FOI delivers grist to the right to know in WA campaign

Documents obtained under the Freedom of Information Act have partly been responsible for keeping the explosion at the natural gas plant at Varanus Island on the front pages in Perth during the state election campaign.Who could disagree with Opposition Treasury spokesman,(ahem) Troy Buswell:

"The people of Western Australia deserve to know the truth. They don't deserve over after over of political spin."

Leading to this retort from the Treasurer, something Mr Buswell is sure to hear often in the next weeks:

Mr Ripper returned fire, saying he took "great exception" to be called a liar by Mr Buswell, who he said had not told the truth over the chair-sniffing incident and support for former leader Matt Birney in a leadership spill.

The Premier denies any cover up.

Welcome call for calmer consideration

Glad to see that a couple of other media wise men have joined others such as Matthew Ricketson and Jack Waterford mentioned here yesterday, to blow the whistle on some of the over the top reaction to the Australian Law Reform Commission proposal for a cause of action for breach of privacy.

Mark Day in The Australian, suggests there is time and scope for a debate about all this, and little need for concern that the proposal will impede reasonable media activity .

The following is by Eric Beecher, a former editor of the Sydney Morning Herald and appeared in yesterday's Crikey:

"It's an article of faith for journalists and most others in the media industry: privacy laws are bad and therefore, implicitly, bad for freedom of the press.

Which is why the chorus of media industry response to this week's Australian Law Reform Commission's recommendations for new laws that would give people the right to sue for invasion of privacy all comes from the same well-worn hymn sheet.

A chorus led by The Right to Know Coalition, an organisation made up of media groups like Fairfax, News and the ABC -- lustily supported by battle-weary protaganists like media lawyer Peter Bartlett (who also happens to advise Crikey on litigious matters) -- today argued in The Age that "the recommendation to introduce a tort of privacy could be likened to hitting a nut with a sledgehammer".

But at the risk of questioning a venerated sacred cow -- and at the risk of muddying one's own patch -- isn't it legitimate to ask whether the media is on solid ground when it continues to rage against all and any kind of privacy limitations?

Of course, most sensible people would oppose privacy laws that could stifle exposure of corruption or improper behaviour by politicians, public officials and others who affect the viability of the democratic process. But do most sensible people also support the right of photographers to stalk celebrities, of reporters to expose the s-x lives of non-entities or of News of The World journalists to plant a video camera in a pr-stitute's bra in order to film the s-xual habits of a sports entrepreneur.

The problem here is of context and proportionality. In the Watergate context, any restraint on media investigation is appalling. In the News of the World context, it is difficult to defend either the media's behaviour, its ethics or its arguments for legal protection to invade privacy.

A completely responsible media would have no trouble eliciting widespread support for conducting its fourth estate role with vigour. In the absence of such a beast, it's getting much harder to reject the alternate view -- as articulated today by the president of the Australian Council for Civil Liberties, Terry O'Gorman -- that the "so-called right to know" has been "elevated in some quarters into the right to do anything".

Wisdom of experience from former Victorian Premier

John Cain was Premier of Victoria when the Freedom of Information Act was introduced in 1983. In the Herald Sun today he reflects on some of the lessons learnt through experience since, and offers some advice to those currently at the helm of the state Labor Government. Forget about the ludicrous plan to provide for up to 75 days to respond to applications, speed up the process and tighten up on business claims regarding"commercial in confidence."

The following observations are relevant to government leaders throughout the country:

"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. "

Has any Victorian Government leader said a word on the subject since the FOI Amendment Bill failed to pass the upper house earlier in the year?

In the NSW ADT, what an agency says about documents held, goes.

The new harsh reality arising from the NSW Court of Appeal decision that the Administrative Decisions Tribunal cannot look behind an agency claim about what relevant documents are held is captured in this Tribunal decision dismissing a review application:

"In the course of his reasons, Basten JA noted that the Commonwealth Freedom of Information Act 1982 is drafted differently. In particular, s24A of the Commonwealth Act specifically confers power on an agency to refuse a request for access to a document if all reasonable steps have been taken to find the document, and the agency is satisfied that the document is in the agency’s possession but cannot be found, or does not exist. A decision to refuse access on that basis is reviewable by the Commonwealth Administrative Appeals Tribunal under s55(1)(a), as “a decision refusing to grant access to a document in accordance with a request”.

The Court of Appeal decision is of course binding on the Tribunal, and is clear. The Tribunal has no jurisdiction to go behind an agency’s determination that it has provided access to all the documents it holds that fall within the terms of a request for access. The applicant’s reliance on the Federal Court decision in Chu v Telstra Corporation Ltd [2005] FCA 1730 is misplaced, given the differences in drafting between the Commonwealth Act and the New South Wales FOI Act. In this matter the applicant requested access to the “file” referred to in Sergeant Weston’s report dated 28 February 2006. The respondent has provided access to what it says is the only document that falls within the scope of that request, namely Senior Sergeant Fitzjohn's fax dated 10 February 2006. The applicant's contention that there must be more documents is not a determination reviewable under s53. In the absence of jurisdiction, the appropriate course is to dismiss the application."[20-21]

Another battle pits vested interest against public benefits from transparency

Of course Acting Prime Minister Julia Gillard is right in taking every opportunity to get the message out that we need greater transparency about school performance. In a long list of interviews she has pushed the issue along in recent weeks with this basic theme:

"I would like to see performance information for schools available in the public domain and available most particularly to parents. And the reason we want to do that is to not create simplistic league tables that tell you nothing. We want there to be rich performance information available. We want to understand who is studying in each school, the number of children in each school who may face some form of educational disadvantage and need extra help. And we want to understand how schools are attaining so we can compare schools in like positions and if one’s doing better than the other, find out why and then spread that best practice. It’s in everybody’s interest, and certainly the interest of every Australian child studying at school today, for the maximum amount of information about our education system and their school to be available publicly and we will be pressing for that."

Mark Coultan offers some lessons on this from personal experience in New York, where the Minister recently saw first hand the performance benefits from greater transparency. As Coultan (and this editorial) in the Sydney Morning Herald points out " it is this sort of information that the entire education establishment, including teachers' unions and state governments, is determined to suppress."Here is a prime example from Western Australia:

"WA Council of State School Organisations president Robert Fry said data about school performance and demographics should be kept secret because it would invite unfair comparisons between schools."

Go Julia!

Is frenzy the right word?

There are plenty more opinions about privacy reform proposals to come, but Matthew Ricketson in The Age today seems to share the view expressed here yesterday about the "end of the world as we know it" line running strongly in some sections of the media:

"In the weeks leading up to the release of the Australian Law Reform Commission's massive report on privacy, the Right to Know coalition has been sounding the alarm at the prospect of a new law against invasion of privacy.''Privacy threat to celebrity coverage'' was the headline in the Media supplement of The Australian on July 31 for its lead story, which began: ''The celebrity media industry could be thrown into turmoil by moves to restrict reporting on public figures''. Am I the only person who thinks this reads rather like an item in the satirical American newspaper The Onion or an out-take from The Chaser?"

The short answer is no.Ricketson goes on to acknowledge that there may be some validity to the concerns expressed about the proposed cause of action, but as public cynicism about the media is widespread, by focusing on the proposed law's impact on the media, the coalition risks narrowing the debate unduly.He suggests some other issues, for example, the privacy threats from the embrace of new technology should be attracting media interest.

The Canberra Times( "Mixed reaction to privacy proposals") seems to have picked up Ricketson's message in a broad assessment of the report, and Jack Waterford in the same paper( "What we can't know hurts you") has a thoughtful analysis of legitimate claims to privacy, the rise of BOTPA ("Because of the Privacy Act") and government accountability, including this:

"BOTPA is one, if only one, of the reasons for general media cynicism and suspicion about proposals for new privacy laws. Another one, about which the public ought to be quite cynical, is the fact that some sections of the commercial media thrive and profit from invading the privacy of celebrities, starlets, models and sometimes ordinary non-consenting members of the public who have stumbled into a public spotlight. Trivial gossip has become bigger and bigger business in most cases with the implicit consent of most of the ''victims'' but has very little to do with the public interest, or with reasons why the media can, or ought to be able to, claim that in respect of its monitoring of the exercise of public power it is acting in the public interest."

Elsewhere( including in The Age) the headlines are enough to disappoint Ricketson:
"Overkill in defence of privacy"- The Age, but at least the other side in "Civil liberties group for media reform"
"Privacy laws shield malfeasance"- The Australian. The editorial sets up a straw man with this warning: "..it would be a serious mistake to remake the rules governing the operation of the media by enshrining privacy as an inalienable right which, at all times and in all circumstances, trumps all other considerations."
"If you've nothing to hide"- The Australian.
"New law to hide behind"- Herald Sun.
And a less outraged "Right to know(2):privacy- Sydney Morning Herald.

Getting the balance right reporting on the ALRC privacy report

The coverage of the ALRC privacy reform proposals, particularly the proposed cause of action for breach of privacy, in some media seems somewhat inaccurate and a little over the top. All of the following are from The Australian

It started yesterday with"Privacy laws to protect celebrities": One of the 295 recommendations is for "the Government (to) legislate to introduce a privacy law for the first time."Correction:Australia has had a privacy act since 1988 .

" Privacy overhaul a win for those with most to hide"includes this from the producer of 60 Minutes:"The tentacles of this run to the very core of an investigative journalist's role in the community, which is why the public interest provisions have to be enshrined if they go ahead with this." And this in "Media fight looms on privacy laws" from a spokesperson for Australia's Right to Know : "Protection of privacy needs to be balanced against the public interest in allowing the free flow of information and upholding freedom of speech," . Correction:that is exactly what is proposed.

"Real news will be at risk"includes this "When the Australian Law Reform Commission unveiled its push for a new way to sue the media, it had a problem. The most it could do was point to the actions of judges, not journalists."Correction: the proposal is for a cause of action for breach of privacy and is not aimed specifically at the media. As for complaints, most people affected haven't complained because that would draw further attention to what is being complained about- an alleged breach of privacy. Given the absence of meaningful compensation who would want to go through the process. As to numbers of complaints, there has been a steady stream of complainants to the Australian Press Council over the years.

All media organisations and journalists (MEAA menbers at least) can point to codes of conduct that include respect for privacy-but none define the term, or provide meaningful redress.Some including the MEAA do not publish information about complaints.

While there is plenty of room for debate about the details, the proposal sensibly suggests some meat on the bone, sets a high hurdle for action, isn't aimed specifically at the media, and is balanced by the public interest and the right to freedom of expression.

And guess what? On other related issues" Debate rages on privacy legal reforms" The Australian reported that business and government agencies don't think much of the idea that they should tell us when serious breaches of security affect personal information they hold about us. Unfortunately the release of the report coincided with "Ticketek bungle prompts privacy debate", but it could have been worse-only email addresses were involved. Political parties can't be far behind in telling us that bringing them under privacy laws will surely be the end of the world as we know it.

I have a sneaking suspicion there is a fair degree of support out there for the views of 2SM's Leon Delaney:

"Among the more vocal critics of the report is a group calling itself the “Right To Know Coalition”, a collection of powerful media companies led by News Ltd, who are concerned about the possible impact that the proposed changes would have on journalism. In particular, it is suggested that investigative journalism would become much more difficult, and that journalists and their publishers could be subject to new forms of legal action.

While it is important to protect the freedom of the press, and freedom of speech itself, I wonder if the Coalition is more worried about the massive revenue derived from tabloid reporting of the private lives of celebrities. Genuine investigative reporting will continue to be protected because of the public benefit. However, what passes for investigative reporting these days often amounts to Today Tonight or A Current Affair pursuing nickel and dime panhandlers and trailer trash welfare cheats and making a spectacle, rather than tackling serious issues with broader significance.

There seems to be an unhealthy obsession with the private lives of movie actors and pop stars driving a massive celebrity trivia industry. If these so called news outlets really want to do something about preserving the freedom of the press it would be a good idea if they did something a little more worthwhile with that freedom."

Elsewhere in the Blogosphere I liked North Coast Voices suggestion that the Commission deserves a medal:

"You've got to admire the guts shown by the Australian Law Reform Commission.

With the Rudd Government still dragging its heels on implementing the very moderate reforms to sedition laws recommended by the commission two years ago and within a week of the Iemma Government giving NSW Police carte blanche to bug our phones and read our emails without first getting a warrant; the ALRC presents its report on privacy. I'll be blowed if I know why it hopes that pollies will be bothered to even read the executive summary, public servants be moved to do anything but buttress their 'right' to supadupa unsafe data bases or business curtail that endless quest for more and more information it can crunch into digital form and on sell - but I appreciate the incurable optimism displayed."

Queensland shows others clean heels on FOI reform

Queensland Premier Anna Bligh says the Government will respond to the recommendations in the Solomon Review of the Freedom of Information Act this month, as promised.

ALRC Privacy report hits the deck with a bang-all 2700 pages

The Final Report on the Australian Law Reform Commission review of Australia's privacy laws has been released today together with detailed briefing notes, listed below. At 2677 pages in three volumes, there is plenty of fine print, and from what I heard today, the Government plans to take time for further reflection with legislation 12-18 months down the track.

Harmonisation, simplification, consistency and the need to modernise our thinking about privacy in the light of technological change are key concepts that will have plenty of support.But there will be different opinions about much of the detail, including the proposed mandatory notification of serious breaches of security of personal information, and the proposed cause of action for serious invasions of privacy. On the latter, the media is certain to run a strong campaign suggesting this would constrain freedom of expression, but the Commission's proposal is not specifically aimed at the media; establishes a high hurdle for plaintiffs ( a reasonable expectation of privacy, the act or conduct complained of is highly offensive to a reasonable person, and was reckless or intentional); and provides for balancing considerations including whether the public interest in maintaining the claimant’s privacy outweighs other matters of public interest (including the interest in informing the public about matters of public concern and the interest in allowing freedom of expression).

The briefing notes are helpful. I have struck out so far on the Commission's link to the report Summary - probably in melt-down this afternoon. ( If you are looking for the short cut try instead this summary of recommendations from the Commission's media release and the speeches by the Attorney General and President of the Commission at the launch)

Simplifying and harmonising privacy law and practice
Technology-neutral privacy principles should govern rapidly developing ICT
New cross-border privacy laws-greater certainty for all Australians
Rationalisation and clarification of exemptions to the Privacy Act
Improved complaint handling and enforcement
Introducing a mandatory data breach notification scheme.
Reform of the credit reporting system
Children, young people and privacy
Protecting Health Information in the Digital Age
A statutory clause of action for serious invasions of privacy: getting the balance right

Federal Court FOI decision broadens scope for access to court documents

The decision by Justice Gray of the Federal Court of Australia in Bienstein v Family Court of Australia [2008] FCA 1138 will provoke lively interest around the country, particularly from our best legal minds, as it examines what documents held by a court relate to" matters of an administrative nature", and, as a result, are subject to the Freedom of Information Act. Most state and territory FOI acts contain a similar provision, so the decision is of broad significance, although His Honour made much of the legislative history of the particular provision through the Federal Parliament, and what was said at the time by its proponents. So there may be some room for distinguishing this interpretation of the Federal law from other instances where the words or similar words are used, something lawyers, on the bench or elsewhere delight in exploring. For those who administer the federal courts at least, the breadth of the exception to the operation of the Act for some court documents has been significantly reduced.

Justice Gray rejected the view that only documents that contain general information about matters of administration such as those relating to the number of sitting days, the number of cases determined, the number of cases withdrawn, the number of cases subsequently appealed and criminal cases in which bail was awarded, were subject to the Act.He said it was an error to to interpret the Act to mean that all documents relating to a specific matter in court files were excluded from the right of access.The objective of the provision was to protect from disclosure documents that would endanger the independence of the judiciary.

"What emerges from the context of s5 as well as from the extrinsic materials, is a concern that documents the revelation of which would impinge upon the independence essential to the exercise of the judicial function, or the decision-making process, should not be made available. It follows that, while the words "relates to matters of an administrative nature" in s5 (and also in s6) should be interpreted as including documents that bear upon the exercise of the judicial, or decision-making, functions, only those documents the availability of which would not impinge upon the necessary independence should be regarded as documents relating to matters of an administrative nature. The test will not necessarily be easy to apply. Its application will depend upon the terms of the request for a document, and may require an examination of the circumstances in which the document was produced and is retained. In the application of the test, however, it is necessary not to take too strict a view of what is necessary to be kept confidential in the interests of preserving the independence of the judicial and administrative decision-making functions."[78].

Justice Gray found that in failing to apply the proper test, the Administrative Appeals Tribunal had erred in law.

"...(I)n enacting s5 of the FOI Act Parliament intended that some of the documents held by courts would be the subject of access by those applying under the FOI Act. In providing for the making available of any document that "relates to matters of an administrative nature", Parliament was intending to draw a distinction, within the overall category of documents relating to the exercise of the judicial function, between those that were part of the exercise of that function, or so closely related to it that their confidentiality is essential to the exercise of the judicial function, and other documents held by a court."[80].

The matter, now in its sixth year, has been referred back to the Tribunal to undertake the proper assessment. By the way the Family Court had been prepared to settle the case by providing the applicant with the requested documents, but she was apparently having none of this until the point of principle about the interpretation of the Act was cleared up. An experienced FOI applicant who was self-represented, she at least will have out of pocket expenses paid, as the result of a cost order.

The decision comes a week after the NSW Attorney General released a draft paper with new proposals for access to NSW court documents. Matthew Moore pointed out some shortcomings in the draft in his "What they won't tell you" column in the Sydney Morning Herald a week ago.The general issue of improved public access to court documents is also on the national agenda and harmonisation of rules received a mention in this recent communique from the Standing Committee of Attorney Generals

Northern Territory Treasury guards royalty payments "in the public interest"

The Northern Territory is in the news following a surprisingly tight election on Saturday. As well, a rare Freedom of Information story made it into the Northern Territory News as a result of a Treasury decision to refuse a request for information concerning royalty payments from individual mining projects in the Territory. Hope the News received more detailed reasons for the knockback than "the information was exempt in the public interest."It sounds as if disclosure would also breach the Taxation Administration Act and the Mineral Royalty Act, a more compelling argument if true, but the end result is a lack of information about the use of publicly owned assets.

Apparently the issue isn't just one for the Territory :

"Executive director of the South Australian Centre for Economic Studies Michael O'Neil said the problem was the same in South Australia, with BHP Billiton's Roxby Downs uranium, copper and gold project. "There's been no public discussion of what is going to come back into Treasury,'' he said. "The end point is the community doesn't know whether it is getting value for money.''

High Court FOI decision puts Osland case back for reconsideration

The High Court of Australia, by a 5-1 majority has allowed an appeal by Marjorie Osland against a decision of the Victorian Court of Appeal concerning access under the Victorian Freedom of Information Act to advice provided to the Attorney General by three prominent lawyers to deny her petition for pardon for a murder conviction.The Court held that legal professional privilege had not been waived in relation to the advice as a result of a press release issued by the Attorney General.However it decided that the Court of Appeal erred in law when it did not examine the documents in question before deciding that, in the circumstances of the case, there was no basis for the exercise of the "override discretion" to release a document where the public interest requires(Section 50(4) of the Act).The Court remitted the matter to the Court of Appeal for further hearing to enable it to inspect the documents to consider whether public interest overrode legal professional privilege.The Media Release summarises the facts and findings.

Readers of the fine print will be interested to see that the joint judgment of four judges in the majority was that waiver of privilege required " a judgment that the conduct of the party entitled to the privilege is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. Such a judgment is to be made in the context and circumstances of the case, and in the light of any considerations of fairness arising from that context or those circumstances."[45].

In this case:

"The evident purpose of what was said in the(Attorney General's) press release was to satisfy the public that due process had been followed in the consideration of the petition, and that the decision was not based on political considerations. The three eminent lawyers who gave the advice were appointed following consultation with the State Opposition. They were external to the Department. Their advice covered all the grounds upon which the petition was based. They recommended denial of the petition. Their advice was carefully considered, and the petition was denied. The Attorney-General was seeking to give the fullest information as to the process that had been followed, no doubt in order to deflect any criticism, while at the same time following the long-standing practice of not giving the reasons for the decision. This did not involve inconsistency; and it involved no unfairness to the appellant. If she had a legal right to reasons for the decision, then she still has it. If she had no such right, the press release did not deprive her of anything to which she was entitled. What the Attorney-General said did not prevent the appellant from making public her petition, or any part of it, as and when she desired."[48]

Justice Kirby, in a separate judgment in which he agreed with the majority used strong words on the importance of the objects of the Act, the "new"realities concerning disclosure of documents that arise as a result, and areas of significant disagreement on some of these issues with the sole dissenter, Justice Hayne:

"Repeated disparagement of the expression "transparency in government suggests an approach to the FOI Act that I cannot share. In so far as the Tribunal made reference to considerations of transparency, it was correct to do so. As the short title of the FOI Act suggests, as its long title affirms, and as its stated objects demonstrate, the public purpose of the FOI is precisely to enhance transparency in government to the extent provided. That object is critical given the oft-repeated instruction of this Court that statutes should be read, so far as their language permits, so as to fulfil their evident purposes. The Tribunal and the courts must bear in mind the distinctive and radical purposes of the FOI Act and take particular care when reaching conclusions that appear to frustrate them."[114]

There is more, including reasons why "producing controversy is legitimate", not contrary to the public interest[121-123], something government leaders and public servants everywhere might reflect upon.

Canberra two-step

In this review of recent Federal developments in Club Troppo (and this week's Public Sector Informant in The Canberra Times), former senior public servant Stephen Bartos, now with the Allen Consulting Group, is on the money about the good move to abolish conclusive certificates under the Freedom of Information Act; disappointment at what we are seeing in practice in secrecy in the Haneef inquiry; and failure so far to follow outstanding models from elsewhere in the publication of important information about performance and other aspects of government.

Still waiting for promised review of NSW secrecy laws

The Federal Attorney General's decision to have the Australian Law Reform Commission take another look at secrecy provisions in laws, and related issues, serves as a reminder that in NSW there has never been a similar review, despite an undertaking at the time the Freedom of Information Act was passed 20 years ago

This is what was said by the minister managing the matter in Parliament during debate on Clause 12 0f Schedule 1 of the Bill,which exempts a document where disclosure would constitute an offence against another act:

"The Premier has indicated that consideration will be given to reviewing the secrecy provisions of the individual legislation. We will do that. Legislation will be assessed to ascertain whether it is appropriate to remove secrecy provisions from specific Acts, rather than have a freedom of information bill which would eliminate all secrecy in one fell swoop." (Legislative Council, Parliamentary Debates (8 December 1988) 4687).

The relationship between the Freedom of Information Act and other legislation that prohibits disclosure of information, absolutely or subject to qualifications, is an ongoing problem in the administration of the Act. This is what the Administrative Decisions Tribunal Appeal Panel,chaired by the President Judge O'Connor said in a decision in March 2007:

"(T)he Government of the day in 1988 promised the Parliament and the community of New South Wales that the secrecy provisions exemption would be reviewed. The Premier of the day committed the Government to ensuring that all legislation containing secrecy provisions would be assessed to ascertain whether it is appropriate to remove secrecy provisions from specific Acts. The Premier of that time failed to implement the promise, and no action has been taken since.

We repeat the concern previously expressed that active reliance by agencies on secrecy provisions in their statutes could mean that the FOI Act will cease to have any application to many parts of the New South Wales public service thus undermining the very purpose of that legislation. Secrecy provisions are a commonplace of agency statutes in New South Wales. The result is an unsatisfactory one".[40-41]

There has been no visible sign of a Government response in the 18 months since.

FOI academics can teach too.

It's a good sign for future interest in freedom of information that three academics who follow the subject closely have been recognised in the 2008 Australian Learning and Teaching Council Citations for Outstanding Contributions to Student Learning.Congratulations all round

Rick Snell of the University of Tasmania:"For an outstanding capacity to inspire and encourage student learning across the undergraduate law degree from first-year to final year students"

Professor Rick Sarre of the University of South Australia:"For sustained excellence in course development and presentation that continues to motivate and inspire students of law and which has successfully integrated research with teaching"

Associate Professor Stephen Lamble ( and Ms Gillian Cowden) of the University of the Sunshine Coast: "For creating innovative curricula and developing research informed teaching resources that enhance graduate employment opportunities in the profession of journalism"

Secrecy laws under the microscope

The Australian Law Reform Commission, just released from its review of the Freedom of Information Act, has now been asked to look at Federal laws that contain secrecy provisions.

“I have asked the ALRC to develop options for ensuring a consistent approach across government to the protection of Commonwealth information,” said Attorney‑General Robert McClelland. There are currently more than one hundred secrecy and confidentiality provisions in Commonwealth legislation. The interaction of these provisions with one another, and with other legislation, is overly complex.” “We are committed to open and accountable government and want to ensure that Commonwealth information is only protected where there is a legitimate reason for doing so.Where there are legitimate reasons for protecting Commonwealth information – such as information relating to national security – we need to ensure that our laws provide sufficient protection against unauthorised disclosure."

The terms of reference are broad and include "the way in which secrecy laws in the Crimes Act interact with other laws and practices, including those relating to secrecy, privacy, freedom of information, archiving, whistle‑blowing, and data-matching."

It's a bit much to be critical of this move, as the whole area is a hell of a mess. But reform is a long way off . The Commision will not report until the end of October 2009. And some, most, a lot of the territory, is well trodden.

For example Section 70 of the Crimes Act criminalises all unauthorised disclosures, and excludes any public interest or other defence. In 1991 the Review of Commonwealth Criminal Law chaired by former Chief Justice of the High Court, Sir Harry Gibbs recommended among other things, repeal and replacement with a provision limited to specific categories of information "no more widely stated than is required for the effective functioning of government."

Nothing happened.

In 1995, the Australian Law Reform Commission Open Government Report recommended (12):

" The recommendations of the Gibbs Committee should be implemented as soon as possible."

Nothing happened, at least in respect of Section 70, except that it continued to be used to prosecute, most notably against Allan Kessing arising from publication of a report about deficiencies in security at Sydney Airport.

And a deja vu moment for the Commission, now about to commence an examination of Federal secrecy laws.Recommendation 13 in the 1995 Report:

"A thorough review of all federal legislative provisions that prohibit disclosure by public servants of government held information should be conducted as soon as possible to ensure that they do not prevent the disclosure of information that would not be exempt under the FOI Act."

There was some tidying up of the FOI Act subsequently, but almost 13 years later, and four years after the Commission again recommended it have another crack, the parcel is back with the Commission.

Understandably, the Commission is enthusiastic about the task, given its previous work in this area:

"ALRC President Professor David Weisbrot noted that the Commission has been actively involved in this general area for some time.“Over the last decade or so, the ALRC has provided reports and recommendations to government about improving freedom of information laws, privacy laws and practices, the protection of classified and security sensitive information, the preservation of archival resources, and client legal privilege in federal investigations."

Name and shame thinking doesn't alter attachment to old ways

California Association of Child Care

"Name and shame" rolls off the ministerial tongue easily these days in NSW- first in connection with a website to list penalty notices issued for serious non-compliance with food safety standards; this week, the Premier used these words in announcing a website to publish details of successful prosecutions for breach of regulations by pre-schools and child care centres.
Maybe it's some sort of hang over from the state's early days as a penal colony?

In both instances the Government stopped short of embracing transparency as a tool to be used to promote public policy and regulatory objectives.Publishing details of penalty notices is one thing, but compliance with food handling standards would improve generally if inspection reports were published, providing an incentive as well for those that do satisfactorily to do even better. The same goes for compliance with regulation of centres that look after kids. Successful prosecutions are in any event a matter of public record, so publication on a website might be of assistance to those interested but no big deal.When it commences the Premier expects ten centers will be listed as a result of 3300 inspected since 2004.

You don't have to search far on the web to find examples of highly transparent regulatory models. In the UK, Ofsted, the Office for Standards in Education,Children's Services and Skills publishes inspection reports on all centres involved in safeguarding children- 162 childminders and 73 daycare providers just last week. Regulators do the same in many other places, including Alaska .

As for NSW moving from nothing to something is the best we can manage....,for the moment at least

Old certificates won't block access if documents are sought again

The transcript of Cabinet Secretary John Faulkner's media conference last week announcing the intention to abolish conclusive certificates under the Freedom of Information Act, included a couple of points that didn't make much news, including this on other procedural changes, and documents covered by certificates that have been issued in the past:

"This legislation abolishing conclusive certificates will also include some additional measures relating to the AAT's procedures for handling FOI reviews including having the Inspector-General of intelligence and security provide evidence to the AAT in relation to national security documents.

In terms of existing certificates, they will be revoked if and when new applications are made for those documents which have been the subject of those certificates.I do stress, however, that the revocation of existing certificates will not affect the ability of decision-makers to claim exemptions under the FOI act where it is legitimate for them to do so. The abolition of conclusive certificates is the first stage of our proposed FOI reforms."

This represents movement since April when Deputy Prime Minister Julia Gillard spoke to the Maritime Services Union on this subject.The Union has a special interest in documents concerning what the Deputy PM then described as the Howard Government cover up over the 1998 waterfront dispute, complete with conclusive certificate to block access to a Freedom of Information application for documents about government involvement.

"No decisions have yet been made on how our changes to the FOI laws, which will prevent conclusive certificates being issued in the future, should deal with conclusive certificates issued in the past. That issue needs to be considered as part of our changes to the legal framework."

You can almost hear the keyboards clicking as those who have been on the receiving end of certificates in the past, such as the Union, Michael McKinnon of the 7 Network, and other journalists, dust off some of those applications to give it another shot.While technically the power to issue certificates remains until legislation is changed, Senator Faulkner was proud of the Government's record in this area:

"the critical thing here is that no conclusive certificates have been issued during the life of the Rudd Government and to my knowledge none have been proposed."

NSWLRC on privacy sees long lost review quietly surface

The NSW Law Reform Commission has released a consultation paper on privacy reform in the state, a response to a reference from the NSW Government in early 2006.The paper confirms what everyone who has looked at the issues knows- that the laws are a mess of complex, confusing, overlapping provisions with more gaps than a six year old's smile. Here is the Commission's media release, and The Australian's report today "Twisted privacy laws to be opened up, says commission" Submissions on a raft of recommendations and questions that emerged (including the relationship between privacy, freedom of information and other laws) are invited by 17 October. The Discussion paper is here

One of the side issues raised by some content of the paper is how the NSW Government views statutory obligations and transparency.There must be something deep in the psyche that explains a cavalier approach to the former and a disinterest in the latter.

Way back in November 2003, the Attorney General Bob Debus, now occupying high office in Canberra, had a duty under the law to review the Privacy and Personal Information Protection Act, and to table the report in Parliament by November 2004. Submissions were invited, but that was the last heard until the Minister sent things off to the Law Reform Commission in April 2006. This didn't remove the statutory duty to undertake and table the review. As far as anyone (well me and others who work in the field, at least) knew the silence continued, right to the present.

However readers of this week's discussion paper who get to paragraph 3.8, learn the review was tabled on 25 September 2007.To say this was without fanfare is an understatement. Buried away in footnote 40 they will find reference to the Government's response.Ditto. Missed them- thought they might get a word of elaboration? Both were tabled along with 178 other papers that day .

In between in the discussion paper, there are references to 22 recommendations and 70 submissions the Government has been sitting on for four years.None of this has surfaced publicly anywhere previously- nothing from the Attorney General, nothing on the Department's website or that of the Privacy Commissioner. I take it that it's never received a mention in the regular meetings since September last year of those who are responsible for privacy and freedom of information matters in NSW government agencies. So reforms that were suggested four years ago-we're yet to see the full list-are now part of another review process that has taken over two years to get to the discussion paper stage. And presumably Parliament didn't give a toss that a report was tabled three years late,without any explanation.

Victoria leads, then daylight, on legal spending disclosure

Another issue for the already crowded "can do much better"box.

According to this report in today's Australian "(no) other government -- state or federal -- comes close to matching Victoria's commitment to disclosing data about its spending on legal services."Chris Merritt adds the transparency " helps the Government focus on problem areas and gives the wider community a good idea of how it is spending millions of dollars in public money.That cannot be said of any other state or territory government. Because of that, nobody can blame voters in other states for suspecting the worst."