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Friday, September 19, 2014

G20 countries chance to lead on transparent company ownership?

Support Transparency International and the UnmaskThe Corrupt Campaign: 
"We want the leaders of the world’s biggest economies – the G20 – to publish lists of the real owners of all companies, and to make it harder for the corrupt to travel internationally and enjoy their ill-gotten gains. Help us send a loud message to global leaders on Thunderclap to unmask the corrupt."

Thursday, September 18, 2014

Australia's support for democratic values on display in New York next week

The government's participation or non participation at two high level meetings in New York next week will be an indicator of the importance it attaches to support for democratic values and matching words with actions.

No, not talking about the Prime Minister participating on 24-25 September in a meeting of the UN Security Council convened by US President Obama to address the threat posed by foreign terrorist fighters, delivering Australia’s national statement at the General Assembly, or meetings with key leaders ahead of the G20 meeting in Brisbane.

Or talking about the Climate Summit on 23 September the day before he arrives when Foreign Minister Bishop will be in Australia's seat as UN Secretary-General Ban Ki-moon welcomes 125 heads of state and government or deputies.

No, talking about two other high level meetings that the likes of President Obama, President Yudhoyono and other heads of government and senior ministers think important enough to squeeze in while they are in New York - meetings about support for civil society and for open, transparent and accountable government.

Where will Australia stand?

With civil society?
On 23 September at the Clinton Global Initiative, President Obama will reconvene partners to advance the Stand with Civil Society agenda. The State Department describes the forum this year as providing "a platform for partners to take stock of progress made to date, define a strategy for the next year, and make commitments that will have a lasting impact on the future of civil society."

It follows a meeting a year ago where President Obama brought together government and   philanthropic leaders to launch the agenda, 
"a groundbreaking effort to support, defend and sustain the work of civil society amid a rising tide of restrictions on its work. Together with the philanthropic community and working through existing initiatives and partnerships including the Open Government Partnership (OGP), the Community of Democracies, Lifeline, and Making All Voices Count, participants agreed to collaborate to: (1) promote laws, policies, and practices that foster a supportive environment for civil society in accordance with international norms; (2) coordinate multilateral, diplomatic pressure to roll back restrictions being imposed on civil society; and (3) identify innovative ways of providing technical, financial, and logistical support to civil society. 
Australia was there last year, the government signing on to this joint statement issued by the White House at the time. 

No reply so far to my email to DFAT about Australian representation.
(Update: A Yes on this one: Although it is not mentioned in the Media Release outlining her schedule in New York I have been informed the Foreign Minister will attend the Clinton Global Initiative event as part of her visit.) 

With the Open Government Partnership?
On 24 September President Yudhoyono of Indonesia and President Peña Nieto of Mexico will chair a meeting at UN headquarters, “Open Government Partnership: Citizen Action, Responsive Government." The gathering will celebrate the third anniversary of the OGP.

Seven other heads of state or government (so far) are listed as speakers to government and civil society represenatives of the 64 countries that have joined or are in the process of joining the partnership, including President Obama, the presidents of South Africa, Tanzania and Croatia and the prime ministers of Georgia and Norway.

President Yudhoyono has sent an invitation to Prime Minister Abbott to attend.
This follows his invitation to the PM to attend the Asia Pacific Regional OGP meeting in Bali in May. The PM said he was unable to accept on that occasion because of Budget preparations. 

At that meeting President Yuhoyono noted that Asia-Pacific countries are under represented in the OGP and called on others in the region to join.
Australia has mostly dithered since first invited to join the OGP in September 2011. The previous government indicated intention to join in May 2013.

The latest public statement by Finance Minister Cormann is we are still 'considering.'
Participation in the meeting would confirm Australia stands with Indonesia, Korea, the US, UK, Canada, New Zealand and other OGP members for open, transparent and accountable government that encourages and empowers citizens and is responsive to their aspirations. 

No reply to my email to the PM, Foreign Minister, Minister for Finance and local member Malcolm Turnbull about the invitation from President Yudhoyono.

Monday, September 15, 2014

NZ PM releases cabinet papers-not end of the world so far.

NZ Prime Minister Key released four Cabinet papers today.

No kidding.

They relate to decisions concerning the Government Communications Security Bureau which provides "information assurance and cyber security to the New Zealand Government and critical infrastructure organisations, foreign intelligence to government decision-makers, and cooperation and assistance to other New Zealand government agencies."

The release came in response to claims by Edward Snowden of mass surveillance of New Zealanders by the GCBE.

And tomorrow the sun will rise over the land of the long white cloud and the earth will continue to turn on its axis.

Contrary to the deeply held view in Canberra that release of anything giving the slightest hint of what is submitted to cabinet, or records a cabinet decision must be protected at all costs from disclosure for 28 years or so.

Even that isn't always long enough particularly if the subject is anything even vaguely connected to intelligence.

The documents do not disclose deliberation in the cabinet room, which we can all agree I expect, sensibly underpins the principle of collective responsibility and cabinet solidarity.

The Kiwis publish (admittedly selectively) cabinet documents as a matter of routine. So too do Queensland and the ACT (ditto and in summary form).

But it's end of the world stuff as far as Prime Minister and Cabinet and other guardians of the cabinet process are concerned.

Prime Minister Key demonstrates that excessive secrecy that surrounds the cabinet process here should be seriously questioned.

The NZ documents and the timeline is explained in the Media release as follows:
3 April 2012 - Cabinet Minute (PDF3) shows Cabinet asks for business case on cyber security protection initiative.
September 2012 - It becomes clear there are issues with the GCSB’s surveillance of Mr Dotcom.
After this Rebecca Kitteridge is called in, problems with the legal framework and internal issues in the GCSB are identified through reviews.
March 2013 - PM tells GCSB not to bring business case forward. Informs GCSB it is too broad. Budget contingency funding will be rolled over and used for something else in cyber security.
September 2013 – Cabinet Minute (PDF2) shows formal rescinding of request for business case and notice of new, narrower project. The business case had been known only as initiative 7418 through the Budget process because of its classification.
July 2014 - Cabinet agrees to Cortex, a narrower cyber security programme. (Cab paper and minute PDF 1 and PDF4)

Trust drops to the cellar while a smorgasbord of integrity issues struggle for attention

Lukas Plewnia
Read Peter Hartcher in the Sydney Morning Herald on Saturday "A glaring omission in our political life" and weep: despite everything we are seeing unfold in NSW, the Abbott government, well as of last Friday, is not interested in a federal body along the lines of the NSW Independent Commission Against Corruption. 

The Opposition weren't much interested either when they committed to establishing a Parliamentary Integrity Commissioner in 2010 then let slide a bill introduced by The Greens Adam Bandt in May 2012 to create the National Office of Integrity Commissioner.

On that front at least change is in the air. Hartcher quotes ALP Senator John Faulkner as saying the Parliament 
"needs to ensure the events in NSW cannot be repeated in Canberra or anywhere else in Australia. In my view, the sorts of issues being raised at the NSW ICAC do not miraculously stop at state or territory borders." "This will be a real challenge for our current political leaders," Faulkner observed.

The government, with control of the lower house can determine at the end of the day what goes and what doesn't but debate in the Senate might at least cause reflection on its  defence of the status quo, in essence 'we've got everything covered, believe us."

In debate in May on The Greens renewed effort to push the National Integrity Commission bill, government speakers rubbished the idea. National Party Senator O'Sullivan said the government is proud of Australia's position and reputation
"as one of the least corrupt countries in the world. This is a recognition of the net measure of respective coalition governments in this place and in states right across this country. As a political movement, we have a sub-zero tolerance to corruption." .
As Hartcher notes, Federal parliamentarians don't have a code of conduct. Conflicts of interest of the kind on display in the Palmer party go through to the keeper. 
In October 2012 Steve Ciobo then in opposition and now Parliamentary Secretary to the Treasurer said a code of conduct 
"is nothing more than a feel-good exercise that will deliver no net tangible benefit whatsoever."
It's not just the absence of an integrity commission and a code of conduct for parliamentarians. 

Just before the 2013 election the Federal Parliament voted to exclude from the Freedom of Information Act the parliamentary departments that spend large amounts on helping them do their job. Silence since.

Last year the government response to latest round of improper or dodgy use of travel entitlements by Federal parliamentarians hardly moved beyond 'Oh dear.' Recommendations years ago by the Belcher committee continue to gather dust. One, precluding use of printing allowance during an election campaign, might put an end to the double dipping identified by Nick Evershed at Guardian Australia recently. 

Political donation and lobbying laws are weak, and reform efforts in recent years amounted to little. While some third party lobbyists who lobby ministers and public servants are subject to a registration requirement that doesn't amount to much, lobbying federal parliamentarians including the Palmer party that can make or break a piece of legislation for the government is a regulation free zone.

Then there's silence on a National Anti Corruption Plan despite obligations under the UN Convention Against Corruption ratified by Australia on 7 December 2005.

And silence too on the Australian Law Reform Commission recommendation five years ago that the exemption for political parties from the Privacy Act should be removed. To quote the report:
"In the interests of promoting public confidence in the political process, those who exercise or seek power in government should adhere to the principles and practices that are required of the wider community.." 
Whistleblower protection?  
While we have passable to good law to protect public sector employees ( overall rated middle of the pack among G 20 members) the major parties last year opposed changes that would provide protection for public officials who report wrongdoing by....
you guessed it, members of parliament.

Monday, September 08, 2014

NZ OGP National Action Plan panned for poor consultation process

Jorg Hempel
New Zealand initially showed even less interest in the Open Government Partnership than Australia, until UK Prime Minister Cameron had a word with Prime Minister Key in London last September, leading to an application to join in November. 

But it has kicked ahead in a fashion since while we dither along, still 'considering'  three years on.

NZ was represented by a minister at the OGP regional meeting in Bali in May and apparently submitted the required national action plan on 31 July. 

The Plan focuses on the Better Public Services Results programme; the ICT Strategy and Action Plan to 2017, and the New Zealand National Integrity System Assessment. 

I've heard rumbles of dissatisfaction from across the ditch for months with the way the government handled the process.

Last week NZ online news service Scoop commented that the three themes were pre-selected by the government and in the two meetings with the community and voluntary sector that did discuss the plan, participants were presented with these as ‘faits accomplis’:
Meeting invitees gave a strong message that an “Open Government Partnership Action Plan” needed to start from widespread consultation, openness and non-partisan ideas, not a pre-determined, pro-National Party agenda. That was back in April. Subsequently the Cabinet has signed off the plan and sent it to OGP international secretariat for ratification. Aside from the broad themes no-one outside of government has a clue about what the Action Plan contains

Given the use of urgency, low levels of meaningful consultation and increased level of concern expressed by NGOs about their advocacy role and more recently the Dirty politics revelations the Government must realise it is on shaky ground regarding openness and transparency. It has not been open with us about many things and so it’s hard to see how having NZ join up to the Open Government Partnership will be seen as anything more than lipservice. Even the most Pollyanna-ish amongst us might wonder quite what would change with an OGP Action Plan that has been devised by government with minimal public input and signed off in secret.
Open and Shut contacted Dr Michael McCauley Director of the Institute of Governance and Policy Studies (IGPS) and Associate Professor in Public Management at the School of Government at Victoria University for a comment:
There is a lot of truth to the criticism and I think it has been clear from the events that we (IGPS) have run that people have felt disengaged from the process and that consultation needed to be simultaneously deeper and broader.  I warned of this back in an early 2014 issue of Policy Quarterly (pdf) but I think, to be fair, (State Services Commission) would accept such criticism as well.  To be honest, though, SSC can only be held responsible to some degree – they had a small team with limited resources – and the bigger question is the political will behind the whole project. OGP was passed among several agencies until it settled at SSC and, of course, New Zealand was asked to join back when the project was created but the government turned it down at the time.  The important thing, however, is not what’s gone wrong but what can and should go right.   I am usually pretty sceptical of these kinds of initiatives but not only is OGP a genuinely worthy cause – and worthy as an end in itself rather than an instrumental end.  More importantly I’ve seen numerous cases in the Asia Pacific Region as to how OGP has made a difference.   Finally New Zealand is expected to be a leader in this by other countries: and it is genuinely expectation rather than hope.  I am confident, however, that the consultation issues will be solved, not overnight and probably not any time in the next few months but in time for the next Action Plan; there will be a robust and sustainable consultation infrastructure.  In fact there just has to be or else we may as well leave OGP alone.
There were plenty of examples in the first wave of OGP national action plans of government grabbing and keeping the ball without much acknowledgement of the civil society players who were supposed to be part of the team. It's not what the OGP rules require.

If, when, Australia takes the step to publicly commit, let's hope for a full, open and meaningful consultation befitting a real open government partnership.

Submission to NSW review of information access act

I dashed off a submission to the five year statutory review of the NSW Government Information (Public Access) and the Government Information (Information Commissioner) acts, squeaking in on the deadline on 29 August. 

The terms of the review by the Attorney General are limited to "determine whether the policy objectives of the Acts remain valid and whether the terms of the Acts remain appropriate for securing these objectives" so it's hardly a search for best practice. And as mentioned previously I'm no fan of the way the Department of Attorney General and Justice goes about the process.

Overall NSW did pretty well with the 2009 legislative reform package. But the act's objects  and the terms could do with some tweaking five years on. More in my submission below.

Wednesday, September 03, 2014

Meat on the bone for cause of action for unwarranted serious breach of privacy

Commissioner Professor Barbara McDonald
The Australian Law Reform Commission Report Serious Invasions of Privacy in the Digital Age, tabled in Parliament today, is in response to the reference by then Labor Attorney General Dreyfus who in June last year asked that the ALRC look at innovative ways to address the problem and provide a detailed legal design of a statutory civil cause of action.  

Recommendations(pdf) 4-12 set out the design elements of a tort for a serious invasion of privacy,"if a statutory cause of action is to be enacted":
  • the invasion of privacy must be either by intrusion into seclusion or by misuse of private information (Chapter 5);
  • it must be proved that a person in the position of the plaintiff would have had a reasonable expectation of privacy in all of the circumstances (Chapter 6);
  • the invasion must have been committed intentionally or recklessly—mere negligence is not sufficient (Chapter 7);
  • the invasion must be serious (Chapter 8,) the invasion need not cause actual damage, and damages for emotional distress may be awarded (Chapter 8); and
  • the court must be satisfied that the public interest in privacy outweighs any countervailing public interests (Chapter 9).
The last point, the commission notes, is "the crucial ‘balancing exercise’, in which courts weigh privacy against other important public interests, such as freedom of speech, freedom of the media, public health and safety, and national security. The ALRC recommends that such competing interests be considered when determining whether the plaintiff has a cause of action. It should be an element of the tort, rather than a defence. A plaintiff should not be able to claim that a wrong has been committed—that their privacy has been seriously invaded—where there are strong public interest grounds justifying the invasion of privacy."

The commission wasn't asked to go further than report on the elements of a cause of action but you don't need special powers in reading this extract to work out what they would say if they were: that our our legal system should provide recourse, best by statute, in the event of invasions of privacy either by intrusion upon seclusion or by misuse of private information that are serious, committed intentionally or recklessly, and that cannot be justified in the public interest. 

With various wrinkles the Victorian and NSW law reform commissions, the ALRC in 2008, most of the submissions to the previous government's issues paper on the subject, and the recent parliamentary committee report on drones reached the same conclusion.

But given the comment said to have been made by Attorney General Brandis some time back (hard to track down) that "the Government has made it clear on numerous occasions that it does not support a tort of privacy" don't expect the Abbott government to rush to act, soon or maybe anytime. 
(Update: Paul Farrell in The Guardian clears this up:
"A spokesman for the attorney general, George Brandis, said: “The government has made it clear on numerous occasions that it does not support a tort of privacy.”)

That probably won't stop The Australian wheeling out the shock and awe about the impact such a tort could have on free speech, leaving unexplored and even unreported (as was often the case after 2008) that the recommended elements recognise that privacy must  be balanced with other rights, such as the right to freedom of expression and the freedom of the media to investigate and report on matters of public importance.

The report includes a suite of other recommended measures:
  • Commonwealth legislation to replace existing state and territory laws regulating the use of surveillance devices, to include a ‘responsible journalism’ defence to protect journalists and media groups who make appropriate use of a surveillance device for journalism in the public interest; 
  • extension of the existing powers of the Privacy Commissioner to investigate breaches of the Privacy Act 1988 (Cth) to allow investigations of complaints about serious invasions of privacy more generally, that is that do not involve breach of that law;
  • and if a tort for a serious invasion of privacy is not enacted by the Commonwealth, that the law for an action for breach of confidence be strengthened enabling courts to award compensation for emotional distress, and that state and territory governments  enact uniform legislation providing for a statutory tort of harassment.

Tuesday, September 02, 2014

Royal Commissioner calls for reinvigorating 'frank and candid', secrecy not part of the formula

Among other findings about the Home Insulation Program, Royal Commissioner Hanger takes the government and public servants to task in his report tabled in Parliament yesterday.

Of particular interest are the commissioner's observations about public service advice (Chapter 14) in light of the decisions about the need for confidentiality in the advice process by the Australian Information Commissioner, and agency FOI knock backs I have seen since arguing refusal of access is necessary if public servants are to retain the trust of ministers and in order to ensure frank, comprehensive advice is forthcoming in future:
  • senior managers failed to provide candid advice to Ministers including briefings to Minister Garrett (14.3.2);
  • if "frank, honest, comprehensive, accurate and timely advice of the kind referred to in section 10(1)(f) of the Public Service Act had been given at key junctures", there is little doubt the tragedies that occurred would have been avoided (14.3.4);
  • in a section on frank and fearless advice in the context of the public service today (14.6) a call for the Australian Public Service "to reinvigorate its willingness to provide in writing advice that is as frank and robust as the advice it is willing to give verbally. This requires cultural change of two kinds: officials and Ministers being aware they are entitled to act contrary to advice. The fact they received advice contrary to the way in which they act is no necessary or automatic basis to impugn the decision. public servants giving advice must be encouraged to think clearly, to free themselves as much as possible from institutional biases and taboos and to have courage when giving advice."
The Commissioner goes on to suggest the need for more 'Black Hat' thinking in advice work, emphasises the importance of multifaceted advice, and observes that it was a shame that those entrusted with the implementation of the HIP did not adhere to Australian Public Service Commission practical guidance on values and code of conduct (14.6.9-14.6.11).

While there is nothing in the report that supports the line of current thinking in some Canberra circles that advice must be protected under FOI from the glare of the public spotlight even after the thinking/deciding stage has passed, that potential FOI disclosure poses a threat to frank and candid, and that stronger FOI protections are required if public servants are to do their job properly, I'm sure those who argue this case will try to use this case study to effect somehow.

The Commissioner (1.3) also comments on issues concerning the conduct of the inquiry, none of which are flattering to the government or the public service: 
  • over reach on public interest immunity claims that were advanced in a slow and cumbersome manner ; 
  • gaps in his powers for example to compel the production of a statement by a potential witness (despite a recommendation never acted upon, from the ALRC four years ago), and constraints on current and past public servants arising from section 70 of the Crimes Act (the ALRC recommended five years ago repeal of the current draconian 'unauthorised disclosure' provision and a replacement based on identifiable harm - that also hasn't been heard of since);
  • conduct by the Commonwealth and public servants that hampered his work including a failure initially to locate a large number (tens of thousands) of emails; that 'current public servants were not entirely forthcoming with the Commission as none volunteered any information, many had no recollection of important events and none was prepared to contradict another; that with very few exceptions public servant witnesses chose not to make submissions and "extraordinarily" the Commonwealth chose not to make submissions when invited to do so. 
  • the Commonwealth did not suggest one witness that should be called and produced documents piecemeal and haphazardly in 147 tranches. In commenting on the inadequacies of the government document management system the Commissioner notes that mysteriously 100,000 documents were produced towards the end of public hearings that were said to "not form part of the established filing system."
Senator Eric Abetz is the Minister Assisting the Prime Minister for the Public Service. 
Look forward to his wisdom in due course.

Monday, September 01, 2014

New light shines on parliamentarians' entitlements

Rosie Williams at InfoAus has turned published government information into something more searchable for transparency and accountability purposes, this time using details published by Department of Finance about use of entitlements by Federal parliamentarians. 

Finance publishes claims/repayments twice a year, six months after the end of each period. They have improved accessibility over time, now presenting information about individual senators and members by state and territory

The entitlement picture is still far from complete as outlined in October last year. On the broader issue, the government's reaction to the scandal that came to light at that time was entirely inadequate.

(Publication of information about use of entitlements by the states remains firmly entrenched in the Dark Ages.)

Rosie has provided new search functions (Rosie @Info_Aus is interested in feedback, corrections) that enable easier access to Finance material including by Party and type of expense making these tallies available:
The Greens.
By expense type providing comparative tables,among them:

Travelling Allowance
Overseas Travel
Chartered Flights

And sure to attract interest the details of Repayments and Adjustments

Rosie turned parts of the Federal Budget Papers into more searchable information with BudgetAus two years ahead of this year's first step by the government to publish data from the 2014-2015 Federal Budget in Excel & CSV formats.

She also developed KnowYourPlace an interface to search the ABS data on Socio Economic Indicators by town, council area, electorate or state.

Nick Evershed at The Guardian, one of the small but growing band of data journalists also utilised Finance material on administrative costs to locate printing, distribution and website costs for each parliamentarian in various time blocks to provide this insight into use of entitlements Politicians billing taxpayers twice for election campaign material 

Yes Minister playbook still handy for FOI decision makers in Victoria

One example doesn't prove that Freedom of Information in Victoria is in bad shape, but add this knock back for ambulance response times to the indicative evidence pile:
In refusing the FoI request, Ms Sorrell said releasing local area response times could harm AV’s business by frightening off subscribers in areas where response times were longest, and even encouraging people to drive to hospital. She also claimed the release of local response times might “unduly excite public controversy”, “cause confusion” and disadvantage AV in its long running pay-and conditions dispute with paramedics. “There is a very clear public interest in maintaining public confidence in the delivery of ambulance services ... and increasing subscriptions for ambulance services,” she said.
The Herald Sun says Ambulance Victoria has refused to hand the information over to the Victorian Civil and Administrative Tribunal, forcing court action certain to delay things until after the election in November.

The Hun earlier reported that the Opposition was refused access under FOI to average response times for AV’s 250 branches, losing an appeal to VCAT where "senior member Robert Davis accepted AV is foremost a commercial operation, rather than a public service."

The reporter tells me the Tribunal found branch response times would not help the public know how long an ambulance was likely to take in a particular locality (as ambulances often work outside their branch areas) but said "there is a public interest in members of the public knowing emergency response times in their local area". AV also accepted an Auditor-General's recommendation in 2010 that it publicly report "a breakdown of performance by region/locality".

"Cause confusion"and"unduly excite public controversy" suggest the Yes Minister playbook is still well thumbed in Victoria:
Sir Humphrey: There is a well established Government procedure for suppress… deciding not to publish reports.
Jim Hacker: Really?
Sir Humphrey: You simply discredit them.
Jim Hacker: Good heavens... how?
Sir Humphrey: Stage one, you give your reasons in terms of the public interest. You hint at security considerations – the report could be used to put pressure on goverment and could be misinterpreted.
Jim Hacker: Anything could be misinterpreted. The Sermon on the Mount could be misinterpreted!
Sir Humphrey: Indeed – it could be argued that the Sermon on the Mount, had it been a government report, would almost certainly not have been published. A most irresponsible document. All that stuff about the meek inheriting the earth could do irreparable damage to the defence budget.
Confusion and unnecessary debate have been irrelevant public interest considerations under Federal, Queensland, NSW and Tasmanian laws as a result of the FOI reforms of 2007-2010, but Victoria is yet to go anywhere near comprehensive review and reform of its 1983 legislation.

Thursday, August 28, 2014

FOI Commissioner gets a hand from legislative changes but FOI itself in bad shape in Victoria

The Victorian Parliament last week passed the Freedom of Information and Victorian Inspectorate Acts Amendment Bill 2014.It comes into force the day after proclamation, so any time now, maybe already - there's no mention of it on the Freedom of Information Commissioner's website at present.

As summarised when the bill was introduced in June the FOI changes are minor in comparison to the wholesale rewrite (Victorian FOI law weakest in the country, says expert Dr Johan Lidberg) needed not to mention embrace of the spirit and intent first advocated 30 years ago by then premier John Cain. 

However in providing for the appointment of Assistant Freedom of Information Commissioners authorised to make decisions, and ensuring that many of the functions of the Freedom of Information Commissioner may be undertaken by, or delegated to, members of staff, the amendments may help to reduce the backlog in review matters piling into the intray.

These changes are in line with those advocated for his own patch by Australian Information Commissioner Professor John McMillan to no effect, before the current  Federal attorney general announced the government's intention to abandon the whole show, a retrograde step for the transparency and accountability cause.

The Victorian bill also will "provide greater guidance in relation to time limits and notification requirements by, and to, the Freedom of Information Commissioner (and) facilitate the effective and informal resolution of reviews and complaints." The Second Reading Speech and this Summary by Melanie Olynyk of Maddocks give a fuller outline.

Debate in the Legislative Assembly (Hansard 2661-2664) was lacklustre. The Government accepted one amendment moved by the Opposition: when a matter is either referred back to an agency by the FOI Commissioner for consideration or when the agency decides to reconsider a matter at the time before the Commissioner on its own initiative the decision must be made within 28 days not 45 as originally proposed.

The Legislative Council debate on 21 August (Hansard 2686-2691) saw Labor's Marg Lewis (a retired teacher and school principal appointed to fill a casual vacancy in June) and The Greens Greg Barber ( a veteran of many an FOI joust) provide a likely accurate rundown on the poor state of FOI in Victoria.

Separately, Alison Sandy FOI Editor Seven Network recently wrote of these negative experiences in using the Victorian Freedom of Information Act.

With an election due in November, any Liberal Party assurances about serious intent regarding improved transparency and accountability (like this from then leader Ted Baillieu last time around) will be taken with a grain of salt. 

So too from Labor perhaps given they had plenty of chances during years in office, most recently 1999-2010, to give effect to John Cain's vision and his urging, this in 2008:
"What is needed, 26 years after my government introduced the FOI law, is to have it truly respected by politicians and public servants......The real problem here is public service culture. In some parts it still rejects the notion of FOI. The secrecy and "we know best" syndrome that is cherished in the public sector is alive and well. In these times of the internet, a more enquiring and better educated community, it just does not wash. People want to know things - and so they should...In 1982-3 we sought to "educate" public servants to "live with" FOI. This should be done again.. Community acceptance of public policy is enhanced by full disclosure. If FOI worked properly, it would create a climate where the need for a Crime Commission was diminished. "

Wednesday, August 27, 2014

Proposed FOI arrangements retrograde not beneficial

With the Freedom of Information Amendment (New Arrangements) Bill listed in the Legislative Program for the current spring sitting of Federal Parliament the following might assist parliamentarians considering whether disbanding the Office of Australian Information Commissioner will improve transparency and benefit users of the Freedom of information Act. 

I have sent a copy of this to senators who take an interest in such issues. You may wish to let senators and your local member know what you think as well. 

The program (pdf) describes the bill as follows.
-establish new arrangements for the exercise of privacy and freedom of information (FOI) functions, including: disbanding the Office of the Australian Information Commissioner; arrangements for an Office of the Privacy Commissioner; making external merits review of FOI decisions only available at the Administrative Appeals Tribunal following compulsory internal review; and providing for the Ombudsman to take over responsibility for investigation of FOI complaints 
Apart from claimed cost savings of $10 million over four years, the explanation for the decision in May was that it would bring efficiencies by removing the two tier merits review now available. According to Senator Brandis:
The complex and multilevel merits review system for FOI matters has contributed to significant processing delays. Simplifying and streamlining FOI review processes by transferring these functions from the OAIC to the AAT will improve administrative efficiencies and reduce the burden on FOI applicants.
Dismantling the office goes far beyond what would be necessary to achieve this purpose.

What is proposed will not reduce the burden, financial or otherwise on FOI applicants.

Other options
The Government has overlooked other available options to improve the significant and unacceptable processing delays in merit review at the OAIC. The Office got nowhere over the last two years on the need for additional resources or at least the level of resources identified as necessary before it opened for business in 2010. Or any exemption in full or part from sharp cuts in the form of annual 'efficiency dividends.' Senator Brandis was very interested in exploring these issues two years ago in Senate Estimates. Not these days, apparently.

The OAIC also put forward suggestions for changes to processes that would free up resources but required legislation to which the government, this one or its predecessor, never responded publicly. One was authority for the commissioners to delegate some functions.

Those of us on the outside also had ideas. Beefing up the OAIC, and limiting further review rights to a question of law, as is the case in WA and Queensland is just one of many that could streamline the multi-tiers. Another that might free up resources could be penalties of some kind or powers to be used that might dissuade agencies from resort to exemptions that have no merit and serve only to bide time and waste resources.

Leadership out the window
More broadly, dispensing with the independent statutory monitor and champion role for information access and open government takes us back to the 1995 Australian Law Reform Commission Open government report that identified the absence of such an office as an impediment to the administration of the FOI act.

Federally FOI was leaderless and rudderless until the establishment of the OAIC in 2010. The new arrangements take us back there.

So too synergies
Much was made in 2010 and since of the benefits of combining information access and information privacy functions in the one office, and conferring strategic information management functions on the Commissioner as well. As stated in the Second Reading Speech
The establishment of an Office of the Information Commissioner not only supports the important outcome of promoting a pro-disclosure culture and revitalising FOI, but also lays new, stronger foundations for privacy protection and improvement in the broader management of government information.
In unwinding the crucial underpinning of the 2010 reforms three and a half years on, none of this rates a mention.

Counter to trends
Abolishing the OAIC runs counter to international trends and to experience (to varying degrees of satisfaction) with information commissioner schemes with a role in merit review of FOI decisions in Queensland, NSW, NT, and WA and Victoria (FOI commissioners), and under the guise of an Ombudsman with special powers for this purpose in SA and Tasmania. In a report tabled recently in South Australia the Ombudsman recommends the establishment of an independent champion and monitor for FOI, something they have never had to date.

Not supported by evidence
I'm no fan of the Hawke review process but Attorney General Brandis has had the that report in his in-tray since taking office in September last year. There is nothing in the report that justifies the abolition of the OAIC. Generally (page i)
the Review found the recent reforms to be working well and having had a favourable impact in accordance with their intent. It (open government) has engaged more senior people in the process and triggered a cultural change across the Australian Public Service, although there is still some way to go on this aspect. Further effort, driven from the top, will be required to embed a practice where compliance with the FOI Act is not simply perceived as a legal obligation, but becomes an essential part of open and transparent government.
More directly: (page 24):
The Review considers that the establishment of the OAIC has been a very valuable and positive development in oversight and promotion of the FOI Act.
And specifically on the review system cited by the Attorney General as the policy reason for the decision: (page 36)
The current system of multi-tiered review has been in operation for two and a half years. At this stage there is insufficient evidence to make a decision on whether this is the most effective or efficient model for reviewing FOI decisions, particularly in relation to the two levels of external merits review. The Review considers this issue warrants further examination and recommends that the two-tier external review model be re-examined as part of the comprehensive review recommended in Chapter 1.
The government chose to reach for the knife rather than look for evidence.

Costs to individual
A direct hit to the hip pocket is coming for anyone unhappy enough with an FOI decision to want to box on with an external review application. There is no charge for review by the OAIC. But come 1 January complaining types who don't accept often questionable wisdom explained in convoluted and obscure language in an FOI knockback will be up for $861 for starters at the AAT. Demand for review of agency decisions, running at around 500 a year in the OAIC, indicates a high level of ongoing dissatisfaction with agency decisions. Eight hundred and sixty one dollars can be expected to work wonders on the numbers.

Unacknowledged cost to agencies
One of the changes arising from going back to the pre reform era involves reinstating mandatory agency internal review before a matter can be taken to the AAT. This will involve additional unbudgeted costs to agencies, already subject to resource limitations.

Overall it is a retrograde step. The changes wipe the review model adopted in the reform package of 2010, and it's back to where things used to be and we know they didn't work properly then.The OAIC disappointed in a number of respects, particularly the long delay in review decisions and the failure to really get stuck into those not playing fair and square, but it was under resourced and never had the opportunity or clout to really push the message that the government was serious about transparency and accountability-that's assuming it really was.

More powers, more resources and strong ministerial backing is what is needed, not the return to the status quo ante 2009.

Tuesday, August 26, 2014

Techo problem

Temporary (I hope) problem-lost the sidebar and content while trying to fix something else. Bear with me. Update: Can hardly believe I solved that myself!

Federal Parliament back in the spotlight

Plenty of big issues on the agenda but....

Update: Oops! Thanks to the watchful soul in Canberra who tells me I was looking at the 2013 program not 2014.  

The correct list (pdf) of proposed legislation for the spring sitting includes The Freedom of Information Amendment (New Arrangements) Bill 2014:
-establish new arrangements for the exercise of privacy and freedom of information (FOI) functions, including: disbanding the Office of the Australian Information Commissioner; arrangements for an Office of the Privacy Commissioner; making external merits review of FOI decisions only available at the Administrative Appeals Tribunal following compulsory internal review; and providing for the Ombudsman to take over responsibility for investigation of FOI complaints.
As I was saying before thankfully corrected:

Labor, The Greens, PUPS, DLP, Family First and independent senators particularly senators Xenophon and Leonhjelm who have a strong interest in transparency and accountability should look closely at how the changes will benefit FOI applicants as claimed by the Attorney General in the only public words uttered in announcing the decision in May or since.

Quite apart from leaving the cause of FOI virtually orphaned in the hands of the Attorney General's Department, the 'administrative efficiencies' that will see merits review back exclusively with the AAT will mean applicants aggrieved face a charge of $861 (currently) for the pleasure. 

Abolishing the information commission runs completely counter to good practice access to information here or anywhere else in the world.

And I'd wondered what had happened to this proposed cut back on contract disclosures in the name of 'red tape' that emerged in February. The Canberra Times reports today that Labor won't support it, so another issue to add to the cross bench chat list.  

Continuation as originally published: sign on the published legislative program(pdf) for this sitting of a bill to abolish the Office of Australian Information Commissioner and deal with the flow on effects. 

Labor, The Greens, PUPS, DLP, Family First and independent senators particularly senators Xenophon and Leonhjelm who have a strong interest in transparency and accountability should look closely at how the changes will benefit FOI applicants as claimed by the Attorney General in the only public words uttered in announcing the decision in May or since.

Quite apart from leaving the cause of FOI virtually orphaned in the hands of the Attorney General's Department, the 'administrative efficiencies' that will see merits review back exclusively with the AAT will mean applicants aggrieved face a charge of $861 (currently) for the pleasure. 

Abolishing the information commission runs completely counter to good practice access to information here or anywhere else in the world.

And I'd wondered what had happened to this proposed cut back on contract disclosures in the name of 'red tape' that emerged in February. The Canberra Times reports today that Labor won't support it, so another issue to add to the cross bench chat list.  

Thursday, August 21, 2014

Last week for NSW statutory review submissions

A reminder, to me to get cracking as much as it is to you, that submissions to the statutory review of the NSW Government Information (Public Access) Act and the Government Information (Information Commissioner) Act close on 29 August.

I'm no fan of the way these reviews are conducted- a notice that the review is underway that few will ever see, terms of reference limited to "determine whether the policy objectives of the Acts remain valid and whether the terms of the Acts remain appropriate for securing these objectives", no discussion or issues paper, no dialogue or fora for interested parties to engage and discuss, and almost certainly no attempt by the agency conducting the review or any agency to survey users, or frequent users. On the other hand government agencies will be well armed with suggestions that reflect their interests.

Somewhat similar to the unsatisfactory process in the review of the Commonwealth act by Dr Hawke that the government has now had a year to chew over.

In Queensland the review of the RTI act and aspects of the information privacy act kicked off a year ago with release of two discussion papers but not a word since.

Report due in NY next month on government support for civil society

Eleven months ago Australia joined 20 other governments in a High Level Forum in New York chaired by President Obama in support of civil society.

The governments later issued a joint statement that noted their "deep concern that many governments are restricting civil society and the rights of freedom of association and expression, both online and offline"; commited to take action "to respond to growing restrictions on civil society that undermine its ability to perform its crucial role.. an alarming trend"; called on "representatives of civil society, the philanthropic community, the private sector, and other governments to partner with us in supporting and defending civil society"; and agreed to meet again at the opening of the 69th United Nations General Assembly to review progress toward these objectives.

The General Assembly convenes on 16 September. 

Someone in DFAT is no doubt beavering away on what Australia can say about our efforts to this end.

Speeches by Minister Andrews and plans for the National Centre for Excellence will feature; so will government financial support for the C20 and facilitation of the Global Summit earlier in the year.

A specific commitment in the joint statement was to strengthen support for existing mechanisms that encourage civil society participation such as the Open Government Partnership. The government's current public position is that whether Australia should join the OGP is still 'under consideration' so there is a month (it's been three years) to tidy that up.

I'm sure the report won't go there, but squaring our stated support for an active civil society with other words and deeds would constitute a challenge:
  • cuts to funding community legal centres and removal of a clause from the funding agreement that confirmed their role in policy debate and advocacy;
We will hear more at home on the last three issues given this recent speech by Shadow Attorney General Mark Dreyfus.