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Thursday, November 14, 2019

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The Federal law is out of date and out of line with emerging best practice, the culture issue of excessive secrecy has never been properly addressed, champions, defenders, advocates within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.

Monday, October 21, 2019

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.

Monday, July 15, 2019

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.


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."

Thursday, June 06, 2019

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

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.

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

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.

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

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.The Conversation

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.

Wednesday, March 27, 2019

'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.

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

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.

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

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.

The Conversation

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.

Wednesday, February 20, 2019

"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."

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.'

Friday, November 16, 2018

Records on private devices could be subject to FOI-but are they kept?

Yes, a WhatsApp message could be subject to FOI – but you'd have to find it first

Moira Paterson, Monash University
Secure messaging services like WhatsApp often feature in the news in the context of their potential use by terrorists.

But paradoxically they are now used increasingly by Commonwealth government ministers and other senior officials.

This raises important issues in terms of record-keeping, and whether messages on these services are accessible via Freedom of Information (FOI).

Read more: Banning MPs from private messaging apps is a simplistic response to a complex problem

What is FOI and what documents does it apply to?

FOI laws are designed to make governments more open and accountable by providing access to documents that shed light on their activities.

The Commonwealth FOI Act applies to the individuals and bodies that make up the Commonwealth government sector, although it excludes some specific bodies and documents.

The Act provides access to information held in documents, including electronic documents, as well as pictures, videos and more. To be accessible a document must be in the possession of a government agency or a Minister. It must also exist in material form, although there is also scope for the creation of a document from a database using a computer.

The right of access under the Act does not extend to exempt documents. The Act contains 18 exemption provisions designed to protect the interest of agencies, third parties as well as broader governmental interests. For example, a document is exempt if it qualifies as a Cabinet document or it reveals internal decision-making processes contrary to the public interest.

Agencies and ministers are permitted to withhold documents, or parts of documents, if they qualify for exemption. They may also refuse requests for access on workload grounds or because the documents requested cannot be found.

Applicants who are refused access are able to apply for review by the Australian Information Commissioner. The Act also provides for further review by the Administrative Appeal Tribunal and appeals on questions of law to the Federal Court of Australia.

To what extent can FOI be used to obtain access to ministerial documents?

Journalists who want to investigate a Minister’s conduct may be able to obtain the information required from a government agency within the Minister’s portfolio. They are also able to obtain access to documents held by Ministers in their official capacity.

For example, journalist Sean Parnell used the Act to obtain access to documents sent to then Prime Minister Julia Gillard conveying an earlier Prime Minister’s views on matters of government policy.

He also obtained access to personal character references provided by then Minister Anthony Albanese. Parnell was granted access to these documents because they related to governmental matters – that is, receipt of input to official policy-making and the use of official government letterhead for a reference.

In contrast, Parnell was refused access to diary entries for Julia Gillard’s meetings with business leaders at an ALP conference. The meetings were part of a party political event and did not relate to the affairs of any government agency.

What is the position of messages sent via WhatsApp?

WhatApp messages are encrypted while in transit. However, they exist in material form and it is possible to access and export them from the phones on which they are located.

Read more: When is 'not a backdoor' just a backdoor? Australia's struggle with encryption

There is therefore a strong case for arguing that they are subject to the FOI Act in the same way as email and others forms of text messages.

As stated by the former Australian Information Commissioner Timothy Pilgrim, the Act is applicable to any document within its scope irrespective of how that document is stored, including on a messaging app or non-government server. This is consistent with the approach taken in Ireland and the UK.

However, that does not mean that the use of WhatsApp is unproblematic from the perspective of FOI. If the FOI Act is to operate effectively, WhatsApp messages must be filed in such a way that they can readily be searched and retrieved. They must also be preserved consistently with the retention requirements in the Archives Act. It is unlikely that current practice is fully consistent with these requirements.

If WhatsApp messages do exist, can be found and are stored in searchable form they are potentially accessible via FOI. But to call them up could involve huge workload requirements.
The Conversation

Moira Paterson, Professor of Law, Monash University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

I wrote about this issue and the Australian angle in 2015 when the Hillary Clinton private server  matter was attracting attention

Tuesday, November 06, 2018

Vale Judge Kevin O'Connor AM

Nice and deserved tributes in today's Sydney Morning Herald in an obituary by former NSW Solicitor General Michael Sexton for Kevin O'Connor who died in September

Kevin's full and rich life detailed there, was Australia's first federal privacy commissioner and the foundation president of the NSW Administrative Decisions Tribunal and later Deputy President of the NSW Civil and Administrative Tribunal. And brought plenty of knowledge and experience to those jobs.

Kevin had been head of research at the Australian Law Reform Commission 1976-1979 when one of its references was the ALRC's first on privacy. And Director of Policy and Research Victorian Attorney General's Department 1983-1985 when Victoria was the first state in Australia to introduce freedom of information legislation.

And much, much more

Kevin was a warm, friendly fellow with a lively glint in his eyes every time you encountered him.

Sad to hear of his passing.

Condolences to his family.

Monday, November 05, 2018

States and territories have improved integrity measures, but Commonwealth lags far behind

This article was first published on The Conversation

File 20181031 76384 r8f3hd.jpg?ixlib=rb 1.1
Voters want their governments – local, state, and federal – to clean up their act and put integrity reforms high on the agenda. AAP/Mick Tsikas
Danielle Wood, Grattan Institute; Carmela Chivers, Grattan Institute, and Kate Griffiths, Grattan Institute
This week we’re exploring the state of nine different policy areas across Australia’s states, as detailed in Grattan Institute’s State Orange Book 2018. Read the other articles in the series here.

When it comes to cleaning up Australian politics, some states are doing much better than others – and almost all are showing up the Commonwealth government.
Grattan Institute’s State Orange Book 2018, released this week, compares the states and territories on the strength of their political institutions and checks and balances (among other things). Queensland and NSW received an A grade from Grattan for political transparency and accountability. Both have stronger rules than other states on lobbying and political donations.
Western Australia, once a leader after introducing lobbying reforms in the mid-2000s, is now only middle of the pack. Tasmania and the Northern Territory are the poorest performers – both get an E for transparency of their political dealings. The Commonwealth government sits with them at the back of the pack.

Some states are highly transparent

Some states and territories have made political lobbying much more open to the public gaze. NSW, Queensland and the ACT now publish ministerial diaries, so voters can see who is trying to influence whom, and when. All jurisdictions except the Northern Territory have a lobbyists’ register, and Queensland and South Australia require lobbyists to publish details on which ministers and shadow ministers they meet with.
Most states have also introduced reforms to help voters “follow the money” in politics. NSW, Victoria, Queensland and the ACT require donations of $1,000 or more to be publicly declared. Only Tasmania has the same high threshold as the Commonwealth government ($13,800). Most states and territories require political parties to aggregate small donations from the same donor and declare them once the sum is more than the disclosure threshold. But Tasmania, the Northern Territory and the Commonwealth have left this loophole gaping.

Read more: Influence in Australian politics needs an urgent overhaul – here's how to do it

The disclosure threshold for donations should be no higher than $5,000 in all states and territories, and at the federal level. And donations should be disclosed quickly – preferably within seven days during election campaigns, as now happens in Queensland, South Australia and the ACT, or at least within 21 days, as in NSW and Victoria. Tasmania, and the Commonwealth, still leave us waiting up to 19 months to find out who donated to political parties during elections.

State governments are becoming more accountable

Almost all states have improved their level of accountability to voters in recent years. All states and territories now have a ministerial code of conduct, setting out standards of ethical behaviour, including rules on accepting gifts and hospitality. And all have introduced a similar code for other parliamentarians, or are close to adopting one. The Commonwealth has a code only for ministers.
But enforcement of the codes is typically weak, meaning the codes are more like guidelines than rules. In most states, the premier or the parliament ultimately determine sanctions for misconduct. Enforcement can easily become political.
NSW and Queensland have independent oversight of their codes of conduct. The other states and territories should follow. And there should be meaningful sanctions for misconduct and for breaching disclosure rules – such as large fines or jail time, as applies in NSW.

Read more: Australians think our politicians are corrupt, but where is the evidence?

The states have also made progress in exposing and tackling corruption. All states and the NT now have dedicated anti-corruption or integrity agencies that provide some reassurance to the public that serious issues will be confronted. There is one on the way in the ACT.
Only the Commonwealth lags in this area. It would be naïve to assume that corruption at the federal level is less prevalent or serious than at state level. Establishing an equivalent agency at the federal level should be a priority for the Commonwealth.

All states and the Commonwealth can do better

The appearance, and sometimes reality, of political decisions favouring special interests or politicians’ self-interest has contributed to voter disillusionment and falling trust in government. Voters want their governments – local, state, and federal – to clean up their act and put integrity reforms high on the agenda. Reforming political institutions is both good politics and good policy.
Every state and territory could do better by looking at best practice around the country. States and territories should fill the gaps we have identified in their transparency and accountability frameworks. They should also introduce a cap on political advertising expenditure during election campaigns, to help reduce the power of individual donors and free-up parliamentarians to do their jobs instead of chasing dollars.

Most of all, our laggard Commonwealth government needs to lift its game. Federal ministers should be required to publish their diaries. A list of all lobbyists with security passes to federal Parliament House should be made public and kept up-to-date. Big donations to federal political parties should be disclosed in close to “real time”. And voters should have confidence that misconduct by federal MPs will be independently investigated and punished.
Otherwise, the crisis of trust in Australian politics will only grow.

The Conversation

Danielle Wood, Program Director, Budget Policy and Institutional Reform, Grattan Institute; Carmela Chivers, Associate, Grattan Institute, and Kate Griffiths, Senior Associate, Grattan Institute
This article is republished from The Conversation under a Creative Commons license. Read the original article.