Staff cutbacks ahead for Australian Information Commissioner

The Office of Australian Information Commissioner had its 20 minutes with Senate Estimates last week, with Privacy Commissioner Pilgrim and Freedom of Information Commissioner Popple doing the honours in the absence of Professor McMillan on leave.

Apart from a couple of questions concerning privacy matters including the Personally Controlled Electronic Health Records Bill, the main interest was in the effect of the increased efficiency dividend on the operation of the office next financial year. Commissioner Pilgrim told the committee that as a result the office will need to find "savings" of $300,000 a year which will have to be delivered through staff cuts to the current 80 ASL - as flagged in this post last November.

He said Professor McMillan had written to the secretaries of finance and deregulation and attorney general's raising some of the potential impacts, including the effect on capacity to deal with the increasing number of complaints and undertake investigation of matters that emerge, and comparing the situation with that of courts and tribunals including the Administrative Appeals Tribunal that had been exempted from the requirement.

The Q and A on this topic follows:

Media muskets trained on statutory cause of action for breach of privacy

Man vyi

I'll be surprised, given the "wicked" policy challenges on the government's agenda (today add school funding to the list), the current political mess, the polls and the hung parliament, if Canberra bites the bullet and moves ahead any time soon - this year, this term, this decade?- on the proposed statutory cause of action for a serious and unwarranted breach of privacy. At a time when it will be wary at the mere whiff of more grapeshot, acting on this would involve a showdown with yet another loud well resourced lobby, one equipped with the biggest cannon of them all, the media. The grapeshot is already flying in a related field in media submissions in response to reform ideas floated in the interim report of the Convergence review, and in editorials and opinion pieces.

This is even before the next skirmish when the Finkelstein inquiry reports on pressures facing newspapers, online publications and their newsrooms, the operation of the Australian Press Council, and conformity with media regulations, codes of practice, and public interest considerations-head for the bomb shelter at that stage.

Then there is the statutory cause of action. If I'm correct, there will be nothing particularly rational about a decision to leave the issue where it is - up in the air.

After what cumulatively amounted to years of inquiry, the three law reform commissions that looked at the issue -Australian, Victorian and NSW - recommended legislative action to establish a general cause of action, one not aimed specifically at the media.

Almost all legal experts who lodged a submission in response to the government's Issues Paper published last year accept there is a gap in the law. Most agree legislation is the best answer, although some think that judges rather than policy makers will have more and better wisdom. I'm with Professor Moira Paterson of Monash University:

The creation of a statutory tort is arguably preferable because it provides scope to craft a law which clearly addresses the complex policy issues involved (for example, by providing guidance concerning the balancing of privacy with competing interests such as freedom of expression). It also provides an opportunity to provide detailed guidance concerning the operation of the new law.

The Law Council of Australia has shifted from opposed, in a submission to the ALRC privacy inquiry, to open minded in this case. Two members, the Law Society of NSW and the Law Institute of Victoria are now publicly in favour of legislation.

There is plenty of support from others as well-the privacy foundation, rights groups, advocacy bodies such as the Public Interest Advocacy Center, state privacy law regulators. All accept the tricky part is to get the balance right-and there are plenty of ideas about that including whether to set the bar low or high, and whether to frame freedom of expression as an element of the cause of action or as a defence.

In media ranks the ABC and the MEAA don't have a view one way or another on the need for legislation. (Disclosure:I took part in an MEAA working group discussion on this last year.) Surprisingly the Australian Press Council reports division in the ranks:

Some members of the Council believe there should be a statutory cause of action for some invasions of privacy. They consider that this course is especially appropriate in the light of recent and likely advances in communication and surveillance technologies that provide greatly increased opportunities for such invasions. They also believe it is preferable to establish a statutory right at the national level than for current common law causes of action to be extended by the courts in a piecemeal, protracted and unpredictable manner which may differ considerably between States. They believe an appropriately designed statutory cause of action would encourage the handling of complaints by alternative dispute resolution. Other members of the Council consider that existing protections from laws relating to trespass, stalking, surveillance devices etc and from relevant court rules are sufficient. They see expansion as an unnecessary and unjustifiable intrusion on public access to information and freedom of expression. These members are concerned that the statutory cause would unduly limit exposure of corruption, deception or some other form of illegality or impropriety, which is adverse to the public interest. They also believe that it should not be introduced in the absence of a statutory right of freedom of expression, enshrined in a Bill of Rights or analogous legislation. They argue that the cause of action is likely to be of little practical use to people who are not wealthy.

But, sucking in:

All members of the Council agree that if there is to be a general cause of action it should apply only where there is a reasonable expectation of privacy and the bar for plaintiffs should be set very high. This could include, for example, restrictions along the general lines of the Australian Law Reform Commission’s recommendations that the invasion should have to be serious and to be highly offensive to a reasonable person. It should be a defence to establish that in the particular circumstances of the case the public interest in enabling access to information about matters of public concern and in allowing freedom of expression outweighs the public interest in maintaining privacy.

However other media organisations including those who have the muskets at the ready in house,  and big business-the banks, finance companies, the advertising industry-are strongly against.

Government House grins and bears testing FOI applications

A rare visit to the Governor General's website to locate the Bonsey report led me to this response a year ago, posted in the Disclosure Log sometime after May, to two FOI requests from Samantha Maiden (pdf) of The Australian. What is of interest is the broad ranging nature of the applications, and that they appear to have been processed without demur, free of charge, and "in the spirit of goodwill and transparency where no documents exist," some information provided above and beyond what is required by the act. (How else would we know that the average price of a bottle of wine served at Yarralumla is $11.64? Pity they didn't volunteer where the rest of us might find a more than passable drop at this, or an even cheaper price).

I have no idea whether Maiden as a journalist received special treatment or if your average FOI punter would get this sort of response to applications for documents for the last three years concerning 16 different topics, with sub-headings in most cases to spell out the detail. I would have advised against lodging all encompassing applications of this kind-shows what I know! Maiden clearly is not one of those smarties said to be artificially breaking requests into small parcels in order to gain multiple shots at five free hours of decision making time that some agencies are concerned about.

Some of the information sought was already in the public domain, or wasn't held, because for example the Governor General pays for her own clothes, hair and make up, and there are no separate records of dry-cleaning bills. Or was not matter of an administrative nature, and outside the scope of the act as it applies to the office, such as correspondence with Julia Gillard, Kevin Rudd and the Queen.

Government House only raised the issue of substantial and unreasonable resources when declining to produce original invoices but nevertheless extracted global information from records and provided it. Others might have been tempted to use these applications to test the limits of the diversion of resources provision.

The notice of determination may have FOI purists tut tutting over technical aspects of the response, but as the AAT readies for argument about the scope of s 6A and what constitutes a document that relates to matters of an administrative nature, Mr Fraser who signed off and others at Government House who were involved exhibited persistence, endurance, and patience akin to that of a saint quentin. And forbearance afterwards when a fair bit of the information gathered and released didn't make it into what appears to be the only story Maiden wrote subsequently. Which focused on travel, flowers - and the wine bill.

Release of parts of report on Australian Honours

Freedom of Information applicants who contest refusal decisions know the phenomenon well- internal review will probably get you something more (in 44% of cases according to agency figures in the latest Commonwealth annual report), and faced with an applicant prepared to box on further, the dribble effect where on second or third thought an agency decides some previously exempt matter, often innocuous in any event, is what it is and no state secret. Then again it is by no means an ironclad rule.

The Official Secretary Office of the Governor General Stephen Brady may have been justified when he bridled at the suggestion during Senate Estimates on Monday that anything of the sort was a reasonable interpretation of the decision to publish some information this week about the Order of Australia in the form of extracts from a review completed in June 2011. The reason for the lapse of time was that the Council for the Order of Australia had only just had time to give the report serious consideration and decided parts should be released. But  it is clear that there is some new thinking underway at Yarralumla about transparency

Brady rejected Senator Ronaldson's attempt to link the decision to publish and  the impending Administrative Appeals Tribunal hearing of the Kline case on 27 February. He did say direct legal costs to the Office to date were $34,000.

That hearing is to focus on the interpretation of section 6A which limits the application of the FOI act to the Office to documents that relate to matters of an administrative nature. Karen Kline is seeking among other things, manuals, policy guidelines and criteria related to the administration of awards.

Not that there hasn't been a dribble of a fashion since this began two years ago. The initial response to Kline was that documents regarding Honours weren't accessible because the Council was not an agency subject to the act. When challenged it was later accepted that documents held by the Honours secretariat were held by staff at Government House who are employed under s 13 of the Governor General Act 1974, and are within scope where they relate to matters of an administrative nature. Next stop was the Australian Information Commission where commissioner Popple decided that the documents requested were not of this kind. Now for the AAT. I understand Kline has heavyweight representation this time in the form of Tom Brennan.

If you are interested in what has been released of the Bonsey Report - historical information including some new statistics about past awards, and international comparisons of the system - it's not up in lights on the home page. But of course anyone interested would know to look at the Disclosure log. To save you the trouble, voila, Order of Australia Review 2011

Here is part of Mr Brady's opening statement at the Estimates hearing-the Q&A is still worth a read if you are a buff:

Cain urges serious FOI reform in Victoria

Former Victorian premier John Cain whose government was the first to introduce state freedom of information legislation in 1983 writes in The Saturday Age about the politicisation of the FOI process through the involvement of ministerial offices, and the return to an obsession with secrecy in the years since passage of the law . He argues that getting back to open society values should be the priority for Premier Ted Baillieu. Cain deplored the cheap shots in the debate on the Freedom of Information Commissioner bill in state Parliament last week, commenting that structural change in review processes was neither here nor there

 What needs to be corrected is the 30-year transformation of FOI into the world of political infighting, because that is where it is now, and has been for some years: a world where politicians say one thing in opposition and do another in government.

An independent commissioner should be part of the deal, but the Victorian legislation is limited in what it seeks to achieve and fails to bring the act into line with best practice. Why anyone would thinks the modest reforms proposed are anywhere near enough is a mystery.

Elsewhere in the same paper on Saturday Rick Snell of the University of Tasmania said:

There had been ''serious cultural hostility or, at best, blatant indifference'' by many in leadership positions in public service, and a feeling by many public servants that the FOI process was a game where they could bend the rules, ignore the rules or simply stack the deck in favour of non-disclosure..

We are six!

Six years this week since this professional hobby started and 2400 posts and 238,000 page views later it is still keeping me off the streets-golf went a couple of years ago.
 (OMPP (Own work) [Public domain], via Wikimedia Commons

I've previously acknowledged the impetus to get started was the prodding back then from Nicolette Davey, right, who left us for the Financial Times in London and is now with the Baw Baw Shire Council in Victoria-how lucky are they?) and Susan Timmins (still here, no escape for her). They insisted I ditch the occasional client newsletter in favour of a more contemporary communication channel. I'm still resisting other prods for the tweet and similar things.

Looking back there are some trends - a shift in my focus away from initial close attention to NSW freedom of information issues in the direction of attempted coverage of a wider Australian patch and a broader range of issues; year on year increases in visits of 40% or more with Australian readership consistently over 80%; as Australian numbers increase, overseas visitors have declined as a percentage of the total with the US, UK, Canada, New Zealand, and India always leading that group; comments have increased but my guess is that public servants of various stripes are behind Anonymous who remains our most steady contributor.


Another trend may be telling: the number of posts in the last three years went from a high 440, to 358 to 260 last year.

Importantly and despite lots of necessary qualifications, the laws and government transparency are better than in 2006, and open government these days involves discussion of a wide range of issues that weren't being talked about then.

Some lessons from blogging: content is king so feeding the beast regularly and often is a necessary part of the trade; some buzz words - the mere mention recently of Schapelle Corby for instance - attract a new audience; the blogger mindset that the last post published is of interest to the reader is wrong as people out there are grazing the net all the time usually looking at published pieces of current interest to them that may be years old; lots of pro forma "great post" comments are spam, meant to provide a link to commercial websites, so hit the delete button rather than take pride in publishing; there are plenty and an increasing number of people out there who need help in dealing with government on information related issues and will write and sometimes call at all sorts of odd times; and someone like me could do with a subeditor skilled in catchy headlines. And a red pen to rein in the tendency to ramble (sorry).

So thanks for the interest. As to the seventh year, on with the show.

Victorian FOI Commissioner bill close to next step

Debate resumed in the Victorian Legislative Assembly last night on the Freedom of Information Amendment (Freedom of Information Commissioner) Bill, introduced in December and was interrupted before a vote was taken. (Update: no further debate on 8th but according to the note accompanying the bill debate must be completed by 4.00 pm on Thursday 09/02/2012- Further update in note below)

See my take on the bill at the time-not quite the joke the Opposition claims but no great shakes and narrow, limited reform in any event.

You can read The Age report or go the full monty (Legislative Assembly  Hansard 7 February  pages 43-59) if you are up for wading through nine speeches from both sides over close to two hours, exchanging criticism of their respective records on open government and failure to live up to prior rhetoric. "Drivel", "lies"  and "hypocricy" feature prominently. Opposition front bencher Tim Pallas didn't hold back, showing a touch of the b word himself:

"This is a rancid bill, hiding the arrogant and rotten culture of born-to-rule belligerence in the government."

The Liberals in opposition in 2008 did their part in blocking a mixed-bag Labor FOI reform bill.  The numbers mean Labor won't be able to return the favour despite the fact that another Opposition front bencher Jill Hennessy told the Assembly Labor would vote against the bill in the Council if its amendments, flagged but yet to be rolled out, were not adopted.

 For the record Ms Hennessy told Parliament

our amendments will wind back the time the FOI commissioner has to review an agency’s decision from 30 days to 14 days. That is the same time frame that exists under the current system, yet again further illuminating evidence as to why this bill makes FOI worse, not better. We will move to reduce the time an agency has to consider a decision of the FOI commissioner to release documents from 60 days to 28 days. In terms of dealing with the independence of the independent FOI commissioner, our amendments will have the effect of ensuring that the commissioner is appointed for at least five years, not up to five years as in the current bill. We believe that goes some way to ensuring and entrenching greater independence in the commissioner. Our amendments will also ensure that the commissioner is not limited to commenting but has the right to comment on bad FOI practices as well as those which reflect on ministers and departments.

Fourteen days for external review is wildly optimistic given the need to get hold of the documents in dispute and get across the issues and content, and in the light of experience elsewhere. But it's all rhetoric at this stage as Labor needs support from others to get anything through.

(Further update:the Assembly passed the bill on 9 February without amendment or further debate-Hansard p57.)

Melbourne privacy conference later this month

A weighty privacy conference for academics and lawyers organised by the Faculty of Law at Monash University 23-24 February will cover a wide range of current and emerging issues in Australian privacy law, provide commentary on the law reform agenda, and discuss recent European developments in data protection and privacy law:

• Australian privacy law reform
• Privacy and Data Protection in Europe
• Common law protection of privacy
• Privacy and criminal justice
• Privacy and the Internet
• Theoretical and rights-based approaches to privacy
• Privacy and Media Freedom
• Should Australia introduce a statutory privacy tort?

I won't be there but sounds a good one.

Agency FOI fees and charges submissions are revealing

Professor McMillan

Australian Information Commissioner Professor John McMillan has probably signed off his report on the review of Commonwealth Freedom of Information charges, due to be in the hands of Attorney General Roxon about now, so we await the result with interest.

As to inputs,  FOI Editor at The Australian Sean Parnell seems to have been alone in digging into the published submissions and writing about them. The headline to his report of 30 December, Freedom of Information fees to soar if bureaucrats get their way, captured the essence of his summary.(Update: a more detailed report by Parnell on the submissions and FOI generally was published on 11 February-Counting the cost on new FoI)

Generally applications for non-personal information are up since application fees were abolished and other minor changes made to the charges regime in 2010.

I can understand that some applicants, and some applications, can be trying to say the least for those at the other end. So those agencies with more than their quota may be justified in complaining about a lack of resources to deal with the load, and about difficulties with aggrieved-for-whatever reason applicants who keeps going over and over the same ground. Agencies also clearly don't like the loophole exploited by some applicants in splitting requests to take advantage of the five hours free decision making time for each, the increased use of FOI as a cheaper alternative to discovery in legal proceedings, and free resort to OAIC review either.

The submissions reveal that some agencies are pretty dark about what has happened in the first year of the new charge arrangements, coinciding with broader changes to the law. Some give the impression that dealing with an increased number of "non-personal" information access requests is a nuisance and diverts resources from the "real work" of advising and assisting government to develop policies and to manage programs to implement them.

Amid those grumbles there is little acknowledgement that information access itself is a service, with citizen rights and agency obligations mandated by law, backed by policies including the Declaration of Open Government that give new prominence to accountability and transparency. All for the stated purposes of enhancing representative democracy through increased public participation in government, encouraging scrutiny, discussion, comment and review of government activities, and to recognise that government information is a national resource. Not to mention that Parliament intended that functions and powers set out in the FOI act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost. (Sound familiar?-2010 FOI act amended objects, s3)

The changes to charges and abolition of all application fees were conscious government decisions, taken in part to mitigate to a degree the cost barrier to use of the act. As Defence, and Agriculture Fisheries and Forests also point out in submissions, the administrative cost of processing $30 application fees far exceeded the return.

The "not fair, applications are on the rise" tone in some submissions suggests the long anticipated culture change has a long way to run. As has public awareness of FOI, and public engagement in the affairs of government. Heaven forbid, even more use of the act could be in prospect.

Without repeating too much of Parnell's angle, or attempting a comprehensive summary, some observations...

Who's lobbying for more sunshine for lobbying activity?

When it comes to half-hearted schemes supposedly designed to throw light on those who seek to influence government decision making, the federal arena is not unique. More transparency is needed not just there, but in the states as well.

As Sean Nicholls, state political editor at the Sydney Morning Herald, in The power of a word in the ministerial ear reflected in his piece on Saturday about the activities in NSW corridors of power of the poker machine lobby, and the ethanol producer Manildra . Not that he is saying that business people and other interest groups do not have a right to lobby ministers:

Of course they do - that's one way government gets to know about issues that affect them and possible remedies. The problem is this: the public is kept in the dark about these high-level meetings. It takes a controversy - or a cabinet leak, as was the case with ethanol - to bring them into the open.

Nicholls advocated a register of meetings held by ministers that makes public the date, the participants and the issue that was discussed. In effect a government wide version extending to ministers, of the Lobbyist Contact Register published by the Department of Planning, which currently records only meetings of third party lobbyists with the department: 

If the O'Farrell government is committed to transparency it might consider two changes as a matter of priority: alter the definition of a lobbyist to include any private sector interest pushing for government action; and introduce a publicly available lobbyist contact register for every department and its minister.
Surely the government has nothing to hide.

There is more that could and should be done in the interests of transparency, outlined in a report on corruption risks sitting somewhere in the system since November 2010.

Transparency failings in regulating the exercise of power and influence

I don't think I've written anything about our pathetic Commonwealth disclosure laws for political donations since noting in 2010 that donations made then would be made public in February 2012, and lamenting the absence of anything close to real time disclosure. Here we are now at the due date with plenty of media attention to the details of who gave what to whom.

But Bernard Keane nails it in Crikey today

"..at the Commonwealth level, the laws about electoral donations are a complete disgrace. That we are only finding out 17 months after the 2010 election who donated to the major parties is a blight on our democracy — one the mainstream media, normally quick off the mark to denounce any lack of political transparency, seems to ignore. That blight is there because the Coalition and Steve Fielding blocked reforms proposed by John Faulkner during the Rudd government that would have significantly accelerated the reporting cycle for donations, as well as reducing the reporting threshold back to $1000, rather than the current $11,500 threshold created by the Howard government. To its credit, Labor reports according to the $1000 threshold. The Coalition — complying with the law — does not...."

Pathetic is also the word that comes to mind regarding the current level of transparency in the related field of lobbying. Last year Special Minister of State Gray announced these results of a year long consultation about "improvements" to the registration scheme. No one seemed to find any newsworthy angle-and rightfully so.

The minister showed not even a hint of interest in meaningful reform such as disclosure requirements concerning lobbyist activity canvassed in this post, or in ideas floated in this NSW ICAC report.

Ah, but in the absence of more transparency, the register of lobbyists was to be given something of a lift (?) by placing responsibility with a parliamentary integrity commissioner, part of the agreements with the independents/ third parties after the 2010 election.

We have no commissioner-PM&C manages the scheme. And as The Australian reported on 30 December, the federal parliament would not have one or "a code of conduct for politicians until late next year (2012) at the earliest, despite Julia Gillard having pledged to put these anti-corruption measures (sic) in place by last September."

Update: a reader points out that the Senate Finance and Public Administration Committee is conducting an inquiry into the operation of the Lobbying Code of Conduct and the Lobbyist Register, to report by 1 March. Not surprisingly lobbyists (including former senator Guy Barnett) are well represented in published submissions. Others suggesting significant change, some along the lines of the NSW ICAC report, include Dr Bob Such the Member for Fisher, Action on Smoking and Health, NSW Greens Political Donation Project, the McCusker Center for Action on Alcohol and Youth and Mike Ahrens (of TI International).

And of particular interest, weighty submissions from the Accountability Roundtable, and the Queensland Integrity Commissioner Dr David Solomon AM, who has the benefit of experience with such things in that state and is strongly critical of Australia's regulatory effort, pointing out what should be done to lift our game:

Governments have publicly justified the regulation of lobbyists on the basis that this is required by “public expectations of transparency, integrity and honesty”, as the Commonwealth’s lobbyists code of conduct puts it. If that intention is to be met, it is desirable that the regulation should not leave gaping holes that can be exploited by entities that wish to lobby but to avoid being caught up in the regulatory scheme. Creating a level playing field should be one of the aims of the scheme. As explained above that should include broadening the categories of lobbyists who are required to register (or required to adhere to the requirements of the Code of Conduct, in the case, for example, of in-house lobbyists); it should also cover the lobbying of legislators who are not Ministers or parliamentary secretaries. The scheme should also make it possible for the public generally, and others in the lobbying business, to monitor what lobbying is occurring. To be effective, that will probably require publicly accessible registers, to which both government representatives and lobbyists should be required to file reports of lobbying contacts. It is desirable that there be sanctions introduced, for breaches of the Code, and for lobbying by unregistered lobbyists. There is also a need for rules that govern the time that former Ministers and other government representatives are banned from lobbying activities in areas where they have previously had official dealings.

Achieving these aims will require legislation. It would be desirable if the Commonwealth and the States could agree on uniform legislation. This would reduce red tape and the burden on lobbyists and the entities they represent, making it possible to have, for example, a mutual recognition regime and removing the need for multiple registrations. But in any event, if regulation is to be effective and backed by sanctions, legislation is necessary and desirable.

In the interests of transparency and accountability, it is also desirable that the scheme should be administered by an independent person, and preferably an officer of the Parliament, reporting to a parliamentary committee.

Kiwis show incoming government briefs

And show us up. What a contrast. Just over two months after the election, New Zealand Prime Minister John Key yesterday posted online a consolidated list of briefings to incoming ministers, with links to each briefing document. Not that disclosure of the briefs is anything new in NZ-it's been accepted as routine for years, as has disclosure of cabinet material.

I haven't looked at the content ,and material has been redacted from the briefs, in some cases such as Foreign Affairs, controversially. While many of our federal agencies, led by Treasury got onto the front foot with significant pro-active disclosure of briefs following the 2010 election, government leaders in the states that have held elections in recent times, South Australia, Victoria and NSW, chose to hide behind an FOI cabinet document set up, and leave it to applicants slug it out.

At least reasons given for the need for confidentiality in Victoria last week would have given the Yes Prime Minister team, currently playing in Melbourne ,some good local lines-release would ''delay the operation of effective government in Victoria,'' damage government's relationship with the public service, and mislead the public. Sir Humphrey's best of course was "Minister, you can be open or you can have government but you can't have both."

Victoria the latest "Blue Book" battlefield

The Age

Steve Vizard of MTR Melbourne radio picked up on this story in The Age on Monday and interviewed me yesterday about the battle for access to incoming government briefs prepared over 12 months ago for the Baillieu government. As Melissa Fyfe recounts, The Age is in the Victorian Civil and Administrative Tribunal arguing in a test case against the claim that much of the brief prepared by the Department of Sustainability and Environment is exempt.
 
Vizard made much in the lead in to our talk of the grandiose claims by the Premier on assuming office:

Under a Baillieu Government, what you see is what you will get. There will be no hidden agendas, there will be no spin, there will be no secrecy. Accountability and transparency will be the principles that underpin our Government. And the Government that we lead will be driven by integrity and governed with dignity and decency.

And a brief chat followed on the whys and wherefores of balancing the need for the necessary private space for good government, against disclosure of information consistent with those worthy principles.

Of course the "no secrecy" promise always sounded absurdly out of line with, well, the entire history of government. But in letting pass the opportunity to voluntarily and promptly disclose, outside the strict limits of the Freedom of Information Act, material that would inform and assist public discussion and debate on the state of the state, education, health, transport etc, as well as the environment, the Premier pretty quickly rendered the promise hollow.

Instead, presumably, the decision was to leave all this to FOI and the public service. Large dollops of public money are now being spent arguing legal points concerning disclosure of information 16 months old, arguments according to The Age that are peppered with chestnuts such as release would ''delay the operation of effective government in Victoria,''  damage government's relationship with the public service, and mislead the public. (In addition to an internal working document claim, I take it the cabinet document exemption is also being argued as was the case recently in NSW and South Australia, set  up in all three jurisdictions by a public service directive before the election to agencies to prepare the briefs for submission to cabinet-game, set, match.)

I didn't get a chance to tell Vizard that other issues of concern in Victoria include the slow movement towards delivering on the promise to establish a position of Freedom of Information Commissioner, the weaknesses in the bill now before Parliament, and the apparent complete  lack of interest in government, publicly at least, in bringing the 29 year old Victorian FOI act up to contemporary standards set by reforms in Queensland, Tasmania, and NSW, or perish the thought, even exceeding them.

Australia 30 out of 179 in press freedom report

The Press Freedom Index 2011-2012, a survey covering 179 countries published by Paris based NGO, Reporters Without Borders (RSF), ranks Australia 30th, a drop of 12 places in a year, but overall "satisfactory." At the top of the list, Finland, Norway, Estonia and the Netherlands. Canada came in 10th, the UK at 28 and the US at 47. New Zealand dropped from eight to 13. No country in this region made the top ten. China at 174.

Our standing in this annual survey is now two places below that of 2007. At that time this was cited as one of the reasons for the establishment of the coalition of major media organisations, Australia's Right to Know, to address concerns about free speech in Australia. (Low profile in recent years, to put it mildly- the latest Media Release posted, May 2010; the latest submission to government October 2009.)

In the decade since these surveys began, the first was our best (12), the next our worst (50), with significant movement within these tramtracks since:

2011-2012-30

2010-18

2009-16

2008-28

2007-28

2006-35

2005-31

2004-41

2003-50

2002-12

No country reports are published with the survey results. In the 2011-2012 summary we receive this half-sentence mention (Asia section):

"In Australia (30th), the media were subjected to investigations and criticism by the authorities, and were denied access to information.." 

Hmm. Ignoring the hysteria in some media circles over floated privacy law reforms, and the claims Andrew Bolt is a martyr for free speech, you could expand on that if room permitted, all the while acknowledging some improvements in freedom of information laws and practice in all but three jurisdictions.

The criteria for the ratings are published, as is the methodology:

The (44 question) questionnaire was sent to Reporters Without Borders’ partner organizations (18 freedom of expression groups in all five continents-none in Australia), to its network of 150 correspondents around the world, and to journalists, researchers, jurists and human rights activists (hands up anyone? declaration, not me.). A scale devised by the organization was then used to give a country score to each questionnaire.

Separately as part of the RSF project "Enemies of the Internet" the prospect of a harsh internet filtering system here receives special mention and we appear on the list of countries under surveillance on this score.

I'm with Andrew Lowenthal writing in the New York Times-I too like RSF and admire the important work it does, but rankings of this kind are, well, questionable. Lowenthal is scratching his head that Hungary rated seven places ahead of the USA despite the fact that it has adopted a law giving the ruling party direct control over the media and amending its constitution accordingly.

Lowenthal is not alone. In Indonesia The Jakarta Post reports the Press Council saying it was odd that Indonesia (down 29 places to 146) ranked below Singapore, Brunei Darussalam and Malaysia, "all countries in Southeast Asia known for the draconian measures used to silence the media." (I'd throw in Fiji at 117 for good measure.)

Commentary from our homegrown media is awaited with interest.

In the latest Freedom House Freedom of the Press survey (2011) which includes a detailed country report, Australia's score was 21-the best appears to be 10.

Names of "no gong, thanks" crowd unlikely to surface in Australia

Dahl-Charlie and the Chocolate..

Lewis-Narnia and all that..

Thanks to reader Andrew for drawing attention to the release in the UK, in response to a Freedom of Information application by the BBC, of the names of those who  declined a Queen's honour between 1951 and 1999, and who have since died-Roald Dahl and CS Lewis for two. "Until now, the information was so secret it was not included in official papers released under the 30-year rule," according to the BBC.

None of the 277 people on the list (pdf courtesy of BBC) are identifiable Australians-Imperial honours were the go until the Whitlam government abolished them and created the Order of Australia in 1975-although the request may have been limited to British names.

What's the likely story here?

Documents concerning consideration of names for submission for Imperial awards, up to 1974, and the later records held by the Office of the Governor General concerning the Council of the Order of Australia, the first of which are now 37 years old, in theory, should be well into open access (now after 20 not 30 years) and available from National Archives Australia. However unlike the UK, where personal information protections in the FOI act relate only to information concerning "a living individual," there is a hurdle: our archives act (s 33(1)(g)) qualifies the right to access through a provision that protects "information or matter the disclosure of which .. would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person.)"

I don't know whether anyone has had a crack at this. Or sought records still held by the Office of the Governor General under the Freedom of Information Act. On the latter, probably not, given that the current battle over whether guidelines for awards are documents of "an administrative nature" subject to the act seems to be a first. A second hurdle once over the first would be whether the FOI act personal privacy conditional exemption s 47F applies. 

Two significant differences to the Archives Act: the FOI definition of personal information makes no reference to a person as living or deceased. And section 47F includes an additional public interest test, not found in archives legislation (don't ask me!). I'd expect disclosure under FOI of names of those who declined an award would be unreasonable in the absence of consent (where practicable, from next of kin in the case of a deceased person) and in any event that public interest considerations in favour of release would not be strong.

But otherwise idle researchers out there, your time starts now!

Ever wondered about the award of an Australian gong?

Amid the congratulations to over 400 commendable Australians who received Australia Day awards, the Canberra Times highlights costs incurred by the Office of the Governor-General for legal advice to fend off an application by Karen Kline to access the guidelines for selecting honours recipients. The case will be heard in the Administrative Appeals Tribunal next month. Here is a recap from last October. At that stage the office had spent 3000 hours dealing with the matter. The main issue-there may be others- is whether these documents held by staff employed under the Governor General Act including the Official Secretary who doubles as Secretary to the Council for the Order of Australia are "documents of an administrative nature", and thus within scope under Section 6A(1), or whether the FOI commissioner's decision they aren't should stand.

Sunshine prompts some parliamentarians to certify entitlement expenditure

The Department of Finance and Deregulation list of parliamentarians and senators who had not certified that expenditure by Finance was for legal use of entitlements, referred to here a week ago when the count of non-certifiers was around the 100 mark as at 6 January, reduced to 64 by the 20th. How many rightfully asserted "not guilty" along with John Cobb is unknown. Ministers Roxon, Bowen and Crean, Opposition frontbenchers Bishop and Turnbull and The Greens Bandt are among those who tidied up the record in this period-for expenditure January to June 2011- but those still outstanding (you know what I mean) include minister Conroy, Tony Abbott, Joe Hockey, and Andrew Wilkie- who admittedly has had a busy few weeks.

As certification is voluntary (ahem, is anyone else concerned about this?), I imagine the issue is not anywhere near a high priority for the 20 listed who were not re-elected in 2010 (there are others from previous parliaments). They include Lindsay Tanner, Maxine McKew, and Pat Farmer who has run from the North to the South Pole raising money for the Red Cross, but  this week was "in a tent at the US base, with his feet in warm water drinking a bottle of champagne."

Blue Book non-disclosure in NSW:behind the scenes

snappedshot.com

Those who followed developments concerning access to incoming government briefs-the red and blue books- in Canberra following the 2010 election, and more recently in some of the states -will find the contents of a bundle of documents posted online in the NSW Department of Premier and Cabinet Disclosure Log  in December of interest.

The documents DPC11/03467(pdf) were released to a GIPA applicant (I'm guessing the Daily Telegraph given this report in December) who sought access to documents provided by the Department to the Premier's Office after last year's election, the period from March until November 2011, in relation to access applications made under the GIPA act.

Question time briefs prepared for the Premier suggest what he might say if asked in Parliament about the refusal to disclose any of the incoming government folders, and provide him with other background information, including as some of us said in March, that the Premier could direct disclosure outside the act should he wish to do so, something that never happened.

One undated brief informs the Premier that the Department was reviewing its decision to refuse access in response to a GIPA application, in line with a recommendation from the Information Commissioner that all agencies should do so. (NSW Government Blue Books (pdf)). The only evidence of any result, in this batch of documents, are pages 88-89 from the Departmental Support Services section of the folder, about tabling procedures in parliament, GIPA processing and the registration of lobbyists scheme- they don't come any more bland. (A search on the department's website for "incoming government briefs" produces nothing from the folders at all.)

 Fifty four of the 97 pages consist of weekly lists, through to September 2011, of GIPA applications received by and on hand in the Department-a first glimpse of a full list of what applicants seek. One of the briefing notes confirms that the Premier's office is only notified of a departmental determination after the event, but these lists show that detail about applications is known long before that, with applications from "the media" (no names or other details) categorised and distinguished from the rest.

On disclosure of what government agencies told their new masters and mistresses as they slid feet under the desk, compare and contrast NSW -virtually nothing-with significant if far from complete disclosure of similar documents by 13 or more federal government agencies including those bastions of closely guarded information, Treasury, Foreign Affairs and Defence. To repeat, poor form for a government that came to office indicating improvements in transparency and accountability were a high priority.

(Update: Stephen Murray in a comment on this post draws attention to the release of parts of four volumes of the folders-there are others- on the Premier's department Disclosure Log (a bit of digging on page three) following release, he says to the Australian Financial Review. His analysis of the content is worth reading. To summarise:
"So, what has now been released is an amalgam of mission statements, corporate plans, handbooks and guidelines along with a seeming dump of the combined contents of departmental Outlook Contacts and Appointments: more “Bland Books” than “Blue Books”.)

Or as the South Australian Ombudsman, bound by the legislation there to rule that incoming government briefs were cabinet documents exempt for the same reason as in NSW, but where unlike NSW, agencies retain a discretion to disclose, commented:

In my view, there are reasons why the agencies might give access to parts of the portfolio briefs and other briefing documents, notwithstanding that they are exempt.....I consider that there is a strong public interest in members of the public being aware of policy initiatives and other issues that the agencies consider important to South Australia. In my view, access to such information would enhance public participation in discussions about South Australia’s future, and would be consistent with the objects of the FOI Act of promoting openness and accountability, as well as the principles of administration. I consider these public interest factors to be strongest with respect to generic documents, that is documents prepared with either a returning Labor or an incoming Liberal government in mind

As to the bundle of Premier's department documents, there is no index or content list but here is what it contains, in order, with some comment along the way:

PM's office draws a legal shade on sunshine

Ceridwen [CC-BY-SA-2.0] Wikimedia Commons

FOI Editor at The Australian, Sean Parnell wrote over the break about the two decisions handed down (in Christmas week) by Australian Information Commissioner Professor John McMillan, upholding decisions on behalf of the Prime Minister to refuse access to documents because they were outside the scope of the Freedom of Information Act.

The issue in both cases was whether documents requested by Parnell were "official documents of a Minister."( Freedom of Information Act (s 4). The commissioner found that a letter sent in September 2010 by Emily's List, a Labor Party advocacy group which counts the Prime Minister as a member, congratulating her on her election victory, and separately, a list of the meetings and conference commitments of the Prime Minister at an ALP national conference, did not relate to the affairs of a government agency, an essential component of the definition, and therefore were not subject to the FOI act.

Parnell argued in both cases that the documents involved contact with people seeking to influence government decision making that should, in the interests of transparency, be disclosed. But as the commissioner observed

Whether there is a public interest in greater transparency surrounding contact between elected political leaders and business or community representatives is not the issue to be resolved in this IC review. That is a debate for another forum.

Hopefully an issue for the review of the Commonwealth act towards the end of the year, and for anytime anyone shows an interest in our weak lobbying laws that should require some disclosures about lobbying activity.

Prominent parliamentarians fail to certify entitements expenditure

They're busy people. So some of our politicians appear not to have had the time (add other plausible excuse) to attend to an important accountability obligation: to certify that expenditure on entitlements by the Department of Finance and Deregulation on their behalf was in accordance with applicable legislation. That seems to be the take away from publication with no fanfare or explanation, of these lists of members and senators, and former parliamentarians. under the heading "Parliamentarians' Certification."
(Update: The mainstream media picked up on this story on 17 January)
(Further Update 24 January.) 

For years Senate Estimates have prodded on this issue, the Auditor General has pointed to a sizeable gap in the accountability system, while the Belcher committee in 2010  recommended the publication of names of members and senators who did not certify legal entitlement use in accordance with prescribed terms. Presumably this is what has now been published by Finance. Around 100 names including  20 no longer in parliament have a blank against them. Some prominent front benchers feature (Tony Abbott, Simon Crean, Malcolm Turnbull, all three Bishops) but...House Speaker Peter Slipper gets a tick. 

Apparently certification can be signed “subject to qualification” but the lists don't categorise in this way. There are a lot more no responses than previously indicated: there were said to be about 30 in 2009.

Concerns about accountability and transparency shortcomings in the system have been kicking around since an audit report in 1990-91. The adequacy of certification was next canvassed in a 2001‐02 Audit Report. Despite some improvements, an Auditor General's report in 2009 -2010 again identified weaknesses including the dangers of reliance for accountability purposes on (self) certification, and the fact compliance by parliamentarians was voluntary not mandatory. The issues and how they could be addressed were mapped out in detail last year by Helen Williams in her Review of Administration of Entitlements which Finance is working its way through, including changes to the presentation of information in reports provided for certification. (See Implementation progress – Recommendations of the Review of Administration of Ministerial and Parliamentary Services.)

The publication of names gives practical but partial effect to Recommendation 13 in the Belcher report- like (i) and(ii) there are many others that still await a government response:

That the Special Minister of State, on the advice of the Department of Finance and Deregulation, table in the parliament:
(i) the name of any sitting or former senator or member who has not substantially complied with a request for information about an alleged entitlement misuse within a reasonable time (for example, 28 days)
(ii) the outcome of the investigation into the complaint, and
(iii) regular reports setting out each senator’s and member’s compliance with the requirement for certification that entitlements have been accessed in accordance with the relevant legislation, including any justification given by the senator or member for non-compliance with the requirement.

So publication of the January-June 2011 list is a positive development, but it throws no light on which members and senators have consistently not complied with the certification requirement, in its various forms, for years. A Finance official told Senate Estimates in February 2009 that there were some reports that had not been certified going back to July 2007.

Senator Faulkner was the minister at the table during that hearing and obviously thought (p 99) publicly naming  "genuine recalcitrants" was necessary, in the interests of proper accountability and transparency: