60th anniversary of Universal Declaration

The two articles in the Universal Declaration of Human Rights that deal with privacy and freedom of information follow- the latter, while oft-quoted in the access to government information debate, doesn't quite amount to a right to know what government knows, but promotes a wider principle.

Article 12.

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Article 19.

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Solomon in Tassie

The Tasmanian Government is looking to David Solomon to help identify issues with stakeholders and will use his Queensland report as the starting point for review of the Freedom of Information Act .

ACT to abolish most conclusive certificates.

The ACT Government will introduce legislation in the Assembly on Thursday to amend the Freedom of Information Act to abolish conclusive certificates except in respect of documents claimed exempt on national security grounds.This stops short of the total abolition proposed by the Federal and Queensland governments, although in both those cases the national security exemption will remain tight.

All will be revealed on Thursday about this additional point in the ACT announcement :"The Freedom of Information Amendment Bill 2008 also proposes additional amendments to protect certain documents that ensure Ministers can fully exercise their responsibilities to the Assembly and its committees."

Parliament, transparency and accountability.

No jurisdiction in Australia has yet acted to bring parliament as an institution under the Freedom of Information umbrella. The latest best practice model, Queensland's draft Right to Information bill, specifically excludes the Legislative Assembly.

The Australian Law Reform Commission 1995 Open Government report recommended the Commonwealth houses of parliament be subject to FOI. So as we have been led to believe, we can expect to see something from the Government in 2009 about the recommendations in that long ignored report, maybe we will see a breakthrough soon.

To take things one step further, just imagine the jump into the 21st Century if things like the register of members interests was up on line!

In New Zealand the issue of transparency and parliament has cropped up again recently.The Dominion Post in this editorial about the problems of access to government information, says "the new Government should break with.. cynical tradition and agree to subject Parliament to the (Official Information) act, too, something even the prickly previous Speaker, Margaret Wilson, cautiously advocated last year."

Thanks to Rick Snell for the lead.

By the way, the register of interests of members of parliament in New Zealand is on-line and accessible here.

No laws in place to limit disclosure of personal information by NSW government agencies across state borders.

Should people in NSW be surprised to learn there are no legal restrictions on any NSW Government agency passing personal information about them (other than health information) to anyone in another state or territory, to a Commonwealth agency, or sending it offshore? This despite the fact that Parliament passed legislation 10 years ago in the form of the NSW Privacy and Personal Information Act, in theory to protect privacy?

Buried away on page 124 of the Consultation Paper issued in June by the NSW Law Reform Commission as part of its review of the NSW Privacy Act, is a note to the effect that the NSW Crown Solicitor is of the opinion that the relevant section (19(2)) of the Act, that would only permit disclosure to someone in another jurisdiction where a similar law applies to the handling of personal information, had not come into force, because it was only enlivened by the making of a privacy code of practice by the Attorney General.In essence it was for the Attorney General to decide where other jurisdictions had laws in place that were up to scratch.

The Attorney General hadn't got around to issuing the code for..... 10 years!

So the complainant in this case before the Administrative Decisions Tribunal was no doubt surprised to find that despite the fact that the Department of Education and Training had, before the matter got to the Tribunal, admitted a breach of the PPIPA Act as a result of passing personal information about her to a school in Victoria, the Tribunal, in response to a submission from the defender of privacy interests, the NSW Privacy Commissioner, ruled there was no breach of the Act. As there had been no privacy code of practice issued by the minister to which the Office reports, the limitation on disclosure interstate was not in force, and because of a rule of statutory interpretation, the provision limiting disclosure generally, did not apply. There had been no breach of the Act.

If you think this sounds like Alice in Wonderland you're right.There is no explanation about why the code of practice hasn't been made, why the authorities who have known about the Crown Solicitor's opinion since June 2007 haven't otherwise fixed the problem, or why the Privacy Commissioner's office thought that alone pushing this point against the interests of the privacy complainant was worth the time and public money involved.

I'm afraid it's all consistent with a long track record of disinterest in privacy issues by the NSW Government.

State secrecy laws should be under scrutiny as well

Secrecy provisions in state laws were outside the terms of reference of the ALRC review. I'm unclear what has happened in other states where there may have been an examination of the statute book, but in NSW review has been long promised- never delivered. In the new Right to Information era in Queensland, where there may have been a clean-out, Schedule 3 of the draft bill put on the table last week lists 16 acts with secrecy provisions that take precedence, including the wonderfully named Maintenance Act.

The Independent Audit of Free Speech Report last year (at 5.10) only managed to find 80 Federal acts and regulations with secrecy provisions against the ALRC's 166 and still counting, so it may have been also wide of the mark regarding the states where Western Australia (52), NSW and Victoria (both 45) and the ACT (33) topped the list.

All those with the glimmer of Freedom of Information reform in the eye should be following the Federal Government/ALRC lead to question why some secrecy dinosaurs from another age are necessary in an open society.

No wonder we have a culture of secrecy

Professor David Weisbrot AM
What happens when for more than 100 years (starting with the Post and Telegraph Act of 1901) you put secrecy provisions in various acts and regulations without regard to principle, clarity or consistency? One hell of a mess according to the consultation paper released today by the Australian Law Reform Commission( Review of Secrecy Laws).

In releasing the paper, ALRC President, Professor David Weisbrot said “The federal statute book has become riddled with secrecy provisions, which make unauthorised disclosure of government information a criminal offence. So far the ALRC has identified over 370 distinct secrecy provisions scattered across 166 pieces of legislation—many more than we expected to find."

The provisions range from the draconian Section 70 of the Crimes Act (two years in jail for disclosure of information without authorisation regardless of triviality or significance), to specific secrecy provisions in laws relating to national security, and then there's the Dairy Produce Act and the Port Statistics Act and plenty more where they came from.For many years it seems to have been fashionable to include a secrecy provision in legislation, almost as a matter of course.

Standing almost singularly on the other side of the equation we have the Freedom of Information Act 1982, its promise of open government, and the object of extending as far as possible the public right to access government information.Professor Weisbrot said “We seem to be caught in a time warp, between an old culture of secrecy in government and more modern ideas about the fundamental importance to democracy of ensuring openness and accountability.”

Perhaps no wonder public servants err on the side of caution, and that the culture of secrecy is firmly entrenched.The Commissioner in charge of the inquiry, Professor Rosalind Croucher said "a wrong call could lead to heavy fines and severe penalties,including a jail term."

Submissions close on 19 February.

I'm a member of the ALRC advisory committee that has had a little input into the research and analysis on this issue.

Say it isn't so, Minister Faulkner.

Peter van Onselen of Edith Cowan University had a long opinion piece in The Sunday Telegraph this week ( no link available) "Why party databases should concern us all", about the extraordinary detail held about us by the major political parties that might throw light on our voting intentions, concluding with the comment about how the laws made by political leaders suit their own purposes:

"So, party databases operate outside the law and there is nothing we, as citizens, can do about it. We're not allowed to access our files and parties can write anything they want about us in those files -- defamation laws are not applicable, either."

Van Onselen lamented that the databases were outside the scope of the Freedom of Information Act, but didn't mention that the Australian Law Reform Commission has recommended removal of the exemption for political parties from the Privacy Act, which would result in a right to access and correct personal information held. Or that Senator Faulkner has said this recommendation is to be considered in the second tranche of reforms- the first of the 295 recommendations will be acted upon in 12-18 months-with the rest to follow sometime in the unspecified future.So any consideration of reform is a long way down the track.

But van Onselen speaks for many in saying "I suspect self-interest will prevent Labor reviewing the rules by which such database software operates."

Say it isn't so Senator Faulkner.

Just say it isn't so, Malcolm

Malcolm Turnbull www.smh.com.au
In The Spycatcher Trial (Heinemann Australia 1988) a young Sydney barrister, Malcolm Turnbull, fresh from a notable court victory to allow publication of the memoirs of the late Peter Wright formerly of MI5, says " this book chronicles the greatest adventure of my life." The dust jacket says at the time Turnbull took on the case, the UK Government, and the Official Secrets Act, "he had a one percent chance of winning", and that his "brilliant cross-examination of British Cabinet Secretary Sir Robert Armstrong.. turned the trial in favour of Wright and made Spycatcher an international bestseller." Turnbull successfully argued the case on several grounds including that no injunction should restrain disclosure of information that the public interest required to be revealed, such as the illegal activities of British intelligence agencies.In the final chapter Turnbull says "Britain's absolute doctrine of official secrecy and its cynically inconsistent application has much more in common with the practices of the Soviet Union (RIP) than with those of its intelligence partners among Western democracies."

Turnbull, now Leader of the Opposition, could be expected to have strong views about excessive secrecy closer to home (how comfortable was he as a minister in the Howard Government?) and to support Senator Faulkner's bill to abolish conclusive certificates. But according to Matthew Moore in the Sydney Morning Herald on Saturday, the Opposition played a key role in ensuring the bill was wheeled off to a Senate Committee for four months, and remains uncertain about its position on abolition:

"So does the Opposition support scrapping conclusive certificates? Apparently, it doesn't yet know. George Brandis is the Opposition member with responsibility for FoI. His adviser, James Lambie, says the Opposition policy position on the proposal is "to await the Senate committee's report". He said while the Opposition doesn't have any "in principle objections to removal of conclusive certificates", it can't say it supports the move. Given that state governments have by and large got rid of conclusive certificates from their FoI laws, it's hard to imagine which stakeholders want them retained in the federal law and why the Opposition wants an inquiry - unless some members are concerned about the immediate impact the change might have.

One effect of the bill is that certificates issued previously will be revoked if and when a new FoI request for documents covered by a certificate is received. That retrospective revocation of certificates could see the release of bundles of sensitive documents, including Treasury documents, that members of the Howard Government assumed would be secret forever. If there is any such sensitivity, expect to see it in the face of Mitch Fifield, deputy chair of the committee investigating the bill and the former senior political adviser to Peter Costello until 2003 at just the time the former Treasurer was busy issuing conclusive certificates."

Can someone make sure The Spycatcher Trial is in the stocking for those opposition senators looking for a little reading over the christmas break?

The tale of two parties committed to change

In response to my comment that we are still in the dark ages regarding transparency of information about MPs travel and the register of members' interests, because while disclosed, they are not up on the web for all to see, a reader drew attention to the latest from the US- an invitation to the American people to take a seat at the table as the Obama team prepares to take charge on 20 January:

"Obama-Biden Transition Project Co-chair John D. Podesta announced that all policy documents from official meetings with outside organizations will be publicly available for review and discussion on Change.gov. This means we're inviting the American public to take a seat at the table and engage in a dialogue about these important issues and ideas -- at the same time members of our team review these documents themselves."

The memorandum to staff is here. A comment from the Huffington Post:

"It is a bold move on Obama's part. Down the road, when his proposals are turned into actual policy, it will be easy to see which groups won out and which ones lost in the process. That transparency could lead to accusations of favoritism and quid-pro-quos as well as hurt feelings among certain industries that felt they were stepped over or ignored. For good-government folks, meanwhile, this is potentially a very big deal. Obama is opening up his governing process to the public, which, for politicians, is hardly convenient. He is encouraging, in a way, a public competition between organizations to see who can produce the sharpest policy takes. And inevitably, he will be challenged to defend his work based on its merits, as observers will get an even keener sense of what kind of policy choices he had at hand."

Obama was elected on a platform for change and a commitment to open and transparent government. So was the Rudd Government. Six weeks before Obama takes office he has started to deliver.The Rudd Government a year after election it is still to make a bold move-introducing a requirement for a register of lobbyists and a bill to abolish conclusive certificates hardly qualify- with no new instructions or guidance to staff that mark the start of the promised new era. And still working on the basis that tabling documents in Parliament about MPs travel and declaration of interests is all that transparency requires. Plus ca change.....

Disclosures about ministers and MPs still in the dark ages

Senator Faulkner had a busy day yesterday- his ministerial statement on integrity in government touched off this debate with barbs flying in both directions- and he also tabled three documents concerning travel by ministers and members of parliament.The register of member interests also surfaced in Canberra - The Age thought this was the most interesting entry and this report on others bobbed up in Fairfax papers.

Here is where there is a disconnect between rhetoric about openness, and day- to- day reality. None of the documents containing details about MPs travel or interests are posted on the web (other than a few totals for travel costs by ministers and ministerial staff attached to Senator Faulkner's media release).

So access is limited to those who find their way to the Table Office in Parliament House in Canberra during business hours and ask to see the tabled documents, or to what the media find interesting enough to include in the paper. So those couple of reports on members interests referred to above and this Sydney Morning Herald report on ministerial travel containing a few tidbits (there may be others).

A modern system of open government worthy of the name would provide all of the travel information and the register of interests on-line so everyone potentially interested could see what any or all MPs have been doing at our expense, and what interests they have declared.

Senator Faulkner should know after a year in office that public servants left to their own devices are unlikely to suggest or act on these matters without some strong direction from the top.

Thanks to Open Australia for the lead on the debate in Parliament- this small group are doing a fantastic job

Faulkner on the record as Parliament packs up for the year.

Cabinet Secretary and Special Minister of State Senator John Faulkner made this ministerial statement " Restoring Integrity in Government" in Parliament yesterday, as the parliamentary year draws to a close.

Much of the ground was similar to that covered in his speech to Transparency International at the end of October, with a couple of new references to recent initiatives such as the plan to provide assistance to public servants on ethical issues, and a fresh commitment to respond to reports to government within three months.

As stated previously, the Government is to be commended for its overall record in this area, though something closer to real time public reporting of political donations, something more stringent than a published register of lobbyists, and something much faster than the snail-paced approach to Freedom of Information reform would have boosted our assessment of performance.

On FOI after referring to the bill to abolish conclusive certificates Senator Faulkner said

"This is a first and significant step towards meeting our commitment to greater openness and transparency. Early in 2009 an exposure draft of legislation covering other pre-election commitments on FOI, including the proposal to establish an Information Commissioner to champion FOI across Government, will be released. The Government is determined to make access to information an easier process for members of the community. Naturally we accept, as I know those opposite have in the past, that there is some information which, for the protection of Australian interests, will not be made public. My goal is to ensure that information is withheld only when there are sound reasons. As part of the Government’s determination to strengthen integrity in governance, the Australian Government is committed to a pro-disclosure culture within the public sector."

He concluded:

"..the challenge to achieve and maintain integrity, transparency, responsiveness and accountability in government is never really over. The Government will continue to work towards even better outcomes. The start that has been made, however, is I believe impressive. It amply demonstrates the strength of our commitment to these principles."

First reactions to Queensland's Right to Information draft

A quick look through the 178(!) pages of the Queensland draft Right to Information bill is heartening in many respects, somewhat disheartening in others.

Heartening in particular that the drafting style is straightforward, relatively plain english; in the emphasis on proactive disclosure and agency publishing schemes; to find a great preamble that captures the democratic principles that underpin the legislation; the clear statement of objects to provide a right of access to information unless disclosure on balance is contrary to the public interest; and at least a slimmed down list of exemptions.

Disheartening to see how much detail is needed to list those agencies not covered, types of documents of some agencies excluded, other acts that take precedence, and the long list of public interest factors that may weigh against disclosure. It might be our best effort yet at a modern access to information law, and necessary to spell things out, but page after page of what you can't get and potential arguments to be used to deny access makes for depressing reading.

Here is some of today's media coverage: The Australian's Queensland based FOI Editor Sean Parnell says the "final reforms are far from clear" and points out a couple of instances where the Solomon recommendations haven't been followed.

FOI reform process-Queensland first then daylight second.

The Queensland Government, good to its word that this step would be taken before year-end, has launched the Right to Information era, and its general acceptance of recommendations in the Solomon Review of the Freedom of Information Act, by:

• inviting feedback on the release of the draft Right to Information Bill (PDF 754 kB), draft Information Privacy Bill (PDF 689 kB), and draft Right to Information Regulation (PDF 203 kB). The Queensland Government has also released an Explanatory Guide (PDF 292 kB) about the draft Bills.
• releasing information about recent matters considered by Cabinet
• introducing online FOI applications (in addition to current ways of applying for information under the Freedom of Information Act 1992 (PDF 826 kB))

Yet to have a look at the drafts, but on sticking to process commitments, a gold star for Premier Anna Bligh.

FOI procedural complexities- keep on trucking.

In an unusual Freedom of Information matter before the NSW Administrative Decisions Tribunal, the issue of the Tribunal's powers to refer a matter to the Ombudsman has again emerged.In this case the agency decided to release requested documents; a third party who unsuccessfully argued to the agency they should not be released on business affairs grounds, and applied for review by the Tribunal, then sought to stay those proceedings while it asked the Ombudsman to investigate the conduct of the agency officers involved; and the agency argued that taking it off to the Ombudsman meant the matter couldn't come back to the Tribunal. All clear on that?

The Tribunal in Damorange Pty Ltd v Roads and Traffic Authority [2008] NSWADT 309 decided there was no barrier to referring the matter to the Ombudsman, and ordered the parties back to a round-table to work out what to do next.

The substantive issues in the case are yet to be addressed.The applicant, Michael McKinnon, FOI Editor of 7 Network, sought documents from the RTA "relating to Safe T Cam produced in the last three years showing, for each year:

1. The number of (a) cars and (b) trucks caught travelling at excessive speeds including the highest speeds recorded each year.

2. The number of trucks travelling beyond prescribed hours. I am also interested in any documents showing repeat offenders in relation to exceeding prescribed hours and documents showing whether drivers from any particular company or firm are consistently breaching prescribed hour limitations,

3. The number of (a) unregistered cars and (b) unregistered trucks.

4. Incidences where drivers have attempted to avoid detection by Safe-T-Cam."

Just how any of the documents contain information "concerning"-that is "about' or "regarding"- the business affairs of Damorange, or involve disclosure of information that would have an unreasonable adverse effect on those affairs, remains to be seen. A search on the web shows Damorange is a trucking company. The rest is left to the imagination until the Ombudsman or the ADT in a subsequent decision reveals more, or Network 7 runs the story.

Procedural and jurisdictional issues take up an inordinate amount of ADT time and resources.There have to be better answers in the interests of those involved and the poor old taxpayer.

Has the new era of openness entered the FOI training room?

With the Federal, NSW, Tasmanian and Queensland governments all committed to greater transparency and to changing the culture within government regarding access to government information (with major changes to the law to follow sometime), you have to wonder what if any new messages are being given to new and old FOI hands in training programs in these jurisdictions? A thought prompted by indications in the Canberra Times Diary that the year is ending with a bang with the following Freedom of Information programs scheduled for next week. Do they kick off with an appearance by Senator Faulkner, a video of the Prime Minister talking about the new era of openness, or is this still premature?

"December 9 : Australian Government Solicitor Introduction to Freedom of Information for new or recently appointed FOI coordinators or contact officers; employees at all levels who are responsible for dealing with FOI requests or just need to be aware of FOI in the course of their duties should attend this full day training session. Inquiries to 62537126 or 62537436 or email cbrtraining@ags.gov.au

December 10: Australian Government Solicitor Key Exemptions in Practice This full day training is designed to significantly advance the knowledge and skills of FOI decision makers and practitioners in assessing whether documents ought to be exempt from release and is an advanced module of the Introduction to FOI training. Inquiries to 62537126 or 62537436 or email cbrtraining@ags.gov.au

December 11: Australian Government Solicitor Internal Working Documents For employees who have attended our Introduction to FOI course. FOI decision-makers, in particular, will benefit from attending this full day course which explores the coverage of section 36 of the FOI Act. Inquiries to 62537126 or 62537436 or email cbrtraining@ags.gov.au"

AFR joins in on "too slow on FOI reform"

Regular readers have seen it here before and in the Sydney Morning Herald, but it's good to welcome the Fin on board.

From the editorial "Secrecy still haunts corridors of power" in yesterday's Australian Financial Review (still so tight with their on-line material that this is all they let the world see for free about the opinion they hold):

"The rhetoric of Special Minister of State John Faulkner is to boost government transparency and accountability.......What we have seen has been slow and piecemeal, and not necessarily accompanied by attempts to challenge the culture of secrecy that permeates government and its agencies.Some progress appears to be emerging. But the political will on such issues tends to wane rapidly...Last week the government introduced legislation that will scrap..conclusive certificates... Broader reforms have been delayed which is concerning.... There is much work to do. Creating a pro-disclosure culture will require unequivocal messages from ministers about the importance of a receptive approach to FOI requests.An independent statutory officer..which the government has mooted would assist in championing greater public disclosure...The plethora of secrecy laws in hundreds of statutes should be simplified and many abolished.But the delays in meaningful reform are a worrying sign."

The Fin editorial came after comments along the same lines last Saturday by Matthew Moore in the Herald:

"The fact that the Government is doing anything in this vexed area is welcome; the shame is the timetable for more substantial reform has slipped into next year at the earliest....The lack of urgency means departments are behaving just as they were under the previous government......The Rudd Government insists it is committed to "a pro-disclosure culture within the public sector" but, on the evidence so far, the task is all ahead of them."

Fine line on leaks in the UK

Frenzy of protest and indignation in the UK media over the arrest of Conservative MP Damian Green in connection with a series of leaks of information about immigration matters, for the common law offence of (depending on who you read) aiding and abetting a person, or conspiring to have a person commit misconduct in a public office. Apparently in the home of the Official Secrets Act, that didn't get rolled out on this occassion.

Nick Robinson of the BBC suggests the line between receiving leaks (fine) and inducing them (maybe criminal) may have been crossed. All will no doubt be revealed in due course,and an update today with the floating of a public interest defence by the source of the leaks.

Apparently the last time a member of parliament in the UK was arrested on these grounds was 70 years ago. Has it ever happened here?

Child protection in NSW hampered by BOTPA

Former Justice James Wood has also given the NSW Government a report in three volumes, concluding his inquiry into child protection services.There are lots of very serious issues here for urgent attention, including in Chapter 24 ( Volume 3 page 958), problems arising from our patchy and complex privacy laws which have created an environment that constrains sharing of information about children in need.

BOTPA- Because of the Privacy Act strikes again.

The Report suggests that some of these problems may be more imagined than real on close legal analysis, but perceptions colour everything, and the public servants and others involved are convinced they can't do what should be done.

Wood came across a Department of Community Services draft document developed this year as a guide to staff on privacy issues- at around 80 pages and counting, it was a work in progress that he suggests should stop.More detailed information might make things even worse.The Report recommends legislative change to ensure appropriate information sharing between government agencies, and between them and NGOs, that may be involved in the safety and well-being of young persons.

The big picture privacy issues, and hopefully how to simplify the law, are still under consideration by the NSW Law Reform Commission whose Consultation Paper in June also identified information- sharing barriers in the name of privacy protection as a problem in child protection.( Wood is also Chairman of the Commission)

Some of the references in Chapter 24 to "codes of practice" suggest confusion even among Wood and his team between a code of practice (which has legal status as an instrument approved by the Attorney General to permit departure from the current act by an agency in the public interest) and a code of practice so described which amounts to an agency approved guideline for staff which has no legal force.

The Executive Summary and Recommendations provides the essentials for those daunted by two three volume reports in the same week..

Sun set to shine on performance that matters in NSW Health.

Just to follow on from COAG's Communique on the publication of health and education performance information,the Report of the Special Commission of Inquiry into Acute Care Services in NSW Public Hospitals by Peter Garling S.C was released on 27 November.

The Report runs to three volumes and over a 1000 pages - The Executive Summary and Recommendations is a little easier to navigate.

Garling proposes four pillars of reform to require NSW Health to change and adapt to the new, with a four year IT plan for up-to-date technology, and the publication of meaningful information on performance in the provision of quality safe care at the top of the list.

(It's wonderfully ironic that on the same day the report was released Ross Coulthart and Nick Farrow won the Gold Walkley for Journalism for uncovering earlier this year the deeds of "The Butcher of Bega" through "weeks of painstaking work ( that) uncovered dozens of victims, including fatalities, and the failure of the NSW health system to stop it." And that we had headlines like this " Butcher review kept secret" just last May.

On health information (Summary 1.53-1.60), Garling says:

"All of the leading world experts to whom I spoke, told me that understanding, analysing and publishing sensibly health information will lead to big improvements in health care. They are right. Information is the basis for knowing where health care in hospitals is at, where it has to go,and when it has arrived."

The current regime only measures how quickly people are seen in the Emergency Department or have their surgery. Garling recommends the establishment within three months of an independent Bureau of Health Information to identify, develop and publish patient care measurements on seven criteria designed to show whether patients were treated safely and properly. After a year, he recommends publication of quarterly reports on these criteria regarding performance of each unit or ward, hospital, area health service and NSW Health as a whole.