamwork across the service
• improve governance and leadership, including by firmer merit-based approaches to appointments.

But the report pulls its punches about the causes of the problems. It could have been clearer about what needs to be fixed.
Why has strategic policy advising capacity declined and other expertise been lost? Why has evaluation activity and skills dropped away? Why has the APS become more risk-averse and hierarchical?
Thankfully, the Thodey Report does include recommendations aimed at strengthening the standing of the APS and clarifying relations with the government and the parliament. These include:

• the accountability and integrity of ministerial staff
• secretary and other agency head appointments and terminations, the respective roles of the APSC and secretary of PM&C, and the appointment of the APS commissioner.

Even if I disagree with some aspects, the report at least puts these things firmly on the table (see also my recent Parliamentary Library lecture).
On several other matters there is a disappointing lack of detail, despite the report often pointing in the right direction. These include:

• The discussion of the APS Values ends up proposing some new statement of “principles” to supplement the values. What is needed is to recast the values to reflect more directly the APS’s unique institutional role (and return “merit” to the list).
• The important discussion of place-management fails to set out the architecture required at community and regional levels, and how it might link with state government service delivery.
• The discussion on budgeting rightly highlights the importance of adequate capital investment, but overlooks the equally important issue of how running costs should be financed (without crude efficiency dividends).

The government’s response

Michelle Grattan correctly summarised the response as solidifying the power of the prime minister and rejecting any recommendations that would strengthen the standing and independence of the APS.
Sadly, the result will be that many of the recommendations ostensibly “agreed” by the government will not succeed because the drivers behind the reduced capability of the APS (and its risk-averse and hierarchical culture) will remain and will probably grow stronger.
The repeated references in the response to “consistent with the Secretaries Board’s advice” when a recommendation was not agreed is both odd and worrying. If the advice was as claimed, I can only surmise that it demonstrates to the rest of the APS the leadership’s lack of frank and fearless advice. Surely the Secretaries Board supports a more uniform pay and conditions framework, and a more robust process for their own appointments and terminations?
On a positive note, the government agrees with the majority of the recommendations, particularly those relating to digital technology. Most of the responsibility for proceeding will lie with the APS itself. Whether the government will eventually sign up to the capital funding the head of the review, David Thodey, believes will be needed (initially at least A$100 million a year after the audit is complete) is uncertain.
The government has so far agreed only to A$15 million over two years to start work on all the agreed recommendations.

Machinery of government

Aspects of the prime minister’s earlier announcement about machinery-of-government changes have merit. They include:

• reducing the separation of policy and administration by replacing DHS with an executive agency within the DSS portfolio
• re-establishing strong links between education, employment and training
• separating energy from the environment, recognising that the tensions between these major functions should be settled in cabinet.

But the failure to recognise such changes only work if aligned to ministry arrangements is extraordinary. The 1987 introduction of mega-departments was only partly to do with economies of scale. Mostly it was about streamlining cabinet: allowing cabinet to be small and manageable while still having every (portfolio) department represented, and allowing portfolio ministers to exercise, with their assistant ministers, more responsibility including over resource allocation.

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Read more: Morrison cuts a swathe through the public service, with five departmental heads gone

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The prime minister’s claim that his restructuring will ensure “congestion busting” and a much improved “line of sight” is contrived and almost certainly illusory. It cannot be achieved without “line of sight” between ministers and the public service. The new infrastructure department will have eight ministers, four in cabinet, several with responsibilities in other portfolios, and around 80 ministerial staff. This is hardly a recipe for a stronger focus on serving the public.
We do not know what, if any, advice the APS provided about these changes. My fear is that APS expertise in such matters has deteriorated greatly in recent years.
Apart from this misalignment between the ministry and the machinery of government, some of the details of these changes are wanting. In particular, there remains a serious problem about the separation of Medicare Australia from health policy.

Where to from here?

The Morrison government’s pronouncements over the past fortnight confirm its lack of real interest in the public service as an institution. Sadly, it seems much of the conservative side of politics has lost the sort of support of our institutions that Menzies and other traditionalists exemplified.
Equally, it would be wrong to rely on the other side of politics to pursue the directions in the Thodey Report that the Morrison government has ruled out. Not only would this ignore Labor’s contribution over the years to the current sorry state of affairs, but it would set up for partisan debate the appropriate governance and degree of independence of the APS, something inimical to what fundamentally must be non-partisan.
Instead, we need the parliament to intervene, if not in the immediate light of the Thodey Report and the government’s response, then before or shortly after the next election. A Senate select committee might be asked to undertake an inquiry into the relationship between the APS, the government and the parliament. It should examine:

• the constitutional role of the APS and how this is reflected in the Public Service Act
• the distinctive values of the APS in line with its constitutional role
• the corresponding distinctive values of other components of the Commonwealth, including within the executive, the legislature and the judiciary
• the processes for appointing and terminating secretaries and other APS agency heads
• the respective roles of the APS commissioner and secretary of PM&C
• the roles and responsibilities of secretaries, senior executives and the Secretaries Board
• the Members of Parliament Staffing Act and associated accountability arrangements.

This inquiry should consider Thodey’s recommendations and other options, and be asked to come up with its own concrete recommendations.
Andrew Podger, Honorary Professor of Public Policy, Australian National University
This article is republished from The Conversation under a Creative Commons license. Read the original article.

Government quick to hose down Thodey call for FOI reform

Analysis of the Thodey report on the APS and the government response released today will take time  but I thumbed my way quickly to Chapter 4 "Partner for Greater Impact" Page 114 which lays out the path toward a new open engaged public service that is more partner than commander.

I'd like to see that.

The report continues:

"To accompany the new approach to engagement it is timely to examine the suite of privacy, FOI and record-keeping rules and regulations to ensure they are fit for purpose for the digital age, now and into the future, with an emphasis on openness. As a general principle, it should be as simple, fast and cheap as possible for interested parties to access information held and generated by the APS."

I'd like to see that also because the government in December 2016 committed to ensure that information access laws, policies and practices are fit for the twenty first century, and three years later has nothing to show for it.

Remarkably the one point of detail that follows in the report is a plea for more confidentiality for public service advice.

There's no attempt at detailed examination of the issue, simply acceptance that 'the Commonwealth FOI laws now present a significant barrier to frank written advice" followed by a suggestion of 'critical' importance that written advice 'remain confidential.' Presumably this would be achieved by ditching the public interest test that has been part of the FOI act for 37 years.

The APS Review delivered 40 recommendations and the Government agrees with the majority of them


But on this one the government response,seems to be a big yawn:

"The Government notes the proposal for a new wide-ranging review of privacy, FOI and record-keeping arrangements. The Government’s principal focus is to ensure that agencies effectively implement current requirements, addressing practical problems where required. Any further reform to these arrangements would be considered separately to the Government’s response to the APS Review.

Posted in haste.

Victorian CEOs responsible for FOI basics-will it make a difference?

The Victorian Information Commissioner in accordance with Section 6U of the FOI act has issued Professional Standards for government agencies The standards, a legislative instrument, came into effect from 2 December.

Section 6W(1) of the FOI Act states the principal officer of an agency, and any officer or employee of the agency concerned in the operation of the FOI Act, must comply with the standards.(The new standards don't apply to ministers who would be subject to any standards issued-none so far- by the Premier.)

The responsibilities include (emphasis added)

1.1 An agency must consider whether a document in its possession, that is requested under the Act, can properly be provided to an applicant outside the Act.

1.3 A principal officer must ensure information statements published in accordance with Part II of the Act are available on their agency’s internet site, where one exists.

8.1 An authorised officer must not be directed to make a particular decision under the Act, when properly exercising their statutory decision making power.

9.1 A principal officer must ensure their agency has the necessary resources and procedures in place to be able to meet their agency’s statutory obligations under the Act, including: (a) being sufficiently resourced to receive and process requests, as and when required, within the required statutory time;
(b) the necessary software or systems to enable officers to process requests;
(c) internal policies to enable officers to carry out their functions across the agency; and
(d) anything else reasonably necessary for the agency to carry out its statutory obligations in an effective and efficient manner.

 9.2 A principal officer must ensure, or must be actively working towards ensuring, all officers who are responsible for responding to requests have the appropriate skills and training to perform their responsibilities.

9.4 A principal officer must ensure all officers are informed about the agency’s statutory obligations under the Act.

9.5 A principal officer must ensure all officers are aware they have a duty to assist and cooperate with officers who process requests under the Act.

Putting the CEO in the frame with responsibilities of the kind articulated in 9.1-9.5 is a welcome development.

But an admonition and nothing more that decision makers are not to be pushed around (8.1) highlights the fact that the Victorian FOI act does not include offence provisions of the kind enacted in other jurisdictions (the Commonwealth a notable exception):
NSW  (SS 116-120-acting unlawfully, directing unlawful action, improperly influencing decision, unlawful access, concealing or destroying government information,-with maximum penalty $11,000)
Queensland (Chapter 5, part 2)
Tasmania  (S 50)
Western Australia (Section 110)
Northern Territory (SS 145-147)
ACT (SS 89-94)
(An offence provision (new section 49A) is included in this draft bill available for public comment at present in South Australia.)

While on the statute book, in some cases for many years, I'm not aware of prosecutions anywhere.

The very existence of offence provisions however is likely some help in keeping things on the straight and narrow.

In one reported instance, the NSW Information Commissioner, acting on a referral from ICAC in 2016, conducted an investigation  (Pdf), concluding individuals in this case should not be referred to the DPP or the Attorney General for a decision to prosecute over destruction of documents.

The only tool in the Victorian commissioner's toolbox is potential name and shame.

Guidance
Victoria legislation is also at the weak end of a weak spectrum in terms of commissioner clout when it comes to 'guidance' for agencies on the exercise of their FOI functions.

The Commissioner has issued Practice Notes that "provide detailed guidance on how the Freedom of Information Act 1982 should be administered and how the Professional Standards should be interpreted." However while it is put forward by OVIC as best practice there is nothing in the act that requires agencies to comply.

It's not a lot better elsewhere where in some jurisdictions an agency must 'have regard' to guidance issued by the commissioner. For example Section 93A of the Commonwealth act  empowers the Australian Information Commissioner to issue guidance and requires Australian Government ministers and agencies to 'have regard' to the guidelines when performing a function or exercising a power under the FOI Act generally and specifically in relation to:

• the Information Publication Scheme (s 9A(b)) (see Part 13 of these Guidelines)
• in working out whether access to a conditionally exempt  (document) would, on balance be contrary to the public interest (s 11B(5)) (see Part 6 of these Guidelines)
• in making a decision on a request for access to a document of an agency or an official document of a minister (s 15(5A)) (see Part 3 of these Guidelines)

'Have regard to' probably means can't be ignored or must be considered but it doesn't mean followed.

Note in passing:
No one here has gone as far as India where the Right to Information Act requires each agency to designate a Public Information Officer who carries some personal responsibility for compliance. Section 20 of the Act provides that where, in the course of deciding a complaint or appeal the Information Commission finds that a PIO has failed to provide access (without reasonable cause) or "malafidely" denied a request, knowingly gave incorrect or misleading information, destroyed information, or obstructed furnishing information, a penalty of 250 rupees (about $A5) per day may be imposed with a cap of 25,000 rupees.)

The state of FOI is no joke

We are far better off with freedom of information legislation than we were without it (37 years ago).  FOI delivers often ( recent examples: Defence Industry Minister Melissa Price charged taxpayers $77,254 for a recent week-long visit to Europe; serious complaints about mistreatment and abuse of children with a disability) but often not and often then only after pettifogging, long delays and battles that are costly all round.

What's wrong?

The Federal law is out of date and out of line with emerging best practice, the culture issue of excessive secrecy has never been properly addressed, champions, defenders, advocates within government have been few and far between, the information access function of responding to requests for information in many agencies is under resourced but the spin factories cope well, thank you very much, and independent oversight is underweight with three (Correction one) commissioner when parliament legislated three struggling to manage the workload and just now in 2019 on its third own motion investigation of what's going on (at Home Affairs) since 2010.

Frequent users know all this-below just some of the observations in recent months about the state of affairs as media organisations join the fray with their Right to Know Press Freedom campaign -after a long hiatus.

Government silence

But the minister responsible overall, Attorney General Christian Porter is silent and has been sitting on recommendations (never sighted publicly) from his department since March 2018 on next steps beyond a bit of a chat with interested parties two years ago about implementation of a commitment in December 2016 to ensure information laws, policies and practices are fit for the twenty first century. Progress on implementation is officially 'Delayed'-a relief at least to those of us thinking 'Ditched' might be more apt.

Reform delayed or ditched?

Meanwhile Attorney General's tells us (Milestone 5) work is underway "on improving guidance material to raise awareness of existing online information about archives and FOI and explore options to better assist users to navigate FOI and archives processes. This work has been delayed but both agencies are working to develop a new information access and education resource by May 2020 in time for 'Information Awareness Month.’

Is that all there is?

The right to know what government knows unless not knowing is in the best interests of all of us is a cornerstone of democracy.

What those outside government who take a close interest say about this state of affairs.
A sample.

Your Right to Know resumes after a spell

Great to see media organisations today putting Your Right to Know up in lights with the front page wrap in publications across the country

together with articles and editorials that explain (or attempt to) why excessive secrecy is everybody's business.

'Mad as hell...' has been the theme for four months following police raids on the ABC and the home of journalist Annika Smethurst. A tepid response from the government has prompted action to roll out their biggest gun-front page news with a website and strong social media presence.


The six point agenda for reform has undergone slight changes since rolled out but amounts to:

• safeguards and checks around warrants allowing interception of journalistic communications and metadata; 

• real teeth for whistleblower protection to make the Public Interest Disclosure Act worthy of its name, and making sure the proposed Commonwealth Integrity Commission aligns with public interest reporting and confidentiality of sources; 

• an end to cavalier classification of many documents as secret when they should be open to public scrutiny; 

• a revamp of freedom of information laws so government cannot so easily stonewall perfectly reasonable requests for access; 

• exemption for journalists from a thicket of counter-terror laws that would put them in prison for doing their job; and

•  a vigorous effort to ensure the review of the uniform defamation law resets the legal balance so that painstaking investigative journalism can go about its work of exposing corruption, crime and abuse of power"

The 'this is everybody's business' line is welcome but slow in coming. 

Many organisations and individuals have been slogging away on advocacy on these issues consistently for years.While journalists have had plenty to write about, media moguls put little shoulder to the wheel. 

For the record:

Twelve years ago media organisations were prompted by developments to shout from the rooftops they were not going to take infringements on the public's right to know silently anymore.

Australia's Right to Know was launched in May 2007 with News Limited Chairman and CEO John Hartigan in the lead, supported by Fairfax Media, FreeTV Australia, commercial radio, ABC, SBS, Sky News, ASTRA, West Australian Newspapers, the Media, Entertainment and Arts Alliance (MEAA), AAP and APN News and Media.

News Limited chairman and chief executive John Hartigan said Australia had become a "lightweight democracy" with a tangle of clumsy laws impinging on the public's right to know..... Mr Hartigan said it was time for the media to strike back."It's a matter of drawing a line in the sand and saying 'this is enough'," he said.

The coalition commissioned the Independent Audit into the State of Free Speech in Australia which delivered a 316 page report in October that year- I was the Deputy Chair.

The coalition made some headway on a couple of the issues raised in the report during the Rudd/Gillard years, and stuck around for a year or so.

Then disappeared as David Salter and Richard Ackland both commented in 2010, Ackland as follows:

I wondered why Australia's Right to Know Campaign had gone a bit quiet. This is the outfit driven by the main newspaper groups (including Fairfax) and broadcasters to lobby for fewer legal impediments that get in the way of reporters' access to information. A quick check of the Right to Know's website shows the last big thing to happen was a big free speech jamboree in Sydney a year ago. There have been no papers, reports or analysis since 2008. Maybe it's because The Australian newspaper has decided to change sides and go into the suppression business.

I wrote this at the time:

In early 2008 months after my involvement with ARTK as Deputy Chair of the Independent Audit of Free Speech finished I went to see John Hartigan, then head of News Ltd and ARTK, to make a pitch for the establishment of a permanent, professional and appropriately funded body to research, advocate, educate and lobby on freedom of speech, and the public’s right to be informed. I suggested that the media needed to seek out others who shared these interests, and that it cede some power to them so that the coalition could seek to deliver what its name conveyed-Australia's Right to Know. Voices on these issues were weak, sporadic, divided and underfunded and the coalition was well placed to change this. Hartigan listened politely, nodded at the appropriate time but that was it-and my last contact with ARTK.

A vigorous campaign would have involved enlisting allies to the cause, seeking to better inform the public about the importance of this issue, and  mounting a collective professional effort to go for gold on the reform front. The few voices that spoke up were all over the place, leading the Senate Committee to observe recently that there were many suggestions for changes to the reform bills, but no agreement on what should be changed, therefore there was no point in or time to consider them seriously, including most of those put forward by ARTK.  And of course many didn't speak up at all. ARTK three years after it formed has no web presence, no publicly available collection of submissions, no scorecard of performance, no coalition partners.

ARTK seemed to never hear about the government initiative in joining the Open Government Partnership let alone hop in to support the reform agenda that the likes of Transparency International Australia, Accountability Roundtable and others have pushed since 2013.

The case for that vigorous ongoing campaign and a collective professional effort is more important than ever.

NSW: 30 years on the open government journey shouldn't go unnoticed

The thirtieth anniversary of the commencement of freedom of information in NSW passed on 1 July.

I didn't see any public acknowledgement from within government ranks, and its just another anniversary after all.

The NSW Government has had much more on its plate including working through a massive reorganisation that kicked off within weeks of the March 23 election. This involved abolition of nine agencies and wholesale transfer of functions to fit a new framework, relevantly including a Customer Service Cluster (pdf) and the transfer of the Information and Privacy Commission from the now abolished Justice Portfolio.

Having expressed concern and reservations over the years about the icy grip lawyers have on information access functions, this appears to be a positive step.

For those interested in a bit of history below is a post (slightly edited) I wrote five years ago on the 25 years of the NSW access to government information journey.

The record since, overall, would appear to reflect gradual improvement with NSW Information Commissioner Tydd in the lead. Interested to hear from observers about  the last five years.

There will always be rough patches, ditches and the occassional rock fall but NSW is a long way down the path from the 'bastion of secrecy' that the late Peter Wilenski described in 1982.

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NSW-information access-the journey so far. 
First published July 2014 

"The ALP policy platform going into the 1972 election included a commitment to Federal legislation. That started the discussion that led to the enactment of a law finally passed by Parliament in 1981. The act commenced a year later. 

A report on the state of the NSW public service in 1977 (Directions for Change) by the late Professor Peter Wilenski and his follow up report in 1982 (Unfinished Agenda) recommended freedom of information legislation, by this time a commitment in state labor's policy platform.The 1982 report described the NSW Government as a “bastion of secrecy.” The Labor Government introduced an FOI Bill into Parliament in 1983 which promptly disappeared into the filing cabinets at the premier's department marked 'courageous' and lapsed. 

Silence followed although I can recall then head of the premier's department Gerry Gleeson saying in the mid eighties that NSW (without an FOI act and with very limited parliamentary scrutiny) led the nation on transparency and accountability mechanisms. Needless to say it didn't.

Against a backdrop of corruption allegations in the Labor government tipped out at the election and within months of his electoral victory in 1988, Liberal Premier Nick Greiner introduced separate bills on freedom of information and the establishment of the Independent Commission Against Corruption. 

Greiner saw the link  between excessive secrecy and corruption. His key adviser through this period Gary Sturgess said at the time corruption “is behaviour between consenting adults, it’s secret. It’s a crime of the powerful.”Because it took place in secret it was often difficult to obtain evidence and prosecute successfully, so “what we have (in the ICAC) is a process of shame, exposure and cleansing.”

The connection between the two initiatives was that greater transparency through FOI would reduce opportunities for corruption, and the ICAC would help educate the public sector about the management of corruption risks, and investigate allegations of corrupt conduct.

But FOI's objectives went beyond curbing corruption.The second reading speech is replete with references to how the law would strengthen democracy, improve accountability, and lead to a more active citizenry involved in the affairs of their government. It would help citizens make more informed judgments at election time. The prospect of greater scrutiny would lead to better decisions by ministers and public servants in the day-to-day operations of government.

The ICAC commenced operations in March 1989, the FOI act on 1 July 1989.

It was recognised at the time that FOI would require strong, vigorous and continuing leadership to shift government culture from discretionary secrecy to compulsory disclosure of information. Responsibility for the FOI legislation was retained in the Premier's Department, not as elsewhere assigned to Attorney General's. A senior, able and experienced public servant with a strong commitment to make things work, David Roden was put in charge of a support unit.

However the FOI support unit only lasted a couple of years, the then secretary claiming, either naively or with hidden intention, that it had done such a good job in seeding FOI it was no longer needed. 

A long period of 'orphan status' for FOI began, with few and rare voices speaking up for the principle of transparent and accountable government that underpinned the law, except successive occupants of the Office of Ombudsman, and long time Deputy Ombudsman Chris Wheeler.

It also became clear within a few years that the law itself had significant flaws and implementation efforts were at best patchy. 

Then ombudsman, David Landa, told the government early on the act was overly complex with too many vaguely worded provisions that were being used to refuse access to documents. He also said not enough was being done to change the culture. 

Successive ombudsmen reported consistently that the law needed review and that the public service was failing to manage responsibilities required by law, let alone reflected in spirit and intent. Various reports highlighted obfuscation, delay and the high cost of access.

No one took much notice until Ombudsman Bruce Barbour found an enthusiastic supporter of meaningful change in Premier Nathan Rees in 2009, having placed on the table a year earlier a comprehensive review and a long list of recommendations.  

With change in the air elsewhere, notably in Queensland, Rees led and Parliament passed a much improved but short of best replacement act, the Government information (Public Access) Act in 2010. (No one has ever owned up publicly for the terrible choice of name.) Unfortunately Rees took his eye off the ball for a moment, enough time for responsibility for the new legislation to be passed to Attorney General's to administer, not a step in the right direction.

'Orphan' no more, under the GIPA scheme the Information Commissioner has responsibility to champion the open transparent and accountable government cause among other functions.

As for the lofty ambitions of 1988, information access is much improved, and the 'open data' journey is underway. Still rumblings of discontent about time, cost and mental gymnastics when it comes to some reasons for decision.

 A five year statutory review of the GIPA act is due now, so hopefully a chance to to build in further improvements.

Anecdotally, culture change has occurred and continues, but we don't have much in the way of measures or indicators to get at the complete picture. As a generalisation, Wilenski's 'bastion of secrecy' doesn't hold these days. However I'm yet to hear of agency interest in asking their staff about attitudes they see on display about open, transparent government, or asking applicants what they make of their GIPA experience, and how access to information could be improved.

A larger part of the corruption iceberg may be visible these days through the investigations of the ICAC. Prophetically, Greiner himself said in 2009 "the corruption we see now in the state is probably just as endemic and systematic" as it was in the late 1980s.

On the democracy front, experts and the public would agree that the government and the people are still largely separated in "them and us" groupings, and that we are still in the dark about what goes on in many areas of government. Too much of what passes for consultation is of the "read our discussion paper, send us a submission and we'll go ahead and do what we intended anyway."

As for the quality of government decisions, ministers and public servants are still too often at the barricades seeking to protect from disclosure advice documents on the basis that release would be the end of the world as we know it.Not seeming to recognise at a time when politicians and government agencies aren't held in high regard, that openness and transparency are essential for rebuilding trust and confidence in the policy process, as Stephen Bartos argued in The Canberra Times.

Greiner was onto something 25 years ago."

Why the raids on Australian media present a clear threat to democracy

On Wednesday, the AFP raided the ABCs Sydney headquarters in relation to the 2017 “Afghan files” report. AAP/David Gray

Rebecca Ananian-Welsh, The University of Queensland
The Australian Federal Police has this week conducted two high-profile raids on journalists who have exposed government secrets and their sources.

On Tuesday, seven AFP officers spent several hours searching News Corp journalist Annika Smethurst’s Canberra home, her mobile phone and computer. The AFP linked the raid to “the alleged publishing of information classified as an official secret”.

This stemmed from Smethurst’s 2018 article, which contained images of a “top secret” memo and reported that senior government officials were considering moves to empower the Australian Signals Directorate (ASD) to covertly monitor Australian citizens for the first time.

Soon after, 2GB Radio Presenter Ben Fordham revealed he had been notified by the Department of Home Affairs that he was the subject of a similar investigation, aimed at identifying the source of classified information he had reported regarding intercepted boat arrivals.

And then on Wednesday, the AFP raided the ABC’s Sydney headquarters. This dramatic development was in connection with the 2017 “Afghan files” report based on “hundreds of pages of secret defence force documents leaked to the ABC”. These documents revealed disturbing allegations of misconduct by Australian special forces.

The reaction to the raids was immediate and widespread.

The New York Times quoted News Corp’s description of the Smethurst raid as “a dangerous act of intimidation towards those committed to telling uncomfortable truths”. The Prime Minister was quick to distance his government from the AFP’s actions, while opposition leader Anthony Albanese condemned the raids.

But to those familiar with the ever-expanding field of Australian national security law, these developments were unlikely to surprise. In particular, enhanced data surveillance powers and a new suite of secrecy offences introduced in late 2018 had sparked widespread concern over the future of public interest journalism in Australia.

The crackdown of the past few days reveals that at least two of the core fears expressed by lawyers and the media industry were well-founded: first, the demise of source confidentiality and, secondly, a chilling effect on public interest journalism.

Source confidentiality

Upon finding out he was the subject of an investigation aimed at uncovering his sources of government information, Ben Fordham declared

The chances of me revealing my sources is zero. Not today, not tomorrow, next week or next month. There is not a hope in hell of that happening.

Source confidentiality is one of journalists’ most central ethical principles. It is recognised by the United Nations and is vital to a functioning democracy and free, independent, robust and effective media.

One of the greatest threats to source confidentiality is Australia’s uniquely broad data surveillance framework. The 2015 metadata retention scheme requires that all metadata (that is, data about a device or communication but not, say, the communication itself) be retained for two years. It may then be covertly accessed by a wide array of government agencies without a warrant. Some reports suggest that by late 2018, some 350,000 requests for access to metadata were being received by telecommunications service providers each year.

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Read more: Data retention plan amended for journalists, but is it enough?

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The government was not blind to the potential impact of this scheme on source confidentiality. For example, obtaining metadata relating to a journalist’s mobile phone could reveal where they go and who they contact and easily point to their sources.

This led to the introduction of the “Journalist Information Warrant” (JIW). This warrant is required if an agency wishes to access retained metadata for the direct purpose of identifying a professional journalist’s source.

So, access to a professional journalist’s metadata in order to identify a confidential source is permitted, provided the access has a particular criminal investigation or enforcement purpose and the agency can show it is in the public interest and therefore obtain a JIW.

This week’s raids suggest that either JIWs could not be obtained in relation to Smethurst, Fordham or the ABC Journalists, or the journalists’ metadata did not reveal their sources, or the AFP did not attempt to access their metadata.

Alternatively, if metadata had identified the journalists’ sources, it is less clear why these dramatic developments took place.

After 2015, journalists were advised to avoid using their mobile devices in source communications. They were also encouraged, wherever possible, to encrypt communications.
But in 2018, the government went some way to closing down this option when it introduced the complex and highly controversial Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018.

As well as expanding computer access and network access warrants, the Act provided a means for government agencies to co-opt those in the telecommunications industry to assist agencies with their investigations. This could include covertly installing weaknesses and vulnerabilities in specific devices, circumventing passwords or allowing encrypted communications to be decrypted. A warrant would then be required to access the device and communication data.

It is impossible to know whether Australian journalists have been targeted under the Act or had weaknesses or spyware installed on their personal devices. This week’s raids suggest the AFP would be prepared to target journalists under this framework in order to identify journalists’ confidential sources.

However, this could only be done for some purposes, including in the investigation of a secrecy offence.

Secrecy offences

In June 2018, the government introduced a suite of new espionage, foreign interference and secrecy offences. This included an offence of current or former Commonwealth officers communicating information, obtained by virtue of their position, likely to cause harm to Australia’s interests. This offence is punishable by imprisonment for seven years. If the information is security classified or the person held a security classification, then they may have committed an “aggravated offence” and be subject to ten years’ imprisonment.

This week’s raids reveal just how common it is for public interest journalism to rely on secret material and government sources.

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Read more: Government needs to slow down on changes to spying and foreign interference laws

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But the journalists themselves may also be facing criminal prosecution. The 2018 changes include a “general secrecy offence”, whereby it is an offence (punishable by imprisonment for five years) to communicate classified information obtained from a Commonwealth public servant. Fordham’s radio broadcast about intercepted boat arrivals was, for example, a clear communication of classified information.

Again, journalists are offered some protection. If prosecuted, a journalist can seek to rely on the “journalism defence” by proving that they dealt with the information as a journalist, and that they reasonably believed the communication to be in the public interest. The meaning of “public interest” is unclear and, in this context, untested. However, it will take into account the public interest in national security and government integrity secrecy concerns as well as openness and accountability.

Protecting media freedom

Australia has more national security laws than any other nation. It is also the only liberal democracy lacking a Charter of Human Rights that would protect media freedom through, for example, rights to free speech and privacy.

In this context, journalists are in a precarious position – particularly journalists engaged in public interest journalism. This journalism is vital to government accountability and a vibrant democracy, but has a tense relationship with Australia’s national interests as conceived by government.
National security law has severely undercut source confidentiality by increasing and easing data surveillance. National security laws have also criminalised a wide array of conduct related to the handling of sensitive government information, both by government officers and the general public.
And these laws are just a few parts of a much larger national security framework that includes: control orders, preventative detention orders, ASIO questioning and detention warrants, secret evidence, and offences of espionage, foreign interference, advocating or supporting terrorism, and more.

JIWs, and the inclusion of a journalism defence to the secrecy offence, recognise the importance of a free press. However, each of these protections relies on a public interest test. When government claims of national security and the integrity of classifications is weighed into this balance, it is difficult to see how other interests might provide an effective counterbalance.

One of the most disturbing outcomes is not prosecutions or even the raids themselves, but the chilling of public interest journalism. Sources are less likely to come forward, facing risk to themselves and a high likelihood of identification by government agencies. And journalists are less likely to run stories, knowing the risks posed to their sources and perhaps even to themselves.

Against this background, the calls for a Media Freedom Act, such as by the Alliance for Journalists’ Freedom, have gained significant traction. It may take this kind of bold statement to cut across the complexities of individual laws and both recognise and protect the basic freedom of the press and the future of public interest journalism in Australia.

Rebecca Ananian-Welsh, Senior Lecturer, TC Beirne School of Law, The University of Queensland
This article is republished from The Conversation under a Creative Commons license. Read the original article.

'The public has a clear right to know what One Nation is up to.'

Did Al Jazeera's undercover investigation into One Nation overstep the mark?

Andrew Dodd, University of Melbourne
The sheer audacity of Al Jazeera’s three-year ruse is astounding.
The news company’s investigation unit has carried out a sting that has captured both the National Rifle Association of the United States and Australia’s One Nation Party in all sorts of compromising positions.
The series, “How to sell a massacre”, has exposed the NRA’s manipulative media practices and revealed One Nation’s desire to cosy up to the US gun lobby to find ways of funding its domestic campaign to overturn our gun laws.
The documentary has exposed the thinking of some of the party’s most senior figures about taking control of the parliament and their obsession with Muslim immigration.

How to Sell a Massacre P1 | Al Jazeera Investigations.

Al Jazeera senior producer Peter Charley did this by placing actor-turned journalist Rodger Muller in the field to impersonate the head of a fake pro-gun lobby group called Gun Rights Australia. The pair then pandered to One Nation’s desire for financial support and international endorsement and exploited US gun lobbyists’ fears about Australia’s strict gun laws.
They got away with this for three years, gaining unprecedented access to the halls of the NRA and to the minds of two One Nation officials, Queensland state leader Steve Dickson and the party’s controversial chief of staff, James Ashby.

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Read more: How Australia's NRA-inspired gun lobby is trying to chip away at gun control laws, state by state

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A matter of ethics

There are at least two ethical questions about this documentary.
The first is whether the producers have overstepped the mark by not only reporting what they saw but creating the scenario in which the events occurred.
The second concerns the program’s extensive use of hidden cameras.
On the first matter, the issue is whether the program created the meeting between One Nation and the NRA and therefore acted irresponsibly by entrapping the subjects of the film.
In his account of what happened, Rodger Muller put it this way:

Then Charley asked me to contact Pauline Hanson’s One Nation – a far-right pro-gun Australian political party. Charley wanted me to find out if any connections existed between One Nation and the US gun lobby. And so began another chapter in my life as an avid “gunner”.
When I approached One Nation Chief of Staff James Ashby and mentioned my NRA connections, he told me he wanted to visit the US to meet them. I set up meetings in Washington and soon Ashby and One Nation’s Steve Dickson were on a flight to the US.
I was there, ready to meet them. And our hidden cameras were all primed and ready to go.

This suggests that Muller and Al Jazeera were catalysts and enabled the connection between One Nation and the NRA. But it also demonstrates that there was a desire on the part of One Nation to meet the US gun lobby, and – as later becomes clear - the party was motivated to do so to raise funds and make political connections.

So is this responsible journalism?

The Media Entertainment and Arts Alliance code of ethics – the protocols by which thoughtful journalists operate in Australia – is largely silent on this issue.
It doesn’t say anything explicitly about creating the news by making connections between players to observe what happens next. But it does stress the need to “report and interpret honestly”.
It calls on reporters to use “fair. responsible and honest means to obtain material” and to “respect personal privacy”. But the code also acknowledges journalists both scrutinise and exercise power. The preamble makes the point that journalism animates democracy.
Most importantly, in its guiding cause, the code states:

ethical journalism requires conscientious decision-making in context.

It allows for any of its other clauses to be overridden to achieve “substantial advancement of the public interest”.
So is it wrong to make and enable connections that might not otherwise happen in order to observe the outcomes? Is this fair and honest and responsible?
Like many things, the answer might be dependent on the motivation. From where I stand, it looks like Al Jazeera’s motivation was to get to the heart of something fundamentally important that would otherwise remain opaque.

Breaches of privacy and deceptive conduct

And while we’re pondering that one, there’s the perennial ethical question about hidden cameras.
This isn’t your garden variety case of a tabloid TV program exposing a dodgy car salesmen or a real estate scammer. In this film, the use of hidden cameras directly places several parts of the code of ethics against that all important public interest override.
The question is whether the public’s right to know is so important that it justifies the film’s deceptive conduct and breaches of privacy.
For me, the use of hidden cameras can clearly be defended when a publicly funded Australian political party, that knows what it’s doing is dodgy, is making connections to “change Australia” by gaining the balance of power in the parliament and “working hand in glove with the United States”.
It is highly likely the extent of One Nation’s behaviour could only be exposed through this sort of reportage. James Ashby is captured repeatedly reminding others they need to be secretive in their dealings with the NRA.
The public has a clear right to know what One Nation is up to. This is especially the case when part of its mission is to learn new techniques to manipulate the public debate to pursue an agenda of overturning the ban on guns following the 1996 Port Arthur Massacre.

The NRA are media experts

There’s something else about this program that justifies the use of hidden cameras. It exposes the utter cynicism of the media messaging and media training that underpins the NRA like nothing I have ever seen before.

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Read more: What the NRA can teach us about the art of public persuasion

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In a closed meeting with NRA officials, One Nation is given a crash course on how to deal with bad press, particularly following mass shootings.
Lars Dalseide, an NRA media liaison officer, is captured saying pro-gun lobbyists should smear supporters of gun control by accusing them of exploiting the tragedy.
He even provides a useful retort to anyone who might suggest that gun ownership might be a factor in a mass shooting. He says:

How dare you stand on the graves of those children to put forth your political agenda.

“Just shame them to the whole idea,” he suggests, by arguing pro-gun campaigners should declare to opponents:

If your policy isn’t good enough to stand on its own, how dare you use their deaths to push that forward.

As he says this, Ashby is recorded replying: “That’s really good, very strong”.

Some of that phrasing seems familiar in the immediate aftermath of the Christchurch massacre, suggesting parts of the NRA’s playbook have already made their way down under.
This documentary underscores two things.
The brutal tactics of the gun lobby and the operations of One Nation need exposing. Journalism sometimes has to take on the unsavoury job of extracting the truth from those who do not want to share it.



Andrew Dodd, Director of the Centre for Advancing Journalism, University of Melbourne
This article is republished from The Conversation under a Creative Commons license.
Read the original article.

"Implied understanding" of confidentiality about Federal-State meetings?

In the Estimates hearing for Department of Prime Minister and Cabinet this week Senator Rex Patrick referred to an FOI knockback that suggested meetings of senior officials are confidential, and put the department on notice that he is going to challenge.

And gave this tip:

"I haven't lost one yet. So maybe you want to go back and reconsider a decision on this particular issue."

Extract 

Senator PATRICK: I've just got a couple of questions—perhaps to you, Ms Foster. Mr Duggan might also be helpful in this regard. I put in an FOI—and I don't want to prosecute the FOI, but it raises a more general concern I might have—for access to a diary. It was the secretary's diary, actually. In response to that, the words came back that the diaries obviously contain details of meetings between the secretary and senior officials of state and territory governments, that information about those meetings is not in the public domain and that, further, there's an implied understanding between the Commonwealth and the states and territory authorities that details of these meetings are kept confidential. I just want to narrow in. Is this some sort of state-to-federal-government agreement that exists with the secretary, or is it more generally a claim that there is an implication that meetings that are held between federal officials and state officials are always secret?

Ms Foster : Let me just get the expert up to the table so that we can answer you very precisely.

Senator PATRICK: Fantastic.

Mr Duggan : There's no general agreement in this regard. It really depends on the nature of the conversation that's being had. Clearly, if the nature of that conversation is something of commercial or national security effect, then that's not something that we typically publicise. But, to the extent that there is no general understanding or general set of rules or guidelines that prohibit—

Senator PATRICK: So there's no implied understanding that the existence of a meeting should be held secret, because you could imagine that anyone listening would think that something that would occur in Stalin's times is that there is general secrecy when public officials, who work for the state, are paid for by the state and work for the public—and it's the same on the federal side—meet. In fact, the FOI guidelines are quite good and case law is quite good, in that what normally could be protected—and there is a threshold to that protection; it is not a blanket protection—is that the communication that is taking place at those meetings is held to be confidential, not the meetings themselves. By way of example, when Mr Dreyfus sought to have access to Mr Brandis's diaries, the judge made it very clear that a meeting between the Attorney-General and ASIS cannot be withheld. It doesn't go to what they talked about, but one would expect the Attorney-General to talk to ASIS on a regular basis. So is there some understanding that the fact of a meeting taking place between state officials is to be withheld from the public? Is that the case?

Mr Duggan : The FOI Act provides that there are grounds but under some fairly strict conditions. I think your presumption that, in general, we wouldn't seek to hide the fact that there were meetings taking place between Commonwealth and state officials is absolutely right. But there are some ground under the FOI Act where you would withhold that information. Those ground are: we would reasonably expect it to cause damage between the Commonwealth and the states—

Senator PATRICK: Yes. That's the threshold I was referring to. But the words were very clear: 'There is an implied understanding between the Commonwealth and the states and territory authorities that details of these meetings are kept confidential.' So that there would be an implied understanding of confidentiality of the fact of a meeting taking place.

Mr Duggan : There's also a second element to that, which is about the extent that revealing that information would disclose information on a matter that's communicated in confidence between the Commonwealth and the states. So there are some things that we do transact with the states and territories that are—

Senator PATRICK: But, for example, having a meeting with a Murray-Darling Basin state or having a Mr McCormack meeting with a state transport minister would surely not be confidential?

Ms Foster : It would be very unusual for the fact of the meeting to be—

Senator PATRICK: Sure. That's what I'm getting to.

Ms Foster : covered by that. But, in some cases, that is the case. As you'd be aware, with each FOI request, we look at each document and assess it on a case-by-case basis. We're not making a generic statement about such meetings but saying that, in this instance, we believe this exemption applied.

Senator PATRICK: This actually makes it very clear: there's an implied understanding between the Commonwealth and states and territory authorities that details of these meetings are kept confidential. Which is why I said: is it only the secretary of PM&C that that applies to, or, more broadly, everyone? But you're saying that's not the case.

Ms Foster : What I'm trying to say is that I think that statement was setting the context for us to apply in this specific case, because if, indeed, there is nothing sensitive, then there is no reason to withhold.

Senator PATRICK: I guess I'll leave this to the Information Commissioner now—

Ms Foster : Indeed.

Senator PATRICK: and, possibly, the AAT. But I'll give you a bit of a tip: I haven't lost one yet. So maybe you want to go back and reconsider a decision on this particular issue.

Ms Foster : Certainly, Senator.

Senator PATRICK: I've won them in the AAT, and even when I get to the AAT the department generally says, 'Oh, well, in that case, we'd better let you have a lot of it.'