Open parliaments and pollies weekend in Sydney

Open Australia is organising a Hackfest in Sydney on 21-22 September focusing on parliaments, politicians and elections. The event is timed to coincide with the Global Legislative Openness Week (GLOW) an initiative of the Legislative Openness Working Group of the Open Government Partnership. Good to see this engagement in advance of the much considered issue of whether Australia is to join the OGP.
 
I've lamented-here and here and here, three of many posts on the subject- that our parliaments and parliamentarians are still to fully and eagerly embrace the information age, so interested to see what those who put their minds to it can do with what is available.

Is this the senate to sort out public interest immunity claims?

The Senate from here on will likely be an even livelier front for argy bargy over access to government documents.

 But whether there is appetite and numbers among Labor, The Greens, the PUPs and assorted others - maybe even among staunch parliamentarians on the government benches - to push for a mechanism to resolve a disputed public interest immunity claim remains to be seen. Refusal to produce has been treated as a 'political problem' to date. If the matter can't be sorted by negotiation it dies in the ditch at that point.

In February there were indications it was game on. At one point the non-compliance rate with orders of the 44th Parliament to produce stood at 100%. The Senate Procedural Information Bulletin at the time labelled it "an unprecedented situation." The record has improved since.

The Legal and Constitutional Affairs References Committee then huffed and puffed about the refusal to comply with an order to produce documents relating to 'Operation Sovereign Borders' with secrecy about the boats an ongoing issue, given new impetus this week.

The report also recommended the Senate refer to the Procedure Committee "as a matter of urgency" inquiry into the independent arbitration process followed by the NSW Legislative Council regarding responses to orders to produce and any modifications necessary if such a scheme was to be adopted by the Senate. The Clerk of the Senate Dr Laing told the References Committee the NSW system is the best around for adjudicating these matters.

The 'matter of urgency' didn't count for much. The report was tabled on 6 March but there has been no debate and no referral to date.

Meanwhile stand offs continue. 

The Procedural Bulletin reported on the May-June Senate Estimates hearings:

There were numerous occasions when officers or ministers declined to provide information and senators pressed for articulation of the grounds on which the information was being declined. In most cases, the questions were then taken on notice. Some examples include:

• monthly reports of agency figures on involuntary redundancies (Australian Public Service Commissioner) – said to be advice to ministers (FPA, 26/5)
• whether the Prime Minister’s Chief of Staff attends Cabinet meetings (FPA, 27/5)
• appointment and role of the new Cabinet Secretary (FPA, 27/5)
• the timing of advice on cessation of the Nursing and Allied Health Scholarships Support Scheme in Tasmania (CA, 3/6)
• further questions about funding for mental health programs (CA, 3/6)
• the number of Cabinet decisions in relation to free trade agreement negotiations with China (FADT, 5/6).

In other cases, while only skeletal public interest immunity claims were articulated – such as national security concerns in relation to information about drone strikes in Yemen and the death of Australians (LCA, 28/5) – senators did not press for further information....

There are always cases of officers or ministers declining to provide answers on the basis of “longstanding” practice, only to be embarrassed by the discovery of the information from a public source moments later. In this round, the ministerial order of precedence – astonishingly – was claimed to be a secret, but was found shortly thereafter on Wikipedia (FPA, 27/5). It is also reflected in the published ministry list and in the order of occupation of seats on the front benches in each House. Membership of the Government Staffing Committee was also discovered to be public information (FPA, 29/5)...

Despite the recent enhancement of opening statements with the agreement of the Chairs’ Committee, “advice to Government” is still the most common bleat by officers and continues to remain unpursued on most occasions. Apparently, it is also “not the practice” to make legal advice public in estimates hearings, a statement made in the context of discussion of the tabling of departmental legal advice on the legality of settlements in the Palestinian Territories at a previous round of hearings (FADT, 4/6).

In another development Senator Wong has a number of motions before the Senate including 298,

noting "the frequency with which freedom of information legislation is invoked to withhold information from senators and the Senate, not only by reference to grounds of exemption in the legislation but also apparently on the basis that an answer will not be provided if a Freedom of Information (FOI) request has been lodged for the same information;

(b) recalls the observations of the Procedure Committee in its Third Report of 1992 that:

(i) there is no basis in law for the application of the FOI Act to the production of documents to a House;

(ii) if a minister were to regard all of the exemption provisions in the FOI Act as grounds on which to claim a privilege against disclosure of information to a House, this would considerably expand the grounds of executive privilege hitherto claimed;

(iii) the use of the provisions of the FOI Act as a checklist of grounds for non-disclosure does not relieve a minister of the responsibility of carefully considering whether the minister should seek to withhold documents from a House, or from considering the question in the context of the importance of the matters under examination by the House;

(c) resolves That the same principles apply to the provision of information to committees in response to questions asked by senators, which require the same careful consideration by ministers;

(d) declares that declining to provide documents or answer questions on the basis that an FOI request has been made for the same information is an unacceptable response, is not supported by the FOI Act and shows a profound lack of respect for the Senate and its committees.

Secrecy surrounding what is up for grabs in the negotiation of the Trans-Pacific Partnership Agreement continues to attract attention in the Senate.

Meanwhile The Greens Senator Rhiannon is seeking to up the ante in that 'vexatious applicant' matter and the associated refusal of an an FOI application for the Senate vote count software, with this motion that may or may not get a run today:

*330 Senator Rhiannon : To move—That there be laid on the table by the Special Minister of State, no later than 15 July 2014:

 (a) all correspondence and documents, whether written or in email form, from the Special Minister of State’s office and/or the Australian Electoral Commission (AEC) relevant to:

 (i) the decision of the AEC to have Mr Michael Cordover declared a vexatious applicant, and

 (ii) the assertion that Mr Matthew Landauer colluded with Mr Cordover to harass the AEC; and

 (b) the source code of the software by which Senate vote counts are conducted.

(Update: Paul Farrell in The Guardian reports the motion passed on 10 July and quotes Senator Rhiannon:

“There is no justification for the AEC refusing to release information on how the Senate vote is counted,” Rhiannon said. “It is widely known that it is very complex so surely the methodology used should be publicly available. “Why would you stop the public knowing how the Senate vote is counted?..The AEC are not only doing the wrong thing in refusing a legitimate FOI request – in the wake of the WA federal election debacle they are further damaging their own reputation,” Rhiannon said. “The AEC hardline position in trying to discredit Mr Cordover as a vexatious litigant is an abuse of the law under which the AEC operates and raises the very relevant question what do they have to hide."

I'd expect resistance to the software demand which in the FOI context the AEC claims contains 'trade secrets' and information of a commercial value. Whether the Senate or the AAT becomes the forum for battling this out remains to be seen.

The Greens skirmish in two states over parliament's right to documents

The case brought by Victorian Greens MLC Greg Barber seeking a declaration that the parliament has power to order production of documents prepared outside Cabinet and considered by Cabinet, or prepared by an independent contractor and considered by Cabinet was back in the Supreme Court last month. 

Barber's suit had survived a bid by the State of Victoria last November to have the matter summarily dismissed. This time around Justice Emerton ruled in favour of the Defendant, rejecting Barber's argument for a single hearing, ordering the following question be heard and determined as a preliminary question at an early date:

Should the Court decline to hear the proceeding on any of the following grounds: (i) there is no justiciable dispute between the parties;
(ii) a claim for a bare declaration as to the powers of Parliament is not justiciable;
(iii) the proceeding seeks relief that is merely hypothetical or advisory and would not determine any rights between the parties;
(iv) the plaintiff does not have standing to bring the proceeding?

In NSW the Legislative Council has broad powers to require production of documents and exercises it regularly, and the sun continues to rise each morning despite claims to the contrary seven years ago by NSW Crown Solicitor Ian Knight.

However The Greens Jeremy Buckingham points out that Parliament may not have got the full story when it called for papers in 2009 concerning one of the issues now before the ICAC where former minister Ian McDonald occupies a very hot seat.

Buckingham says "a mountain of important documents that were hidden from the Parliament,”have been unearthed by the ICAC.

“The urgent question is why these documents were withheld, and who withheld them, and why? “Barry O’Farrell must refer this matter back to ICAC to investigate as soon as possible. The Government must not delay ICAC investigating through an internal Parliamentary Committee.

With the issue of parliament and its NSW prerogatives involved I'm guessing it won't be long before 1689 and all that get another run.

NZ not up for major information access reforms

The New Zealand Government has responded to the Law Commission review of the Official Information Act, picking at a few of the 137 recommendations but rejecting the need for major reforms.  

Among the NZ commentariat  No Right Turn who said he would be quite happy if the LC report died quietly in a ditch somewhere and was forgotten, thinks that is pretty much what has happened. Wellington Barrister Steven Price on the other hand had a more positive view about the Law Commission's proposals writing just before the Government response was released.

The full text of the response is ironically, hard to locate but thanks to some expert ferreting by a NZ colleague the link is here.

Of particular interest is the thumbs down given to the proposal for statutory creation of a new oversight office along the lines of our information commissioners. The Ombudsmen are doing fine thanks.

And the big NO to the recommendation that the OIA extend to the Offices of Parliament, Parliamentary Counsel Office, the Office of the Clerk and Parliamentary Service, and the Speaker of the House, in respect of administrative and financial information and excluding any audit, assurance work, inquiry or investigation activity.

"The government does not agree with the Law Commission’s recommendation and supports the status quo.  New Zealand has an open Parliament by international standards and Parliament currently makes a great deal of information available.  Parliament has processes for developing rules around access and use of information and this is more likely to achieve the desired balance between access to information and the proper functioning of Parliament.  This approach is consistent with the approaches taken in the Australian and Canadian federal parliaments and the US Congress. .... the existing scrutiny provided through the Parliamentary estimates and financial review processes is considered appropriate.  This scrutiny is publically accessible and provides transparency in the work and spending of the Offices of Parliament."

Hmm, off the rails a bit there.

The Australian federal parliamentary departments at present are covered by the FOI act as they lament in a submission to the Hawke review. They want coverage cut back - roughly to what the NZ Law Commission recommended. 

That's the situation in Tasmania. 

The Westminster houses of parliament are covered in the UK. So is the Scottish Parliament, the National Assembly of Wales and Northern Ireland Assemby. And as I understand, parliaments in Ireland, India, South Africa and Mexico, to list a few more. 

NZ does FOI well and leads the likes of us in many respects. 

But big picture, modernising reforms have gone to the backburner.