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Friday, February 27, 2015

ALRC Freedoms Inquiry-no place for freedom of information

Submissions close today on the Issues Paper issued as part of the Freedoms Inquiry
by the Australian Law Reform Commission. 

Attorney General Brandis asked the ALRC to "review Commonwealth legislation to identify provisions that unreasonably encroach upon traditional rights, freedoms and privileges." 

The inquiry reflects a commitment made before the 2013 election. As noted at the time common law rights and freedoms are limited. Judges, rarely, 'find' new rights not previously uncovered.

Other rights (the FOI right to access government information and the right to privacy are two of many examples) find their way into law through statute and international instruments. You won't find this sort of thing in the Magna Carta. Legions of Sir Humphreys managed to ward off Freedom of Information legislation in the UK until it finally took effect in 2005. 

Thus while freedom of speech got a specific mention in the terms of reference list of traditional rights, and in the Issues Paper, freedom of information didn't. 

I dropped a short note to the commission:
While a fundamental right and freedom recognised in international law, the common law in Australia, drawing on British traditions, does not recognise a right to information. 

This freedom is not listed in the terms of reference for the inquiry. However freedom of information and Commonwealth laws that encroach on this right should not pass without comment in your report.

For example, Secrecy Laws and Open Government in Australia (ALRC Report 112) identified 506 secrecy provisions in 176 pieces of legislation and made 61 recommendations for reform. The report refers to the chilling effect this complex framework has on open government, transparency and the right to access information. The report was tabled in March 2010 and has not, as yet, been implemented.

Many aspects of the Freedom of Information Act fall short of emerging international standards.

The statutory review of the FOI act conducted by Dr Allan Hawke in 2012-13 recommended a comprehensive review of the kind he was unable to undertake. There has been no government response.

As to freedom of information and its place in the law,
UNESCO describes freedom of information as 
"an integral part of the fundamental right of freedom of expression, as recognized by Resolution 59 of the UN General Assembly adopted in 1946, as well as by Article 19 of the Universal Declaration of Human Rights (1948), which states that the fundamental right of freedom of expression encompasses the freedom to “to seek, receive and impart information and ideas through any media and regardless of frontiers”.

FOI has also been enshrined as a corollary of freedom of expression in other major international instruments, including the International Covenant on Civil and Political Rights (1966) and the American Convention on Human Rights (1969)."
The United Nations' Human Rights Committee (General Comment 34) states that freedom of information is integral to human rights under international law "essential for the promotion and protection of human rights." Access to government information, which the committee considers an element of freedom of expression, is an "indispensable condition for the full development of the person" and "the foundation stone for every free and democratic society."

The right of access to government information isn't absolute and must be balanced and adjusted over time to reflect other rights and public interests. 

But not taken away or without reason diminished. 

I didn't mention the potential encroachment on the enjoyment of the right arising from the Attorney General's intention to legislate the Office of Australian Information Commissioner out of existence. 

Maybe the Senate will stop that one.

Wednesday, February 25, 2015

AG Brandis not for turning on bid to abolish Office of Australian Information Commissioner

Senator Brandis at Senate Estimates late on Tuesday said he's still aiming to get rid of the independent statutory officer responsible for championing transparent government, an officer who undertakes other important functions including non litigious free review of agency decisions under the FOI act.

This despite the fact that votes from Labor, The Greens and the crossbenches to support the move weren't there last December and its difficult to discern any change in sentiment since. 

Just about everyone outside government who looks into the proposal thinks it's a bad move unsupported by evidence and out of step with trends in good practice thinking about open transparent government in Australia and internationally.

Monday and Tuesday were long days as the Senate Estimates hearing for the Attorney General's portfolio proceeded. 

The Australian Human Rights Commission with the president in the line of fire, proposed national security legislation and a myriad other issues were traversed in the course of many hours of Q and occasional A.

But at 9.48 pm on Tuesday the Office of Australian Information Commissioner finally got the call.

Interest in proceedings had diminished  by this time with Chair Senator McDonald, ALP Senator  Collins and Liberal Democrat Senator Leonhjelm the only committee members left standing. Well sitting to be more precise.

You can read the 24 minute hearing here.

Attorney General Brandis and Matt Minogue of the AGD made it clear that the the bill to abolish the Office of Australian Information Commissioner still before the Senate continues to reflect the government's position; that the office, funded in the 2014-15 budget until 31 December and now with whatever funds were left for general functions from that date and for privacy functions until 30 June must continue to do what it can to carry out its statutory FOI, privacy and digital information policy functions without supplementary funding; and things will stay that way until the bill comes on for consideration and its fate determined. 

When that might be Attorney General Brandis has no idea. It's "a matter for the Manager of Government Business."

The OAIC has closed the Canberra office, the Information Commissioner works from home and the office has seven staff working on FOI matters. A year ago it had 20.
"The office continues to receive inquiries, complaints and IC review applications under the FOI Act, and these are dealt with under arrangements that we have published on our website. FOI matters are currently being handled by a small team in the Sydney office under the supervision of the assistant commissioner for dispute resolution and the Information Commissioner. In summary, FOI complaints are being transferred to the Ombudsman's office; Information Commissioner reviews are being triaged by our office so that where we can expedite a matter we do so; and, for the more complex or voluminous ones, we work with the applicants for these to be referred to the AAT."
With the sword of Damocles hanging over the OAIC since the unexpected announcement in May 2014 of intention to close the office Acting Information Commissioner Pilgrim (the only member of the top echelon not working from home) saluted the staff that have battled on regardless:
in respect of all of our functions, I would personally like to take this opportunity to acknowledge the ongoing commitment and professionalism of the staff in our office, who have continued to work tirelessly during very uncertain times. And I will add that in my 31 years in the Public Service I have not seen a better demonstration of and upholding of the Public Service values.
As for the Attorney General it's nothing to do with him. It's all Labor's fault
if these are perceived to be problems, then these perceived problems would all disappear if the opposition would support the bill so it could be passed...
As I was saying, if the government had an indication from the opposition of what its position was, and if the opposition, which has had plenty of time to consider this, indicated its support for the bill, then the bill could be progressed through the Senate very soon.
Senator JACINTA COLLINS: I do not think there has been any uncertainty about the opposition's position here. I think the issue is—well, I will ask: is it true that the government has offered crossbenchers a comprehensive review of the FOI system if they support the bill? And why instead will you not conduct that review before you abolish the Information Commissioner?
Senator Brandis: Surely you would not expect me to reveal private conversations that the government might have had with individual Senators. Surely you would not expect that.
Senator JACINTA COLLINS: I would not be surprised by anything that you might do after today, Senator Brandis. I would not be surprised by anything.
If the government isn't prepared to bring the bill on for debate, maybe Labor, The Greens and the crossbenches should. 

If its voted down the government might finally be shamed into adequately funding our champion of open transparent government despite its distaste for such ideas.

In an answer tabled in response to Question 204 from Senator Collins taken on notice in December about funding for the OAIC beyond December, that didn't get a mention during the hearing, the Department  stated
"The cost implications from the continued operation of the Office of the Australian Information Commissioner beyond 1 January 2015 will be determined as part of the Government’s Budget processes."
In light of yesterday's testimony they can't mean 2014-15 budget processes.

AGD appears to be struggling with an answer to another Senator Collins question from last December - the other countries that have an independent FOI commissioner. Q57 remains one of few unanswered two months later. 

Last time I did some digging it was around the 40 mark, although with 100 countries now having an FOI act it might be much higher. 

Oh and they don't have to look far for local adherents to the idea: Queensland, NSW, Victoria, Western Australia, Northern Territory and the ACT have information or FOI/RTI commissioners. In Tasmania the Ombudsman carries the can while in South Australia the Ombudsman has the review function and the former ombudsman there now Queensland Integrity Commissioner recommended adoption of the FOI commissioner model.

It's clear who is out of step here.

Wednesday, February 18, 2015

"Respect independent statutory bodies as central to democracy"

Professor Danielle Celermajer of the University of Sydney on The Conversation: independent statutory bodies such as the Australian Human Rights Commission and the Office of Australian Information Commissioner are established by laws passed by Parliament to ensure that all arms of government respect the full range of laws.
"If we are to continue to reap the benefits of this system, we all need to keep in mind the value of democracy. When our highest political representative moves to undermine the legally constituted organs of democracy, all Australians have something to worry about. Respect for independent statutory bodies is not a matter for party politics or personality differences. Democracy is not a partisan issue."

Tuesday, February 17, 2015

Good governments recognise integrity and accountability are part of the package

Evidence that those who win public office have sniffed the breeze: the new governments in Victoria and Queensland have each appointed a special minister of state responsible for integrity and accountability issues. 

Hopefully a pointer for those running for office next in NSW on 28 March.

And for a federal government now almost half way through its term whose leader declared a week ago "good government starts today." 

The government has virtually nothing positive to show on the integrity and accountability front after 17 months. 

And its bill to abolish the independent statutory office established to oversight the public right to access government information remains on the bills list while the office operates with "reduced resources in anticipation of closure."

In a poll four months ago 46.5 per cent believed the Federal government to be untrustworthy, a lower level of trust than enjoyed by state and local counterparts.

 It's likely to have gone to new depths since.

Good government includes recognition that integrity and accountability are part of the package.

Followed by action to match on political donations and lobbying reform; transparency, supporting open government instead of closing down the information commissioner; an anti corruption plan to include an anti corruption body; upgrading whistleblower protection to best practice standard; a code of ethics for parliamentarians; and signing on to the Open Government Partnership.

All the while going beyond the public servants in the parliamentary triangle to engage with the broader community on these and related issues.

Friday, February 13, 2015

Will Queensland's Palaszczuk lead a return to integrity?

Professor AJ Brown of Griffith University writing at The Conversation looks at the issues in Queensland as the new Premier Annastacia Palaszczuk takes office having committed to “restore integrity and accountability” and forge a path of “consultation and consensus, rather than the division of the past three years”.

Update: In announcing her ministry on 15 February no mention of specific responsibility for integrity and accountability issues. Presumably they're with Attorney General d'Ath. Good sign though that they appear in the first sentence of the Premier's first media statement:
Premier Annastacia Palaszczuk says her new Cabinet will be focussed on job creation, listening to Queenslanders and acting on their concerns, while restoring integrity and accountability to government in Queensland.
Update on the Update: Even better - The Mandarin reports the one assistant minister Stirling Hinchliffe "will work on integrity and accountability issues for the Premier while also serving as leader of the house."

During the campaign Labor promises included
  • Committing to the Fitzgerald Principles for good governance.
  • Reforming political donations rules, including restoring a lower $1000 disclosure threshold.
  • Holding an inquiry by Queensland’s Crime and Corruption Commission (CCC) into the “links, if any, between donations to political parties and the awarding of tenders, contracts and approvals”.
  • Upgrading and advertising the chairmanship of the CCC, held on an “acting basis” by former bureaucrat Dr Ken Levy in what Labor brands an “abuse” of the position.
Ms Palaszczuk went further in a letter of intent to win the support of Independent Peter Wellington.  

Not mentioned but waiting for the incoming government also is a dusty file marked "Review of Right to Information and Information Privacy Acts 2013" a review launched by the Attorney General in August that year but which sank from sight after submissions on a discussion paper closed. Neither the review report nor submissions have been published.
Action didn't match the talk in 2013 about Open Government.

A short sharp review against best practice information access standards in 2015 should be part of the Palaszczuk plan.

Thursday, February 12, 2015

AAP: "FOI changes likely dead in the water"

Lisa Martin for AAP reports the move to abolish the Office of Australian Information Commissioner "appears doomed, leaving a Commonwealth agency in limbo." 
Not just any Commonwealth agency. 

It's the independent office established to oversight the implementation of the law that confers our right to access government information among other important functions.

Good government requires government support and funding for the OAIC to end the spell in limbo, pronto. 

Then discussion about how to improve efficiency and effectiveness in delivering open transparent and accountable government to a standard that makes a good government proud. 

The sort of discourse that would would follow a government decision to end uncertainty and over three years of dithering about whether Australia will join 64 other countries in the Open Government Partnership. 

Last November Finance Secretary Jane Halton told a senate committee that her department was doing 'quite a lot of work' on the required national action plan, should the government proceed to full participation.

That work, due to be finished in December 2014, wasn't informed by a dialogue with the citizenry, something you'd expect from a good government, but we live in hope.


Monday, February 09, 2015

The new 'listening' Abbott government should scrap the plan to scrap the Australian Information Commissioner

There are 51 Government bills before the Senate as Parliament today gets down to business for 2015, including the Freedom of Information Amendment (New Arrangements) Bill. 

While still on the Bills list the bill is not included in the indicative Senate program for this week.

As currently drafted the bill would abolish the Office of Australian Information Commissioner by 31 December 2014 - at least that small detail requires amendment. 

As Privacy Commissioner Pilgrim and Australian Human Rights Commission President Triggs say the provisions to transfer the Privacy Commission functions to the Commission are unworkable, that's another.

Then more importantly, other parts of the bill the government hasn't talked much about include the removal  from the scene entirely of the independent monitor, champion and advocate for open, transparent government. And changes that
  • abolish the non-litigious free external merits review process for review of agency and ministerial FOI decisions, mandate internal review for an aggrieved party, and move the external review function exclusively to lawyers' territory at the AAT where the application fee for those who do not qualify for a concession is currently $861;
  • fracture the synergies established only four years ago between FOI, privacy and broader government policy on information management in the digital age; 
  •  place the attorney general in the position of government wide influence on the interpretation and application of the FOI act through authority to issue guidelines in the stead of the independent commissioner.
The move to abolish the office runs counter to public sentiment regarding the importance of transparency and accountability.

A reader tells me that the Australia Institute Exit Poll in Queensland showed 73% said accountability, transparency and trust in government had a large impact on how they voted; half (51%) of those polled heard or read about Tony Fitzgerald who promoted the Fitzgerald Principles during the campaign; and of those, 62% said Mr Fitzgerald’s comments prompted them to give more weight to the need for governments to be open and transparent when they voted.Oh, and almost 9 in 10 (88%) Queensland voters believe that the results from the recent Queensland State election have implications for the Abbott government.

As a Queenslander, Senator Brandis (pictured) surely knows this.

Meanwhile back in Canberra the last we heard, the Australian Information Commissioner  was working from home, the OAIC Canberra office had closed and the Freedom of Information Commissioner was off the books following his appointment to the AAT.

The uncertainty about intentions arises because of silence from the government and this comment from a spokesperson for the Attorney General after  the bill did not come on for debate before the Senate rose for the year on 4 December:
“The Government is committed to implementing its budget measure to streamline arrangements for the exercise of privacy and freedom of information (FOI) functions.”
At a Senate committee hearing the next week Attorney General Senator Brandis claimed the reason the bill wasn't considered in December was simply pressure on time and higher order priorities. (In reality, with Labor and The Greens opposed, the six of eight crossbench votes needed to pass the bill weren't there.) 

Despite plenty of opportunities Senator Brandis said nothing then about reintroducing the bill or the Government's plans. However AGD FAS Matt Minogue said:
The bill reflects the government's intention. If the matter were brought on and progressed and passed in February it would be pointless to gear up the full FOI machinery again. If the bill is not passed, government can make decisions in light of that. But, as I said, the bill reflects the government's expectations. 
My applications to Attorney General's and the OAIC for documents about 'discussions' concerning funding and resource issues post 31 December await a response.

The government in its current mode of rethinking and in line with a renewed commitment to consult, listen and lift its game should see the folly in proceeding with legislation to abolish the office, a move not only out of line with public opinion on the importance of transparency and accountability but out of line also with emerging international best practice, and as reflected in state jurisdictions in Australia as well.

Simply pull the bill, get the OAIC back in running order, and as part of a broader new direction on integrity issues, engage on how and in what way we can improve efficiency and effectiveness in delivering, open transparent and accountable government.

When a Senate committee allowed five working days for submissions during its consideration of the bill in November, after the government itself had talked to no one outside before or after the announcement in May 2014, the advice from just about everyone who had time to respond was 'wrong way, go back.' 

The future of the OAIC will be an important indicator of the extent of new listening and thinking in the 'new' Abbott government.

An FOI Masterclass

A rare opportunity in my experience: Paul Farrell of Guardian Australia invites allcomers to a surveillance, encryption and freedom of information Masterclass on 13 March. As 'on the job' learning dominates for media types and others seeking to match wits with well trained public servants on the other side, might be well worth the money.

Thursday, February 05, 2015

For the pollies who listen, time for the Minister for Integrity.

The whiff of interest in such things is getting stronger. Except on the Federal scene where we have a trust deficit disaster.

Victoria put integrity up in lights with the appointment of a Special Minister of State responsible for a wide range of integrity measures. Gavin Jennings ranks third in the ministerial line up, not as an add on at the bottom of the list.

Integrity and accountability are certain to feature in the forthcoming NSW campaign with the major parties both desperate to ditch the baggage opened up by the Independent Commission Against Corruption.

Labor made much of these issues in the incredible Queensland campaign. 

Commitments to improve integrity measures there proved crucial in winning Independent Peter Wellington's support for a Palaszczuk government, announced today.

In an exchange of letters the leader of the opposition, within two seats of a majority, reaffirmed the commitment to the Fitzgerald Principles; undertook to reintroduce a $1000 disclosure threshold for political donations and to work with the Electoral Commission to develop a real time online disclosure of donations; ensure the anti corruption watchdog, to be headed by a new independent chair, holds a public inquiry into the links if any between donations to political parties and the awarding of tenders, contracts and approvals; will make all public service appointments on merit; and explore a possible Bill of Rights In Queensland.

But not a word about such things so far in Prime Minister Abbott's look into the future with the emphasis on a 'safe and secure Australia', strong economy, jobs, families, and budget repair (without pain). 

This despite the pre election acknowledgement by Mr Abbott that the trust deficit was bigger than the budget deficit, and that commentators including Lenore Taylor now call it a trust deficit disaster.

The Abbott government should sniff the breeze: political donations, lobbying, transparency, supporting open government instead of closing down the information commissioner, an anti corruption plan to include an anti corruption body, upgrading whistleblower protection to best practice standard, a code of ethics for parliamentarians, signing on to the Open Government Partnership, engaging with the broader community on these and related issues. 

Best led and sheperded by a minister for integrity in name or in practice.

Federal Labor, about to see Senator for Integrity John Faulkner walk out the door any day now, shouldn't wait a moment to follow the Victorian brothers and sisters by tagging a top performer on the opposition front bench with these responsibilities. 

Sunday, February 01, 2015

Victorian FOI should take the leap into 21st Century

Victorian Special Minister of State Gavin Jennings tells The Age that FOI initiatives in the government's plans are:
  • The FOI commissioner will be converted into a new Office of the Public Access counsellor, which will have the authority to review decisions made by ministers and departments and deemed cabinet-in-confidence.
  • The time limit for departments to respond to FOI requests will reduce from 45 to 30 days, and the time limit (for the FOI commissioner) to consider review decisions will be reduced from 60 to 15 days.
No detail that I've seen yet about the full scope of the Office of the Public Access counsellor.

Presumably the office will be adequately resourced to meet that ambitious review deadline.
Minister Jennings should also get out the 'best practice' book with the intention of a thorough review to modernise and bring the FOI act into line with contemporary Australian and international thinking. 

In the broad, apart from the FOI commish role and wherever that might be heading in the next iteration, Victorian FOI law represents the best thinking....of 1983.

(Memo Federal Attorney General Brandis-plenty of ideas worth discussing about FOI/ information commissioners, their role and functions, and how to make the FOI system more effective. Abolishing the office isn't among them elsewhere.)

Thursday, January 29, 2015

Tony Fitzgerald's prescription for good government

On ABC 7.30 last night Tony Fitzgerald who headed the inquiry into corruption in Queensland 25 years ago said the LNP Newman government represented the low point for best practice government in all the years since. 

Fitzgerald has written a more comprehensive critique on The Drum.

He has put forward four principles of good governance, now picked up by others as in this Open letter, asking political parties for a commitment and a clear explanation how they would be implemented if elected:
  1. Govern for the peace, welfare and good government of the State;
  2. Make all decisions and take all actions, including public appointments, in the public interest without regard to personal, party political or other immaterial considerations;
  3. Treat all people equally without permitting any person or corporation special access or influence; and
  4. Promptly and accurately inform the public of its reasons for all significant or potentially controversial decisions and actions. 
You might wonder where's the hard part here, but it was proving a big task for the LNP until Premier Newman murmured yes during last week's Leaders Debate.The implementation details are in short supply, surprise, surprise.

As Fitzgerald explained, the principles are simply asking politicians to behave democratically
"They're really requirements of what we call representative democracy, which is a system in which a parliament is elected to represent the people and to govern on behalf of the people. Whereas the political parties of today see it rather as a contest in which whichever one wins does pretty much what it likes. And so I suppose if we're ever going to get back to the proper representative democracy, it will have to come through pressure from the public to force the parties to acknowledge these requirements and it seemed appropriate in the present circumstances to start that pressure going forward."
Fitzgerald acknowledged the principles can't be legally enforced."To be held accountable, they can be held politically accountable." That's a collective responsibility for us at the ballot box and thereafter as well.

The Fitzgerald principles should be waved in front of contenders for political office at all levels of government starting with those contesting the NSW election in March. And before those already exercising legislative or executive power in the people's name.

For our government in Canberra, determinedly keeping its head down on the whole range of integrity, transparency and accountability issues except its plan to abolish the Office of Australian Information Commissioner, Fitzgerald had this to say about the need for a federal anti-corruption agency, something the government opposes:
I think it's self-evident. The people who go into State Parliament, who go into the major political parties are the same people who go into those parties and go into Federal Parliament. I don't think they're any different in one group or the other. They're people who, for one reason or other, are prepared to buckle down and do what the party wants, to advance the interests of the party, to advance the ideologies of the party and to advance their own interests. I can't understand why they'd be corrupt at one level - or be corruptible at one level and not at the other. So, that's not to say I know of any corruption in the federal system at the moment, but I'm pretty sure you'd find that if the digging started, there'd be bones at the bottom of the hole, you know.
Finally Fitzgerald on the skills and experience of the political class:
.. I'm concerned on a wide range of things about government in Australia, but in particular, the idea that the people who are now running politics are professional politicians, learning all the bad habits in political office. Nearly all members of Parliament now will have done a stint in the party office, a minister's offers or an associated entity's office. We need to get people who are independent, who've taken - who've learned and exercised values outside the political system. So that's my broad concern

Wednesday, January 28, 2015

OAIC continues to operate while bill to scrap it awaits the return of the Senate.

The Office of Australian Information Commissioner wouldn't be in business these days if the government had its way in the Senate late last year. 

But as the OAIC explains, it is soldiering on with reduced resources still in anticipation of closure because the bill to abolish the office remains on the Senate Notice Paper and Attorney General Brandis apparently intends to bring it on for debate after Parliament resumes on 9 February:
The Bill proposing the closure of the Office of the Australian Information Commissioner (OAIC) on 31 December 2015 was not considered before the end of the 2014 parliamentary sitting period. The OAIC continues to process Information Commissioner reviews and Extension of time applications. We are operating with reduced resources in anticipation of closure and we will continue to review our processes to provide a limited service within our reduced capacity.  The Commonwealth Ombudsman will continue to handle all FOI complaints. The OAIC continues to administer the Privacy Act 1988 (Cth) (Privacy Act).
Australian Information Commissioner Professor McMillan told Senate Estimates in December that the OAIC Canberra office had closed and he was working from home. The same day Freedom of Information Commissioner Dr Popple was appointed to the Administrative Appeals Tribunal from 1 January.

At that hearing it emerged the OAIC while it continued to operate had available the resources allocated in the budget including $1.4 million surplus from the first six months of operation, and around $2.7 million for the Privacy Commissioner for the second half of the year, funds that would transfer with those functions to the Australian Human Rights Commission if/when the amendment bill passed.

At the time AGD FAS Matt Minogue said the Department was in discussions with Professor McMillan as to how best to deal with the consequences arising from the fact the Bill had not been considered by the Senate. "(W)e are in discussion with Professor McMillan" about the best way to deal with external review mechanisms "given that it is not just the interests of the department or the office but the interests of applicants as well. And those conversations are continuing." He later referred to ongoing discussions about the retention by the OAIC of the surplus funds held by the Office as at 31 December 2014.

I lodged FOI applications today with Attorney General's and the OAIC for documents concerning these discussions including proposals for funding and staffing and any agreement or understanding reached on these and related matters. 

Disclosure would contribute to public discussion about an important topic, the exercise of citizen rights of access to government information. That's a weighty public interest consideration. Let's see what they say.

Friday, January 23, 2015

Justinian's take on AG's plan to take down OAIC

Richard Ackland in Justinian - News Desk Special Monday 19 January 2015.
(Republished with permission.)

FOI still wagging

The end of last year saw more hopelessness from AG Soapy Brandis.

He was supposed to guide through the Senate the Freedom of Information Amendment (New Arrangements) Bill, but failed to do so.

The legislation seeks to abolish the Office of the Australian Information Commissioner from January 1. Under the plan announced in the budget the AG's department is to take over the task of "guiding" FOI policy, while the AAT will handle merits reviews -  $861 fee for starters.

The Privacy Commissioner is to be transferred back, as an independent statutory officer, to the government's pet punching bag, the Australian Human Rights Commission.

This jiggery-pokery was said to save $10 million over four years.

The Bill passed the House in October and was sent to a hurried Senate committee inquiry, which reported on November 25.

There was a strong Labor and Greens minority report opposed to the government's changes, with the Coalition Senators waiving it through.

It never looked as though it was going to get the support of six crossbenchers consequently it didn't come on for debate.

Since the budget announcement the FOI side of the OAIC shop has been in wind down
mode. The commission had only been funded until December 31, but because the Bill did not pass it still has statutory responsibilities.

Soapy made no effort to sell the proposal, but probably will have a crack at using his magnificent persuasive powers in February to get the legislation through.

In the meantime, the FOI commissioner Dr James Popple has been appointed to the AAT.

According to Peter Timmins, the lawyer and blogger who follows these things, that leaves FOI law being overseen by one man working from home.

The whole thing is a frightful mess. The Information Commissioner Professor John McMillan told the senate committee:

"There are practical questions, obviously, about the administrative support
that would be needed to discharge functions if the normal budgetary
allocation has expired but the legal reality is that the commission still exists,
the commissioners still continue in office and the functions conferred upon
them by the various acts are still relevantly conferred and are exercisable."

Update: A shorter version appeared in Richard Ackland's Gadfly column in The Saturday Paper 24 January

Thursday, January 22, 2015

Amid the stench of political donations, a whiff of reform

 Well in some places at least.

You may have missed the final report delivered to NSW Premier Baird on 24 December on options for long term reform of political donations by a panel chaired by Dr Kerry Schott.

By Martin Kingsley from Melbourne, Australia (Cashmoney) [CC BY 2.0 (], via Wikimedia Commons
NSW already has the strictest election funding laws in Australia, but the report puts forward 50 recommendations for legislative change and a new more vigorous approach to implementation of the law and oversight by the regulator.

 Nicole Hasham in the Sydney Morning Herald said the report revealed 
"a political donations system riven with loopholes, weaknesses and corruption opportunities. ...The panel ... found "systemic failures" in laws that govern electoral funding disclosure, spending, caps and bans. It called for an immediate review. The archaic, paper-based system of delayed donation disclosures should be replaced by an online system where disclosures were made in real time, allowing meaningful scrutiny of potential relationships between donations and government decisions, the panel said.

No media release from the Premier accompanied publication but Hasham reports Premier Baird said "the government would consider the report and respond before the March election" adding that it "is understood that most recommendations will be supported."Nothing from Labor so far but NSW Greens welcomed most recommendations

NSW with an election on 28 March, ten Liberal members of parliament sidelined by the party because of revelations about breach of the donation rules as a result of revelations in ICAC last year, and Labor carrying the dead weight of former ministers Eddie Obeid and Ian McDonald, the integrity issue is unlikely to sink from sight in NSW as is the fate of most Christmas period releases. 

Some Schott recommendations are subject to the outcome and impact of a High Court decision later in the year in the McCloy case which is challenging an existing NSW prohibition on donations by developers.

That case has the potential to slow down national action on political donations also, something the Panel regards as essential for meaningful reform. (Alas the Federal government is yet to show a flicker of interest in this or anything else on the integrity front.)
As long as the rules governing political donations differ across Australia, there is a risk that any NSW law will be circumvented. The evidence brought to light by the ICAC in Operation Spicer shows how the lack of regulation of political donations at the federal level can be exploited to avoid the bans and caps on political donations that apply in New South Wales. We note that the Premier has recently introduced a new anti-circumvention provision targeted at those who deliberately seek to avoid the election finance laws, as recommended by the Panel in its Interim Report. The federal structure of some political parties creates opportunities for avoiding NSW restrictions on political donations. We believe that the Premier should support greater co-ordination of election funding laws across jurisdictions. A co-ordinated approach to disclosure would be a useful start. We recommend that the Premier seek to put the issue on the agenda at COAG. We also recommend that the Premier report to the NSW Parliament on progress against implementation of our recommendations, to ensure that the current momentum for change is maintained.
Labor and others are pushing integrity and accountability issues in the Queensland campaign leading to the election there on 31 January, just prior to this conference  on the subject in Brisbane on 9 February. Plenty of big donations are being accepted by the LNP Newman government from companies pushing controversial resource developments, caps on donations have been scrapped and disclosure thresholds increased twelvefold.

Unlike NSW and Queensland, Victoria does not regulate political donations and disclosure except for a cap of $50,000 on donations from casino proprietors. But on the good news side perhaps the Andrews government includes Special Minister of State Gavin Jennings listed third in the cabinet line up who will oversee government transparency, accountability, integrity and public sector administration and reform, supported by the Department of Premier and Cabinet.

In addition, the department portfolio now includes providing support in relation to the Auditor-General, the Commissioner for Privacy and Data Protection, the Freedom of Information Commissioner, the Independent Broad-based Anti-corruption Commission, the Local Government Investigations and Compliance Inspectorate, the Public Interest Monitor, the Victorian Electoral Commission, the Victorian Competition and Efficiency Commission, and the Victorian Inspectorate.

Political donations, lobbying, getting the BACC fit for purpose, and long overdue freedom of information reform have to be in there somewhere.

Friday, January 09, 2015

Timely reminder:“Democracy dies behind closed doors.”

David Cole, the Honorable George J. Mitchell Professor in Law and Public Policy at Georgetown University Law Center writing in The New York Review of Books reflects on drone strikes and surveillance, and given the incredible extension in what technology can deliver, the importance of transparency. 

Professor Cole while acknowledging secrecy is sometimes necessary, ticks various boxes about the extent to which a degree of forced transparency has had a subsequent restraining influence on US policy and programs, but needs to go further:
We won’t have a chance to arrive at defensible policies on surveillance and targeted killing if the questions are not fully and fairly debated. When the balance between individual rights and security is struck in secret one-sided determination, as has been the case with both drone killing and electronic surveillance, as well as the CIA’s enhanced interrogation program, it will inevitably be skewed. Increasingly, our governments seem to be insisting that our lives be transparent to them, while their policies remain hidden from us. For the sake of democracy itself, we must do all we can to resist that impulse.
Australian readers might ponder the situation here in light of this Business Insider list in June 2014 of what the world learned in a year of Snowden leaks.

We had or are having something of a debate about the powers given to Australian security services, metadata and data retention. 

But as Martin Place and Paris are sure to raise questions about the need for ever more information about all of us in the search for the deranged, driven and malevolent, let's plug for Professor Cole's full and fair debate. 

Something we missed here following revelations for example about Australian involvement in those drone strikes and the PRISM and XKeyscore programs, spying on our friends and in this case their lawyers, the shared arrangements we have entered into to pool information about citizens, and who here in government let alone the rest of us knows what is going on.

More from Professor Cole here:

Friday, January 02, 2015

Annual release of cabinet records - our ancient history not all fit for public consumption

The 1988-1989 cabinet records released on 1 January provide plenty of interest for the buffs and interesting pickings for the mainstream at a slow news time of the year.

As to the admittedly small amount of information still withheld after all these years, a plus that no document is withheld in its entirety.

But still plenty of room for head scratching.

What passes for usual (see last year), parts of various documents concerning Antarctica are withheld. All interested parties no doubt guess those parts don't sit well with our sovereignty claim. 

What officials judge shouldn't be revealed about what cabinet and senior officials knew then concerning the South Pacific, Papua New Guinea, Indonesia and China is another matter, probably to do with spooks and intelligence matters. 

Clearly that's the case with withheld parts of "People's Republic of China intelligence services activities in Australia" and "Eastern European and Cuban intelligence activities in Australia." As to the withheld part of the title of the submission "Measures to improve Australia's High Frequence (HF) Signal Intelligence Capability.." - any guesses?

Parts of submissions still relevant to the current Mr Fluffy asbestos problem in the ACT and NSW are disclosed but other parts of Memorandum 6034 and Submission 6037 on the subject are withheld for a range of reasons. Including yes, believe it or not, because of likely damage Australia's security, defence or international relations.  legal privilege not outweighed in the judgment of officials by the public interest in disclosure.

Parts of "Cape York spaceport – Commonwealth support" are withheld because of damage to security, defence or international relations.

You have to wonder at what point officials are comfortable for our ancient history to become our publicly known and acknowledged ancient history.

From National Archives Australia, the section dealing with withheld records:

Wednesday, December 24, 2014

Best wishes

"Sydney Opera House Night". Licensed under CC BY-SA 3.0 via Wikimedia Commons -

Whatever you celebrate at this time of the year!

Thanks to readers for your interest and hats off to those who stood and shouted in the right direction about the government plan to abolish the office of information commissioner. You helped slow and hopefully halt this backward step for open transparent and accountable government.

I have a drafts file with loads of things started but not finished so I'll be back sometime soon. In the meantime, all the best.

Tuesday, December 23, 2014

Union interest in FOI sparked by government plan to abolish office of information commissioner.

Tony Sheldon of the Transport Workers Union in an op ed in the Sydney Morning Herald yesterday mainly responded to an editorial that criticised the union over FOI applications seeking access to ministerial travel costs. But he also rightly labelled the government attempt to abolish the Office of Australian Information Commissioner "a blatant attack on the right to information now enjoyed by Australians."

My Letter to the Editor apparently hasn't made the cut, but for your edification:
Tony Sheldon ("FOI follies prove that the powerful hate disclosure" December 22) was on the money pointing out the folly in the government plan to abolish the Office Of Australian Information Commissioner.

Apart from shifting review of decisions to refuse access from the OAIC where it is free to the tribunal which will cost $861 as flag fall without a concession, the government would wipe entirely the role of the commissioner as the independent monitor, advocate and champion of open transparent and accountable government. On that journey we have a long way to go despite 30 years of trying to move in the right direction, boosted to a degree by the 2010 reforms that created the office that the government plans to abolish. The law reform commission had identified this as an impediment as long ago as 1995.

The commonwealth model that faces the chop is similar to that in place in Queensland, NSW Victoria, and Western Australia where no one is talking like this, and accords with international good practice, something the government ascribed to at the G 20 in Brisbane.

The government announced these plans in the budget in May, introduced the bill in October, but did not bring it on to a vote in the Senate because Labor, the greens and most if not all the cross benchers intended to vote against it, but by which time most FOI staff had left and the Canberra office closed.

It should use the break to consider how to improve the system. The first step is to adequately resource the office to provide immediate relief to that poor commissioner working alone at home.

Peter Timmins.

Potts Point 2011
Quite a few comments online include some that take issue with the union spending time and energy on FOI.

Interestingly the union movement was a strong advocate in the seventies for the introduction of an FOI act and part of the Freedom of Information Legislation Campaign Committee that pushed the issue along in those days.

Unfortunately the unions and business have played virtually no role since in the public discussion and debate about open transparent and accountable government. 

The bipartisan campaign for good government could do with a hand.

Human Services not alone in darting and weaving when it comes to FOI

The report by Australian Information Commissioner Professor McMillan of an investigation into the freedom of information processing practices at the Department of Human Services received a good going over in Fairfax Media ( Markus Mannheim), The Canberra Times (Noel Towell) and The Mandarin (David Donaldson). Understandably the focus is on shortcomings in how they do things there.

However the report is of wider significance. Professor McMillan said the
"findings should be heeded by all agencies. The FOI processing environment analysed in this report is not dissimilar to that in many agencies.
In October when the own motion investigation got underway, it must have looked like a last gasp for the commissioner given it coincided with the introduction of legislation to abolish his office. Contrary to these expectations it's still in existence if not in great shape.

The commissioner's findings of wide import include
  • in DHS and probably elsewhere there is resistance to and ignorance of the objective of the act to ‘facilitate and promote public access to information, promptly and at the lowest reasonable cost’ (s 3(4)). The Procedures Manual for use by staff in DHS does not refer to the objects, and FOI training materials detail the procedural and exemption provisions. Only the most recent training program dated August 2014 explicitly refers to the broader role of FOI and the objects thus "providing necessary context for the procedural and exemptions provisions."  The commissioner recommends a message from senior management to this effect. Presumably it hasn't occurred to anyone to convey the importance of FOI along these lines for yonks if at all.
  • the preoccupation with technical legal formality in interpreting and processing FOI requests. DHS has lawyers heaviliy involved in the process.
"A central purpose of FOI legislation is to facilitate prompt and inexpensive public access to government held information. The Commissioner is concerned that a legal and technical approach to FOI can be counterproductive by inhibiting the release of non-sensitive information, creating or extending disputes with clients, and increasing the cost of FOI administration. The department's focus on technical and legal compliance appears to be a significant cause of the rising review rate the department has experienced over the last three years. While a compliance focus may make decisions more defensible on review, combining it with an outcome-based focus is likely to reduce review rates." 
In responding to the department's view that FOI decision making is "a legal process" the Commissioner said
"FOI decision-making, like many functions of government, operates under statute. And the FOI Act confers important information access rights on members of the community that are legally enforceable. But that is not the whole picture. The FOI Act operates within and complements a broader service culture within government. Providing information upon request to members of the public must be informed by principles of legality, but it must also be guided by customer-service principles and the objects of the FOI Act that encourage public participation, scrutiny, discussion, comment and review of government activity. In a high volume decision-making environment where senior officers cannot review each action of every staff member, the principles expressed in policies, procedures and training will have an important and guiding influence. The Commissioner’s impression formed in this investigation is that the department’s approach has moved from a predominately pro-disclosure and outcome-based focus, towards an emphasis on technical and legal compliance."
(This post two years ago on why FOI shouldn't reside in the legal area followed disclosure of how Immigration processed FOI applications also with heavy reliance on lawyers. I've expressed the view previously that the information management environment (not that of spin or the law) where a public management/service to the public ethos prevails might be a better place to locate FOI than the legal area, the practice in many Federal and state government agencies.) 
  • small practical steps can make an important difference. The recommendations in this report contain many specific suggestions on how the department (and potentially other agencies) could improve FOI Act processing. They're mostly about adopting the revolutionary idea that a response to a request for information is a customer service issue.
  • performance measures are essential for gauging whether the reasonable expectations of FOI applicants are being met. In  DHS where the reported statistics turned out to be wrong there is a lot of sheltering behind the number of requests answered within the statutory time period. Period!

Wednesday, December 17, 2014

Privacy tort could enhance press freedom protection here, according to UK media law expert

Wikimedia Commons
Given the long concerted campaign by many media outlets led by The Australian (most recently here) to head off a privacy tort or cause of action, you're unlikely to see much of this in those pages.

From "Enhancing Press Freedom through Greater Privacy Law: A UK Perspective on an Australian Privacy Tort" by Associate Professor Paul Wragg, University of Leeds and Visiting Fellow at the University of Sydney, (Sydney Law Review Volume 36 No 4 December 2014):
"In light of previous inquiries identifying areas of concern in Australia’s privacy law provisions, the Australian Law Reform Commission (‘ALRC’) recently devised a new tort that, if implemented, would better protect individuals from serious invasions of privacy. Although the tort was designed principally with new technologies in mind, there has been vociferous concern that such a tort might unduly inhibit press freedom. This response is familiar to United Kingdom (‘UK’) commentators who have seen the press, in particular, react similarly to common law developments in privacy law. Yet that experience has not been entirely unfavourable to the UK press; indeed, the jurisprudence discloses a generous treatment of the term ‘public interest’, which has kept interference with press activity to a minimum. In light of the reference to press freedom within the ALRC’s proposed tort, and given the absence of an express constitutional provision protecting Australian press speech, this article argues that the UK experience shows how, counter-intuitively, the ALRC’s proposed tort could actually enhance, rather than diminish, press freedom protection in Australia. Consequently, it will be argued that the collectively dismissive response by the press to the ALRC’s inquiry represents a significant missed opportunity. As the ALRC warns, the common law may develop organically to better protect privacy interests. As will be argued, this prospect presents the obvious risk that press interests are not as fully protected as they would be under the ALRC’s proposals.
Dr Wragg dismisses as surprising, ill judged, difficult to fathom, out of touch with popular sentiment and detached from the reality of what is proposed, claims such as those made by News Corp Australia that "the threat to freedom of speech and communication posed by a cause of action, regardless of how it is structured, will undermine our ability to report in the public interest, to the detriment of the Australian public and Australia’s democracy."

However as privacy is one of those freedoms Attorney General Brandis doesn't talk much about, on this aspect is reported to have said "the Government has made it clear on numerous occasions that it does not support a tort of privacy" and the media generally rushes to close the book on the subject, the issue seems destined to remain in the lost cause vault.

Common law development is likely to be slow, contested but as Dr Wragg points out not necessarily to the media's liking.