Election cliff hanger sees good government in the frame

Who would have thought that good governance, accountability and transparency and doing something to improve the way parliament works would be back on the agenda, now that a small group of kingmakers in the House of Representatives get to decide who governs after the Federal election deadlock sees the major parties with a likely 73 seats apiece? These are some of the issues that matter to the likes of  independents such as Oakeshott and Windsor, now joined by Wilkie, and The Greens Bandt, the last named with plenty of sage advice from colleagues in the Senate who have always been on about such things, and will number nine from next July when joined by former NSW MLC Rhiannon who strongly pursued similar issues while in office there. Interesting times. 

Trust hard to win, easy to lose, the message for whoever wins the election

One of the Prime Minister's problems, given the circumstances in which she came to office, ALP woes at the state level in Queensland and NSW, and the fact that all politicians are starting from a low base, is said to be lack of public trust. According to Peter Hartcher in the Sydney Morning Herald, the PM has three strings to her bow in trying to deal with this issue, one of which involves listing her achievements as Education Minister including more transparency for school performance through the My School website.

It seems surprising that the Government hasn't been able or inclined to run up a broader list of achievements concerning honesty, integrity, openness, and accountability in government, with Senator Faulkner by the PM's side throughout. Maybe the judgment is that the record is not much to boast about, although in a couple of areas including modest proposals for change regarding  political donations, the Opposition is to blame for blocking legislation. That first term "high priority" Freedom of Information reform, is still months away from commencement, and perhaps publicly mentioning the Declaration of Open Government-no one has- issued by Finance Minister Tanner the day before the election was called might be be greeted with derision rather than acclaim.

Politicians should know trust takes a long time to build but is quickly and easily lost. Deeds speak louder than words. The Opposition also has plenty of baggage in this area. In the broader context of law reform and rights still relevant to this issue, Richard Ackland suggests " the Greens seem more open to interesting possibilities than big, old, tired drones from the political machines."

ID card back on Opposition's agenda

So reports The Age, but just what's involved and how this fits with a decision to shelve e-health record plans until good economic times, who knows?

Victoria commits to action on Gov 2.0

While Victoria lags on freedom of Information reform, it seems to be moving ahead of the other states on Gov 2.0 - someone needs to connect some dots here - releasing last week an Action Plan to focus on four priority action areas: Leadership, Participation, Transparency and Performance. There are 14 initiatives aimed at engaging and empowering citizens, making government more transparent and improving government capability, including a commitment to develop a comprehensive Information Management Framework for sharing public sector information. "The framework will be developed in parallel to making as much public data open and accessible as quickly as possible."

Craig Thomler at e Gov AU says:

In my view, Victoria's Gov 2.0 Action Plan is an example of best practice in how to prepare to systematically embed Government 2.0 techniques and tools into a government, taking the necessary steps to reform public sector culture, build capability, engage proactively and innovate iteratively to deliver the best outcomes for citizens. I believe that the effective execution of this Action Plan, ahead of Gov 2.0 efforts in other states, will give Victoria a substantial first-mover economic advantage, positioning the state as more innovative and better equipped to service citizens and businesses in the 21st Century.

That culture change issue referred to by the Ombudsman, a modern FOI law, and a lift in practice also need to be factored in there somewhere.

Transparency the order of the day for food hygiene

With the Sydney Morning Herald reporting that 140 food businesses have been added to the NSW register for breach of food hygiene standards in the last 30 days

"NSW Primary Industries Minister, Steve Whan said the name-and-shame list, maintained as a partnership between the state government and local councils, had proved an effective measure in raising hygiene standards. “The vast majority of Sydney and NSW businesses do the right thing and to protect these businesses and consumers we will continue to expose and prosecute those who flout the law,” he said. The NSW Food Authority recently began trials of a new ratings system, dubbed "scores on doors", which will give consumers a new level of clarity when choosing to patronise any of the state's 20,000 registered food outlets."

Hospitality magazine gives NSW a big tick for positive leadership in this field, queries why other states have been reluctant to out offenders (see Brisbane developments), and calls for a national approach.

A far cry in NSW from four years ago when attempts to force greater transparency about observance of standards were being staunchly resisted on privacy and other specious grounds.

Some Victorian agencies just do their own FOI thing

Ombudsman George Brouwer

There is a tone of "when will they ever.." in the Victorian Ombudsman's introductory comments in the chapter on Freedom of Information (page  50) in the Annual Report 2009-2010 published last week, and it's 26 years since the FOI act commenced in that state. And a note of warning, if one was needed, about the challenge for those in the Commonwealth, Queensland, NSW and Tasmania facing up to the task of leading - for the first time, or again, or still - on culture change: years of guidelines, recommendations, advice and prodding may not be enough to deliver the goods:

"There is still a culture within some agencies regarding limiting access to documents under freedom of information (FOI) legislation. I regularly identify administrative actions that are contrary to or simply disregard the Attorney-General’s guidelines and the administrative recommendations from my 2006 Review of the Freedom of Information Act, which all 10 departments accepted. Despite the availability of the Attorney-General’s guidelines and the Department of Justice’s practice notes, agencies appear to just ‘do their own thing’. Not only does this lead to delays in the processing of requests, but there are inconsistencies in the way the Freedom of Information Act 1982 (the FOI Act) is applied across government."

The number of complaints received by the Ombudsman about FOI matters was around the 180 mark, the same as the previous year. The case studies cited in the chapter, all about process rather than the act itself and substantive decisions on access, remind that Victoria lags the reform states on information access generally, and FOI in particular:

Election briefs for government MPs/candidates none of anyone else's business

 Markus Mannheim in the Canberra Times today:

"The Federal Government has used the public service to prepare secret reports on every Australian electorate, in breach of its own policy. Eight government departments have confirmed they wrote the reports - detailed analyses of all spending in each MP's seat - but refuse to make them public. Labor said before it won office in 2007 that similar reports produced for the Coalition government showed it had misused and politicised the bureaucracy.... The party's then public accountability spokeswoman, Penny Wong, said the briefs should be available publicly or not produced at all. ''The Howard government seriously thinks taxpayers' money is their own. Australians are entitled to know how their taxes are being spent,'' she said two weeks before the 2007 election. The Canberra Times reported in 2007 that several Liberal ministers had given the briefs to their party's MPs and candidates to help them plan their election campaigns. At the time, Labor denounced the production of the documents as a ''scandalous'' abuse of public resources for political ends."

Don't worry folks, in the hard copy Times the Minister may have said from May next year, when new FOI act publishing requirements kick in, this is just the sort of thing the public service should be making available to us all:

For more on this story, including details of a response by Cabinet secretary Joe Ludwig stating that, under Labor's new freedom of information laws, departments should proactively publish information, see the print edition of today's Canberra Times.

Decision 2010 sees Opposition up for journalist shield laws

In the Attorney General's debate, Opposition shadow Senator Brandis also reiterated the Coalition's commitment to act on shield laws for journalists:

Another area in which the Government has been all talk and no action is journalists’ shield laws. The introduction of such laws was a Labor promise in 2007. The Bill which the Government  introduced only provided for defence which was in fact narrower than the existing provisions of the New South Wales Evidence Act. The legislation was so inadequate that faced with a storm of criticism the Government abandoned it and there has been no action since..... Recognising that the public interest is advanced by a better informed community an incoming Coalition Government  will introduce a new shield laws bill, the substantive provisions have already been drafted enacting a rebuttable presumption against disclosure along the lines of the regime operating in the United Kingdom and New Zealand.

Decision 2010 and Freedom of Information

The Attorney General's debate on Friday saw Opposition shadow Senator George Brandis announce an FOI initiative, but otherwise there has been no mention during the campaign about this or related transparency and accountabilty issues. Brandis said:

".. a Coalition Government will transfer responsibility for freedom of information laws from the Special Minister of State to the Attorney-General’s portfolio and a pro-disclosure culture will be observed in fact not merely in rhetoric. As Attorney General I will drive the right to know agenda just as former Liberal Attorneys-General, including Peter Durack, the father of FOI, in Australia, have done." 

Putting policy responsibility for FOI and privacy in the Prime Minister's Department with the Special Minister of State responsible for this area and other accountability and integrity issues from November 2007 was a Rudd government initiative that deserved a tick. The proposal to put FOI (and presumably privacy, also administratively linked with FOI in the Office of Australian Information Commissioner) back in Attorney General's doesn't.

Governing differently or better hardly visible in Decision 2010

In an election campaign where the debate has mainly been about small item features of the country's future, there have been few references to a big picture of what the future could be. Leaders of the main parties haven't mentioned much about governing differently or better, apart from Prime Minister Gillard promising to reinstate proper cabinet processes, and Opposition leader Abbott momentarily channelling Kevin Rudd in saying (at the Rooty Hill Forum) he would not be overridden by colleagues in the cabinet room. That should be something! All those "grand visions" of governance for the future at the 2020 Summit are not worth a cracker apparently. The former Prime Minister's brother Greg Rudd offered a few sage words on the subject in The Australian on Friday:

We have lost our values. We have gone for the lowest common denominator in our national debate. It's all about what we don't like in people, what focus groups say, the numbers, personalities rather than good policy. Both sides of politics seem to believe that destroying or humiliating the other side somehow makes Australia a better place... The party system no longer achieves the best outcomes for Australia. Too many dumb, short-sighted and wasteful decisions are made all in the name of survival: survival to retain government, survival to gain government, survival to retain or gain individual political careers... Whoever wins on August 21, the system has to improve. Governing well is a very hard business. Many aspire to leadership but not many are sure what to do or how to do it once they get there. In the brief period remaining before election day, it would be nice if both leaders could tell us how they might improve the political system in Australia.

In June, before Kevin Rudd was rolled, and before  the campaign, Roy Morgan Research found Federal MPs ranked 23rd out of 30 professions surveyed for honesty and ethics. Politicians, like death and taxes will always be with us, and next Saturday will reflect our collective wisdom choosing from those on offer. None seem interested in a different or better approach to the practice of democracy, or governance generally. Would we believe them anyway?

VCAT review of vexatious litigant's FOI request not an abuse of process

Julian Knight, who murdered seven people and injured 19 in Melbourne in the Hoddle St massacre of 1987 has been granted permission to seek review of a Freedom of Information decision by Corrections Victoria (part of the Department of Justice) to refuse him access to his prison file, sought to help him prepare to seek parole when he becomes eligible in 2014. Knight (with 20 odd years of extensive experience in FOI and court processes) was declared a vexatious litigant in 2004, and cannot commence litigation without court approval. He sought leave to challenge the refusal of access decision in the Victorian Civil and Administrative Tribunal.  Section 21(4) of the Supreme Court Act states that leave to commence proceedings ‘must not be given’ unless the court is satisfied the proposed proceeding ‘will not be an abuse of process.'

Supreme Court Justice Bell said [5] the relevant issue that needed to be addressed was "not whether the applicant has ‘reasonable prospects of success’ (in the VCAT proceedings) but whether the application is ‘foredoomed to fail’,.. a less strict test."

E-health on, but not for the Opposition while the budget is in the red

The Coalition's proposed saving of $467 million from scrapping the  Government's e-health record plans mightn't be forever, according to this report by Karen Dearne in The Australian-just till the budget is back in surplus- but the Australian Medical Association said it should be an absolute priority,  and the Australian Privacy Foundation has a single, coherent and contextual e-health policy at the top of the election wishlist.

In pursuit of NSW Police policy on pursuits.

On reading this report by Geesche Jacobsen in the Sydney Morning Herald, I was thinking the NSW Police might have had a point that some information about pursuit policy needed to be withheld under the new GIPA act on grounds that disclosure of eight of nine reasons for terminating a pursuit would compromise a ''lawful method and technique employed by the NSW Police Force … to detect and investigate contraventions of the criminal law.''

Until I googled the subject and found this New Zealand Police Review published two weeks ago Police Pursuits Policy [PDF 588KB] that includes an international literature review, and details of various risk assessment models used around the world, including in Australian states, to guide police decisions on continuation and termination of pursuits. There appear to be plenty of other published details of policy in Australia as well, including the ACT review in 2007 referred to in that article.

There is no hint of anything that needed to be censored in the New Zealand review report, and full details are included about best practice approaches (the SOWETO risk management model) taken in Australia, presumably in NSW, and the US, UK and other comparable countries.

The NSW Police GIPA decision to refuse access to parts of the policy seems unnecessarily cautious and overly defensive in the circumstances.

"We're politicians- trust us with your personal information!"

US Postal Service

As you are inundated with often personal mail, phone and email messages about how to vote on 21 August, and scratch your head about how well attuned some of these messages are to your personal circumstances, a reminder that the Commonwealth Privacy Act does not apply to registered political parties or to political representatives engaging in certain activities ‘in the political process.’ And that the Australian Law Reform Commission recommended two years ago that the exemption should be removed:

Victorian Police agreements on information exchanges-what's the point?

Last December when the issue of agreements between the Victorian Police and Aquasure about exchange of information first arose, this post asked "what goes?" An editorial in today's Age raises the same question after a freedom of information request by the state opposition revealed 36 ''memorandums of understanding'' between the police and external agencies, including the AFL.

Media doesn't do enough to police, prevent or penalise privacy intrusions

So says Mark Day in his column in The Australian today, the first mention in News Ltd publications of the Keating speech last Wednesday on the media and privacy. Day accepts "that the checks and balances of the existing system, which Keating says are self-serving and inadequate, are sometimes not enough to police and prevent privacy intrusions, or to penalise them."

He takes the same line on reform as that first suggested by ABC Managing Director Mark Scott 18 months ago, but strongly resisted to date by Day's employers: it is probably wiser that the media get into discussion now about sensible reforms to privacy law "before the legislature loses patience with the self-regulation regime and imposes standards of its own."

Day notes but doesn't have much to say about specific suggestions by Keating and the Australian Law Reform Commission for improving the media self regulatory schemes for protection of privacy generally, but focuses on the proposed cause of action for breach of privacy, and in particular the implications for conduct in the public domain. He says the idea we all have some right to privacy might be well and good,

"but how could it be enshrined in law? A photograph of a bone-jarring tackle at the footy may include, in the background, a clearly identifiable philanderer and his mistress. Would a media outlet be liable in a resulting divorce?"

The Australian Law Reform Commission Recommendation 74 answered both questions befre they were asked.

The defining elements of the Commission's proposal are that there has been a serious invasion of privacy where the person concerned had a reasonable expectation of privacy; and the act or conduct complained of is highly offensive to a reasonable person of ordinary sensibilities. In determining whether an individual’s privacy has been invaded for the purpose of establishing the cause of action, the court would be required to take into account whether the public interest in maintaining the claimant’s privacy outweighs other matters of public interest (including the interest of the public to be informed about matters of public concern and the public interest in allowing freedom of expression).

Taking the mistress to the footy and seeking to sue because you showed up in the background in a photo of action on the field isn't likely to pass first base.

As the Commission report (74.135) says, "the cause of action only will succeed where the defendant’s conduct is thoroughly inappropriate and the complainant suffered serious harm as a result." And continues:

74.136 The characterisation of the cause of action as a ‘serious invasion of privacy’ also will clarify the types of matters intended to be covered by the action, and allay many of the concerns raised in submissions. For example, street art generally would not fall within the scope of the cause of action. A claimant simply captured in a photograph of a street scene, taken in the manner suggested in some of the submissions, is unlikely to be able to establish either that there was a reasonable expectation of privacy or that the act complained of would be highly offensive to a reasonable person of ordinary sensibilities. 

74.137 It is neither feasible nor desirable to attempt to list or limit the types of acts that may be found to be highly offensive to a reasonable person of ordinary sensibilities. As noted above, matters the ALRC previously considered to be worthy of protection through a cause of action include sensitive facts relating to a person’s individual relationships, health, home, family and private life. Acts or disclosures revealing this type of sensitive or intimate information are the most likely to meet the test of what would be highly offensive.

Media commentator Margaret Simons, in a subscription only article in Crikey on Friday, described the Keating speech as "a cool, clear and ..unassailable argument for sensible privacy legislation." Roger Clarke of the Australian Privacy Foundation in an interview on Razor's Edge says media self regulation in this area is a joke.

Keating puts the case for some privacy in the face of "media free for all"

AAP

In a speech last night at the Centre for Advanced Journalism at the University of Melbourne, former Prime Minister Paul Keating while acknowledging the importance of freedom of expression, urged industry leaders to drop the pretence that the current framework within which the media deals with privacy issues is effective and works well; suggested some practical steps to return privacy to its proper place in the ethics, professional standards and self regulatory systems that apply to journalism; and argued the case for a statutory cause of action for a serious and unwarranted breach of privacy, as recommended by the Australian Law Reform Commission in 2008. The full text of his remarks posted by the National Times is here, and with footnotes here if you are interested (I provided some research input to the speech.) There is some coverage in Fairfax papers, including this op-ed in The Age, and the ABC today, but little so far in News publications. See also Jonathon Holmes of Media Watch, and Andrew Crook in Crikey.

Instead of standing aggressively behind the status quo, dressed in the cloak of the Fourth Estate, Mr Keating said industry and profession leaders needed to talk more about responsibility, more about the importance of ethics, more about improvement in the standards of journalism in all respects, including respect for privacy.  He said proposed changes to privacy laws announced recently by Minister of State Ludwig to allow for financial penalties for Federal government agencies and big business found to seriously breach privacy principles is likely to concentrate minds on the importance of  privacy a little more than hitherto. Media organisations currently enjoy an exemption from the Privacy Act on condition they accept self regulatory schemes. However the schemes are largely ineffectual particularly when it comes to penalties and enforcement. The industry needs to consider whether thrashing serious breaches of privacy with a warm lettuce should continue to be all that their self-regulatory systems can deliver.

Media organisations would be sending an important message about where they stand on these issues if they indicated they are prepared to work with, not against, the modest reforms to the self regulatory schemes proposed by the ALRC for continuation of the media exemption.

Mr Keating said industry and profession leaders should get back to an issue which has defied reformers for years: the idea that with regard to ethics and standards, including respect for privacy, all would benefit from unified arrangements rather than the current generally unsatisfactory system where different codes of practice and different standards apply across the broadcast and press industries.

More attention was clearly needed to guidance, education and training about privacy and the public interest for those engaged in journalism when some senior journalists and those to whom they report claim the public interest is anything the public might find interesting. The public interest requires a judgment that the community as a whole would benefit from publication, not what readers or an audience might find interesting or titillating.

On the proposed general cause of action for a serious and unwarranted breach of privacy proposed by the Commission, Mr Keating said the case for change was that dangers to privacy are escalating dramatically, driven largely by technological change; that the common law case by case exploration of whether there is recourse for breach of privacy is a slow piecemeal and fragmented process likely to lead to different approaches in different jurisdictions; that legislation would give effect to our international obligations under Article 17 of the International Covenant; and that the need for better protection of privacy is being recognised in comparable countries including traditional ‘peer law’ countries for Australia such as the UK and New Zealand, as well as Canada and parts of the US. 

With regard to the media (and the proposal was for a general cause of action and was not aimed specifically or solely at the media) the Commission proposal set a suitably high bar for any plaintiff who sought to pursue the matter through the courts. A plaintiff would have to demonstrate a serious breach of a reasonable expectation of privacy, and conduct offensive to a reasonable person, not outweighed by other important rights such as freedom of expression. As ABC Managing Director Mark Scott said last year:

With digital surveillance, location tracking and genetic tracing becoming commonplace, there is a very firm case for the law to allow people to protect thprivacy. It is a fundamental human right…the Australian Law Reform Commission proposal for a new statutory right of privacy, properly word is a sophisticated idea worthy of serious debate. To dismiss even the need to address the issue-the need to have a thoughtful and comprehensive debate – doesn’t seem to be in keeping with the openness and plurality of perspectives that media freedom should be about’.

There hasn't been much of that debate in the media since. Perhaps the Keating speech will reawaken media, and broader community interest.

Australia's FOI reform landscape

If you are interested in some detail about Freedom of Information reforms around the country over the last year, these notes are from my brief overview before facilitating a panel session involving the Commonwealth, NSW, Queensland and Western Australian information commissioners at the recent National Administrative Law Forum in Sydney on 23 July. There's a book in the subject, and I expect Moira Paterson is gearing up for a second edition of Freedom of Information and Privacy in Australia (Lexis Nexus Butterworths 2005), so all that was possible in 15 minutes was a high level look at some common themes and important differences - without much commentary.

ICAC recommends Parliament look again at corruption risk in payments to members

And more transparency should be part of the response.

The NSW Independent Commission Against Corruption has questioned whether the NSW Parliament has in place a sufficiently comprehensive program to identify and manage corruption risks in relation to the use of Members’ allowances and entitlements. Buried away in findings of corrupt conduct against former NSW MP Karyn Paluzanno and members of her staff, the Commission Report (Chapter 3 page 20) noted that a "new strategy" for scrutinising the use of entitlements, based on a review undertaken in 2008 and still in the process of being implemented, is entirely audit focused.

"It is the Commission’s experience that audit programs are often not designed to or capable of detecting corrupt conduct."

The Commission recommends the Clerk of the Legislative Assembly consider whether the program "has the capacity to detect corrupt conduct and, if not:

develop, implement and regularly evaluate a corruption prevention strategy that includes:
• a comprehensive risk assessment of the corruption risks in relation to the use of Members’ allowances and entitlements
• a corruption risk management plan describing the corruption risks identified and the strategies Parliament will adopt to manage each of these risks
• measures capable of detecting corrupt conduct and non-compliance by Members and electorate office staff."

Without spelling out the detail in this report, the Commission advocates that corruption risk is best managed by identifying and managing in a comprehensive manner those organisational features that allow corruption to occur and possibly go unnoticed or unreported. Proper accountability, and appropriate transparency form an essential part of any such plan.

As pointed out here, the NSW Parliament (and most others) fails expectations in this area. Despite claims for improvement and acknowledgment of the public interest in greater transparency in this speech by the Speaker of the Assembly Richard Torbay (at least the Members Handbook is online these days), there is no routine public disclosure of information in NSW about payments to or on behalf of members of parliament, other than global figures published in the annual report. The presiding officers, and the government dismissed the suggestion by the Ombudsman in February 2009 that consideration be given to extending access to information laws to the parliament, which should be the case in respect of matters of an administrative nature including the use of public money. Hooray for Tasmania, Australia's only jurisdiction to take such a step!

The NSW Parliamentary Privilege and Ethics Committee currently has a reference to review the Members Code of Conduct. and ICAC has given the clerk something to think about. There are plenty of strands for the committee, presiding officers, the clerk, and members of parliament to be collected here if any are really serious about transparency-let alone corruption prevention.

State of SA bridges out in the open

A year ago the South Australian Ombudsman described a decision by the Transport Services Department to refuse access to safety reports about bridges on grounds disclosure would aid terrorists, as absurd, irrational and ridiculous.The reports of 22 bridges rated "fair", "poor" or "unsafe" have now been released, presumably as a result of the Ombudsman's report. As the Freedom of Information applicant, Opposition shadow industry spokesman, Martin Hamilton-Smith says:

"Some of these bridges were rated by engineers as `poor' because they have specific faults, including construction joint concerns, cracking, missing bolts, pavement bleeding, chipping, girders with shear cracks, faulty piers, corroded pedestrian barriers and corroded bearings. "It's a disgrace. It is in the public interest for this information to be out in the open. "There is no credible excuse for the Government to cover up and to keep the truth secret."

 South Australians have been assured by the Department: "There are no bridges in South Australia that are unsafe." But I'm sure they'll now be keeping an eye out for the arrival of the bridge maintenance team.