Ministers not so high on the hog

I like this from Rex Jory in The Advertiser in Adelaide today (no link) following reports based on Freedom of Information disclosures about ministers' spending on entertainment. Although I'd part company with Jory's "so what" about Grange at taxpayers expense. And the best way to avoid "shock-horror' reporting is to make this information available routinely, on the web. The public can distinguish dull from too flash, when it comes to use of our money.

"It was one of those elegant Sydney restaurants set high above the city with views of the Harbour Bridge and the Opera House. The menu was expensive as well as expansive - the sort of place folk like me only go for a special celebration.Nearly every table was occupied but in the prime window position a table set for 12 was empty. Suddenly billionaire businessman Kerry Packer swept in with a group of businessmen and took over the empty table. Mr Packer was obviously the host. Other diners were abandoned as a waiter stood behind every chair at the Packer table. French champagne and Penfolds Grange flowed. When we left, the dinner was still in full swing. It is hard to imagine Mr Packer would have got any change out of $10,000. It's the way the complex world of business works. Spend big to entertain clients and, who knows, perhaps clinch a major business arrangement.

One night at a silver service Adelaide restaurant I happened to sit quite close to the then Prime Minister, Malcolm Fraser, who was entertaining a local businessman. They were drinking Grange which, at today's prices, would probably cost around $800. I can only presume the Prime Minister was paying. So what! It's part of the necessary cost of running a government, or a business.

These dinners make the disclosure by the State Opposition recently of the entertainment expenses of some State Government ministers look paltry and small town. On this evidence, to accuse ministers of lavish expenditure is narrow thinking. Pay peanuts and get monkeys. I'm not blaming the Opposition for pursuing, through documents obtained under Freedom of Information laws, the Government's entertainment bills. That's what oppositions are about - keeping governments honest and accountable. But let's keep the entertainment spending in perspective.

A random example. The Health Minister, John Hill, ran up a bill for $219 at a lunch for four people at Chesser Cellars. He should be congratulated. I've spent that much at a table for two with the great lunch-time legend, Des Colquhoun. I scanned the fine print in the Opposition's disclosures, reported in the Sunday Mail, to find even the sniff of a scandal, a hint of financial indiscretion. It quickly became evident that Cabinet ministers are a boring lot. I'd be surprised if some of them don't take beef and pickle sandwiches to work to help the Government save money.

The Treasurer, Kevin Foley, spent $29 on a glass of Moet champagne while entertaining the Philippines trade ambassador. On a good night, I've spilled that much. The Premier, Mike Rann, spent $275 on a meal with an undisclosed number of representatives from the Carnegie Mellon University. That's hardly excessive. The blunt truth is governments cannot function effectively without entertaining real or potential investors and other people who can help make the running of government more efficient.

It's not always convenient or productive to talk to potential clients across a business desk. A mutual venue, like a restaurant, with a meal and some fine wine makes guests feel more important and more relaxed. In some cases the investment in a meal and a bottle of wine can reap enormous dividends for the state.

It is like criticising politicians for travelling overseas. Certainly in the case of Cabinet ministers, discussions with world business and political leaders and first-hand experience with emerging technology developments can have huge long-term benefits.

I'm not encouraging governments to abandon spending caution and toss around the credit cards. The figures so far revealed suggest the present Government is prudent, even dull. The Government should do what it has to, without fear of criticism, to attract new investment, new jobs and increased economic security to South Australia.

If that means the Deputy Premier has to spend $29 on Moet, it's a price we all have to pay."

New chairs at the seat of power

Michael Cooley Senior Adviser to the Cabinet Secretary and Special Minister of State, takes up the position of Senior Adviser - Governance and Probity in the Prime Minister’s office today. Now it's a good thing the PM has someone nearby with that title and another good thing it's someone like Cooley. But the team that came in with background, experience and commitment to Freedom of Information reform (and the whole raft of other promised integity reforms) when the Government came to office - Senator Faulkner ( the first ministerial appointee and now Minister for Defence), Kate Harrison as Chief of Staff to the Minister (who followed Faulkner to Defence) and now Cooley - have all moved on, while we are yet to get the reform bill into Parliament, let alone up and running. After close to two years. High priority reform? Queensland, NSW and (soon) Tasmania have shown Canberra a clean pair of heels on this one.

Good luck and best wishes to Cooley and to Cecelia Burgman, an adviser to Senator Ludwig, who will take responsibility in the Minister's office, for Privacy, Freedom of Information and Archives. And to those of us still waiting for change.

Tasmanian FOI replacement bill through lower house

The Tasmanian House of Assembly passed the Right to Information Bill and related legislation yesterday. Some changes from the Draft are evident and interested to see any close analysis of the differences.The promise of greater proactive disclosure has been given more credibility by a provision requiring the Ombudsman to issue guidelines on all means of access and disclosure, including publication, informal and formal requests. Still room for quibbles ( "impecunious" even survived) but overall significant, positive change.

The House also passed the Personal Information Protection Amendment Bill.

Both bills now go to the Legislative Council.

NSW court information problematic, so too reform measures.

Over three years ago the NSW Government issued a discussion paper on proposed changes in the law regarding access to court information, and I for one had heard little since. So interesting to read in Court review shows nobody was listening by Susannah Moran in today's Legal Affairs in The Australian that a consultation draft Court Information Bill has been released for comment. According to Moran, Australia's Right to Know "is very disappointed with a bill which purports to further the principle of open justice but in fact will be more restrictive than previous practice in NSW and less liberal than in a number of other Australian jurisdictions." A search of the Legislation and Policy Branch of the Department of Justice and Attorney General's website turned up an Access to Court Information Paper dated 2008 but no sign there of the Consultation Draft Bill, or any update since. Update: it's here on Lawlink's Latest- thanks to an alert reader on 20 October.

The slow grinding wheels of justice, or at least policy reform......

Federal FOI and privacy law changes

If you are interested in more information than in the previous post about the interplay between the proposed new Federal privacy law and the Freedom of Information Act as it now stands, and might become in the light of the Government's FOI reform proposals, particularly access and correction issues, see the response and narrative regarding Recommendation 29 starting on page 64 of the First Stage Response pdf 805kb

A related issue for policy makers, given recent Queensland and NSW access to government information laws that adopt the existing Federal Privacy Act definition of personal information, is this recommendation and response:

"Recommendation 6–1 The Privacy Act should define ‘personal information’ as ‘information or an opinion, whether true or not, and whether recorded in a material form or not, about an identified or reasonably identifiable individual’.
Response: Accept
The Government agrees it is important for the definition of personal information to be sufficiently flexible and technology-neutral to encompass changes in the way that information that identifies an individual is collected and handled. The ALRC’s recommended definition continues to allow this approach and also brings the definition in line with international standards and precedents. The proposed definition does not significantly change the scope of what is considered to be personal information. The application of ‘reasonably identifiable’ ensures the definition continues to be based on factors which are relevant to the context and circumstances in which the information is collected and held. The Government proposes that this element of the definition will be informed by whether it would be reasonable and practicable to identify the individual from both the information itself and other reasonably accessible information."

Rewrite of privacy law for 21st century

The Federal Government has announced its stage one response to the Australian Law Reform Commission's Report 108, For Your Information: Australian Privacy Law and Practice.

In a speech to the International Association of Privacy Professionals in Melbourne, Special Minister of State Senator Joe Ludwig said the Government’s intention was to effectively rewrite the Commonwealth Privacy Act 1988 for the 21st Century. Full details of the response are contained in this 144 page response released at the same time. The response sets the foundation for a revamped privacy framework, addressing 197 of the 295 recommendations in the ALRC’s Report. Key features, as outlined in the Minister's speech and in the detailed response are to

• provide for one set of Privacy Principles for Commonwealth agencies and relevant businesses alike. Senator Ludwig said the Government was all too aware of the flaws of regulatory duplication, unnecessary complexity of obligations and rights, and the impediments to information-flow inherent in the current situation of treating the Government and private sector separately. New Government proposals for the Privacy Principles include: a requirement to take reasonable steps to implement compliance with the Privacy Principles, under the ‘openness’ principle; a ‘missing persons’ exception under the ‘use and disclosure’ principle; greater accountability for entities that transfer information overseas under the ‘cross-border data flows’ principle; and specific permission to handle Commonwealth, state and territory government identifiers for identity verification purposes under the ‘identifiers’ principle.
• deal with developing technology by ensuring the Privacy Act will be technology neutral. Various parts of the response will further protect against emerging threats and privacy pitfalls by empowering the Privacy Commissioner to undertake research, and provide guidance and education on technologies that enhance or impact on privacy. Biometric information will be included in the definition of ‘sensitive information’ (reflecting its unique nature and heightened risks of misuse)
• strengthen the Privacy Commissioner’s powers of investigation, compliance and enforcement of the Act. The Commissioner will be able to handle complaints and gather information more effectively, compel appearances or production of documents, accept enforceable undertakings, and seek civil penalties for serious or repeated breaches of the Act. A new development will be a three-tiered scheme for binding Privacy Codes. Binding codes can be developed by organisations or agencies voluntarily, but the Commissioner will also be able to request a group of organisations or agencies to develop one where it would serve the public interest. If they fail to comply, the Commissioner can impose a mandatory code on the group. The Commissioner will be able to direct an agency to provide a Privacy Impact Statement. For the private sector, the Commissioner will be empowered to conduct Privacy Performance Assessments of personal information records to see if they are abiding by the Privacy Principles.
• provide for the enhanced use of data for the purpose of credit reporting while including additional specific protections to ensure such data is used appropriately. In order to allow credit providers to undertake a more robust assessment of an individual’s credit risk, the Government will make changes which allow five positive datasets - the type of each active credit account, date of opening and closure of account, account credit limits and credit repayment history- to be included on an individual’s credit report.
• improve health sector information flows and provide additional guidance for the use of health information; enact new rights to request transfer of records and to be told what will happen to health records if a provider closes down or changes hands
• support and facilitate research in the public interest by simplifying regulation,while protecting community expectations of personal privacy. A harmonised set of rules for Government and private sector researchers will replace the two sets of binding guidelines on non-consensual handling of personal information; and the research provisions will be expanded to allow such handling for any research in the public interest, not just for health and medical research. Two important parameters of the current regime will also be maintained: the public interest in research must ‘substantially outweigh’ the protection of privacy – requiring a clear choice in favour of the research; and the National Health & Medical Research Council and the Privacy Commissioner will retain primary responsibility for issuing and approving the research rules.
  
• new and consistent provisions on cross-border data flows. Agencies and organisations will remain accountable for personal information which is transferred overseas unless there is: informed consent of the individual; a legal requirement or authorisation for the transfer; strong public interest grounds; or, the other country has a law or a binding scheme, similar to the Privacy Principles, that will protect the information. Such a law or scheme must be enforceable by the individual. A mere contract binding the overseas party would not be enough to remove accountability for the information if it is offshore and there is no viable remedy for the individual.
• through guidance and legislative amendment make clear that the Privacy Act (not the FOI Act as is the case at present) is the primary avenue for access to, and correction of, an individual’s own personal information. The Privacy Act will be the key Commonwealth law for the collection, handling, disclosure and accessing of personal information. The focus of the FOI Act is intended to be on access to documents held by government other than an individual’s own personal information. However, in recognition that there will be circumstances where documents held by agencies contain a mixture of: (a) an individual’s personal information; (b) the personal information of third parties; and (c) non-personal information, in such a way as to make it difficult to release only the individual’s personal information, or that individuals may make access requests for files that contain such a mixture of information, the Government agrees that rights to access some personal information should be retained under the FOI Act. Agencies will need to establish administrative processes for dealing with the different access and correction requests that will arise under the Privacy and FOI Acts, having regard to the types of records and information they hold. Guidance on the interaction between the two Acts will be critical for agencies.
  
• work with the states and territories to harmonise privacy law across the nation. The first stage response will create a platform from which the Government can pursue national harmonisation through discussion with the states and territories. Ultimately, the aim will be a consistent set of privacy standards for the Commonwealth, state and territory public sectors, as well as the private sector. The Federal Government will be looking to the states and territories to repeal privacy laws including health privacy laws that apply to the private sector. Additional national consistency issues will be considered in the second stage response.

Of the 197 recommendations addressed in this first stage, the Government

• accepted 141, either in full or in principle;
• accepted 34 with qualification; and
• noted 2 recommendations.

20 recommendations were not accepted. While opinions will differ, only two struck me as noteworthy: rejection of the recommendation to extend privacy protection to personal information held about a deceased individual dead for 30 years or less; and rejection as unnecessary of action to ensure that federal legislative instruments establishing public registers containing personal information set out clearly any restrictions on the electronic publication of that information.

The Australian Law Reform Commission was pleased with the "giant tick" for its recommendations.

Next steps: the Government intends to release an exposure draft bill reflecting these changes to be sent to a Parliamentary Committee for consultation early in 2010, before returning to Parliament with a final bill. Once the first stage has progressed, the Government will then begin considering the ‘second stage response’ to the ALRC’s remaining 98 recommendations. ‘Second stage’ issues include proposals to clarify or remove exemptions; data-breach notification; a statutory cause of action for serious invasions of privacy; telecommunications privacy; decision making issues (such as authorised representatives and children’s privacy); and further national harmonisation.

NSWADT override discretion limited where legal privilege applies

The background and complex detail of a five year battle (and numerous Tribunal and court decisions) arising from a Freedom of Information application for access to legal advice about responsibilities of the University Council provided to the University of NSW will only be of interest to those very serious about their NSW FOI. The culmination, in the Court of Appeal in McGuirk v University of NSW [2009] NSWCA321 involved a draw for the parties on legal points as the two issues for consideration went one each way but Mr McGuirk will end up with his document if this is the end of the ride, and with a limited order for costs for part of the proceedings.

Of broader significance however was that in the course of the decision the Court unanimously declared [92] the NSW Administrative Decisions Tribunal has no power under s 63(2) of the Administrative Decisions Tribunal Act 1987 to grant access to a document which is found to be exempt by virtue of Schedule 1, cl 10 ( the legal professional privilege exemption) of the Freedom of Information Act 1989 (NSW). As explained below (with all due respect etc) the reasoning for the decision seems questionable.Mr McGuirk gets to prevail for reasons that are too complicated to explain here [41-87 if interested].

There is nothing in the relevant NSW laws (unlike Federal legislation) that states the Tribunal cannot order the release of an otherwise exempt document. But no provision (unlike Victoria) either that confers an override discretion. The issue of the Tribunal's powers on review of Freedom of Information decisions has been long contested.The Supreme Court (Nicholas J) in another case involving the same parties, University of New South Wales v McGuirk [2006] NSWSC 1362 at [102] ended years of uncertainty and differing decisions by tribunal members when it decided that the Tribunal had the same discretion as the original decision-maker where a document has been found to be exempt: that is to consider whether disclosure or non disclosure was the correct and preferable decision, consistent with the objects of the Act. The reasoning was that Section 25 of the NSW FOI Act provides that in determining an application an agency may (not shall) refuse access to an exempt document. Section 63 of the Administrative Decisions Tribunal Act provides:

(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.”

Justice Nicholas cited the following passage from the Tribunal decision in Mangoplah as correctly stating the position:

“85 Consistent with this jurisprudence, absent any special limitation on the Tribunal’s review function in applications under the FOI Act, it has the function by reason of s 63 of the ADT Act – indeed the duty – when reviewing a determination under ss 24 and 25 of the FOI Act to consider all issues arising in the case in relation to whether a document should be released. As indicated above, once a ground for refusal of access arises under s 25(1)(a) the issue arises whether to exercise the discretion to release an exempt document which is not a restricted document the subject of a Ministerial certificate. The decision under review must have, or must be taken to have, addressed this discretion before determining to refuse access on the ground of an exemption. The Tribunal must also address it”.

In the Court of Appeal, the only ground of appeal by the University against a decision of the Tribunal Appeal Panel considered [26] was that the Panel had erred in proceeding on the basis that it had power to grant access to a document exempt by operation of legal professional privilege. The University submitted [31] that any power a relevant officer of the University may have had to grant access to a document subject to legal professional privilege arose under the general law and not under any enactment. Justice Basten (with whom Justices Ipp and Macfarlan agreed) said:

32 Because s 63(2) is limited to the exercise of functions conferred or imposed “by any relevant enactment” the power to waive legal professional privilege is not a power enjoyed by the Tribunal..... A relevant enactment must be an Act, regulation, by-law, rule or ordinance.. Where the University obtains advice from lawyers, its rights with respect to that advice will depend upon the general law, even if it is obtained for the exercise of its statutory functions....

33 In the present case, there was no relevant grant of statutory authority. The power to waive privilege did not arise under any enactment. Accordingly, at least in respect of the exempt document in question, no power was conferred on the Tribunal by s 63(2) of the ADT Act to waive any legal professional privilege as might remain extant.

The problem with this is that while there is strong legal precedent for the general proposition, the FOI Act contains a clear additional statutory provision regarding release of documents, including any containing legal advice.The decision completely ignores the FOI Act- clearly an enactment for the purposes of Section 63(2) of the ADT Act- and Section 25 which contains a provision of the kind contemplated by Section 63(2): the exercise of functions by the administrator who made the decision, that is to release an otherwise exempt document.This isn't waiver but a statutory discretion. Parliament didn't put legal privilege documents outside the scope of the discretion. Section 25 formed a key element in Justice Nicholas' reasoning, but doesn't get a mention anywhere in Justice Basten's consideration [29-40] of the relevance of other provisions of the ADT and FOI acts. Section 63(2) provides the Tribunal with the same functions as were available to the determining officer.

Justice Nicholas' decision about ADT powers had for different (and more understandable) reasons been qualified by the Appeal Panel in IPART v Services Sydney [2008] NSWADTAP 79. Although not the central point in the case, the Appeal Panel decided [46] that the discretion did not extend to documents found to be exempt under clauses 1, 2 and 4- "restricted documents" in the language of the NSW Act.

This issue of ADT override discretion will not be relevant when the NSW FOI Act is replaced by the Government Information (Public Access) Act early in 2010. The issue in any ADT review of refusal of access under GIPA (except those concerning Cabinet and Executive Council documents where review is to be limited to whether there are reasonable grounds for the claim) will be whether there is an overriding public interest against disclosure of the information. Those with FOI cases before the Tribunal concerning legal professional privilege claims however can forget arguing that the Tribunal should exercise its discretion to grant access- unless there are any takers for another Court of Appeal challenge?

Public money between us and the tax office, says Acting Premier

Acting Premier Paul Lucas

In a recent post we commended the Queensland Information Commissioner's submission on the Government's Green Paper on Integrity and Accountability, which included the suggestion that the push agenda of Right to Information reforms (transparency) should be applied to the expenditure of all public monies, including Ministerial and Parliamentary allowances unless it can be shown to be clearly contrary to the public interest. Well how about this from AAP in The Australian today when the Acting Premier commented on the idea:

"Acting Premier Paul Lucas said on the Gold Coast that MPs were already accountable to the tax office. "I don't want to see an army of bureaucrats - who are taxpayer funded - being employed to check expense claims," Mr Lucas said."

Has anyone told Mr Lucas the Commissioner's suggestions also included "make work" ideas that gifts and hospitality received by Ministers, Members of Parliament and public sector employees and their travel and entertainment expenses should be published online? He'll be starting to wonder what you have a tax office for.

More public access to information about child care centres catching

This report for the Department of Community Services on NSW childcare centres wouldn't give parents great confidence in childrens' safety in the system, but a tick in any event for those who decided the report should be publicly available. The report made other recommendations but none about how more transparency might promote better compliance with the law and standards. Minister for Community Services Linda Burney however told Andrew Clennell of the Sydney Morning Herald about new legislation to be introduced that will toughen up the compliance regime including powers "to name and shame centres that do the wrong thing.'' Queensland and NSW are now both on the job on this one.

Hyperbole and the human rights debate

The Sydney Morning Herald in its editorial was sceptical about actions recommended in the Brennan Report to protect human rights. But the Weekend Australian was in a class of its own slamming the report in two front page leads, this by Paul Kelly and another by Kelly and Chris Merritt. Kelly labelled "hyperbole" the claim by Opposition Attorney General that the report threatened "the most important de facto alteration to Australia's system of government in our history. " I sent a letter to the editor on Saturday, but no dear reader it's not published today. However to the editor's credit the one letter that made it, written by a manager of a legal service for the homeless, rightly took issue with another claim that a Human Rights Act would be a triumph for elites, arguing instead it would be "a victory for the most marginalised and disadvantaged members of our community."My unpublished contribution:

"George Brandis wasn’t the only one resorting to hyperbole.Your reports of mixed fact and opinion under headlines featuring” enormous problems,” “chaos,” and “poisoned chalice” on the “human rights lobby”, its alleged political agenda to obliterate the Howard cultural legacy and its plans to change our system of government, were over the top.The Australian’s “Right to Know” banner only makes sporadic appearances these days but its interest in rights clearly stops short of any meaningful embrace of broader internationally accepted rights and ways to best protect them. Victoria and the ACT don’t seem to be on another planet despite adopting comparable schemes to the dastardly proposals put forward by Brennan. By the way 16 of the 31 proposals were for protections other than by way of a Human Rights Act. What’s the problem again with initiatives that Paul Kelly acknowledges would bring Australia “into line with international human rights norms”? You give little hope to those of us who are confident we can better define and protect rights and sort out the wrinkles and problems on the way through."

Australians say human rights need better protection.

The Brennan Committee report to the Federal Government on the National Human Rights Consultation makes 31 Recommendations, 16 concerning action to protect and promote human rights more effectively and 15 about a Human Rights Act for Australia and the preferred model- the "dialogue" model allowing for judicial opinion concerning incompatibility, but Parliament at the end of the day to prevail, along the lines of models currently operating at state level in the ACT and Victoria. Rights in seven international treaties signed by Australia (subject to any claimed reservation) including the International Covenant on Civil and Political Rights (Articles 17 and 19 confer a right to privacy and to information respectively) should be protected and promoted; and the right to privacy and the right to freedom of expression are among those listed for inclusion in the Act. The Chairman on ABC PM explained the proposed model and discussed what turned him from a self-confessed sceptic - it all makes welcome good sense to me.

Best public service should lead on open government as well

In the weeks since the Prime Minister set the Australian Public Service what he said was the "entirely reasonable and achievable" aspiration to be "the best public service anywhere in the world", an Advisory Group on Reform of Australian Government Administration has been appointed, chaired by PM&C Secretary Terry Moran to point the way. Verona Burgess in her Government Business column in the Australian Financial Review recently (no link available) criticised the composition of the group- all but four of the ten are insiders- and the decision to leave out some former insiders and others such as heavies from the Department of Finance and the former Finance boss Ian Watt now running Defence.

Another omission was any link with the Gov 2.0 Taskforce whose terms of reference include to advise and assist the Government " to establish a pro-disclosure culture around non-sensitive public sector information; ...to maximise the extent to which government utilises the views, knowledge and resources of the general community;.. to ensure that government is receptive to the possibilities created by new collaborative technologies and uses them to advance its ambition to continually improve the way it operates" etc, etc, all a good fit you might think with a world's best ambition.

The Advisory Group has released a discussion paper, again criticised by Burgess last week on several fronts including that it makes a weak case for some changes, and that in shooting for the stars, it may be putting the cart before the horse.

While the paper includes various references to the importance of improvements in transparency and accountability, citizen engagement and collaborative policy development (page 11) there is no reference at all to the Gov 2.0 project. The section (page 15) on "Trust and accountability" is self-congratulatory ("Australians have more trust in their government than citizens in most other comparable jurisdictions") but at least acknowledges:

"Maintaining trust and confidence arguably depends on a robust approach to transparency and openness. Transparency ensures that the public is well informed, that taxpayers can determine whether their tax dollars are being spent effectively and efficiently, and that as many decisions as possible impacting on the public and the public interest are subject to appropriate scrutiny. An open approach requires a culture of disclosure and cooperation which facilitates the transmission of ideas and allows critical review of performance and actions. To this end we note the contributions of reforms currently at various stages of development and implementation including:

• freedom of information reforms to promote a pro-disclosure culture across government

• the provision of greater protection for public service whistleblowers

• reviewing the privacy framework to ensure effective protections are in place for personal information."

However "Possible reform directions" doesn't take things in this area much further suggesting (page 19) simply "there may be room for further work" to strengthen accountability and trust,

"particularly in relation to performance and reporting on the achievement of outcomes. Increasing the public availability of government data and performance related information could enable citizens to better understand what the government does and how it affects them, as well as how the public service is performing."

Well yes, but it's all a bit skinny on the well-known and oft canvassed problems that need to be addressed if we are to move in the direction of greater openness and transparency beyond what might come from long overdue FOI reform and whisleblower protection.

For starters, the climate created by over 500 secrecy provisions in Federal laws (the ALRC is due to report on this by the end of the month); what is seen to be the political sensitivity associated with some government information, for example the options considered and the basis for many decisions, and the zealous attempt at the top to micro-manage as many information flows as possible, especially to the media; an overly risk-averse attitude generally within the public service and the encouragement this receives within a system that sees protection of the minister as the vital part of the job; the absence of incentives for, and limited recognition of, those prepared to challenge entrenched preferences for secrecy, yet plenty of interest in finding someone to blame when things go wrong; the leadership vacuum within the public service on the importance of open government principles and making democracy work better through improved dialogue and participation, while at the same time plenty of highly placed advocates who emphasise the need for confidentiality if the public service is to do its job properly; technical, legalistic interpretation and application of disclosure law, and at some points in the recent past, questionable attempts at very senior levels to outmanoeuvre FOI applicants who seek to exercise their rights- see Andrew Podger's account.

Onward to world's best- or moving forward to world's best practice, as the PM might say, much to the delight of Don Watson.

Some sunshine in the Queensland childcare industry

The Courier Mail following a series of stories highlighting unsuccessful freedom of information applications seeking to identify child care centres issued with compliance notices, is no doubt pleased to report today that Education Minister Geoff Wilson has introduced legislation into State Parliament allowing centres seriously or repeatedly breaching regulations to be named online from February 1 next year. Of course it makes sense. As to other states???

Taxi audit hailed down

www.abc.net.au

The Sydney Morning Herald has been on the job for several weeks about the NSW taxi industry, and today reports on a 2007 audit released yesterday, after unsuccessful attempts to obtain it under the Freedom of Information Act, and the commencement of an Ombudsman investigation, at the Herald's behest, into the handling of the matter. The audit reveals breaches of conditions of a special license category, resulting in substantial profits for some key industry players and was made public by the Minister for Transport as part of an announcement of major reforms to taxi licensing. No sign so far of the report online on the Minister's Media Release website. Update- thanks for the comment- the Report is here.

Public broadcasters and the right to know-about them

In a recent post I commented on the Australian Broadcasting Corporation's various views about it's current exclusion from the Freedom of Information Act "with respect to documents in relation to its program material" and whether this matched or should match the BBC's exclusion from the UK FOI Act "in respect of information held for purposes other than those of journalism, art or literature". Two decisions last Friday in the UK reversed previous thinking there that the predominant purpose for keeping the material determined whether it was covered by or excluded from the Act. Justice Irwin in the High Court said information fell outside the FOI Act if it was held to any significant extent for one of the purposes mentioned in the exclusion provision. The Federal Court of Australia in 2006 interpreted the ABC exclusion as covering anything that had a direct or indirect relationship to program material, so welcome aboard BBC. Martin Rosenbaum at Open Secrets has more about the UK developments. As to any real difference between the formulations or at least court interpretations of them.....

"People,not laws block freedom of information"

Matthew Moore in the Sydney Morning Herald gives the recent NSW Deputy Ombudsman's report on the Board of Studies a going over, citing it as providing a "standout example of what is wrong with freedom of information in NSW". The title as above, says it all, although the law does play a part. Moore concludes:

"It was precisely the behaviour of agencies such as Office of the Board of Studies that prompted the Parliament to pass a new freedom-of-information law, the Government Information (Public Access) Act. This act, which comes into force early next year, will be overseen by an Information Commissioner. There is much to like about the new law, especially the principle that all government information is to be made public unless there is an overriding public interest against disclosure. But as the Ombudsman's investigation shows so clearly, it is not the law that will make a difference; it is the attitudes of people who administer it, the Board of Studies bosses and a hundred other agencies. Unless their attitudes change there will be no improvement.."

NSW Information Commissioner hits the web

Judge Ken Taylor AM RFD Acting NSW Information Commissioner

The Office of NSW Information Commissioner is up on the web as of today, with details of preparations for the commencement of the Government Information (Public Access) Act, to replace the Freedom of Information Act in early 2010. Among the materials posted is this plain-English guide to the new act Right to information in NSW which provides an overview including the many significant changes from FOI "pull" to the GIPA Act "push" model with its emphasis on proactive disclosure.

For the record I was engaged by the Office to research and prepare a draft of the Guide .

More disclosure might lead to less questions about public servant travel

Damien Brown in The Mercury reports that questions in State Parliament in Hobart yesterday about travel expenses of Health Secretary David Roberts had the Minister and Deputy Premier Lara Giddings crying foul, suggesting professional public servants would be discouraged from relocating to Tasmania by "appalling" and "disgusting" questioning.

Hmm, there I was hoping governments and senior public servants there and elsewhere would be working on the basis that the publication of this sort of information on a regular basis is one of the things that might be expected in the new or coming era of proactive disclosure. As Attorney General, Minister Giddings has carriage of that matter in Tasmania (referred to here yesterday) as well.

Brown reports:

"Mr Roberts' 60 intrastate, interstate and international trips between December 2007 and May this year were part of a $110,000 travel bill for Tasmania's top health bureaucrats obtained by Mr Whiteley (Opposition Health spokesman) under Freedom of Information legislation. The figures also featured the travel movements of deputy secretary Alice Birchall.

Mr Whiteley defended his questioning."I asked them questions. Can't I do that?" he said in Parliament."All I am doing is asking questions and for you to justify these expenses -- they are massive expenses. You must be joking if you think we can't ask questions."

The Minister said:

"We have had FoI after FoI on two specific individuals -- that is what I call a personal attack. Why are we not asking questions of all of our public servants?

I'm not against travel when its necessary and useful, but the question for the Minister is why not publish this information regularly- and for ministers as well. I doubt the slightest slowdown in recruitment of public servants as a result. Anyone concerned should try private sector transparency demands for top executives these days.

The Oz splashes out on whistleblower protection

www.cpsu.org

Chris Merritt in The Australian gives whistleblower protection a solid run today, at least those aspects regarding disclosure to the media: comparisons between the Dreyfus proposals before the Federal Government and US schemes, courtesy of a visiting academic; and comparisons between Federal proposals and what Merritt refers to as a report to the Queensland Government - I think this is a submission by Dr AJ Brown on the Green Paper on Integrity and Accountability which is yet to appear on the published submissions list. The article includes comment about Section 70 of the Crimes Act and the need to review it, but, as in a long line of earlier reports in The Australian, contains no acknowledgment that the Australian Law Reform Commission has been examining Section 70 and other secrecy laws since August 2008, has published papers on the subject that identify the problems, and possible answers, and will report to the Government with final proposals by the end of this month.

In a third article Merritt makes some observations about Senator Ludwig's difficulties: responding to the Dreyfus Report by the end of the year, making the response consistent with the Government's open government commitment, and with any response to an application for a pardon by Allan Kessing:

".. the debate on Ludwig's (response) will coincide with the government's decision on whether Kessing's conviction for revealing airport security flaws should be wiped away by a pardon. Superficially, the Kessing affair might appear to be complicated by this retired Customs officer's assertion that he never leaked a report to The Australian outlining those security flaws. But that is a red herring. If Kessing did leak that report, he is hero. He deserves a pardon as a long-overdue "thank you" from a grateful nation. His actions placed the public interest ahead of his own and may well have saved lives. If Kessing was not responsible for that leak -- as he asserts -- a pardon is even more justified. Kessing's claim of innocence must be seen as far more credible because he now admits that he leaked that material to an employee of Labor's Anthony Albanese, who is now Transport Minister. Why would Kessing lie about his lack of involvement in the leak to The Australian while taking responsibility for a leak that, until now, had remained a closely guarded secret? It is also clear that the court that convicted Kessing -- and the appeal court -- were never given the full story. In the light of the disclosure about the Albanese link, the weight given to at least part of the circumstantial evidence that was used to convict Kessing must be reassesed."

Merritt reports Kessing is hard at work drafting an application for a pardon, and that he will need to persuade the government he can be deemed "morally and technically innocent of the offence" and show that exceptional circumstances have precluded him from going to the High Court. Kessing's principled stand and his cause deserve our full support.

Not much Gov 2.0 detail in Tasmania's RTI Exposure Draft

Submissions closed today on the Tasmanian Exposure Draft Right to Information Bill 2009, to replace the Freedom of Information Act, and the Personal Information Protection Amendment Bill 2009. I didn't manage a submission, but make these couple of comments.

While there are some positives, the RTI Bill is not all you hope for in a modern, plain - English, access to government information act. The drafting for a start strikes as "old-style" - even "impecunious" gets a run in Section 17 - but that's neither here nor there in the broad scheme of things.

More importantly, while the Department of Justice Review team's webpage states the Bill proposes (among other things) to "mandate greater proactive release of information by the Government", the Exposure Draft does nothing of the sort. It does not require the proactive publication of any information, simply authorising agencies to release information by way of "routine" (in the public interest), "active" (in response to requests outside the Act) or "required" (by another act) disclosures, all to be preferred to the last option of "assessed" disclosure- release in response to a formal application under the Act. No further requirements are imposed regarding proactive disclosure. The Ombudsman who has specified powers may (Section 50) issue guidelines relating to disclosure under the four specified types. But if any guidelines are issued there is nothing in the Exposure Draft that requires an agency to have regard to or comply with them. There is a general power to make regulations for the purposes of the Act (Section 55) but under the Bill as it stands, each agency will decide what if any information should be proactively released. There is no mention of the Internet in 85 pages.

A couple of other points.

The application fee for assessed disclosure applications for the "impecunious" and a Member of Parliament acting in connection with official duties can be waived (Section 17) but no-one else who might be seeking information for broad public purposes gets a mention. Neither is there any mention of processing charges, so maybe there's to be none?

Grounds of exemption are to a large extent Australian standard, and for those subject to a public interest test, some relevant considerations for and against disclosure are listed (Schedule 1) to be taken into account in deciding whether disclosure would not be contrary to the public interest. A couple are unusual and may be unique- (t) whether the applicant is resident in Australia; and (u) whether the information is wrong or inaccurate.

Schedule 3 includes matters relevant to refusing an application on grounds of substantial and unreasonable diversion of resources. Regular users of the Act for example journalists, interest groups and politicians might be a little wary about what could constitute "applications of the same kind" and "similar information" as in:

(g) the extent to which the applicant is a repeat applicant to the public authority in respect of applications of the same kind, or a repeat applicant across government in respect of applications of the same kind, and the extent to which the present application might have been adequately met by those previous applications; and (j) the number and volume of assessed disclosures of information to the applicant about similar information in the 12-month period immediately prior to the present application.

There is no Information Commissioner as such and the Ombudsman (Section 48) has various powers some of which need beefing up from the discretionary "may", and as mentioned above, given some clout, although in one respect - the power to direct an agency to implement the Ombudsman's decision after considering a review application - the Tasmanian Ombudsman is a step ahead of what the information commissioners can deliver under Queensland, NSW or proposed Federal legislation.

Other good elements: the Act (Section 8) covers information related to performance, evaluation or progress of work provided to a public authority by a private organisation that is funded by or performs a role of that public authority unless the information is exempt; the shift from "documents' to "information" and clear search requirements for electronic information (Section 10); the inclusion of an offence for "unduly" influencing a decision (although there appears to be a drafting error in Section 51 which seems to apply to internal review decisions, but not not others).