Major parties respond with faint praise but nothing else to Senator Patrick's FOI reform bill

 In 2018 Senator Rex Patrick sponsored the introduction of the Freedom of Information Legislation Amendment (Improving Access and Transparency) Bill and made the second reading speech, the bill was referred to the Legal and Constitutional Affairs Legislation Committee, the Committee report recommended the Senate not pass the bill (Senator Patrick and Greens senators dissenting)......

And there the bill sat until last week when it came on for Senate debate for 70 minutes before time expired.

The major parties did not support the bill in 2018 and reaffirmed that in 2020, so its fate is clear. 

Senator Patrick managed to get an acknowledgement that the government respects the intent to 'make government more transparent and more accountable, to assist citizens and the media to access information under the law and to improve the effectiveness of Australia's freedom-of-information laws' and from Labor that the bill was "well intentioned, and many of the proposals it puts forward warrant close examination' , but that was as far as they went.

Among the remarks worth highlighting:

Senator Amanda Stoker (Queensland, Liberal Party)

The government remains steadfast in its support for transparency, for the value of the freedom-of-information arrangements and for providing substantial funding to the Office of the Australian Information Commissioner so that it can do its job of making sure Australians can access important information from governments.... the objectives of transparency, accountability and freedom of information are objectives that are highly valued and shared by this government.

(Spoken apparently with a straight face)

Senator Murray Watt (Queensland ALP)

This government hates scrutiny. This government has contempt for basic notions of accountability. This is a government that prefers to operate in the shadows. It is not difficult to see why, because, every time sunlight does find a way in, Australians do not like what they see. Whether it's sports rorts, Angus Taylor's latest outrage, the awarding of contracts worth hundreds of millions of dollars to companies headquartered in beach shacks or the government's shocking and scandalous record on aged care, the Morrison government does not want Australians to know what it is up to. Make no mistake: that is why the government hates our FOI laws and treats those laws with such contempt. That is also why the government continues to starve the Information Commissioner of resources—so that it takes the commissioner so long to review a rejected freedom-of-information request that the applicant just gives up.

....since this Liberal government took power in 2013, they have been at war with freedom of information, at war with transparency, at war with accountability to the Australian people, who elected them, so Senator Patrick is to be congratulated for bringing forward this bill, which demonstrates his belief that FOI laws need to be strengthened and in the need to undo some of the harm that the Morrison government has done to our democracy in its trashing of FOI and its obsession with secrecy and cover-up.

(Spoken without reference to the fact Labor has not put forward comprehensive, concrete reforms proposals during seven years in opposition.) 

Senator Larrisa Waters (Queensland Australian Greens)

...this is the least transparent government in history.

(Spoken ignoring the fact any government before 1982 when FOI was introduced would beat all since for the least transparent trophy.)

Senator Paul Scarr (Queensland Liberal Party)

...about resourcing. I think it's a key point, to be frank. It's absolutely a key point. If we are going to have an FOI Act regime, there needs to be appropriate resourcing provided for it. It doesn't matter who's in government; there needs to be that appropriate resourcing. When I read the report of the Legal and Constitutional Affairs Committee, page 9, paragraph 2.9 says: 

When asked whether there needed to be more resources at both the early resolution stage, as well as at a later stage, to enable more Information Commissioner reviews to be finalised earlier, Ms Falk stated:

'At this point in time, that's not what I'm seeing. I'm seeing that where I need to focus is on working with government to increase the offices resources to increase the capacity at the case-officer level and potentially, the executive level. If that were to be increased and then have a flow-on effect to more Information Commissioner reviews being required of the commissioner and that being something that's not manageable within other functions then that would be something that I would bring to the attention of government.'

Those are the actual words from the Information Commissioner in the report. In my respectful view, they do not support the characterisation of this matter by Senator Watt,

(Spoken in apparent ignorance of the fact that while the Information Commissioner did say this in 2018, she said something different in Senate Estimates in October 2019:

Senator KIM CARR: Did I hear you correctly in your opening statement? Did you actually say that you're under-funded?  

Ms Falk: I did raise the issue of resourcing in terms of FOI. It's a matter that's been discussed before this committee on a number of occasions, where I've indicated that really where the stresses in the system lie, from the OIC's perspective, are with the need for more staffing. I've set out the fact that we've had an 80 per cent increase in Information Commissioner reviews and I have worked very purposefully since being in the role on looking at how we can increase our efficiency. Over that same period of time—the four-year period—we have increased our efficiency by 45 per cent. But I've formed the view, having conducted a number of reviews of the way in which we're carrying out our work, that the only way in which the gap is to be bridged is for additional staffing resources to be provided

... 

Senator KIM CARR: I see. That's where the confusion lies. So, since August last year, you've been seeking additional support?  

Ms Falk: Sometime after that date, Senator. 

 Senator KIM CARR: And what was the government's response? Ms Falk: The government has acknowledged my request and is working through it in terms of normal budget processes.  

..

Senator KIM CARR: So how much did you ask for?  

Ms Falk: Senator, you appreciate that the information I've provided to government is through budget processes. I can give you an indication that, at present, my funding envelope allows for around 19 case officers to work on FOI reviews—there are additional staff who work on the FOI function more broadly—but just looking at FOI reviews, there'd need to be at least a half increase in the number of those staff.

 Senator KIM CARR: What you mean by 'a half? 

 Ms Falk: A half again. Senator KIM CARR: So—Ms Falk: Another nine staff. 

...

Senator KIM CARR: What will that cost in terms of your normal profile?

.. 

Senator KIM CARR: Can you take that on notice, please?  

The OAIC subsequently provided this response to the question: 

"The Office of the Australian Information Commissioner has estimated that the annual cost to fund nine (9) additional staff to undertake FOI regulatory work, including processing IC review applications, would be approximately A$1.65 million with an additional capital amount of approximately A$0.3 million for accommodation in the first year." 

.....

We live in hope....

Victorian CEOs responsible for FOI basics-will it make a difference?

The Victorian Information Commissioner in accordance with Section 6U of the FOI act has issued Professional Standards for government agencies The standards, a legislative instrument, came into effect from 2 December.

Section 6W(1) of the FOI Act states the principal officer of an agency, and any officer or employee of the agency concerned in the operation of the FOI Act, must comply with the standards.(The new standards don't apply to ministers who would be subject to any standards issued-none so far- by the Premier.)

The responsibilities include (emphasis added)

1.1 An agency must consider whether a document in its possession, that is requested under the Act, can properly be provided to an applicant outside the Act.

1.3 A principal officer must ensure information statements published in accordance with Part II of the Act are available on their agency’s internet site, where one exists.

8.1 An authorised officer must not be directed to make a particular decision under the Act, when properly exercising their statutory decision making power.

9.1 A principal officer must ensure their agency has the necessary resources and procedures in place to be able to meet their agency’s statutory obligations under the Act, including: (a) being sufficiently resourced to receive and process requests, as and when required, within the required statutory time;
(b) the necessary software or systems to enable officers to process requests;
(c) internal policies to enable officers to carry out their functions across the agency; and
(d) anything else reasonably necessary for the agency to carry out its statutory obligations in an effective and efficient manner.

 9.2 A principal officer must ensure, or must be actively working towards ensuring, all officers who are responsible for responding to requests have the appropriate skills and training to perform their responsibilities.

9.4 A principal officer must ensure all officers are informed about the agency’s statutory obligations under the Act.

9.5 A principal officer must ensure all officers are aware they have a duty to assist and cooperate with officers who process requests under the Act.

Putting the CEO in the frame with responsibilities of the kind articulated in 9.1-9.5 is a welcome development.

But an admonition and nothing more that decision makers are not to be pushed around (8.1) highlights the fact that the Victorian FOI act does not include offence provisions of the kind enacted in other jurisdictions (the Commonwealth a notable exception):
NSW  (SS 116-120-acting unlawfully, directing unlawful action, improperly influencing decision, unlawful access, concealing or destroying government information,-with maximum penalty $11,000)
Queensland (Chapter 5, part 2)
Tasmania  (S 50)
Western Australia (Section 110)
Northern Territory (SS 145-147)
ACT (SS 89-94)
(An offence provision (new section 49A) is included in this draft bill available for public comment at present in South Australia.)

While on the statute book, in some cases for many years, I'm not aware of prosecutions anywhere.

The very existence of offence provisions however is likely some help in keeping things on the straight and narrow.

In one reported instance, the NSW Information Commissioner, acting on a referral from ICAC in 2016, conducted an investigation  (Pdf), concluding individuals in this case should not be referred to the DPP or the Attorney General for a decision to prosecute over destruction of documents.

The only tool in the Victorian commissioner's toolbox is potential name and shame.

Guidance
Victoria legislation is also at the weak end of a weak spectrum in terms of commissioner clout when it comes to 'guidance' for agencies on the exercise of their FOI functions.

The Commissioner has issued Practice Notes that "provide detailed guidance on how the Freedom of Information Act 1982 should be administered and how the Professional Standards should be interpreted." However while it is put forward by OVIC as best practice there is nothing in the act that requires agencies to comply.

It's not a lot better elsewhere where in some jurisdictions an agency must 'have regard' to guidance issued by the commissioner. For example Section 93A of the Commonwealth act  empowers the Australian Information Commissioner to issue guidance and requires Australian Government ministers and agencies to 'have regard' to the guidelines when performing a function or exercising a power under the FOI Act generally and specifically in relation to:

• the Information Publication Scheme (s 9A(b)) (see Part 13 of these Guidelines)
• in working out whether access to a conditionally exempt  (document) would, on balance be contrary to the public interest (s 11B(5)) (see Part 6 of these Guidelines)
• in making a decision on a request for access to a document of an agency or an official document of a minister (s 15(5A)) (see Part 3 of these Guidelines)

'Have regard to' probably means can't be ignored or must be considered but it doesn't mean followed.

Note in passing:
No one here has gone as far as India where the Right to Information Act requires each agency to designate a Public Information Officer who carries some personal responsibility for compliance. Section 20 of the Act provides that where, in the course of deciding a complaint or appeal the Information Commission finds that a PIO has failed to provide access (without reasonable cause) or "malafidely" denied a request, knowingly gave incorrect or misleading information, destroyed information, or obstructed furnishing information, a penalty of 250 rupees (about $A5) per day may be imposed with a cap of 25,000 rupees.)

'The public has a clear right to know what One Nation is up to.'

Did Al Jazeera's undercover investigation into One Nation overstep the mark?

Andrew Dodd, University of Melbourne
The sheer audacity of Al Jazeera’s three-year ruse is astounding.
The news company’s investigation unit has carried out a sting that has captured both the National Rifle Association of the United States and Australia’s One Nation Party in all sorts of compromising positions.
The series, “How to sell a massacre”, has exposed the NRA’s manipulative media practices and revealed One Nation’s desire to cosy up to the US gun lobby to find ways of funding its domestic campaign to overturn our gun laws.
The documentary has exposed the thinking of some of the party’s most senior figures about taking control of the parliament and their obsession with Muslim immigration.

How to Sell a Massacre P1 | Al Jazeera Investigations.

Al Jazeera senior producer Peter Charley did this by placing actor-turned journalist Rodger Muller in the field to impersonate the head of a fake pro-gun lobby group called Gun Rights Australia. The pair then pandered to One Nation’s desire for financial support and international endorsement and exploited US gun lobbyists’ fears about Australia’s strict gun laws.
They got away with this for three years, gaining unprecedented access to the halls of the NRA and to the minds of two One Nation officials, Queensland state leader Steve Dickson and the party’s controversial chief of staff, James Ashby.

---

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

---

A matter of ethics

There are at least two ethical questions about this documentary.
The first is whether the producers have overstepped the mark by not only reporting what they saw but creating the scenario in which the events occurred.
The second concerns the program’s extensive use of hidden cameras.
On the first matter, the issue is whether the program created the meeting between One Nation and the NRA and therefore acted irresponsibly by entrapping the subjects of the film.
In his account of what happened, Rodger Muller put it this way:

Then Charley asked me to contact Pauline Hanson’s One Nation – a far-right pro-gun Australian political party. Charley wanted me to find out if any connections existed between One Nation and the US gun lobby. And so began another chapter in my life as an avid “gunner”.
When I approached One Nation Chief of Staff James Ashby and mentioned my NRA connections, he told me he wanted to visit the US to meet them. I set up meetings in Washington and soon Ashby and One Nation’s Steve Dickson were on a flight to the US.
I was there, ready to meet them. And our hidden cameras were all primed and ready to go.

This suggests that Muller and Al Jazeera were catalysts and enabled the connection between One Nation and the NRA. But it also demonstrates that there was a desire on the part of One Nation to meet the US gun lobby, and – as later becomes clear - the party was motivated to do so to raise funds and make political connections.

So is this responsible journalism?

The Media Entertainment and Arts Alliance code of ethics – the protocols by which thoughtful journalists operate in Australia – is largely silent on this issue.
It doesn’t say anything explicitly about creating the news by making connections between players to observe what happens next. But it does stress the need to “report and interpret honestly”.
It calls on reporters to use “fair. responsible and honest means to obtain material” and to “respect personal privacy”. But the code also acknowledges journalists both scrutinise and exercise power. The preamble makes the point that journalism animates democracy.
Most importantly, in its guiding cause, the code states:

ethical journalism requires conscientious decision-making in context.

It allows for any of its other clauses to be overridden to achieve “substantial advancement of the public interest”.
So is it wrong to make and enable connections that might not otherwise happen in order to observe the outcomes? Is this fair and honest and responsible?
Like many things, the answer might be dependent on the motivation. From where I stand, it looks like Al Jazeera’s motivation was to get to the heart of something fundamentally important that would otherwise remain opaque.

Breaches of privacy and deceptive conduct

And while we’re pondering that one, there’s the perennial ethical question about hidden cameras.
This isn’t your garden variety case of a tabloid TV program exposing a dodgy car salesmen or a real estate scammer. In this film, the use of hidden cameras directly places several parts of the code of ethics against that all important public interest override.
The question is whether the public’s right to know is so important that it justifies the film’s deceptive conduct and breaches of privacy.
For me, the use of hidden cameras can clearly be defended when a publicly funded Australian political party, that knows what it’s doing is dodgy, is making connections to “change Australia” by gaining the balance of power in the parliament and “working hand in glove with the United States”.
It is highly likely the extent of One Nation’s behaviour could only be exposed through this sort of reportage. James Ashby is captured repeatedly reminding others they need to be secretive in their dealings with the NRA.
The public has a clear right to know what One Nation is up to. This is especially the case when part of its mission is to learn new techniques to manipulate the public debate to pursue an agenda of overturning the ban on guns following the 1996 Port Arthur Massacre.

The NRA are media experts

There’s something else about this program that justifies the use of hidden cameras. It exposes the utter cynicism of the media messaging and media training that underpins the NRA like nothing I have ever seen before.

---

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

---

In a closed meeting with NRA officials, One Nation is given a crash course on how to deal with bad press, particularly following mass shootings.
Lars Dalseide, an NRA media liaison officer, is captured saying pro-gun lobbyists should smear supporters of gun control by accusing them of exploiting the tragedy.
He even provides a useful retort to anyone who might suggest that gun ownership might be a factor in a mass shooting. He says:

How dare you stand on the graves of those children to put forth your political agenda.

“Just shame them to the whole idea,” he suggests, by arguing pro-gun campaigners should declare to opponents:

If your policy isn’t good enough to stand on its own, how dare you use their deaths to push that forward.

As he says this, Ashby is recorded replying: “That’s really good, very strong”.

Some of that phrasing seems familiar in the immediate aftermath of the Christchurch massacre, suggesting parts of the NRA’s playbook have already made their way down under.
This documentary underscores two things.
The brutal tactics of the gun lobby and the operations of One Nation need exposing. Journalism sometimes has to take on the unsavoury job of extracting the truth from those who do not want to share it.



Andrew Dodd, Director of the Centre for Advancing Journalism, University of Melbourne
This article is republished from The Conversation under a Creative Commons license.
Read the original article.

Turnbull government stands its ground, apart from international open government community

Disappointing that the Turnbull Government chose to keep the head down rather than step up publicly with a positive response to the request three months ago from the Open Government Partnership Steering Committee to recommit by the time of the OGP Global Summit in Mexico this week. 

Spirits here rose sharply yesterday morning when my email inbox lit up:

Re: Commitment to open government -  Whitney Brennan Office of The Hon. Malcolm Turnbull MP

Only to drop like a stone when it turned out to be pretty much the standard boiler plate, pass the parcel reply to an email sent to the PM a week ago about the OGP and the related issue, the continuing saga of the Attorney General's attempt to scuttle the Office of Australian Information Commissioner. 

Toby McIntosh reports over one thousand delegates from 94 countries attended the
Civil Society Day in Mexico City yesterday prior to the official two-day OGP meeting.

Meanwhile back in Canberra.......
 
Emails to and from the PM's office and an earlier exchange with Mr Turnbull in July follow.

A 21st century government needs to move on from one stuck in the 19th when it comes to openness and transparency

At the swearing in of the Turnbull Ministry yesterday the Prime Minister told the Governor General

Your Excellency, today we are ... forming a government for the 21st century. A ministry whose composition and focus reflects our determination, to ensure that Australia seizes the opportunities of this, the most exciting times in human history. 

The Prime Minister repeated these descriptors a number of times over the last few days. He has also talked about his "wonderful new Cabinet, with brilliant younger people."

A government wishing to be seen in these terms will want to ditch the 'at war with transparency' tag that the Abbott government seemed to wear with pride. (Update: some movement underway)


The PM has said we need a new type of leadership and a government that is open and engaged.

I don't expect this means a burst of transparency regarding 'on water' activities, but an early move on two related fronts would evidence the good intent.

The Abbott government attempt to legislate to abolish the Office of Australian Information Commissioner and in the meantime defunding its FOI and information policy functions, and the non decision after two years about joining the Open Government Partnership represent 19th not 21st century thinking.

Withdrawal of the bill and announcement of a decision to join the OGP would pave the way for development of a national action plan through consultation with civil society as required by OGP rules. The plan would list concrete steps to improve transparency, open government and public participation- objectives the Turnbull government wishes to achieve.

Once the bill to  abolish the OAIC is laid to rest some thought can be given to evidence and changing times. The plan might identify the need for a comprehensive review of information access issues including scope to move Freedom of Information law into the digital open data era and improve efficiency and effectiveness within agencies and at the OAIC if the evidence suggests. 

In a conversation in July Mr Turnbull showed interest in such a review (see below).

The Prime Minister is clearly up also for changing direction when its the wrong way to go, telling ABC radio

When governments change policies, it's often seen as a back flip, or a back-track, or an admission of error. That is rubbish. We've got to be agile all the time. if you can't get something through the Senate, it is, I would say it's highly possible that you could change it to something that will get through the Senate. This is what John Howard calls the iron laws of arithmetic.

I had an opportunity to discuss FOI and the OGP with Mr Turnbull, my local member of paliament in July. These are emails exchanged at the time.

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 (http://creativecommons.org/licenses/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.

Queensland Integrity-where to from the Open Government Policy Forum?

The transcript of the Open Government Policy Forum in Brisbane on 13 August is now available. 

Of interest to all who follow such things are the Premier's opening remarks (1-6) which include references to open data and Right to Information issues and his views about the need to protect deliberative process documents.

Session 2 on Creating an Open and Accessible Government (20-34) includes comments from Professor Bill Lane and me on transparency generally and RTI, and from the floor by Michael McKinnon of the Seven Network who raised issues concerning charges, proposed a public interest test for confidentiality and legal privilege claims, responded to the Premier on deliberative process, and reminded that public servants have a duty that should not be shirked by not recording elements of the decision making process.

There are other points of interest of course. The Forum provided an opportunity for an airing of a range of issues about the integrity system. 

The importance of culture change was ever present.

Always in the background, rather than up in lights, perhaps because the Government has already accepted the majority of recommendations, was that things are moving in the direction suggested in the Callinan Report on the Crime and Misconduct Commission: the whole integrity system needs rationalisation and simplification because in post Fitzgerald Queensland, it has grown into an industry, has too many elements, is too complex with dispersed responsibilities and overlapping functions, and is confusing to both insiders and those who seek to utilise it. 

Support for the proposition was not tested at the Forum and some influential figures clearly question this. Ombudsman Phil Clarke for one responded (29) to suggestions the complaints system is broken, commenting that he is yet to see the evidence.

A question mark that hung over proceedings was the purpose of the Forum and where things go from here. Professor AJ Brown raised this directly with the Premier in the first question of the day, and it came up again in the final session with Jon Grayson, Director General of the Premier's Department.

In the earlier exchange the Premier indicated the Government 'had views' about where it wanted to head but would take on board 'recommendations from the Forum.'  However the Forum didn't operate in a way that could have produced anything of the kind, and this role hadn't been suggested beforehand. 

I was glad of the invitation to be involved to a degree in reasonably informed discussion covering a broad range of issues. But discussion was wide ranging rather than focused, and none of the issues were covered in sufficient depth to lead to any conclusions.

Prof. BROWN: Thank you, Premier. My name is AJ Brown from Griffith University. My question to you and the Attorney would be what is the process from here? There has been the parliamentary committee review of some aspects of the recent management of matters by the CMC. There has been the Callinan/Aroney review. There are conflicting interpretations, I think, about what that review started out to do versus what it may have done. There are processes underway for finessing the implementation of the recommendations of those reviews. What is the outcome of today's forum going to feed into that process and how are those questions going to be resolved relative to the ones that we are doing today? What is our process for feeding into your thinking on this?
Mr NEWMAN: In relation to the two bits of work on the CMC, being the inquiry led by the chairman over here and the Callinan/Aroney review, the government has been considering that. I suppose it is fair to say that, if nothing else happened, we would have a way forward.We have views .We would be implementing what the member for Gladstone’s committee said and what Aroney and Callinan have said. We will be seeking to fuse those things together, particularly mindful of the very important role of the member for Gladstone in coming up with a way forward for the CMC . I guess the idea was to bring people together to consider more than just that. As I outlined, for example just on the complaints system, there is an opportunity— I suppose a bigger opportunity and a more strategic way we could go—which is to not just go and undertake the implementation of some of those CMC recommendations but, as a result of your deliberations, to take what you good people say today, take that on board and have a more comprehensive set of reforms that we could bring into the parliament. I guess that is the opportunity today.We are here, we are listening and the people in this room really are the key thinkers in the space. That is our view. If you have some strong recommendations out of today, I can assure people that that is going to be something that the government is going to take extremely seriously. Did you want to comment, Jarrod?
Mr BLEIJIE: Professor, in terms of the timeline, we have a few things on the plate at the moment with respect to the implementation panel for t he CMC review, working with the PCMC committee.We would probably expect by the end of the year to have it all wrapped up.The right to information/privacy legislation discussion paper that we have out at the moment is due to finish in November .It would be the comments from today and the feedback from today, with the implementation panel on the CMC and then the RTI, and hopefully bundle it all up at the end of the year so we can say, ‘This is the integrity framework in Queensland.'

Director General Grayson said next steps, well, remain to be seen:

The next steps: let me in the spirit of this forum be open and say that there is not a prescribed path forward. This was the first step and I will certainly be talking with the Premier about the next step. But the first step was to encourage an expression of views, which then the government and indeed the parliament can decide how we go forward

So watch that space.

Queenslanders and others with direct experience in dealing with complaints bodies and with other aspects of the integrity system there might want to complete  the Open Government online survey.

Too much tugging over who ministers meet

Queensland is soon to publish lobbying contacts.  

And Queensland Premier Campbell Newman and his Cabinet Ministers already publicly release information about portfolio related meetings and activities from their diaries. Not as fulsome as some might wish but a far sight better than other Australian jurisdictions. No other publishes lobbying contact information. Only one publishes the government leader's diary but the Prime Minister's Public Schedule lists media and public engagements and little else. 

In Canberra, as Anne Davies of Fairfax Media can attest, and Sean Parnell of The Australian knows from experience, and in the other states, access to ministerial diaries is still a freedom of information tug of war. In each case access decisions turn on facts, often the legislative prescription for a minister's document and relevant exemptions. In this day and age it's way short of the standard we should expect, the UK providing one good practice example.

1904 Olympics{PD-US}

 Back to the tug of war.

The Full Court of the Supreme Court of Victoria in Office of the Premier v Herald and Weekly Times Pty Ltd [2013] VSCA 79 recently ruled that the electronic "private diary" of the then Victorian Premier's Chief of Staff was an 'official document of a Minister' and was subject to legally enforceable public rights of access under the Freedom of Information Act 1982 (Vic).

That was a threshold question. The HWT applied in November 2011 for access to the diary entries for the period 1February 2011 to 28 February 2011. It's not over yet despite having won on preliminary points in both VCAT and the Supreme Court. It's back to the Office of the Premier (neither the premier nor the chief of staff involved are there any longer) to decide "whether any exemptions are applicable and also whether any irrelevant or exempt material can be deleted so that the OTP can grant access to the HWT to a redacted copy of the diary' [86]. Oh dear, patience where are you?

The Court upheld the decision of the Victorian Civil and Administrative Tribunal although on three points of construction of the act it took a different view: the diary was a single document not a series of separate documents each containing one entry [52-55]; a document held by a minister is subject to the act only if it is in the actual or constructive possession of a Minister in his or her capacity as a Minister [56-67]; and the words ‘relates to the affairs of an agency’ in the definition of official document of a Minister or official document of the Minister in Section 5 of the act should be interpreted more narrowly. 

On this point Judge Tate (Whelan JJA and Kaye AJA concurring) said:

77 However, I consider that the Tribunal was wrong to construe the phrase ‘relates to the affairs of an agency’ as ‘includ[ing] anything that could be considered the business of government or the exercise by a Minister of his or Ministerial functions’.[79] In my opinion, the phrase is clearly restricted to the business of those entities that fall within the definition of ‘agencies’ and not more generally to the business of government. Moreover, it is restricted to the ‘affairs’ of an agency which must include at least the business and activities of the agency. In addition ‘affairs’ must include an agency’s ‘concerns’ in the sense of the area of governmental responsibility the agency is designed to discharge, or the area of government policy it is designed to implement, in keeping with its function of supporting the Minister with respect to a ministerial portfolio.
78 While the word ‘operations’ does not appear in the phrase there is nothing to preclude the ‘affairs of an agency’ from including its operations, but there is also nothing to support restricting those operations to internal operations. Indeed, the submission ultimately made by the OTP, that a document which relates to the ‘affairs of an agency’ must be one that ‘require[s] the document to relate to acts or actions being done by or within an agency’, to my mind, would extend to the external operations of an agency. In particular, the ‘affairs of an agency’ would include actions taken, including meetings arranged, between an officer of a government department, or other agency, and an external entity (regardless of whether the external entity was also an agency). Such an arrangement is an action taken by the agency. Arrangements made between, on the one hand, officers of a government department, or other agency, and, on the other hand, a ministerial adviser from an external entity, including the OTP, are included within the ‘affairs of an agency’. Documents that bear a direct or indirect relationship to those arrangements are thus included within the documents that ‘relate to the affairs of an agency’.
79 In summary, a document ‘relates to the affairs of an agency’, and thus falls within the second limb of the definition of an ‘official document of a Minister’, if it bears a direct or indirect relationship to the business and activities of an agency, or the agency’s area of governmental responsibility, or to arrangements between government departments or other agencies and external entities, including arrangements between agencies and Ministerial advisers from the Office of the Premier.

As I commented previously argy-bargy on this question would be less if something along the lines of the NSW GIPA act formula was adopted in Victoria and elsewhere (emphasis added):

A reference in this Act to government information held by an agency is, when the agency is a Minister, a reference to government information held by the Minister in the course of the exercise of official functions in, or for any official purpose of, or for the official use of, the office of Minister of the Crown.

  
Overall though, on who ministers meet, way too much argy-bargy.

Whistleblower legislation: the what, who and when you can go public- in a fashion.

The Government will need votes from the independents to get whistleblower legislation

Mark Dreyfus

through the parliament, and one at least, Andrew Wilkie, speaks with authority when it comes to the subject. 

So differences between the Dreyfus bill of last week and the Wilkie bill introduced into Parliament last year and other best practice standards adopted in Queensland and the ACT, foreshadow further debate both on on big picture issues and fine points of detail. The Attorney General left the door open, in contrast to last week's media reform "take or leave it" debacle: 

"Given the complex nature of the issue I also consider that consultation should continue on the content and structure of the bill. If it becomes clear that the whistleblower scheme would benefit from legislative amendment I will be happy to bring them forward if this bill progresses."

Like most of you I'm waiting for the definitive analysis from Professor A.J Brown.
( Update 26 March: "Serious problems” that must be fixed, according to a report on Crikey (paywall) “Currently, I wouldn’t be supporting the bill,” Brown, who is also a director of Transparency International Australia, told Crikey. “There are too many things wrong with it in its current form to achieve its intended objectives. Brown’s biggest beef is that politicians — including the Prime Minister, ministers and the Speaker of the House of Reps — are not counted as “public officials” under the bill despite the power they wield. .It means public servants who blow the whistle on wrongdoing by politicians, including concerns about corruption or bribery, would not be protected. .... Brown’s second major concern is the sweeping exemption for disclosures about intelligence agencies.")

In the meantime a quick look at the big three: what is covered, who is covered and in what circumstances a person can disclose information to an outsider and still be protected.

What is covered
The Dreyfus bill is likely to get close to a tick for the broad range of matters covered by the definition of disclosable conduct. It goes far beyond the standard corrupt conduct, serious maladministration and serious or substantial waste of public money, to include a range of other conduct notably conduct that is "an abuse of public trust", that "unreasonably results in, or increases, a risk of danger to the health or safety of one or more persons", or "results in, or increases, a risk of danger to the environment."

Who is covered
The Dreyfus bill includes a lengthy definition of "public official" that extends to a person employed by a contractor, and under Clause 70, to an individual that an authorised officer determines can be taken to be a public official. 

Whether this is good enough for Wilkie remains to be seen. 

His bill specifically included in the definition senators, members of the House of Representatives and persons employed under the Members of Parliament (Staff) Act 1984. 

The parliamentary committee that Mark Dreyfus chaired in 2009 recommended ministerial and other staff employed under the MoPS act should be covered. The government responded in 2010 : The Bill  "will not authorise employees under the Members of Parliament (Staff) Act 1984 to make disclosures under the scheme. Disclosures will not be able to be made under the scheme about Members of Parliament. Allegations of wrongdoing by Members of Parliament should be addressed by the Parliament.Similarly, disclosures will not be able to be made under the scheme about Members of Parliament (Staff) Act 1984 employees."

External disclosures
Both bills set out circumstances where disclosure outside the system can qualify as a protected disclosure. Dreyfus is broader generally than Wilkie, the former opening up disclosure to any third person other than a foreign government official, the latter limited to disclosure to a journalist. 
(Update: Better wisdom. A.J Brown tells me "Wilkie is broader than Dreyfus on external disclosure -- not narrower... Wilkie makes it explicit that any person includes journalists, but still extends to any person than foreign public official.  Dreyfus is just not explicit on that, and much narrower in terms of other restrictions on when people can go public.")


And there are other differences. 

 For example, the Wilkie bill alone protects disclosure to a journalist without prior internal notification if a public official honestly believes on reasonable grounds that:

  (a)  the public official has information that tends to show disclosable conduct; and

  (b)  there is a significant risk of detrimental action or victimisation to the public official or someone else if a disclosure is made to a person mentioned in section 17; and

   (c)  it would be unreasonable in all the circumstances for the public official to make a disclosure to a person mentioned in section 17.

On a separate issue, the Dreyfus bill alone limits the information that can be disclosed in this way to where disclosure on balance, is not contrary to the public interest. That's quite a tightrope for any public official to walk. What if disclosure would reveal major corruption - say the bribing of officials here or overseas - but would reveal information that (under the FOI act) is the subject of an absolute exemption on grounds disclosure would be contrary to the public interest as a cabinet document, or information that arguably could damage international relations? Disclose that at your own peril by the sound of it.

An exception to this public interest test applies where the information reveals substantial and imminent (another high hurdle) danger to the health or safety of one or more persons.

A companion piece while this is on the table should be a government response to the ALRC
Report 112 Secrecy laws and open Government in Australia that has had no attention as far as those on the outside can fathom since it was tabled in March 2010. The draconian s 70 of the Crimes Act that criminalises unauthorised disclosure certainly fails Wilkie's "Kessing test."

Some extracts from the bills on these key issues follow.