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Monday, March 09, 2020

Pass the hot parcel when questions are raised about 40 years of records in the bin

The testimony in a senate committee hearing on the Sports Rorts affair that retiring Secretary of the Department of Health Glenys Beauchamp had destroyed all of the notes and notebooks from her public service career at the end of January led to further inquiry in Senate estimates last week. The hot potato of course was the notes if any that had been kept then destroyed about meetings concerning the tortuous decision making on community sports grants.

Senate Estimates on this bore passing resemblance to pass the parcel but there was no prize for anyone when the music stopped-for the moment at least.

In short:

Australian Public Service Commissioner Peter Woolcott said he hadn't carried out an investigation into the matter as requested by Senator Gallagher because he didn't have authority and the Attorney General's Department not the Commission was the agency responsible for the Archives Act. Senator Gallagher noted the APSC website had a lot of information about record keeping. Woolcott said this was all to do with the broader issue of integrity and the APS Code of Conduct but "I have no room to investigate Ms Beauchamp at this point." 

The Attorney General's Department couldn't say one way or the other whether destruction of the notes and notebooks could give rise to an offence under the Archives Act, noting that destruction of records in accordance with "a normal administrative practice" was exempt from the offence provision, and flagged that the Archives office was to be heard later in the day.

 When the Archives office, no doubt the best placed to throw light on it all, finally got the call at 10.45 pm, none of the senators who pursued the issue earlier in the day asked a question about it in the 15 minutes devoted to Archives. Archives will no doubt get a chance through questions on notice to express a view in light of  published guidance on the matter but now Ms Beauchamp has left the service and the records no longer exist it seems unlikely to go any further.

What message this conveys to public servants about record keeping generally is another matter, just as Mr Woolcott prepares for a service wide training initiative on integrity. Quite a challenge but a ready made case study perhaps?

 Senator Gallagher the opposition shadow public service minister has written to the Attorney General asking him to investigate the destroyed notes.
“It seems all very convenient that no official records are available from a key meeting of senior officials – urgently convened to discuss the management of political interference in the allocation of sports grants and that of the three officials present at that meeting only former CEO of Sport Australia, Ms Palmer, can recall it,” Gallagher said.“I have referred the matter of the destruction of records to the attorney general following the advice of the Public Service Commissioner. As a commonwealth public servant the making and keeping of records is not a discretionary act.”

The long version of what transpired in Estimates is in these extracts from the Hansard transcripts:

Tuesday, February 04, 2020

Another closed book: letters from Governor General to the Queen 45 years ago?

Explainer: what is the 'palace letters' case and what will the High Court consider?

Gough Whitlam outside Parliament House on November 11, 1975. National Archives of Australia
Anne Twomey, University of Sydney
The dismissal of the Whitlam government in 1975 remains as controversial as ever. Its last chapter is to be decided in the High Court today when it hears a case brought by historian Jenny Hocking seeking public access to the letters between the governor-general, Sir John Kerr, and the queen.
Government files on the crisis were released by the National Archives under the 30-year rule and Kerr’s own private notes and reminiscences, which he deposited with the archives, have also been released.
But the letters that Kerr sent to the queen, through her private secretary, about the crisis and any replies, have not been released because they have been treated as “private” correspondence owned by Kerr, and subject to the conditions he placed on them.

Read more: Relics of colonialism: the Whitlam dismissal and the fight over the Palace letters

Conditions of access

The conditions were that they be opened 60 years after Kerr ceased to be governor-general, after “consultation” with the monarch’s private secretary and the official secretary to the governor-general. This was later unilaterally changed, on the queen’s instructions, to 50 years, but with the “approval” (rather than consultation) of the representatives of the monarch and the governor-general. It remains unclear what power the queen had to change and control conditions on access, if the documents belonged to Kerr, as it is claimed, and not the queen.
This change in the deposit conditions is critical, because we now know that the Palace is refusing access to correspondence with any of the queen’s former governors-general, even when the 50 years is up, for a period until at least five years after the death of the queen, and then only if the new monarch agrees.
This means it may never be released, or may be redacted or released only in part.

Public or private correspondence?

One problem with assessing whether the correspondence is public or private in nature is that none of the decision-makers, including the courts, have seen the letters. But experience can tell us a few things about them. First, the queen never personally engages in correspondence with her governors-general. All correspondence goes through her private secretary, and it is he (as they have always been male) who responds to the governor-general.
In times past, when the governor-general was a member of the British aristocracy or upper classes, there was a “personal” element to this correspondence. Letters from Lord Stonehaven, when he was Australia’s governor-general from 1925 to 1930, to the King’s private secretary included discussions about shooting parties, children at Eton and general gossip.
Lord Byng, when governor-general of Canada and facing his own constitutional crisis, addressed the King’s formidable private secretary, Lord Stamfordham, as “My Beloved Stamfy”. There was a mix, at that time, of personal and official roles.
But since the governor-general has been an Australian, the personal aspect has disappeared, and the correspondence became quarterly reports informing the monarch of political, economic, trade, agricultural and social conditions in Australia. The purpose was, and remains, to ensure the monarch is well informed and can therefore more effectively fulfil his or her role with respect to Australia.

Read more: Australian politics explainer: Gough Whitlam's dismissal as prime minister

In addition, there was an obligation on the governor-general to explain any exercise of a power that was done without, or contrary to, ministerial advice, such as refusing a dissolution or dismissing a government. This was strictly enforced.
It is therefore clear, and accepted by the parties, that the correspondence was entered into by Kerr and the queen’s private secretary, as part of their official functions. It was not “personal” in the sense that it concerned family or social matters. It was only personal in the sense that Kerr was writing to the queen personally about how he had fulfilled his functions as her representative. Yet, in doing so, he was fulfilling an official function of the office.

Who owns property in the letters?

The Archives Act makes a distinction between “Commonwealth records”, which are “property of the Commonwealth” and the records belonging to private individuals. So the question is, who owns the “property” in the letters? This raises consideration of who owns the piece of paper the letter is written on, who holds copyright in the letter, whether the sender or recipient owns the letters (and any copies they kept), the capacity in which the letters were written and who currently possesses the letters.
The question for the High Court is which of these factors are relevant or decisive when reading the term “Commonwealth records” in the context of the entire Act, including its purpose of preserving and giving public access to the nation’s historical records.

In the past, some governors-general had taken these letters with them on leaving office. If this indicated they believed they owned the letters, is this enough? Belief would not normally be enough to transfer ownership in a document written by an officer of the Commonwealth in an official capacity.
The Archives Act also recognises that Commonwealth records may end up in private hands, and when private collections are deposited with the archives, any documents within that collection that are “Commonwealth records” are to be treated as such.
This means they must be kept confidential for the requisite period (which has been progressively reduced from 30 years to 20 years) and publicly released if not subject to other exemptions, regardless of any conflicting conditions applied by the depositor.

What is at stake?

If correspondence between the governor-general and the queen is treated as “private” records, rather than Commonwealth records, significant risks arise.
First, this means that whoever inherits the property of the governor-general could sell these records to the highest bidder, at any time, without any secrecy limits or government control. It could be sold to a media organisation that prematurely publicises and sensationalises the letters for profit, or to a private collector who never makes the letters public.
Second, where the documents have been deposited with the archives as a “private” collection, and made subject to conditions that they not be released without the approval of the monarch’s private secretary, they may never be released, or released only in a limited and misleading form.
In both cases, there is a significant risk that Australians will be denied access to, and understanding of, not only one of the greatest political crises in Australia’s history, but how the highest offices in the land actually operate in our system of government. It is hard to believe the Archives Act could be interpreted as operating in a manner that would deny Australians control over and access to such important records of their history.The Conversation
Anne Twomey, Professor of Constitutional Law, University of Sydney
This article is republished from The Conversation under a Creative Commons license. Read the original article.

Sunday, January 26, 2020

Australia Day Honours are a closed book

A bit of interest today in transparency amid controversy over decisions on honours awards by the Australia Day Council .

Are decisions or any other documents held by the Council Secretariat (staff in the Office of the Governor General) subject to FOI?


 This from my blog in 2013: 
"The High Court in Kline v Official Secretary to the Governor General [2013] HCA 52) ruled that documents concerning the operation of the Honours system are not within scope of the Freedom of Information Act. The decision ends a long running legal tussle regarding interpretation and application of s 6A which places the Official Secretary's office (among its other support functions, it is the Australian Honours and Awards Secretariat) outside the operation of the act "unless the document relates to matters of an administrative nature."
 More here

Nothing has changed since. 

Calls for FOI reform on a wide range of fronts have got nowhere.

Seven years of coalition government and the most notable contribution to FOI in that time is the eventually unsuccessful attempt in 2014 to abolish the Office of Australian Information Commissioner.

Among the mostly uncontroversial awards was the well deserved Order of Australia OA for Fiona McLeod SC, the Chair of the Accountability Round Table and a former Chair of Transparency International Australia and the Open Government Forum, among many other wonderful accomplishments. Congratulations Fiona.

Have a thoughtful Australia Day.