Australian angles arising from Hillary Clinton's private email escapade

Hillary Clinton may or may not have succeeded in hosing down the kerfuffle following revelations she used only a personal email account and never a government account while she served as secretary of state, now admitting this was a mistake.  She also ran a private mail server in her home during this period hosting her email at domain Clintonemail.com.

Clinton and the US don't have troubles in the newish technology space to themselves. Other government  and political figures there are caught up in issues concerning crossover points between information communicated through official and unofficial devices.  It's an issue that has cropped up elsewhere including the UK and Canada.

Beyond a few straws in the wind we know precious little about what goes on in Australia and existing laws aren't much help in working through the issues.

Clinton
Questions are still out there about Ms Clinton's system: whether federal guidelines were violated, state secrets left vulnerable and an offence committed under public records law. Then there's the adequacy of State Department responses over the years to congressional calls for documents and compliance with subpoenas and freedom of information requests. Not to mention the impact on Clinton's likely bid for the presidency in 2016.

The legal and political to one side, it is hard to defend the use of private email exclusively for messaging during your time as head of of a government agency, to then walk out the door with the lot and subsequently deciding in house with your lawyers that 55,000 pages of emails should be handed over to the government, and 30,000 ditched because they are personal.

As US FOI expert Daniel Metcalfe said if he had heard of a Cabinet member setting up a personal email system and deciding what gets deleted and what gets kept as government record, “I would’ve said, ‘You’ve gotta be kidding me.’”

Nine sitting US Cabinet Secretaries and the Attorney General were quick to confirm to Time magazine that they use a government email account for official business.

Not just Clinton
While not quite emulating Clinton's system other public figures in the US have run into private email problems including currently Republican presidential hopefuls Jeb Bush and Scott Walker. 

The George W Bush White House had an issue in 2007 when it was revealed some White House officials had conducted government business over private email accounts set up on a server through the Republican National Committee. 

Not just the US
See FOIMAN's account of the use of private email in the UK in 2012 when Education Secretary Michael Gove and some in his office used private email accounts to conduct business apparently to avoid potential disclosure through FOI. Both the Information Commissioner and the Cabinet office issued guidance on the subject in 2013.

The Vancouver Sun refers to a number of  instances where the issue has arisen in Canada but concludes Canadian laws are intended to avoid situations like the Clinton controversy. 

What about here?
The short answer is we don't know much about what goes on, the law isn't clear in some respects and oversight is thin on the ground.

For example in the wake of the Clinton fuss, IDM asked Australian and New Zealand government ministers about their email arrangements and then published two Australian responses, presumably the only responses received:

A Senior Media Adviser in the office of Australian Defence Minister Kevin Andrews confirmed “Minister Andrews uses a government email account to transact parliamentary and government business. “ A spokesperson for Finance Minister Senator Mathias Cormann said, “The Minister does not use a private email account for official government business.”

 On law and policy IDM asked other questions, but answers weren't entirely forthcoming:

In Australia, the Department of the Prime Minister and Cabinet is responsible for Commonwealth whole-of-government coordination and leadership for cyber policy issues. Nothing about the Ministerial Standards of Oath of Office requires adherence to any particular computing standards. IDM asked the Department whether it issued firm guidelines on the use of personal versus official government email accounts for official business, but is still waiting on response.The National Archives of Australia responded that “Federal government ministers’ documents are subject to the Archives Act if they are records of their work as a government minister. It isn’t against the Archives Act to use personal email for Commonwealth business, as long as there is a mechanism for records to be retained in accordance with the relevant records authority.“ Unauthorised destruction of a Commonwealth record is a potential breach of the Archives Act.

Sally Whyte in Crikey also looked for Australian angles following the Clinton expose. She refers to reports Communications Minister Malcolm Turnbull and his colleagues were using messaging apps such as Wickr -- a platform that allows users to send encrypted, self-destructing messages -- to discuss the leadership tensions recently. "While Turnbull hasn't confirmed what was said in the messages, he did tell reporters that he uses both Wickr and WhatsApp to send messages, as text messaging is not a secure form of communication."

When Crikey asked the Australian Information Commissioner John McMillan if federal MPs had been advised against using encrypted apps to communicate, he said he hadn't done so -- although that kind of advice would usually come from government archivists, he said. McMillan told Crikey that the commission hadn't looked closely at apps like Wickr, but most likely would if it continued to exist. McMillan's role and office was defunded by the government in last year's budget, and he was supposed to finish up last year. The bill to abolish the role has passed the House of Representatives but has not been introduced to the Senate.

From my notebook a few earlier Australian 'private email' episodes
Pretty thin pickings, perhaps just the tip of a a large, growing iceberg.

In Queensland in 2013 the Minister for Housing resigned after a series of integrity failings  including that the minister, his son and the minister's chief of staff were communicating on official matters using private email addresses; the minister's register of contact with lobbyists released during a Budget estimates committee hearing that he declared"very accurate" did not list extensive contact with his lobbyist son on a range of issues; and according to the opposition the minister's ministerial and electorate diary released under Right to Information laws had been doctored to hide the fact he was continuing as a GP to see patients. 

The then Queensland Attorney General "denied the use of private emails was a tactic to avoid having them released under the RTI Act, but said he used private email at home because he didn't have access to his work email. "I wouldn't envisage that's a systemic problem, no," he said. "Everyone should be careful what they put in writing no matter what communication you use."  

Tom Swann in July last year in the Saturday Paper wrote  about documents concerning the Federal Rudd government's 2013 asylum seeker advertising campaign to deter boat arrivals. It involved $6.5 million in public funds spent in the run up to the election. Documents released under FOI in 2014 revealed the controversial advertising campaign was developed and approved in less than a day and someone was calling the shots on Gmail:

The first email was sent at 8pm on Thursday, July 18, by the department’s head of communications, Sandi Logan. It contained the guidelines’ criteria for exempting a campaign from normal scrutiny, with the words “extreme urgency” underlined. Close to midnight someone in the prime minister’s office sent a media plan – “canvassed and locked-in” – to Burke’s media advisers and senior immigration bureaucrats. The sender’s name is redacted, but the email is described elsewhere as coming from “the Minister’s Gmail”.

 In November 2014 the South Australian Independent Commissioner Against Corruption (Annual Report pdf P57) expressed concern that some public officers, mainly ministerial staffers, use personal rather than government email accounts to conduct official business and sounded this warning:

"It has been suggested that the reason for doing so is to avoid the requirement to disclose those emails where an application is made under the Freedom of Information Act 1991(‘FOI Act’). If it is the case that public officers are engaging in this kind of conduct to avoid the consequences of the FOI Act, that conduct should cease immediately. It is a matter of concern that public officers would seek to circumvent a legislative scheme designed to enhance transparency in government decision making. Such conduct might, at the least, amount to misconduct in public administration and be the subject of investigation and potential disciplinary action. I am told that the FOI Act is often abused. If that is so that is a reason to address that Act. It is not a reason to frustrate the FOI Act. While it remains the law the spirit of the Act should be observed by all public officers. Presumably those emails are not maintained in accordance with the State Records Act 1997 (‘SR Act’) (where that Act applies). The conduct therefore might also amount to an offence against section 17 of the SR Act. An offence against that section by a public officer while acting in his or her capacity as a public officer would amount to corruption in public administration under the ICAC Act."

Comment 
It is highly unlikely that a minister or senior public servant would use a private email for government business exclusively as Clinton did. But it would be the height of naivety to think there isn't something going on that brings into question the adequacy of records, archives and information access laws. And the questions aren't all to do with new-fangled gadgetry.

Premier Baird gives Politicians' Pledge the brush: just trust us, please

In the second (and last) leaders debate in the NSW election campaign on Friday Chris Uhlmann asked only one question about trust and left it when both said a few things about political donation reform. 

Maybe Uhlmann hadn't heard of the Politicians' Pledge or didn't think commitment to the pledge was worth pursuing, let alone the smorgasbord of other integrity, transparency and accountability issues that deserve an airing in the interests of good, honest, clean government. 

Whatever, it was poor judgment in an election campaign where the electorate needs no reminder of the record of both major parties, and on trust the Premier is rated 5.5/10, the Opposition leader 4.3/10. (ABC Vote Compass)

On Saturday The Sydney Morning Herald reported Premier Baird declined to sign the pledge. 

Instead, the Premier said he and his Liberal team "will always act in your interests, and will do so in an ethical and democratic manner." (So too The Shooters and Fishers Party saying its MPs took an oath of office and their "honesty and integrity is beyond reproach.)

The general commitment to ethical and democratic values didn't deliver those goods from Liberal or Labor in the recent past. It's why candidates should be willing to provide  assurance by signing on the dotted line to a list of basic democratic values.

Opposition leader Foley told the Herald he would sign as would all Labor candidates. So far they aren't on the published list. Two of Premier Baird's Liberal team both sitting members have broken ranks and signed on as well as a growing number of others.

It's puzzling what Premier Baird finds difficult in the pledge.

Campbell Newman in Queensland similarly found it difficult to commit to the Fitzgerald principles until saying no proved indefensible during a leaders' debate there.

With less than two weeks to the election in NSW will Premier Baird come to the same realisation?

The Politicians' Pledge:

The search for supporters of democratic values in NSW election

The St James Ethics Centre and The Sydney Morning Herald have launched the Politicians Pledge campaign to coincide with the New South Wales 2015 State Election.They are encouraging all candidates  to consider taking the pledge – a copy of which is included below and here to download.

"Those contending for election will seek to distinguish themselves from their opponents by focusing on contentious issues of party, ideology and policy. Our aim will be to do what we can to draw community attention to those things held in common that underpin the quality of our democracy."

In the pursuit of power, I will:

• Act in good conscience;
• Enable informed decision-making by my fellow citizens;
• Respect the intrinsic dignity of all;
• Refrain from exploiting my rivals' private failings for political gain; and
• Act so as to merit the trust and respect of the community.

In the exercise of power, I will:

• Give effect to the ideals of democratic government and represent the interests of my electorate as a whole;
• Abide by the letter and spirit of the Constitution and uphold the rule of law;
• Advance the public interest before any personal, sectional or partisan interest;
• Hold myself accountable for conduct for which I am responsible; and
• Exercise the privileges and discharge the duties of public office with dignity, care and honour.

Like the Fizgerald Principles that received attention in Queensland, they appear remarkably unchallenging.

See the list (and the Moir cartoon) of those who have signed so far- mostly independents, Greens and one Liberal Party candidate.

Hopefully a companion piece soon listing those that refuse?

My local sitting member, and a champion for transparency Alex Greenwich (Sydney) has signed.

New low point for FOI as public service boss labels access rights law "pernicious."

Pernicious-"having a harmful effect, especially in a gradual or subtle way: damaging, detrimental, deleterious.
Very pernicious- extremely harmful, damaging, detrimental etc.

 Illustrating the lack of support at senior echelons of the public service for transparency and accountability Public Service Commissioner John Lloyd commented in talking to public servants at an event on Wednesday.:

One audience member suggested to Mr Lloyd that public servants were probably risk averse because of the penalties if they made an error of judgment. Mr Lloyd said this could be because of a large number of watchdogs and "very pernicious" freedom of information laws."[FOI laws] have gone a bit further than what they were intended to," Mr Lloyd said.

That audience member was right of course.

The Commissioner wasn't.

As former attorney general Senator Joe Ludwig said:

"It's unbelievable that the head of the Commonwealth public service would call the FOI laws 'pernicious' – he either has no understanding of the importance of FOI laws in a modern and transparent democracy or he is trying to undermine the legislation with his comments," Senator Ludwig said. "FOI laws simply provide a window into the decisions and process of government. If the Public Service Commissioner has confidence in the professionalism and integrity of public service staff, then he has nothing to fear from FOI laws."

He said the Abbott government had a track record of secrecy since it came to power.

This low point takes its place alongside the plan to abolish the Office of Australian Information Commissioner still in a bill before the Senate that Senator Brandis said reflects the Government's position. The FOI functions of the office have not been funded beyond 31 December 2014.   

With two weeks to the NSW election, integrity issues on the fringe, hardly center stage

Integrity issues so far are only on the edge of the NSW election campaign with just two weeks remaining. Maybe Friday night on ABC?

The Liberal and Labor websites are both skinny on policy in any event and 'how we intend to govern' doesn't rate a mention. Neither party has anything to match The Greens policy on Democratic Participation. 

With politicians low on the trust scale you'd hope how they plan to earn it back would get a full airing.

However to date no mention in the NSW campaign of the Fitzgerald principles that had some impact in Queensland. Hardly a challenge you would think:

1. Govern for the peace, welfare and good government of the State;

2.  Make all decisions and take all actions, including public appointments, in the public interest without regard to personal, party political or other immaterial considerations;

3.  Treat all people equally without permitting any person or corporation special access or influence; and

4.   Promptly and accurately inform the public of its reasons for all significant or potentially controversial decisions and actions.

No mention either of intention to nominate a minister with specific responsibility for integrity and accountability issues in line with newly elected governments in Victoria and Queensland.

The major parties aren't throwing mud from ICAC digs in recent times, presumably because they'll get as good as they give. 

The Greens John Kaye's commentary last July is a little dated but highlights ICAC recommendations from 2010 that both have let go through to the keeper.

Including on Lobbying. The Government introduced welcome reforms in 2014.This was my take on important elements missing.

 Labor in July 2014 said Labor ministers, their staff and departments would no longer be allowed to meet third-party lobbyists, who advocate on behalf of the private sector.  If it was likely to happen that would be a real test of lobbying skills and my guess is they would manage to head it off.

Political donations
NSW already has the most stringest rules in the country and the Schott report released on Christmas eve recommended many improvements in law and practice. Premier Baird has now committed to most recommendations but an editorial in The Sydney Morning Herald points out his failure to fully embrace real-time disclosure of donations to avoid long delays in reporting, and the recommendation for independent oversight of changes to electoral funding limits. Labor's views (last September in the name of current leader Foley's predecessor) were hardly big and bold apart from full public funding, an idea going nowhere. 

The SMH is right:

"If NSW is to have transparent democracy, it needs a world-class electoral funding system."

So too Federal and other state and territory systems that meet that standard.

All round we are a long way short.

Transparency, accountability
Hard to spot any references or commitments so far. The party leaders could be forgiven for not knowing, but seven months ago the Attorney General kicked off a required statutory review of the NSW FOI/RTI equivalent, the Government Information (Public Access) Act. Apart from a call for submissions, silence then and since. The Information Commissioner reports encouraging signs to June last year in the way agencies are implementing the act but "there is still work to be done to promote access to information and achieve the objects of the Act."

While NSW 2009 reforms were steps in the right direction, still plenty of room for improvement in my view. 

One welcome step since July 2014 is the publication of a version of  Ministers' Diaries,
but it hasn't been enacted in legislation.

As to other transparency initiatives?

Digital Age/Open data
Governing in the Digital Age sounds necessary and vital right now rather than a promise for the future. But just an example mind you, nearly every government agency in NSW only accepts snail mail GIPA applications and requires payment by cheque, or wait for it, Money Order.  Then there's "Service NSW.. set up in 2013 by the NSW Government to make it easier for NSW residents and businesses to transact with government." Related example, you can't make a GIPA application for information to any government agency using that facility.

NSW published data sets are said to be 'high value' but whether that's the way those outside government view them is another question; even whether agencies ask those likely to utilise them for accountability or commercial or social reasons. 

Too many data sets published are not in machine readable form, limiting the use of the data. 

The GIPA and Open Data worlds need to be linked not siloed as separate universes. 

Labor seems silent on these issues.

Parliament
Parliamentarians should be lining up to support transparency and accessibility of information in the Interest Register and concerning payment and use of entitlements. Alas.

Other issues such as ethical standards, whistleblowing, and post government employment of ministers are yet to surface either and ICAC supporters and those who support donation reform wait on wisdom from the High Court.

Meanwhile Queensland is acting on some of its integrity commitments as a high priority, so that's a welcome development.

Putting the NSW Parliament's Interest Register under scrutiny

With an election to be held on 28 March, Nick Evershed and Todd Moore at Guardian Australia are looking for help to create a searchable, machine-readable database of the NSW Parliament Interests Register. 

Surprised this sort of information isn't already up there in lights?

I've lost the link but made a note years ago that ICAC made this recommendation in a report in 2003:

 "That the register of pecuniary interests be established as an electronic database that can be accessed via the Internet by Members of Parliament and members of the public."

Disgraced former minister Eddie Obeid got away with a micro version of the real thing for a decade probably because the register, conveniently was available for inspection in Macquarie during business hours on weekdays by those who took the trouble and few bothered.

More eyeballs might make a difference.


As Evershed and Moore explain half "the pecuniary interests register in NSW has never been viewable online by the public, and the other half is hard to find. All of the declarations are only available as scanned PDFs, sometimes handwritten, which makes it difficult to properly scrutinise the register."

They provide the pdfs and want help transcribing the register and flagging entries that are worth investigating further.

As they say this "can be used in conjunction with other datasets, such as records of donations, contracts, and travel expenses to improve political transparency in NSW."

Parliamentarians expenses and entitlements largely go under the radar in NSW, with annual total spend reported at year end in an appendix in the Assembly (pdf page 60) and Council (pdf page104) annual reports.

NSW is not alone-things are much the same in the other states.





 

Australia 'positively inclined' to join Open Government Partnership but wait, more consideration needed

On the one hand it was heartening that Minister for Finance Cormann told Senate Estimates last week that the government is "positively inclined" to join the Open Government Partnership. 

On the other, somewhat disheartening that public servants are still "going through all of the considerations that need to be gone through before we make a final decision." 

With no end in sight apparently, Minister Cormann adding the "government will form a view as soon as possible and will take as long as necessary."

Australia was invited to join the OGP, the "international platform for domestic reformers committed to making their governments more open, accountable, and responsive to citizens" in August 2011. Sixty four other governments have joined or are in the process of doing so. Just the ticket for those interested in good government you would think.

It took the Rudd-Gillard governments 21 months to reach the decision in May 2013 to lodge a notice of intention to join the OGP. 

The Abbott government has now spent 17 months since coming to office 'considering' whether to proceed or not proceed to membership. 

Last November the committee was told Finance was doing 'quite a lot of work' on a national action plan (notably,without talking to anyone outside government about it) for completion in December.  

The Department wasn't forthcoming with a copy of whatever they were working on at that time and is yet to respond (meaningfully) to this specific request for the action plan or draft.

Back in November the OGP Support Unit, working on the reasonable assumption that Australia was committed to membership as a result of the May 2013 notice and presumably not having been informed otherwise, wrote to Finance (pdf) advising that the government has "acted contrary to the OGP process for this cycle of action plan development" in failing to lodge a national action plan by July last year. 

We don't know whether their request for clarification "in the near future" on Australia's participation yielded more or something different from what the committee was told last week.
  
At the estimates hearing Senator Lundy switched after three questions about the OGP to another topic, the announcement in January by the Prime Minister and Minister Turnbull about the establishment of the Digital Transformation Office. 

Secretary Halton told the committee the detail including what functions will transfer from Finance to Communications as a result is under 'active discussion.' (In Yes Minister speak I think this is a notch above the 'under consideration' tag attached to the OGP file. Sir Humphrey once explained one meant 'we've lost the file' the other 'we're trying to find it.')

Open data apparently is somewhere in the mix.

That draft OGP national action plan according to Finance "will take into account the Government’s e-government and digital economy agenda." Maybe Communications will end up with some OGP related functions if the positive inclination to join translates into a decision to do so.

There are no funds for the office in Communications Additional Estimates 2014-15.

However Secretary Halton told the committee it's all to happen as soon as possible.

 

So's a decision on the OGP according to the minister.

We live in hope.

The discussion of the OGP and the DTO at the committee hearing follows.

ALRC Freedoms Inquiry-no place for freedom of information

Submissions close today on the Issues Paper issued as part of the Freedoms Inquiry
by the Australian Law Reform Commission. 

Attorney General Brandis asked the ALRC to "review Commonwealth legislation to identify provisions that unreasonably encroach upon traditional rights, freedoms and privileges." 

The inquiry reflects a commitment made before the 2013 election. As noted at the time common law rights and freedoms are limited. Judges, rarely, 'find' new rights not previously uncovered.

Other rights (the FOI right to access government information and the right to privacy are two of many examples) find their way into law through statute and international instruments. You won't find this sort of thing in the Magna Carta. Legions of Sir Humphreys managed to ward off Freedom of Information legislation in the UK until it finally took effect in 2005. 
 
Thus while freedom of speech got a specific mention in the terms of reference list of traditional rights, and in the Issues Paper, freedom of information didn't. 

I dropped a short note to the commission:

While a fundamental right and freedom recognised in international law, the common law in Australia, drawing on British traditions, does not recognise a right to information. 

This freedom is not listed in the terms of reference for the inquiry. However freedom of information and Commonwealth laws that encroach on this right should not pass without comment in your report.

For example, Secrecy Laws and Open Government in Australia (ALRC Report 112) identified 506 secrecy provisions in 176 pieces of legislation and made 61 recommendations for reform. The report refers to the chilling effect this complex framework has on open government, transparency and the right to access information. The report was tabled in March 2010 and has not, as yet, been implemented.

Many aspects of the Freedom of Information Act fall short of emerging international standards.

The statutory review of the FOI act conducted by Dr Allan Hawke in 2012-13 recommended a comprehensive review of the kind he was unable to undertake. There has been no government response.

As to freedom of information and its place in the law, UNESCO describes freedom of information as 

"an integral part of the fundamental right of freedom of expression, as recognized by Resolution 59 of the UN General Assembly adopted in 1946, as well as by Article 19 of the Universal Declaration of Human Rights (1948), which states that the fundamental right of freedom of expression encompasses the freedom to “to seek, receive and impart information and ideas through any media and regardless of frontiers”.

FOI has also been enshrined as a corollary of freedom of expression in other major international instruments, including the International Covenant on Civil and Political Rights (1966) and the American Convention on Human Rights (1969)."

The United Nations' Human Rights Committee (General Comment 34) states that freedom of information is integral to human rights under international law "essential for the promotion and protection of human rights." Access to government information, which the committee considers an element of freedom of expression, is an "indispensable condition for the full development of the person" and "the foundation stone for every free and democratic society."

The right of access to government information isn't absolute and must be balanced and adjusted over time to reflect other rights and public interests. 

But not taken away or without reason diminished. 

I didn't mention the potential encroachment on the enjoyment of the right arising from the Attorney General's intention to legislate the Office of Australian Information Commissioner out of existence. 

Maybe the Senate will stop that one.

AG Brandis not for turning on bid to abolish Office of Australian Information Commissioner

Senator Brandis at Senate Estimates late on Tuesday said he's still aiming to get rid of the independent statutory officer responsible for championing transparent government, an officer who undertakes other important functions including non litigious free review of agency decisions under the FOI act.

This despite the fact that votes from Labor, The Greens and the crossbenches to support the move weren't there last December and its difficult to discern any change in sentiment since. 

Just about everyone outside government who looks into the proposal thinks it's a bad move unsupported by evidence and out of step with trends in good practice thinking about open transparent government in Australia and internationally.

Monday and Tuesday were long days as the Senate Estimates hearing for the Attorney General's portfolio proceeded. 

The Australian Human Rights Commission with the president in the line of fire, proposed national security legislation and a myriad other issues were traversed in the course of many hours of Q and occasional A.

But at 9.48 pm on Tuesday the Office of Australian Information Commissioner finally got the call.

Interest in proceedings had diminished  by this time with Chair Senator McDonald, ALP Senator  Collins and Liberal Democrat Senator Leonhjelm the only committee members left standing. Well sitting to be more precise.

You can read the 24 minute hearing here.

Attorney General Brandis and Matt Minogue of the AGD made it clear that the the bill to abolish the Office of Australian Information Commissioner still before the Senate continues to reflect the government's position; that the office, funded in the 2014-15 budget until 31 December and now with whatever funds were left for general functions from that date and for privacy functions until 30 June must continue to do what it can to carry out its statutory FOI, privacy and digital information policy functions without supplementary funding; and things will stay that way until the bill comes on for consideration and its fate determined. 

When that might be Attorney General Brandis has no idea. It's "a matter for the Manager of Government Business."

The OAIC has closed the Canberra office, the Information Commissioner works from home and the office has seven staff working on FOI matters. A year ago it had 20.

"The office continues to receive inquiries, complaints and IC review applications under the FOI Act, and these are dealt with under arrangements that we have published on our website. FOI matters are currently being handled by a small team in the Sydney office under the supervision of the assistant commissioner for dispute resolution and the Information Commissioner. In summary, FOI complaints are being transferred to the Ombudsman's office; Information Commissioner reviews are being triaged by our office so that where we can expedite a matter we do so; and, for the more complex or voluminous ones, we work with the applicants for these to be referred to the AAT."

With the sword of Damocles hanging over the OAIC since the unexpected announcement in May 2014 of intention to close the office Acting Information Commissioner Pilgrim (the only member of the top echelon not working from home) saluted the staff that have battled on regardless:

in respect of all of our functions, I would personally like to take this opportunity to acknowledge the ongoing commitment and professionalism of the staff in our office, who have continued to work tirelessly during very uncertain times. And I will add that in my 31 years in the Public Service I have not seen a better demonstration of and upholding of the Public Service values.

As for the Attorney General it's nothing to do with him. It's all Labor's fault

if these are perceived to be problems, then these perceived problems would all disappear if the opposition would support the bill so it could be passed...
As I was saying, if the government had an indication from the opposition of what its position was, and if the opposition, which has had plenty of time to consider this, indicated its support for the bill, then the bill could be progressed through the Senate very soon.

Senator JACINTA COLLINS: I do not think there has been any uncertainty about the opposition's position here. I think the issue is—well, I will ask: is it true that the government has offered crossbenchers a comprehensive review of the FOI system if they support the bill? And why instead will you not conduct that review before you abolish the Information Commissioner?

Senator Brandis: Surely you would not expect me to reveal private conversations that the government might have had with individual Senators. Surely you would not expect that.

Senator JACINTA COLLINS: I would not be surprised by anything that you might do after today, Senator Brandis. I would not be surprised by anything.

If the government isn't prepared to bring the bill on for debate, maybe Labor, The Greens and the crossbenches should. 

If its voted down the government might finally be shamed into adequately funding our champion of open transparent government despite its distaste for such ideas.

In an answer tabled in response to Question 204 from Senator Collins taken on notice in December about funding for the OAIC beyond December, that didn't get a mention during the hearing, the Department  stated

"The cost implications from the continued operation of the Office of the Australian Information Commissioner beyond 1 January 2015 will be determined as part of the Government’s Budget processes."

In light of yesterday's testimony they can't mean 2014-15 budget processes.

AGD appears to be struggling with an answer to another Senator Collins question from last December - the other countries that have an independent FOI commissioner. Q57 remains one of few unanswered two months later. 

Last time I did some digging it was around the 40 mark, although with 100 countries now having an FOI act it might be much higher. 

Oh and they don't have to look far for local adherents to the idea: Queensland, NSW, Victoria, Western Australia, Northern Territory and the ACT have information or FOI/RTI commissioners. In Tasmania the Ombudsman carries the can while in South Australia the Ombudsman has the review function and the former ombudsman there now Queensland Integrity Commissioner recommended adoption of the FOI commissioner model.

It's clear who is out of step here.

"Respect independent statutory bodies as central to democracy"

Professor Danielle Celermajer of the University of Sydney on The Conversation: independent statutory bodies such as the Australian Human Rights Commission and the Office of Australian Information Commissioner are established by laws passed by Parliament to ensure that all arms of government respect the full range of laws.

"If we are to continue to reap the benefits of this system, we all need to keep in mind the value of democracy. When our highest political representative moves to undermine the legally constituted organs of democracy, all Australians have something to worry about. Respect for independent statutory bodies is not a matter for party politics or personality differences. Democracy is not a partisan issue."

Good governments recognise integrity and accountability are part of the package

Evidence that those who win public office have sniffed the breeze: the new governments in Victoria and Queensland have each appointed a special minister of state responsible for integrity and accountability issues. 

Hopefully a pointer for those running for office next in NSW on 28 March.

And for a federal government now almost half way through its term whose leader declared a week ago "good government starts today." 

The government has virtually nothing positive to show on the integrity and accountability front after 17 months. 

And its bill to abolish the independent statutory office established to oversight the public right to access government information remains on the bills list while the office operates with "reduced resources in anticipation of closure."

In a poll four months ago 46.5 per cent believed the Federal government to be untrustworthy, a lower level of trust than enjoyed by state and local counterparts.

 It's likely to have gone to new depths since.

Good government includes recognition that integrity and accountability are part of the package.

Followed by action to match on political donations and lobbying reform; transparency, supporting open government instead of closing down the information commissioner; an anti corruption plan to include an anti corruption body; upgrading whistleblower protection to best practice standard; a code of ethics for parliamentarians; and signing on to the Open Government Partnership.

All the while going beyond the public servants in the parliamentary triangle to engage with the broader community on these and related issues.

Will Queensland's Palaszczuk lead a return to integrity?

Professor AJ Brown of Griffith University writing at The Conversation looks at the issues in Queensland as the new Premier Annastacia Palaszczuk takes office having committed to “restore integrity and accountability” and forge a path of “consultation and consensus, rather than the division of the past three years”.

Update: In announcing her ministry on 15 February no mention of specific responsibility for integrity and accountability issues. Presumably they're with Attorney General d'Ath. Good sign though that they appear in the first sentence of the Premier's first media statement:

Premier Annastacia Palaszczuk says her new Cabinet will be focussed on job creation, listening to Queenslanders and acting on their concerns, while restoring integrity and accountability to government in Queensland.

Update on the Update: Even better - The Mandarin reports the one assistant minister Stirling Hinchliffe "will work on integrity and accountability issues for the Premier while also serving as leader of the house."

During the campaign Labor promises included

• Committing to the Fitzgerald Principles for good governance.
• Reforming political donations rules, including restoring a lower $1000 disclosure threshold.
• Holding an inquiry by Queensland’s Crime and Corruption Commission (CCC) into the “links, if any, between donations to political parties and the awarding of tenders, contracts and approvals”.
• Upgrading and advertising the chairmanship of the CCC, held on an “acting basis” by former bureaucrat Dr Ken Levy in what Labor brands an “abuse” of the position.

Ms Palaszczuk went further in a letter of intent to win the support of Independent Peter Wellington.  

Not mentioned but waiting for the incoming government also is a dusty file marked "Review of Right to Information and Information Privacy Acts 2013" a review launched by the Attorney General in August that year but which sank from sight after submissions on a discussion paper closed. Neither the review report nor submissions have been published.
Action didn't match the talk in 2013 about Open Government.

A short sharp review against best practice information access standards in 2015 should be part of the Palaszczuk plan.

AAP: "FOI changes likely dead in the water"

Lisa Martin for AAP reports the move to abolish the Office of Australian Information Commissioner "appears doomed, leaving a Commonwealth agency in limbo." 
 
Not just any Commonwealth agency. 

It's the independent office established to oversight the implementation of the law that confers our right to access government information among other important functions.

Good government requires government support and funding for the OAIC to end the spell in limbo, pronto. 

Then discussion about how to improve efficiency and effectiveness in delivering open transparent and accountable government to a standard that makes a good government proud. 

The sort of discourse that would would follow a government decision to end uncertainty and over three years of dithering about whether Australia will join 64 other countries in the Open Government Partnership. 

Last November Finance Secretary Jane Halton told a senate committee that her department was doing 'quite a lot of work' on the required national action plan, should the government proceed to full participation.

That work, due to be finished in December 2014, wasn't informed by a dialogue with the citizenry, something you'd expect from a good government, but we live in hope.

 

The new 'listening' Abbott government should scrap the plan to scrap the Australian Information Commissioner

There are 51 Government bills before the Senate as Parliament today gets down to business for 2015, including the Freedom of Information Amendment (New Arrangements) Bill. 

While still on the Bills list the bill is not included in the indicative Senate program for this week.

As currently drafted the bill would abolish the Office of Australian Information Commissioner by 31 December 2014 - at least that small detail requires amendment. 

As Privacy Commissioner Pilgrim and Australian Human Rights Commission President Triggs say the provisions to transfer the Privacy Commission functions to the Commission are unworkable, that's another.

Then more importantly, other parts of the bill the government hasn't talked much about include the removal  from the scene entirely of the independent monitor, champion and advocate for open, transparent government. And changes that

• abolish the non-litigious free external merits review process for review of agency and ministerial FOI decisions, mandate internal review for an aggrieved party, and move the external review function exclusively to lawyers' territory at the AAT where the application fee for those who do not qualify for a concession is currently $861;

• fracture the synergies established only four years ago between FOI, privacy and broader government policy on information management in the digital age; 

•  place the attorney general in the position of government wide influence on the interpretation and application of the FOI act through authority to issue guidelines in the stead of the independent commissioner.

The move to abolish the office runs counter to public sentiment regarding the importance of transparency and accountability.

A reader tells me that the Australia Institute Exit Poll in Queensland showed 73% said accountability, transparency and trust in government had a large impact on how they voted; half (51%) of those polled heard or read about Tony Fitzgerald who promoted the Fitzgerald Principles during the campaign; and of those, 62% said Mr Fitzgerald’s comments prompted them to give more weight to the need for governments to be open and transparent when they voted.Oh, and almost 9 in 10 (88%) Queensland voters believe that the results from the recent Queensland State election have implications for the Abbott government.

As a Queenslander, Senator Brandis (pictured) surely knows this.

Meanwhile back in Canberra the last we heard, the Australian Information Commissioner  was working from home, the OAIC Canberra office had closed and the Freedom of Information Commissioner was off the books following his appointment to the AAT.

The uncertainty about intentions arises because of silence from the government and this comment from a spokesperson for the Attorney General after  the bill did not come on for debate before the Senate rose for the year on 4 December:

“The Government is committed to implementing its budget measure to streamline arrangements for the exercise of privacy and freedom of information (FOI) functions.”

At a Senate committee hearing the next week Attorney General Senator Brandis claimed the reason the bill wasn't considered in December was simply pressure on time and higher order priorities. (In reality, with Labor and The Greens opposed, the six of eight crossbench votes needed to pass the bill weren't there.) 

Despite plenty of opportunities Senator Brandis said nothing then about reintroducing the bill or the Government's plans. However AGD FAS Matt Minogue said:

The bill reflects the government's intention. If the matter were brought on and progressed and passed in February it would be pointless to gear up the full FOI machinery again. If the bill is not passed, government can make decisions in light of that. But, as I said, the bill reflects the government's expectations. 

My applications to Attorney General's and the OAIC for documents about 'discussions' concerning funding and resource issues post 31 December await a response.

The government in its current mode of rethinking and in line with a renewed commitment to consult, listen and lift its game should see the folly in proceeding with legislation to abolish the office, a move not only out of line with public opinion on the importance of transparency and accountability but out of line also with emerging international best practice, and as reflected in state jurisdictions in Australia as well.

Simply pull the bill, get the OAIC back in running order, and as part of a broader new direction on integrity issues, engage on how and in what way we can improve efficiency and effectiveness in delivering, open transparent and accountable government.

When a Senate committee allowed five working days for submissions during its consideration of the bill in November, after the government itself had talked to no one outside before or after the announcement in May 2014, the advice from just about everyone who had time to respond was 'wrong way, go back.' 

The future of the OAIC will be an important indicator of the extent of new listening and thinking in the 'new' Abbott government.

An FOI Masterclass

A rare opportunity in my experience: Paul Farrell of Guardian Australia invites allcomers to a surveillance, encryption and freedom of information Masterclass on 13 March. As 'on the job' learning dominates for media types and others seeking to match wits with well trained public servants on the other side, might be well worth the money.

For the pollies who listen, time for the Minister for Integrity.

The whiff of interest in such things is getting stronger. Except on the Federal scene where we have a trust deficit disaster.

Victoria put integrity up in lights with the appointment of a Special Minister of State responsible for a wide range of integrity measures. Gavin Jennings ranks third in the ministerial line up, not as an add on at the bottom of the list.

Integrity and accountability are certain to feature in the forthcoming NSW campaign with the major parties both desperate to ditch the baggage opened up by the Independent Commission Against Corruption.

Labor made much of these issues in the incredible Queensland campaign. 

Commitments to improve integrity measures there proved crucial in winning Independent Peter Wellington's support for a Palaszczuk government, announced today.

In an exchange of letters the leader of the opposition, within two seats of a majority, reaffirmed the commitment to the Fitzgerald Principles; undertook to reintroduce a $1000 disclosure threshold for political donations and to work with the Electoral Commission to develop a real time online disclosure of donations; ensure the anti corruption watchdog, to be headed by a new independent chair, holds a public inquiry into the links if any between donations to political parties and the awarding of tenders, contracts and approvals; will make all public service appointments on merit; and explore a possible Bill of Rights In Queensland.

But not a word about such things so far in Prime Minister Abbott's look into the future with the emphasis on a 'safe and secure Australia', strong economy, jobs, families, and budget repair (without pain). 

This despite the pre election acknowledgement by Mr Abbott that the trust deficit was bigger than the budget deficit, and that commentators including Lenore Taylor now call it a trust deficit disaster.

The Abbott government should sniff the breeze: political donations, lobbying, transparency, supporting open government instead of closing down the information commissioner, an anti corruption plan to include an anti corruption body, upgrading whistleblower protection to best practice standard, a code of ethics for parliamentarians, signing on to the Open Government Partnership, engaging with the broader community on these and related issues. 

Best led and sheperded by a minister for integrity in name or in practice.

Federal Labor, about to see Senator for Integrity John Faulkner walk out the door any day now, shouldn't wait a moment to follow the Victorian brothers and sisters by tagging a top performer on the opposition front bench with these responsibilities. 

Victorian FOI should take the leap into 21st Century

Victorian Special Minister of State Gavin Jennings tells The Age that FOI initiatives in the government's plans are:

• The FOI commissioner will be converted into a new Office of the Public Access counsellor, which will have the authority to review decisions made by ministers and departments and deemed cabinet-in-confidence.
• The time limit for departments to respond to FOI requests will reduce from 45 to 30 days, and the time limit (for the FOI commissioner) to consider review decisions will be reduced from 60 to 15 days.

No detail that I've seen yet about the full scope of the Office of the Public Access counsellor.

Presumably the office will be adequately resourced to meet that ambitious review deadline.
 
Minister Jennings should also get out the 'best practice' book with the intention of a thorough review to modernise and bring the FOI act into line with contemporary Australian and international thinking. 

In the broad, apart from the FOI commish role and wherever that might be heading in the next iteration, Victorian FOI law represents the best thinking....of 1983.

(Memo Federal Attorney General Brandis-plenty of ideas worth discussing about FOI/ information commissioners, their role and functions, and how to make the FOI system more effective. Abolishing the office isn't among them elsewhere.)