Office of Australian Information Commissioner can't run on empty.

David Donaldson in The Mandarin OAIC to be left without statutory officers reports, well silence so far, on what will happen at the Office of the Australian Information Commissioner after its two remaining statutory officers depart this month, "fueling speculation the government is abolishing the body by stealth." 

(Update: Announced on15 July that Privacy Commissioner Pilgrim will be acting Australian Information Commissioner from 20 July, so the OAIC will continue to function. Well sort of-one commissioner to do what the parliament thought needed three.)  

Freedom of Information Commissioner James Popple, left in December 2014 on appointment to the Administrative Appeals Tribunal; the term of office for Privacy Commissioner Timothy Pilgrim expires on 19 July; and Australian Information Commissioner Professor John McMillan departs on 31 July to take up an appointment as NSW Ombudsman. 

Without at least one statutory officer, permanent or acting, the FOI review function cannot operate. An application to the OAIC is a mandated first external review step for most before a matter can taken to the AAT. The review function or the decision to wave it through to the AAT rests with a commissioner. These functions cannot be delegated.

The government plan to abolish the OAIC by legislation that has sat in the Senate for eight months.The bill does not enjoy majority support.

The 'good government' apostles on the government benches have spent a year on this ill conceived journey that would take the cause of open, transparent government backwards.

No one outside the tight circle within which the Attorney General, his cabinet colleagues and perhaps some senior public servants move think this is a step in the right direction. 

None have clarified the problem they seek to solve, or engaged with anyone outside the parliamentary triangle on how best to address it. 

Abolishing the office is out of step with prevailing 'good practice' in all peer group countries and with the systems operating in Queensland, NSW, Victoria, WA, the ACT, Northern Territory and Tasmania.

It's well overdue time for a rethink.

Pull the bill and set about some evidence based thinking how to streamline and modernise access to government information including the FOI act and implementation practices.

Outdated provisions in the FOI act, and inefficiencies and outmoded approaches to implementation abound.

I doubt if abolishing the OAIC would rank anywhere in a long list of initiatives likely to come out of such an exercise.

In the meantime and pronto, the government needs to announce how the OAIC will function after the last commissioner readies to turn out the lights. 

Lax rules boost risk of organised crime snaring government contract

From The Conversation

Louis de Koker, Deakin University and Kayne Harwood, Deakin University

Four Corners this week revealed more about how criminals may be able to access political favour via political donations in Australia, but that is only part of the picture.

New research suggests more work needs to be done to prevent criminals from subverting government procurement processes and funding their illegal activities by winning tenders to supply goods and services to the government.

How to make crime pay 

There are many ways for a criminal to secure a tender. He may receive favourable treatment at the tendering process after a generous political party donation. She may bribe or intimidate a politician or procurement official. Procurement officials may award the contract to a business not knowing that it is controlled by criminals. Criminals may, of course, also gain such control of a supplier after the contract is awarded.

The risk of criminals controlling businesses is real. The Australian Crime Commission’s May 2015 Organised Crime in Australia report identified the abuse of legitimate business structures as one of the key enablers of organised crime in Australia.

Sole proprietorships, companies and trusts are, for example, used to hide who owns and controls a firm. Such business structures can also be abused to fund crime and and launder the proceeds of crime – or even facilitate terrorist financing. The US Special Inspector General for Afghanistan Reconstruction investigated US Army procurement practices in Afghanistan and found more than US$150 million in contracts had been awarded to companies with ties to terrorists.

In an effort to disrupt the money flows of criminals and terrorists, governments worldwide have adopted laws based on standards set by the Financial Action Task Force, an inter-governmental body that aims to combat money laundering and terrorist financing.

A key plank of the standards requires countries to compel banks to adopt “know your customer” due diligence practices to identify criminals and keep their transactions out of the banking system. Banks must take reasonable steps to identify and verify all customers and controllers (called beneficial owners) of customers. To guard against laundering risks linked to corruption, they must also identify customers who hold senior public offices (so-called Politically Exposed Persons), their family members and close business associates. Identity particulars must be verified using reliable, independent source data or documents.
But do governments apply the same due diligence measures when they do business?

More to be done

We conducted a study, recently published in the Sydney Law Review, into whether Australian governments take similar care to “know their suppliers”. The procurement spend of Australian governments exceeds A$110 billion per year and presents a rich target for criminals.

We focused on the type of identification and verification measures that a range of Australian government departments and agencies undertake in relation to prospective contractors.
In general, we found that standard procurement practices fall well below the standard of the “know your customer” checks required of banks.

General government procurement practices, for example, do not consistently identify the directors and the controllers of corporate suppliers. It is not routine for procurement officials to check consistently if tender candidates have a criminal history or whether they are controlled by public servants or serving politicians.

Suppliers are not generally checked against blacklists maintained by other governments or the World Bank or even against Australia’s own foreign sanctions list.
Where information is collected, it is generally not independently verified. In essence, the government accepts the word of the supplier.

Reducing risk

Such practices expose Australian public procurement to criminal risk. Australia has been rocked by enough procurement scandals to show that there is little justification for complacency.

Victorians recently witnessed the very public picking apart of the Department of Education and Training, as stories of Nino Napoli diverting public funds through dodgy contracts hit the headlines.

And earlier this year, charges were laid against nine people following an investigation into alleged serious corruption in the transport sector. That case focused on the procurement of infrastructure works at Public Transport Victoria and the former Department of Transport.
In NSW, ICAC’s inquiries into former ALP minister Eddie Obeid turned up various cases where he is alleged to have attempted to influence decisions of public officials favouring certain companies, without disclosing his or his family’s interests in those companies.

Headlines such as these saw Australia falling out of the top ten countries in Transparency International’s annual global Corruption Perceptions Index.

The failure to properly vet suppliers not only increases the vulnerability of procurement processes to corruption and abuse, but also undermines the effectiveness of Australia’s anti-money laundering and counter-terrorism financing laws. It enables criminals to use tax dollars to fund criminal activities and provides them with an appearance of public respectability that may facilitate their access to formal financial and professional services.

This problem can be fixed. As a starting point, government procurement processes at all levels should be amended to include standardised, risk-based supplier integrity checks.
Trained procurement officials should be given access to the data that bank compliance officers use to perform their integrity checks on customers. Harnessing the power of Big Data will be crucial in the long run.

Governments say they have declared financial war on crime, corruption and terrorism but this battle cannot be fought by the private sector alone.

Governments need to do better, and join the private sector in this battle. The current gaps pose a risk to Australian national security that should not be ignored.


Louis de Koker is Professor of Law at Deakin University.
Kayne Harwood is Casual Lecturer in Law at Deakin University.

This article was originally published on The Conversation. Read the original article.

(Comment: The Federal government could do better as well by establishing an anti-corruption commission.) 

Voices for action on influence peddling: the only ones missing are those who can make it happen

Pathetic disclosure requirements for political donations and half baked regulation of lobbying have been known weaknesses and sources of concern for years at all levels of government particularly for the Feds. What we're learning now about the Mafia and about what passes for 'business as usual' in both major parties surely means the time has come....surely?

ABC Four Corners: The Mafia in Australia

GEOFFREY WATSON SC, COUNSEL ASSISTING, NSW ICAC: When you look at the (Liberal Party aligned) Millennium Forum website or the way in which it organises functions, the idea is that you would be a donor of a particular value and that would get you so much access, whether at dinners or fundraising events of different kinds. It's access in return for a donation.
NICK MCKENZIE: It's all about getting the ear of a politician?
GEOFFREY WATSON: Exactly: and nothing else...
..On how many occasions would you see it that a donation was quickly followed by a request to meet a politician? Then ask yourself: why is somebody requesting a meeting with a politician? It's not just to get to know them. It's to influence them as to their decision making. Of course there's a connection.

Sydney Morning Herald-related article: Glad handing and influence:mafia taking fast track to the powerful:

The amount of money Madafferi and his associates generated for the Liberal Party is likely to be in the tens of thousands of dollars (records show one Madafferi company donated at least $23,000), although the true figure will never be known because of Australia's opaque fundraising disclosure laws...

The federal police investigated the Madafferi donations and lobbying, but stated the "nexus between those donations identified and any political leverage could not be substantiated". They were, in part, blinded by Australia's inadequate disclosure regime. Their inquiry, recently obtained under freedom of information laws, warned that police had found "numerous issues relating to the disclosure of donations to political parties". These "issues" meant investigators have limited oversight of who was donating how much, and why.

Fairfax Media- related article: Political fund raising can't be left to trust

Our system of democracy relies on transparency. If vested interests can get closer to power by donating money, then the public has a right to know about it.

Bernard Keane in Crikey on political donations and disclosure 'rules' as revealed at the Royal Commission:

How bad was Bill Shorten's convenient failure to declare a donation in kind to his election campaign in 2007 from a company? At eight years after the event, it is almost certainly the latest declaration ever. But for $40,000-odd, it's an also-ran. When it comes to our political donation "laws", late declarations and amendments are normal. Political parties routinely get away with declaring hundreds of thousands of dollars in donations years later, long after anyone has stopped scrutinising them. And it's deliberate.....

So what will almost certainly happen to the existing requirements as a result of Shorten's embarrassment? Nothing. Both recent attempts at improving the Commonwealth donation disclosure laws -- John Faulkner's 2009 effort and then the Gillard government's effort in 2013, when Tony Abbott reneged on a signed bipartisan deal for reform -- have come to nought. And while the media will pursue Shorten for his eight-years-late-and-forty-thousand-dollars-short declaration, the Coalition won't have much to say, knowing that there are likely to be plenty of embarrassing disclosures of its own that might emerge from any thorough examination of what parties are being paid. Instead, we'll be stuck with disclosure laws that border on a joke and leave us in the dark about who is trying to buy influence over our politicians.

Sean Nicholls in the SMH on funding reform and a Federal ICAC:

The question mark about influence hanging over both arrangements is another reminder of not only the need for  donations law reform nationally but also the glaring absence of a federal ICAC. Prime Minister Tony Abbott is on the record opposing the move. But last year, NSW Labor gave in-principle support for a federal ICAC-like body and voted to refer it to this year's federal Labor conference. Labor - and Shorten - should embrace the idea and begin pressing the government for action.

Professor Ian Ramsey, the director of the Centre for Corporate Law at Melbourne University, said new rules were needed to ensure complete transparency:

"For quite a number of years now, many people, myself included, have really seen significant limitations in terms of our existing disclosure requirements," Professor Ramsey said. "In particular, there are important issues about the transparency, how much is disclosed, and also how quickly that information is disclosed. "Certainly I think there is a real need for improvement."

Then there's Professor Marian Sawer on The Conversation.

And Independent senator Nick Xenophon wants changes to political donations to end what he calls a "financial arms race" in Australian politics.

There are other voices but..

 Nothing so far from those in the leadership positions that count. Plus ca change..


 

Western Australian government rolls over in 'caretaker convention' FOI case without conceding error in the argument

If you like me were interested in the impact of Caretaker Conventions on Freedom of  Information in Western Australia, save yourself the trouble of looking for the decision by Chief Justice Wayne Martin of the Supreme Court as reported by The West Australian. There is nothing on the Supreme Court or Austlii websites. 

It turns out there was no hearing and no judgment, simply a consent order lodged by the parties that included the Department of Premier and Cabinet agreeing to orders dismissing its appeal, to setting aside Mr Bluemmel’s ruling, and undertaking to release the documents.

The department thus accepted that two years of arguing that the documents were held by the Office of the Premier but were not minister's documents subject to the Freedom of Information Act had been prompted by an error in processing that no one seems to have noticed until Information Commissioner Bluemmel pointed it out in his decision.  

West Australian Newspapers Limited may not have noticed either as it seems to have accepted the matter before the Information Commissioner should be decided on the basis that the documents were held by the Office of the Premier.

As Commissioner Bluemmel pointed out [70]

under clause 2(4) of the Glossary to the FOI Act, the Office of the Premier is not to be regarded as a separate agency but is to be regarded as part of the Department of the Premier and Cabinet for the purposes of the FOI Act.
71.In this case, the complainant initially made and addressed its access application to the ‘Department of Premier and Cabinet’, not the ‘Office of the Premier. That is, the application was for documents held by the Department of the Premier and Cabinet, not the Office of the Premier. On that basis, I consider it is arguable that the issue of whether the disputed documents are documents of a Minister does not arise, on the basis that the disputed documents are documents of the Department of the Premier and Cabinet and, consequently, are documents of an agency within clause 4(1) of the Glossary to the FOI Act .

Ah detail, detail, detail....

All that complex thinking at taxpayer's expense about the impact of the Caretaker Conventions on the operation of government agencies in the pre election period for nothing apparently although the West Australian's report has a spokesperson pointing out that the Supreme Court had not ruled on this issue. Presumably it has been filed away for future reference.

The whole business did delay access to the documents for two years but I'm sure
those behind it wouldn't chalk that up as a partial success.

WA government argues 'caretaker' period takes documents outside the reach of Freedom of information Act

The Western Australian Government has lodged an appeal to the Supreme Court on a question of law following the decision of Information Commissioner Sven Bluemmel in Western Australian Newspapers Ltd and Department of the Premier and Cabinet that documents held by the Office of the Premier created during the caretaker period before the 2013 election are 'documents of an agency' and subject to the Freedom of Information Act.

(Update: The West Australian reports the Supreme Court dismissed the appeal and upheld the cross appeal by WAN on the basis the original FOI application had been to a department — DPC — not the Premier, therefore the question of whether the documents related to the affairs of another agency was irrelevant.)

The 59 documents in dispute are in the main emails, including attachments, sent or received by the Office of the Premier between 4 February 2013 and 6 March 2013 (the caretaker period was 6 February-6 March) that relate to MAX Light Rail and the Airport Link projects.  (This report suggests rethinking of transport priorities in any event.)

Section 23(1)(b) of the FOI Act provides that an agency may refuse access to a document if the document is not a "document of the agency." A minister is an agency for the purposes of the act. A "document of an agency"  (Glossary Clause 4) in the case of a minister is a document held by the minister that relates to the affairs of another agency, that agency not being another Minister or the document in question not being a document of an agency for which the Minister is responsible.

The commissioner was satisfied on the evidence that the documents were held by the office and [47-49] relate to the affairs of another agency, the Department of Transport and the Public Transport Authority, who had commenced some work on the projects before the writs for the State election were issued on 6 February 2013.

Caretaker Conventions
In what appears to be an Australian first, the agency argued that the documents in dispute created or received by the Office of the Premier during the period when the Caretaker Conventions apply were outside the scope of the FOI act as  [at 40], ‘much of what occurs in Ministerial Offices during the caretaker period no longer relates to an agency.’ 

Commissioner Bluemmel [50] said even "if that were so, the relevant issue in this case is whether the disputed documents themselves relate to the affairs of another agency."

The agency further submitted [54] that, during the period that the Caretaker Conventions (pdf) P21 are in force, those Conventions may alter or affect:   

• the nature of the business of agencies and the decision-making authority of Ministers;

• how Ministers and agencies interact;

• the relationship between a Minister and his agency;

• the matters about which a Minister might make decisions;

• the way in which information is disseminated by Ministers and their officers; and
• the conduct of the public sector in how it performs its duties.

Commissioner Bluemmel concluded:

55. Even if I accepted those submissions, I do not accept the agency’s claim that documents produced during the caretaker period are necessarily of a different character than those produced during other times in the electoral cycle. In my view, there is nothing in the Caretaker Conventions to support that claim.
56. Similarly, I do not agree that it follows that the disputed documents or ‘many, if not most, of the documents created in Ministerial Offices during the period in which the Conventions are in force’, do not ‘relate to the affairs of an agency’, as the agency submits. As noted at [41], the agency disagrees with my conclusion in this regard and contends that ‘[t]he nature of the Caretaker Conventions is such that they expressly alter the manner in which Ministerial Offi ces function and, as a consequence, the documents which are created in Ministerial Offices during that time’.
57. However, having considered all of the material before me, including the Caretaker Conventions and the agency’s submissions, I am not persuaded that the application of the Caretaker Conventions to the particular facts of this matter results in the disputed documents failing to be documents of an agency.

As the commissioner noted [70] the issue whether the documents are Minister's documents subject to the FOI act may not have arisen if the application and review had proceeded as initiated by the applicant:

’Under the Freedom of Information Regulations 1993 (the FOI Regulations), the Office of the Premier is a related agency to the Department of the Premier and Cabinet. Consequently, under clause 2(4) of the Glossary to the FOI Act, the Office of the Premier is not to be regarded as a separate agency but is to be regarded as part of the Department of the Premier and Cabinet for the purposes of the FOI Act.
71. In this case, the complainant initially made and addressed its access application to the ‘Department of Premier and Cabinet’, not the ‘Office of the Premier . That is, the application was for documents held by the Department of the Premier and Cabinet, not the Office of the Premier. On that basis, I consider it is arguable that the issue of whether the disputed documents are documents of a Minister does not arise, on the basis that the disputed documents are documents of the Department of the Premier and Cabinet and, consequently, are documents of an agency within clause 4(1) of the Glossary to the FOI Act.
72. However, as I understand it, following negotiations with the complainant to reduce the scope of the application, the agency proceeded on the basis that the application was for documents held by the Office of the Premier only. In light of my finding at [69], it is unnecessary for me to make a finding in this regard.

The appeal should prove interesting but Commissioner Bluemmel's reasoning seems sound to me.

Update on the Open Government Partnership: Australia still considering while OGP 'growing up'

The Abbott government is still considering whether to join the Open Government Partnership according to Minister for Communications Malcolm Turnbull. It's a long, long process-in all close to four years since we were first invited.

Mr Turnbull didn't get to my question in a recent Our Say appearance:

"You have said Australia intends to reach out to the global community and will join the D5. The D5 countries- UK, NZ, Israel, Estonia, Korea- are all members of the Open Government Partnership. The D5 Charter states OGP membership as a qualifying requirement. What are Australia's plans?"

But he subsequently replied by email (17 June)

Dear Peter
Thanks for your question. At this stage the Government is still considering its position on Open Government Partnership. Once further decisions have been made regarding OGP the Finance Minister will be making announcements accordingly.
Regards
Malcolm

The question picked up on earlier public comment by Mr Turnbull that Australia "should aim to become the world's leading digital economy....." and that  "we intend to reach out globally to collaborate with the world’s leading digital economies. These include, but are by no means limited to the D5 - Estonia, Israel, New Zealand, South Korea and the UK, as well as state and local governments in Australia."

The D5 charter is clear that member countries must belong to the OGP. Perhaps not accidentally the nine countries ranked above Australia (10th) in the World Wide Web Foundation Open Government Index 2015-UK, US, Sweden, France, New Zealand, Netherlands, Canada, Norway and Denmark are all OGP members.

What's behind all the pondering within government about OGP membership and whether Mr Turnbull and others are pushing against resistance is unknown. This letter last August to the Minister for Finance made it clear the Prime Minister is a key part of the decision tree, instructing that no announcement of Australia's position should be made "until a draft national action plan is submitted for my consideration..."

Meanwhile without us, the OGP and many of the 64 other governments on board or in the process of joining make progress on transparency, open government and citizen participation as Suneeta Kaimal and Paul Maassen write

OGP is growing up. At the end of the month, a dozen countries will complete new national action plans, adding to the more than 2,000 commitments already made and many delivered. Several of these countries are embarking on their second national action plan, implementing lessons learned and deepening engagement with civil society by creating mechanisms for ongoing dialogue and shared decision making...

OGP is still just a toddler, but we know that early childhood development is critical. With the strong leadership of the forthcoming co-chairs and the continuity of our civil society steering committee members, we can help ensure OGP’s future is bright ..

Dark FOI days prompt call for top FOI success stories

Taro Taylor- Wikimedia Commons

Dark days for Freedom of Information here but clouds are gathering elsewhere including the UK where new Justice Secretary Michael Gove is said to have a cutback agenda that extends to introduction of charging for 'thinking time' in the course of a decision.

('Thinking time' charges are a painful FOI reality in all Australian jurisdictions and have been for years. One example, The Canberra Times request this year for documents from Finance going back 12 months that explained delays in completing the $6.4 million renovations project at the Prime Minister's Lodge - $3759 all up including charges for 176 hours to decide what could be released. And the decision? Not in the public interest to release the documents, nor to waive costs. Ah dear.) 

But I digress....
As part of the coverage of the yet to be unveiled cutback agenda in the UK, The Daily Mail published this list of Scandals We Wouldn't Have Known About Without FOI Powers:

 • The MPs expenses scandal would not have been exposed if not for the FoI Act. Discs containing receipts and submissions from MPs to the Parliamentary authorities were being redacted for release under Freedom of Information rules when they were leaked.
  • Graham Knight, the father of an RAF Sergeant among 14 servicemen killed when a Nimrod jet exploded in Afghanistan in 2006, used FoI to discover that the RAF was aware of fuel leak problems with the aircraft.
  • The ‘spider letters’ from Prince Charles to government departments in which he warned about military helicopters in Iraq and lobbied in favour of homeopathy would have remained hidden.
  • More than 1,100 care home deaths were linked to dehydration over a nine-year period and more than 300 deaths to severe malnourishment, according to documents obtained under the Act.
  • An FoI request by the Daily Mail revealed a prisoner was given the right to taxpayer-funded IVF while behind bars by using human rights laws.
  • More than 10,000 criminals escaped prosecution for serious violent assaults by saying sorry in a single year. FoI requests showed the police’s widespread use of ‘community resolutions’.
  • It was found that disgraced peer Lord Janner made three visits to Parliament months after police were told he was too ill to be questioned over child abuse allegations.
  • The Mail revealed how hospitals were paid millions to hit targets for patients who died on the Liverpool Care Pathway, which has now been scrapped.

That prompted thinking about an Australian list. 

The Daily Mail loves 'scandals' but we don't need to be so limited. Your nominations please
  
Australia's Top Disclosures We Wouldn't Know About Without FOI.
Four off the top of my head to start:

Reserve Bank Board minutes published commencing in 2007 following Michael McKinnon's FOI digging going back to 2004.

Exposure of Australia’s first case of foreign bribery as a result of investigations that included FOI by Richard Baker and Nick Mckenzie revealing that Securency, a subsidiary of the Reserve Bank of Australia had paid million-dollar commissions to win global banknote contracts.

Information about breaches of food hygiene standards starting in NSW and extending to other parts of the country (maybe still not everywhere?) following Matthew Moore's FOI campaign.

Revelations about Australian knowledge of, and involvement in detention practices in Iraq and Afghanistan by the Public Interest Advocacy Centre, based on documents obtained after a six year FOI battle, raised many questions about policy, accountability and transparency going back to 2003.

Important FOI disclosures or scandals welcome by way of comment, email  peter.timmins1@gmail.com or tweet or direct message @FOIguru

The Mandarin: dark days for FOI, but we're yet to see the penny drop

Stephen Easton in The Mandarin FOI laws: fixing the chilling effect on frank advice
(Subscription) writes about the laws, culture and tone at the top.

Extracts (no false modesty here)

(Timmins) and many others notice a distinct air of secrecy around the current federal government — more so than past governments — and Timmins says top public servants are getting the message to play along. “There’s no prizes or honours being awarded for [public servants] who efficiently and effectively administer the FOI Act..."....

The current Commonwealth government’s transparency track record.. has been “very poor” in his view, particularly in contrast to this 2013 pre-election promise:
“We will restore accountability and improve transparency measures to be more accountable to you.”

Timmins also recalls George Brandis admonishing Labor way back in 2009 with the old adage that actions speak louder than words, and he now uses the same standard to judge the Coalition, pointing particularly to its ongoing battle against the Office of the Australian Information Commissioner, and the government’s refusal to answer simple factual questions, particularly around immigration and border protection.

Since there is not enough Senate support to do away with the office, the government is trying to achieve its aim by stealth. The FOI commissioner role has been vacant since December and now that information commissioner John McMillan, whose term was due to end soon, has gone to work for the NSW government, it is possible he won’t be replaced anytime soon either. Only privacy commissioner Timothy Pilgrim remains.

“The claim is that they’ll save $10 million over the four-year period [by abolishing the OAIC and] that it would help FOI applicants by removing complexity,” Timmins said. “Well, I’m afraid that claim was not evidence based. I think the claim of how much money it would save is a bit questionable, and the claim that it would simplify the system is without evidence.”

Timmins suggests some public servants dealing with FOI requests are now “gaming” the system because they know that even if they reject a request on spurious grounds, it will take a very long time for the OAIC to review the decision. That was the impression he got from the responses to two requests he put in with the Attorney-General’s Department recently.

“As journalists will point out, getting access to something 12 months after you ask for it [isn't helpful because] the story is probably gone by then, and it’s only the most dedicated or the journalists with the longest lead times who can effectively use the act in that context,” he added. “So I think it’s pretty dark days myself, about FOI generally, and we’re yet to see a penny drop with the government that this is a cause of real concern.”

The Saturday Paper: Plan to abolish OAIC part of bigger secrecy picture.

Sophie Morris links the plan to abolish the Office of Australian Information Commissioner with other developments in Abbott weakens FOI and public service disclosure  

Extracts 

The weakening of the freedom of information regime has occurred without fanfare, eroding an important mechanism for holding governments accountable and safeguarding against abuse of power and wrong decisions.

The government announced in the budget last year that it planned to wind up the OAIC. Ostensibly, this was a savings measure, worth about $10 million over four years, but it was also a ploy to limit FOI requests and appeals.

When it was clear the senate would baulk at passing the legislation, which Labor and the Greens argue will reduce oversight of government actions, McMillan was left in limbo, limping along on rationed resources.

His Canberra office, where 25 staff used to work, closed in December. His departure will further weaken the office, which opened in 2010. A year earlier Labor’s special minister of state, John Faulkner, said: “These reforms will change the law, but they will also demonstrate the government’s commitment to culture change, to a shift from a culture of secrecy ... to one of openness and transparency.”

FOI laws had existed since 1982, but the Faulkner reforms were the first attempt to make them really work. Faulkner pursued his reforms despite resistance from within the then Labor government and the public service.

His aspiration was at least partially achieved. The biggest sign of change was in 2010, when departments published, in response to FOI requests, the briefings they had prepared for the incoming government, providing information about the policy challenges ahead. After the Coalition came to power at the 2013 election, requests for these documents were denied, in an early sign of the tide turning against transparency. Under legislation prepared by the Abbott government, Attorney-General George Brandis and his department will take over some of the FOI functions and appeals will again be sent to the Administrative Appeals Tribunal, attracting an $860 filing fee, which will deter many applicants.

Timmins says the public service culture has already shifted back in favour of non-disclosure.“I think there’s been a fair bit of gaming of the system on FOI,” he says. “With the OAIC thought to be on death row, agencies have worked on the basis in some cases, I think, that if you knock back a [FOI] request, you won’t have to worry too much about someone taking you on. These days, there’s no great incentive to make a correct and proper decision.”

Senior bureaucrats have also mounted the case for a further weakening of FOI laws. Most notable were the comments from John Lloyd, the new public service commissioner, who set the tone for the rest of the bureaucracy in his first public speech in March.

 “FOI laws are very pernicious,’’ said Lloyd, whose past roles include serving on the Australian Building and Construction Commission, the Australian Industrial Relations Commission and as director of workplace relations and productivity at the Institute of Public Affairs.

“I think they [FOI laws] have gone beyond perhaps what they intended to do, and I think they do make us a bit over-cautious and make some of the advice more circumspect than it should be, and I hope the government will address that and perhaps reassess the extent of some of those FOI laws.”

Brandis’s office did not respond to inquiries about whether anyone would be appointed to replace McMillan or whether he agreed with Lloyd’s description of the FOI regime.

 

Former justices argue government plan to abolish OAIC raises rule of law and separation of powers issues

Tim Smith, David Harper and Stephen Charles, former justices of the Supreme Court of Victoria follow their previous opinion piece on the government's stalled attempt to abolish the Office of Australian Information Commissioner at the same time reducing the capacity of the office to fully carry out its statutory functions, with"Senate's last chance to save FOI watchdog and protect the rule of law published in Fairfax Media publications this week.

Extracts:

..section 61 of the constitution refers to the executive power of the federal government as extending to "the execution and maintenance of this constitution and to the laws of the commonwealth". It is arguable that the Abbott government has failed to "execute" and maintain the laws of the Commonwealth, and has thereby acted in a way that is contrary to two of our constitution's fundamental principles: the rule of law and the separation of powers....

The money available to the office is nowhere near enough to enable it to give effect to its legislative mandate. No longer can the office perform its key role of monitoring and supervising the FOI system. No longer can it advise the government on FOI matters. No longer can it consider complaints about the handling of FOI applications. Its ability to carry out these crucial functions has been negated. It is true that the Attorney-General's Department has absorbed some of these functions. But that is to defeat Parliament's original and ongoing intention....

Moreover, the office's ability to provide a free review of refusals of FOI applications has been severely truncated and the number passing to the AAT has increased by 47 per cent. The AAT will deal with them only if applicants pay the $816 (sic) fee...

Let us hope that, for the sake of the integrity of our parliamentary democracy, the rule of law and the separation of powers, the Abbott government withdraws the bill to abolish the office and provides it with the resources it needs to perform all its statutory functions.

Ludwig bill set for further debate this week, but fate sealed as government senators oppose

The private member's Freedom of Information Amendment (Requests and Reasons) Bill 2015 introduced by Labor Senator Ludwig was debated last week in the Senate for the scheduled 140 minutes, and as time ran out, is now listed for further consideration on 25 June. 

But with the government apparently opposed, the bill won't get through the House even if Labor, and The Greens who plan to support it can do enough with the crossbenchers to get it through the Senate.

Four government senators (no front benchers participated) spoke against the bill. 

Senator Ian McDonald made the only concession from that side of the chamber observing the bill "has good intentions" before citing its defects. Liberal Party Senator Linda Reynolds opined the bill "is yet another example of poorly thought-through policy by those opposite." 

National Party Senator Barry O'Sullivan didn't hold back: Senator Ludwig should know

 "that the government would not support this because it does not need to support it. Why would you go to the trouble of drafting a bill, why would you go to the trouble of taking up the very, very valuable time of this chamber to debate the bill when you know, full well, there is no need for the bill, and it is very unlikely that the government will respond positively to the bill? ....It is a political stunt. It is one that this government will not be trapped with. It is one that this government will not be supporting." 

National Party Senator McGrath demonstrated he had read the bill at least.

All four managed to speak without a mention of the government's stalled bill to abolish the Office of Australian Information Commissioner but there was plenty of the this "government is committed to being a transparent, accountable and open government" variety. 

Senator O'Sullivan took the prize however and showed he moves in different circles to most of us:

the freedom of information systems that we have around this country are working, and they are working very efficiently..... This has been one of the most open and transparent governments that I have witnessed over my time of political interest of 30-plus year, and I know I participate in the government.

Labor senators Bullock, Alex Gallagher, Brown, O'Neil and Moore painted a different picture.

Senator Bullock said "the attack on the Information Commissioner stands out as an alarming development and one that deserves greater attention."

The Greens Senator Rhiannon likewise, but the senator then went on to describe the bill as "a missed opportunity .. that a Labor senator who has in fact worked in this area has brought forward such a minimal bill," listing 'big picture' issues that require the attention of parliament:

• changes in the law and regulations to actively promote cultural change within government agencies including further enhancements to Information Publishing Schemes such as mandatory publication of information about agency priorities and finances; lists including agency contracts, grants and appointments; and links to datasets, submissions to other bodies and policies;

• the need for all agencies to be covered by FOI as a matter of principle including the parliamentary departments and the intelligence agencies;

• comprehensive accessible searchable information about MPs' entitlements along the lines adopted by the Scottish Parliament.

On this last point the Auditor General pointed out recently in Administration of Travel Entitlements Provided to Parliamentarians:

...independent recommendations for substantive legislative and administrative reform developed to simplify current arrangements and safeguard the interests of the Commonwealth and Parliamentarians, or alternative measures to address recognised fundamental issues with the framework, have not been actioned. As a result, the framework under which Parliamentarians’ non-remuneration entitlements are provided has continued to be complex and opaque...

Freedom of Information bill in Senate

Senator Ludwig's private member's bill Freedom of Information Amendment (Requests and Reasons) Bill 2015  is listed for consideration tomorrow 18 June.

 As mentioned a useful reform that would require government agencies and Ministers to publish online the exact wording of freedom of information requests and the statement of reasons for the decision to allow or refuse release, and require information in released documents to be available for downloading from the web.

But the much more significant government Freedom of Information Amendment (New Arrangements) Bill that would abolish the Office of Australian Information Commissioner on the Senate list since October is yet to be brought on for consideration.

Pity those opposed, Labor,The Greens and some or all the cross-benchers don't combine  their majority numbers to force a vote on that one.

August 2013 and the plan to improve transparency and restore trust seems a long, long time ago

Item August 2013
Liberal Party Our Plan Policy-2013 Election
"We will restore accountability and improve transparency measures to be more accountable to you."

Item August 2013
Trust deficit
Mark Baker SMH:
"Abbott now declares he wants to be a healer. He says his first priority if he wins the election will be to seek to rebuild Australians' confidence in government and restore civility to the national political discourse after three bruising years of minority government.
''The greatest deficit in our country at the moment is the trust deficit. Sure we have got a very serious budget deficit, but the trust deficit is even more serious. I would hope that, should we win the election, I would be able to so conduct myself and my team would be able to so conduct themselves that by the end of the first term people would have once more concluded that Australian government was competent and trustworthy …

 Item June 2015
Trust in Professions 
Bernard Keane Crikey:
"For the first time, Essential also asked about most trusted professions. Doctors scored highest, with 81% of voters having a lot or some trust in doctors; engineers were next, on 68%. Accountants, on 49%, rounded out the trusted professions. .. Journalists scored 27% a lot or some trust, 26% no trust at all and 41% little trust. Real estate agents managed 12% trust and 44% no trust. And at the very bottom, scoring 1% a lot of trust, 10% some trust, 33% little trust and 49% no trust at all, politicians."

Item June 2015
"Tony Abbott's tangled web over paying people smugglers" 

Related Item
(Minister for Immigration and Border Protection) Dutton said: “It’s been a longstanding policy of the government not to comment on on-water matters.”

Item May 2015
"Feds Iron Curtain  of Secrecy' around Detention Centres" 

Item June 2015
"Veil of secrecy descending over foreign aid, experts warn"

Item June 2015
Australian National Audit Office Report: Administration of Travel Entitlements Provided to Parliamentarians 
"The conduct of an independent ‘root and branch’ review of Parliamentarians’ entitlements following the completion of ANAO’s 2009–10 audit report gave some cause for optimism that improvements would be made to the entitlements framework and its administration. However, fundamental weaknesses in the framework remain. Principally, this is because independent recommendations for substantive legislative and administrative reform developed to simplify current arrangements and safeguard the interests of the Commonwealth and Parliamentarians, or alternative measures to address recognised fundamental issues with the framework, have not been actioned. As a result, the framework under which Parliamentarians’ non-remuneration entitlements are provided has continued to be complex and opaque, with travel entitlements recognised as representing one of the areas most affected by those factors.

Item June 2015
Xenophon urges housing transparency

"Independent senator Nick Xenophon has called for greater scrutiny of politicians' travel allowances, saying if taxpayers are helping MPs or their families pay off mortgages then they are entitled to greater transparency."

(An earlier list of noteworthy items.)

Tasmania to introduce on line publication of 'public interest' RTI documents

Tasmanian Premier Hodgman's announcement of "a new policy to ensure that more Government information is shared with the public" is a welcome development that brings the state into line with the disclosure logs introduced some years back by Federal, Queensland, NSW and ACT governments.

The Premier has "directed all Government agencies to publish Right To Information requests online within 48 hours of them being sent to the applicant," explaining

"(q)uite often it is only journalists or Members of Parliament that ask for, and have access to, Right To Information documents.  Under our changes, every Tasmanian will be able to access that information for themselves. While this is one of the biggest reforms since Right To Information laws were introduced, it brings Tasmania into line with Queensland and the Federal Government. This will only apply to public interest Right To Information requests, not requests for personal information. This policy has the support of the Ombudsman and the Solicitor-General."

It probably won't have the support of journalists.

Media organisations in their joint submission to the Hawke review argued not for the first time for a five days exclusive use period when documents are released to a journalist in response to a Federal government FOI application. At present information is required to be posted within 10 days. Some agencies are said to publish promptly so as to remove the prospect of an exclusive and make the FOI exercise something of a waste of the journalist applicant's time. Others don't publish the documents released instead simply indicating they are available on request.

It seems reasonable to allow some exclusive time with released information in Tasmania and anywhere else. Perhaps any applicant - not just a journalist - should be able to ask for a few days exclusive use at the time of making the request, with that elective to bind the agency?

More broadly six years after the introduction of the RTI act the Tasmanian government shouldn't leave reform at this. 

I'm sure that things aren't as good as suggested in the Annual report 2013-14 (pdf) from Department of Justice on the administration of the act, that a drop of 100 in RTI formal requests for the second year in a row can be attributed to how well the proactive release of information is working.

As to what goes on that front, no decisions by the Ombudsman since 2012 have been published on the website

The Ombudsman Annual report  (pdf) (pages 22-26) draws attention to underfunding and the impact on the RTI review function, a point picked up by The Greens Nick McKim. His colleague Cassy O'Connor argues the Premier's interest in the subject is empty rhetoric given agency responses to RTI applications.

sounds like empty rhetoric when you actually look at the Right to Information decisions coming back from Departments. - See more at: http://tasmaniantimes.com/index.php?/pr-article/right-to-information-highly-politicised-despite-liberal-rhetoric/#sthash.

New twist in Office of Australian Information Commissioner saga

The announcement that Australian Information Commissioner Professor John McMillan has been appointed NSW Ombudsman for a two year term raises the question, where to from here for the office he leaves? 

No statement so far from Attorney General Brandis, for the last year intent on abolishing the office despite the lack of majority support in the Senate for his bill.

It's the perfect opportunity of course to rethink this flawed policy choice, pull the bill and proceed to evidence based decisions to improve the FOI framework.

But then again, having dug in so far the government may seek to use Professor McMillan's departure to move towards achieving its purpose in practical terms by not filling the position.

The Australian Information Commissioner Act establishes the Office of the Australian Information Commissioner consisting of the Information Commissioner, the Freedom of Information Commissioner and the Privacy Commissioner, and confers on them statutory functions that remain in place until such time as Parliament repeals the act.  

Freedom of Information Commissioner Dr James Popple left the OAIC in December following his appointment to the Administrative Appeals Tribunal. 

Unless the Information Commissioner and/or the Freedom of Information Commissioner positions are filled on an acting or permanent basis, Privacy Commissioner Timothy Pilgrim will be the sole remaining commissioner charged with the statutory functions and associated powers.

Update: Coverage
The Mandarin:  OAIC weakened as commissioner side-steps into NSW role (Commended)
itnews: Australia's Information Commissioner lands new gig in NSW
Computerworld: Information Commissioner lands new gig as NSW Ombudsman
The Australian: Professor John McMillan appointed new NSW Ombudsman
SBS: John McMillan named new NSW's new Ombudsman
SMH: Acting ombudsman appointed to take over police bugging inquiry

UK Prime Minister David Cameron talks openness and transparency

Does Australian Prime Minister Abbott know what he is talking about?

 I will start tomorrow at the G7 in Germany and I will put corruption at the heart of my agenda at the United Nations in September and the G20 in Turkey, culminating with a major anti-corruption Summit in London next year.
Of course there will be some who will be sceptical and say it is all too difficult. But I believe we should draw confidence from what we have already achieved. When we began the Open Government Partnership, many doubted that it would amount to much. But today 65 countries have made over 2,000 specific commitments on openness and transparency - from pioneering citizens' budgets in Liberia to letting the public audit major government projects in the Philippines.
When I put tax, trade and transparency on the G8 agenda for Lough Erne two years ago some said we would never get agreement on a global standard for the automatic exchange of information over who pays taxes where. But today over 90 countries have agreed to share their tax information automatically by the end of 2018, meaning more people will pay the tax that is due.
While there is further to go, Britain has also taken important steps in practising what we preach. Last December we published our first comprehensive national Anti-Corruption Plan, which Eric Pickles will help take forwards as my anti-corruption champion.

Estimates a missed opportunity to ask where years of 'considering' Open Government Partnership membership has taken us

In hours, days, of picking over the entrails of every government portfolio over the last two weeks- cruel and unusual punishment for Moi - not a single question or mention of the OGP in Senate Estimates.

In the estimates round in February Finance had carriage, the issue was still under consideration and the government was 'positively inclined' to join.

In May 2013 the previous government had lodged a notice of intention to join the 64 other members of this international initiative committed to making governments more open, accountable, and responsive to citizens.

In May, alas, the issue wasn't raised at all in the Finance Estimates.

So no follow up there on what response the government gave when the OGP Support Unit, taking the notice of intention at face value, wrote to Finance pointing out Australia had acted contrary to the OGP process in failing to meet deadlines for lodgement of a national action plan. Or queries about the current situation in light of the letter from the Prime Minister to the Minister for Finance released under FOI that instructed that no announcement of Australia's position should be made "until a draft national action plan is submitted for my consideration.The action plan must give effect to practical measures that align with the Government's overall policy objectives in this area and that take into account the work of the (Redacted: s 34(3) Cabinet) and the timeframes for Government decisions on that work." 

An issue senators might raise with Prime Minister and Cabinet perhaps? 
No, no questions in PM&C Estimates either. 

Before Finance took it up, the OGP was with Attorney General's-so no surprise, no questions there this year. And ditto Foreign Affairs and Trade who remarkably told Estimates a year ago that the international dimensions became relevant after we joined so they probably are yet to open a file.

Maybe the OGP is now with Communications, the home of the newly established Digital Transformation Office? Perhaps the establishment of the DTO as part of the Digital Agenda is the 'work' referred to in the redacted part of the PM's October letter?
  
After all Minister for Communications Turnbull on two recent occasions said Australia "should aim to become the world's leading digital economy....." and that  "we intend to reach out globally to collaborate with the world’s leading digital economies. These include, but are by no means limited to the D5 - Estonia, Israel, New Zealand, South Korea and the UK, as well as state and local governments in Australia."

The D5 charter requires member countries to belong to the OGP. And all nine countries ranked above Australia (10th) in the World Wide Web Foundation Open Government Index 2015-UK, US, Sweden, France, New Zealand, Netherlands, Canada, Norway and Denmark are members.

There were questions about the DTO in Communications Estimates, (pages 45-46) but relatively few given the Budget allocation of $254.7 million over four years to support the initial implementation of the Digital Transformation Agenda, including $95.4 million to establish the DTO.

Maybe there are a few dollars in there to advance our plans to "reach out globally" and join the international movers and shakers in the transparency, accountability open government space?

Senate Estimates didn't uncover it but it's a question raised for Minister Turnbull in an Our Say session later this week. Vote it up if you can. (Update-the OGP question didn't make the cut. The session is here)