The COAG Legislation Amendment Bill likened to the Dog is a Cat Act

I was one of the witnesses at yesterday's Senate Committee hearing on the government's wrong headed, bizarre attempt to legislate that anything considered or decided by the 'National Cabinet' (the PM, state premiers, and territory first ministers) is not for any us to know unless the PM at his discretion decides to let it loose in the public domain.

The contention in putting forward the COAG Legislation Amendment Bill 2021 (Schedule 3) is that 'National Cabinet' is a committee of the Federal Cabinet and entitled to all the secrecy that goes with that. In addition to an amendment to the Freedom of Information Act in an attempt to achieve that purpose, having lost when Justice White was not persuaded by the government's evidence, the bill would amend fourteen other acts. 

 

If it becomes law 'National Cabinet' documents-inputs, deliberations, decisions- would  attract the (absolute, no public interest test) Cabinet Document exemption in the FOI act, be locked up and maybe released in 20-30 years time.

 

The government says the same should go for documents considered or concerning deliberations and decisions for any group consisting of any Tom Dick or Mary the PM designates as a subcommittee of the 'committee' known as 'National Cabinet'.

 

As one witness yesterday said it's like proposing a law that a dog is a cat.

 

The bill-yet to be voted on-got a real pasting from everyone who testified, except the three public servants from the Prime Minister's department who tried in answer to questions to explain and justify this further backward step in transparency. 

 

From within the ranks, the Australian Human Rights Commission spoke up against and the Australian Information Commissioner in a submission supported by all eight state and territory counterparts said it was unnecessary.

 

Although government senators are in the majority on the Committee considering the legislation, only one the Chair, turned up, leaving open slather to Senators Ayres (NSW ALP), Rex Patrick (Independent SA) and Larissa Waters (Greens Qld). They had a field day getting plenty of confirmation the legislation proposed is a dangerous dud, and leaving those three public servants perplexed and pained in trying to justify it.

 

Most of those following this closely are doubtful it will pass the Senate where the government will need two crossbenchers to vote with them to get it through. Make that three-one government senator today said he would cross the floor to vote against.

 

I'd worry about any senators who see more secrecy as just what our democracy needs these days and suggest they should be tested for cognitive decline.

The Tribunal gives Government a drubbing: "National Cabinet is no cabinet committee "

The decision in the Administrative Appeals Tribunal by Justice White rejecting arguments that documents concerning the operation of the "National Cabinet' are exempt as cabinet documents cheered up those among us who keep lamenting the decline in  transparency.Thanks to Senator Rex Patrick, something to cheer about, the first in a long time for years.

The matter took a year to get to this stage (speedy compared to delays some of us are enduring in a queue at the Office of Australian Information Commissioner) and it may not be over yet. The Secretary of the Department of Prime Minister and Cabinet is considering an appeal to the Federal Court.

There's no reason to think the Australian Government Solicitor who ran the case for exemption didn't put their best case forward, or were rushed and caught off guard in marshaling evidence in support, but it fell way short. I canvassed some of the problems the Government faced last year. By the look of it AGS didn't have much to play with in addressing them before the AAT.

Decision

On the cabinet exemption issue Justice White concluded

Having addressed several matters bearing on the question of whether the National Cabinet is a committee of the Cabinet, I have then sought to consider their collective effect. In my view, taken together they point persuasively against the National Cabinet being a committee of the Cabinet within the meaning of the statutory expression. At the very least, I am satisfied that the respondent has not discharged the onus of establishing that Mr Hupalo’s decisions about these matters were justified or that the Tribunal should give a decision which is adverse to the applicant. [210}

Professor Anne Twomey has a good piece on The Conversation about the decision and its consequences. 

The evidence and contentions

In his decision Justice White was measured but scathing in observations about the evidence put forward and the contentions on behalf of the Secretary of the Department of Prime Minister and Cabinet in arguing the case for a finding the documents were exempt.

It's a real drubbing, both on the cabinet document claim and a claim made for the first time when the matter reached the AAT that disclosure of minutes of a meeting in March 2020 would damage relations with the states.

Not for the faint hearted, but here's (a selection of) what Justice White said about the case put for the cabinet document claim (emphasis added):

Diary of a despondent: an FOI journey to nowhere (so far)

Almost a year ago the Minister for Foreign Affairs Senator Payne drew attention in speeches to two matters of significance in Australia's international affairs-an audit report completed by the Department of Foreign Affairs at the request of the Prime Minister on Australia's engagement with multilateral institutions, and what the Minister described as the important role Australia played since assuming a position on the governing board in advocating for greater independence and transparency at the World Health Organisation.

Hmm, important stuff, I thought.

FOI application  

Wanting to know more about both I made separate FOI applications for documents on 18 June to the Department of Foreign Affairs and Trade 

A year later after tortuous drawn out processes in both cases I've got nothing to show.

DFAT's decisions have been with the Office of Australian Information Commissioner since 13 November seeking review of the knock backs received as well as a response to a complaint about the department's handling of these, and presumably other FOI applications.

The blow by blow details are in the public domain on the Right to Know website here and here. 

Below is a potted summary of the pursuit of the Audit report-a tale of delay, long silences and obfuscation stretching from June to November.

It's a far cry from Parliament's intentions that the FOI act promote Australia's representative democracy by contributing towards increasing scrutiny, discussion, comment and review of the Government's activities, increasing recognition that information held by the Government is to be managed for public purposes, and is a national resource, and that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.

18 June 2020

FOI application lodged for a copy of the audit report on Australia's engagement in key multilateral institutions mentioned and summarised in the speech by the Minister to the National Security College on 16 June.

24 June

DFAT acknowledgement (emphasis added here and elsewhere):

"Searches are now being undertaken in relevant areas of the Department for documents relevant to your request.""You should.. expect a decision from us by 20 July 2020. The period of 30 days may be extended in certain circumstances." "..the Department issues charges for processing FOI requests." It is the Department’s policy to withhold ... the names and contact details of government officials not in the Senior Executive Service (SES) If we don't hear from you "we will take it that you agree to that information being excluded from the scope of your request."

26 June

My response: Guidance from OAIC makes clear, the imposition of a charge is at the discretion of the agency. There is no obligation to charge. In the middle of a pandemic surely simple is better than complex. "In my submission, a charge for processing an application for one clearly identified document is not warranted." On names, the Department's policy is inconsistent with Guidance issued by the Australian Information Commissioner (6.154)
"When considering whether it would be unreasonable to disclose the names of public servants, there is no basis under the FOI Act for agencies to start from the position that the classification level of a departmental officer determines whether his or her name would be unreasonable to disclose."

7 July

DFAT makes no reference to either point raised and imposes a charge of $108.67 with the full amount or a deposit payable in advance.

9 July

My response notes no mention of matters raised on 26 June, and that the charges for processing the application are not broken down into how they will spend time in dealing with the application. Presumably little if any time is involved in searching for and identifying the one document requested.  

Still arguing DFAT has a discretion not to charge and why in difficult Pandemic times not charging is likely to save time and resources of both of us, I pick up on their mention of waiving or reducing charges on financial hardship or public interest grounds. As a self funded retiree my super and savings have taken a hammering I say, but no worse than many or most and I won’t make a special case out of that. On the public interest, what the Minister said in that speech that prompted the application made multilateral engagement a very important aspect of protecting and advancing Australia's interests. The minister said on 18 June it's about using "..Australian influence and agency to shape a safer world, and to make us safer at home."

Access to the report is in the public interest because it will help inform the community of the Government’s conduct of this important aspect of international affairs, contribute to debate on a matters of public importance, and enable scrutiny of performance in the achievement of government policies and goals. 

5 August

Nothing from DFAT.

I query what is going on?

11 August 

DFAT responds on charges, accepting 'this matter may be of some public interest. However I am not satisfied the giving of access to the specific document in question would be in the general public interest,nor of interest to a substantial section of the public." 

Followed by a lecture:"Charges are a vital component to the FOI process that make it sustainable and appropriately balanced from a public policy perspective. Significant public resources are engaged in processing non-personal FOI requests. Processing charges are designed to ensure that the Australian community recoups a proportion of the costs of processing these types of FOI requests, given that processing such requests diverts significant resources from policy areas away from other priorities."

But yes, DFAT reduces charges by 50% to $54.33.

18 August

My reply: "Gee, I'm sorely tempted to seek a review, given the reasoning provided, but in the interests of time, I'll pay up.Your message does not mention how to go about this. Nor does the website.Please inform.Thanks."

18 August

DFAT quick to respond: "Please see attached available payment methods."

19 August

Paid full amount rather than the $20 deposit by direct debit.

27 August

DFAT asks my consent to an extension of time of 30 days to process the request.  

Searches"have been undertaken.. material falling within the request is currently under consideration" but "the department will be unable to finalise the request within the statutory timeframe." 

No reasons given

28 August 

My reply:

"I understand its a difficult time all round but even in these trying circumstances, an additional 30 days to process the application seems unreasonable and unwarranted.You have had this application since 18 June-70 days, 50 if we are more generous than the FOI act and exclude weekends from the equation...The request is for access to one document, clearly described by title and publicly referred to in that way by the Minister, so it is reassuring that 'the searches in relation to the request have been undertaken"and that "the material falling within the request (ie one document) is currently under consideration." I can't see how this might render the request complex or voluminous. I'm hoping for a decision any day now. I do not agree to any extension."

31 August

DFAT advise they have asked OAIC for a thirty day extension.

15 September

My message to DFAT "Can you let me know where things stand? Nothing heard from OAIC about your application so I'm thinking an extension was not granted? Deemed refusal? Refund the charges paid?"

18 September 

OAIC write to tell me the DFAT application for extension of time has not been granted-"not satisfied an extension of time is appropriate in this circumstance... The effect of this decision is that the Department is deemed to have refused your FOI request...the Department continues to have an obligation to provide a statement of reasons on the FOI request...the agency or minister cannot impose a charge for providing access, even if the applicant was earlier notified that a charge was payable (regs 7(2), (3)). Any deposit you have paid should be refunded."

29 September

Nothing heard from DFAT but my follow up query met with a same day response 
"Thank you for your email and your continued patience.....complete the attached form for refund and return it at your earliest convenience. I otherwise confirm we are working to finalise this matter at the earliest opportunity."

My same day response to the response points out that the form says don't use it if you don't have an ABN. Instead use the “Statement by supplier form. I don't have an ABN. The link doesn't take me anywhere. A search turns up an ATO form and quite a few others. Phew-what a process."

1 October

DFAT "Apologies, statement by supplier form now attached."

2 October

Completed 'Statement by Supplier 'form sent together with a few comments to DFAT:

"Gee its hard to keep a straight face- and not weep- at the complications in the processing of the application that have arisen to date...I'm no expert on the GST, but how an FOI applicant entitled to get charges back transforms into a suppler providing a supply in the form of goods or services to your business (read explanation in Fact Sheet) is a real mystery... The form supplied can't easily be filled on line and comes without a way to automatically return it to you. I took a photo. (Please don't tell me you need the original-by snail mail!

DFAT reply same day, confirm receipt of the form and will now arrange refund of the charges.

"We otherwise confirm are working to finalise this matter at the earliest opportunity.Thank you for your continued patience."

16 October  

DFAT: "In order to process the refund, we need your bank account details to make the deposit. Grateful if you could please provide the same at your convenience and I will continue to process the refund. Again, my apologies that the processing of this refund is again delayed. I otherwise confirm we will provide you with an outcome to your request shortly

Details sent same day.

21 October 

Nothing from DFAT-my query, can you confirm receipt?

22 October 

DFAT-no we didn't receive bank details.

Same day, I resend. 

(Money paid into my account on 6 November)

5 November  

Nothing heard from DFAT- I say time to pass to OAIC for a review of the decision DFAT hasn't made 

6 November

DFAT reply:

"Unfortunately Danielle has been out of the office this week.We are continuing to work on your FOI request for you.

Regards

DFAT FOI Team"

13 November 

Still nothing from DFAT. 

My message:  

"I think I've shown understanding in difficult times but there are limits. An application for IC Review has been lodged today. And a heads up, I'll be lodging a complaint about the handling of the current two applications." 

30 November 

DFAT advise of decision on my application for the report after months of searching, considering..

The report is exempt in its entirety-cabinet document, release would damage international relations and national security. 

No reasons beyond broad general assertions. All conveyed in a tad over one page. Have to wonder what those months of 'consideration' of the application involved.

3 May 

The OAIC contacted me about the review application that I lodged on 13 November telling me the matter is awaiting further consideration by a review adviser and this may take up to 12 months and then the review adviser will review any documentation or submissions provided by Department in support of its decision of 30 November 2020.

.....................................

Intrigued by what this exercise might have cost the taxpayer, I made another application to DFAT on 7 December for the details of time spent and the dollar amount attributed to dealing with my request.

DFAT was at the ready for months arguing why i should pay for time spent so presumably someone somewhere was keeping tabs, but remarkably the agency says it does not hold any such documents.

.....................

Still living in hope!

Neither open nor ambitious when it comes to Australia's open government plans

Having spent time and energy, commencing in 2011when the initiative was first announced, in encouraging, advocating and participating in Australian involvement in the Open Government Partnership, my optimism and enthusiasm for the cause has taken a nose dive in recent times. 

I'm glad a small cohort of determined supporters of democratic principles hang in there.

But with no champions at the highest levels of a government that some suggest is allergic to transparency our commitments to reform have been mediocre in ambition, modest at best in terms of results, limited in reaching out to raise awareness and extend participation beyond usual suspects (no offence intended), and opaque when it comes to what is going on behind the scenes.

On the last mentioned:

The Open Government Forum "Australia's multi-stakeholder forum" comprised of members from government and civil society hasn't met for five, almost six months- since November.

The minutes of the last meeting on 27 November 2020 are yet to be published. 

(Update Sometime after I asked PMC about the minutes on 7 April they appeared in the meeting papers on the PMC website available here)

A document in published papers for that meeting refers to a planned Forum meeting on 18 February 2021 for 'Formal Close out of NAP 3 Development Process."The meeting wasn't held then, or since apparently. Presumably the Forum is yet to formally 'close out.'

The process to develop a third national action plan commenced in November 2019 with a requirement at that stage that the completed plan would be submitted to the OGP in August 2020. The Pandemic saw the due date extended to 28 February 2021. PMC tell me the plan is yet to be submitted because the government has not formally considered and endorsed it. (And of course the Forum hasn't closed out yet on what the government will later consider. The draft commitments as they stood in November-Item 5 in this list-bear little resemblance to what most commentators and experts regard as priorities in addressing the current retreat from accountability and transparency)

Then Minister Cormann was the 'co-ordinating minister' for Australia's OGP commitments and the development, adoption  and implementation commencing with the first national action plan in 2016-2018 but if he spoke publicly about the OGP during the ensuing five years apart from a short attendance at a meeting in Paris some years back, I must have missed it. He resigned from the ministry on 30 October 2020. You'll struggle to find any mention of who took his place but PMC advise its Assistant Minister Ben Morton- who hasn't spoken a word about it either that I can find. A speech to the Australian Public Service by the Assistant Minister in February 2021  includes a section headed "The Government's ambition Inspiring Australians to engage in democracy" but not a word about open government, the OGP, anything the government might claim as reforms past or planned.

In early 2019, then Civil Society Co-Chair of the Forum Fiona Mcleod SC (Chair of Accountability Roundtable) and a candidate in the Federal election held at that time stood down. While the position has been capably filled on an interim basis by Adjunct Professor Ken Coghill, no replacement for Ms McLeod has been announced for over two years. 

The OGP requires independent assessment of the design and implementation of the commitments adopted by OGP participating governments in their country action plans. Three reports have been published on Australian plans, way too late to have much impact. None give Australia much in the way of commendation, no commitments qualify as ambitious. None are published on the PMC website. The government is also required to publish a midterm and closing report on each plan.  The most recent self assessment (pdf) published on the PMC website is at mid term of the 2016-2018 plan.

Along this ten year journey I've often concluded that when it comes to high standards and practices regarding accountability, transparency and integrity, I live in hope but on form to date the Morrison government makes hope look futile.

Senator Patrick chalks up important FOI win

He''s a vigilant determined defender of the spirit and intent of freedom of information.

May the wind be at his back!

In the Senate on Tuesday Senator Rex Patrick recounted a drawn out and eventually unsuccessful attempt by the Department of Prime Minister to deny access to the complete performance audit report into the handling of a $1.3 billion dollar Defence contract for the procurement of the Hawkei light protected mobility vehicle from Thales Australia Ltd. 

The government had refused to table the complete report in response to a Senate Order; Attorney General Porter issued a (rare?unprecedented?) certificate under the Auditor General's Act preventing disclosure of parts of the report on public interest grounds; and various FOI exemption claims, some dropped on the way, were advanced on this journey to the Administrative Appeals Tribunal.

Deputy President Britten-Jones concluded no additional harm to national security or Thales commercial interests would result from disclosure, given information already in the public domain in a redacted version of the report, and information made available by Thales when it commenced Federal Court proceedings in January 2018. 

The Deputy President[ 70-78] was dismissive of another claim that the Auditor General's analysis and conclusions involved deliberative processes: "Rather than disclosing a deliberative process, the Redacted Report discloses a final conclusion based on an analysis of factual findings.....Section 47C does not operate to disallow access to a report of this nature generated by an independent officer of the Parliament exercising his statutory functions. The Disputed Material is not conditionally exempt under s 47C(1) of the FOI Act."

Senator Patrick posted the report and relevant documentation following notification the decision will not be appealed, observing

"In this matter the Attorney-General’s judgement was clearly unsound. He was  incapable of properly assessing national security claims This raises a most serious question - what else has the Attorney-General got wrong in the national security space?”

Indeed.

Senator Patrick in the Senate 2 February