This blog takes an interest in issues associated with Freedom of Information (FOI) and privacy legislation in Australia. Information contained on this site is general in nature and does not constitute legal
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In a year and a half the Abbott government managed, in practice, to undo the painstaking reforms of the federal Freedom of Information (FOI) system that took shape in 2008 and came into force in late 2010.
In the best of worlds, FOI laws can create a win-win situation for governments and their constituents. By facilitating, instead of blocking, access to information governments signal that they take transparency and openness seriously. This limits maladministration and corruption. The public feels trusted with unspun information that they need to participate meaningfully in the political process.
Unfortunately, we’re not living in the best of access-to-government-information worlds.
From the time it took office, the Coalition government, spearheaded by Attorney-General George Brandis, tried and failed to shut down the Office of the Australian Information Commissioner (OAIC). The Abbott government’s first budget cut the OAIC’s funding. The Senate rejected this part of the budget. The bill is still on the Senate Bills List, where it has been sitting for 16 months without the support needed to pass the Senate.
Meanwhile, the government tried to close the OAIC by starving it of funds. Reading the writing on the wall, the FOI Commissioner, James Popple, left for another job in January. The position is still vacant.
A few months ago, the inaugural Information Commissioner, John McMillan, followed suit. He was not replaced.
The OAIC’s FOI functions are now essentially closed down.
Three decades of FOI gains reversed in two years
The first Australian FOI laws were the federal and Victorian acts passed in 1982. The other states and territories then followed, with the Northern Territory act commencing in 2003.
By world standards the start of FOI in Australia is neither early nor late (apart from the NT act). Globally, FOI has moved from being a “nerd” issue to a strong international movement of well-organised information access advocates.
By the mid-2000s it was clear that FOI reform in Australia was sorely needed. A number of high-profile cases in both state and federal jurisdictions showed that the laws did not deliver in practice what was promised in the acts.
Queensland led the way when it reviewed its FOI legislation and implemented far-reaching changes in 2009. This was the first jurisdiction to move from a “pull” 1.0 FOI system – where FOI requests are used to “pull” the information from government agencies – to a 2.0 “push” system, where departments are supposed to proactively publish information on their websites.
In a 2.0 FOI system disclosure is meant to be the default position, in line with best international practice. But as research, mine and others, has showed, changing the law is the easy part. Making it work in practice is the challenge.
This is where the federal FOI regime led by the OAIC had started to make real headway.
For the first time in Australia’s history of access to information there were some signs that the OAIC had started to change the culture of how federal FOI is interpreted and administered. My research points to a change away from the unfortunate Westminster-based tradition of government secrecy to one of increased openness and, most importantly, information access facilitation.
It’s clear from this body of research that the federal FOI reforms implemented by the former Information Commissioner were providing crucial national leadership, taking Australia closer to where access to government information is going internationally.
This is why the Abbott government’s blatant undermining of federal FOI was so tragic and frustrating. The information access momentum that had been building since 2007 came to a grinding halt under the Abbott government.
Turnbull faces ‘open government’ test
The proactive information disclosure feature of FOI 2.0 has in part been driven by the concept of Public Sector Information (PSI). The core of PSI is that information or products and services created with government funding should exist in the public domain. The European Union 2003/98/EC directive is the foundation on which several EU member nations have passed their own PSI laws.
Will Malcolm Turnbull let Australia join Russia as the only country to withdraw from the Open Government Partnership?AAP/Lukas CochThe goal is that information generated and held by government should, as much as possible, be accessible to the public, with very few limitations. To date, the PSI discussion has not reached serious policy- and law-making levels in Australia. It remains to be seen how the government under new Prime Minister Malcolm Turnbull will deal with PSI.
Another challenge for the Turnbull government is what to do with the OAIC “kill bill” mentioned above. Even if the government now decides to keep and fund the OAIC (which would be the preferred option from a transparency point of view), a lot of organisational damage has been inflicted on OAIC by the Abbott government’s FOI-hostile policies.
Turnbull will also need to decide if Australia will formally sign up to the Open Government Partnership (OGP). The OGP describes itself thus:
OGP was launched in 2011 to provide an international platform for domestic reformers committed to making their governments more open, accountable, and responsive to citizens. Since then, OGP has grown from eight countries to the 66 participating countries … In all of these countries, government and civil society are working together to develop and implement ambitious open government reforms.
The Gillard government committed to the OGP in principle. But to become a full member, a national open government action plan has to be submitted.
The OGP has repeatedly asked for Australia’s decision. The Abbott government stalled for so long that Australia now risks joining Russia as the only candidate member to withdraw from the OGP.
Next year, 2016, will be the 250th anniversary of the first FOI-related law, which was passed in Sweden in 1766. Australian federal FOI approaches the anniversary in a poor state.
Turnbull will be a very busy man in the months to come. The question is if he can find head space to ponder the challenges above. Judging from Turnbull’s leadership challenge pitch, open government matters to him:
We need to be truly consultative with colleagues, members of parliament, senators and the wider public. We need an open government, an open government that recognises that there is an enormous sum of wisdom both within our colleagues in this building and, of course, further afield.
What this means in practice remains to be seen. A good starting point would be to reappoint the federal FOI commissioner and properly fund the OAIC again.
Paul Farrell in The Guardian continues his series on the war against the Office of Australian Information Commissioner and Josh Thomas in Crikey (subscription) covers similar territory, Thomas canvassing initiatives Prime Minister Turnbull could take to give effect to his pledge to open and transparent government:
abandon plans to shut down the OAIC,
undertake a complete overhaul of the Freedom of Information Act
look into record keeping in the digital information age
move FOI from the Attorney-General's Department into PM&C to take it away from just being "lawyers' business"
With no sign of any weakening in the solid Senate majority against, Paul Farrell reports in The Guardian today that Senator Nick Xenophon wrote to Attorney General Brandis this week calling for the bill to be withdrawn to end the uncertainty surrounding the office.
Former Australian Information Commissioner Professor John McMillan in this interview with Farrell said the uncertainty "can’t continue. it’s very hard to maintain staff morale. It’s very
hard to recruit really talented people on an ongoing basis when they
don’t know whether the office is going to disappear from one month to
the next,”
Professor McMillan reiterates points made in his piece in The Australian today and singles out the Attorney General's Department and senior public service leaders for special mention:
.. McMillan told the Guardian the decision to scrap the office was a
blow to open government. He called for more debate on freedom of
information and hit back at claims by senior public officials who said
FOI had gone too far. “It’s a great shame that government decided to abolish it,” said McMillan. “It was inevitable that a body like this would encounter issues early
on in changing culture, developing efficient procedures, working out
the most efficient methods. We had just achieved that ... so all of that
experience is lost. “I’ve no doubt it’s all to do with two things; irritation with FOI
and that the portfolio department is the attorney general’s department,
which never understood information policy, which never understood
transformational change on information issues and so found the whole
thing an irritant......He also criticised recent comments by treasury secretary John Fraser and the Australian Public Service Commissioner John Lloyd about freedom of information for their recent comments speaking out in opposition to FOI. “I think it’s terrible that the head of treasury and the head of the
public service commission feel comfortable in speaking out and saying
FOI has gone too far, without having to explain what is meant by it’s
gone too far,” he said. “You get all these mists thrown around, about you can’t have frank
briefing at senior levels. FOI protects any document that needs
protection. The exemptions are quite adequate to protect any document,
and the IC review decisions make it plain.”
The following statement by a spokeswoman for the attorney general makes no mention of the bill before the Senate, or any determination to continue the 11 month stalemate - a slight glimmer of a rethink, one hopes:
“The government is committed to transparent, accountable and
open government. The OAIC continues to operate and its privacy functions
continue to be funded on an ongoing basis. Additional resources were
also provided to the OAIC for the continued exercise of FOI functions in
2015-16.”
Writing in The Australian today former Australian Information Commissioner Professor John McMillan argues the exercise has "further entrenched the cynicism and hypocrisy that has permeated the operation of open government laws for more than three decades."
Professor McMillan makes an urgent call for a constructive debate on the future of Freedom of Information, and has a message for Prime Minister Turnbull, the nation's very enthusiastic supporter of open government:
"No
political party can truly claim to subscribe to a policy of open
government while this impasse continues."
I'm sure The Australian and News Corp Australia won't mind if I let the professor speak for himself on this important subject:
Commitment to freedom of information bolsters our democracy
It is 16 months since the government announced its intention to revise arrangements for resolving disputes about access to government information under the Freedom of Information Act 1982. At a formal level nothing has happened: the government bill to implement its plan by abolishing the Office of the Australian Information Commissioner languishes in the Senate. At an informal level the cynicism and hypocrisy that has permeated the operation of open government laws for more than three decades becomes entrenched. The FoI Act has long been a source of tension in government, dating back to before it took effect. Nearly every politician is on record, at some point in their career, as declaring their belief in open government. Prime ministers often lead the chorus. Democracy, accountability and transparency go hand in hand. That is why we have a tradition of open parliaments. But transparency in government will not occur unless the law requires it. The default position in government is to control the information flow. This minimises the risk that government actions will be misunderstood or misrepresented, that a spotlight will shine uncomfortably on matters that are hard to explain or justify, or that an ill-timed disclosure will sidetrack debate on an issue. Transparency ends up being a vacuous concept unless there is a law that requires disclosure. In a practical sense, that means a law that enables an outsider to point to information that they think should be released, and to seek independent arbitration if a government agency claims the information is sensitive or confidential and should remain secret. It is a truism that political leaders understand that point while in opposition but disown it when in government. Former British prime minister Tony Blair described the passage of an FoI act during his tenure as his biggest regret. US president Lyndon Johnson was said by his press secretary to have been “dragged kicking and screaming” to a ceremony at which he signed the US FoI Act “with a deep sense of pride”. And Australian FoI parliamentary advocate Gareth Evans later recanted, saying “really strong FoI legislation is for elves, fairies and oppositions”. At one level that renunciation is understandable. In my five years as information commissioner I saw many FoI requests that did not tie in with the noble “right to know” cause espoused by applicants. Some FoI requests are little more than a fishing expedition to find a story or an attack point. Some are driven by an obsessive belief that bureaucrats are hiding a skeleton. Others involve wasting time on searching for drafts and email chains on topics that are amply on the public record. At a general level, society gets more value from open government practices such as open data and proactive disclosure than from individual FoI requests. On the other hand, it has become fashionable at senior government levels to say that the FoI Act has gone too far — that it is stopping officials from tossing ideas around and providing candid written advice to ministers. The legal and practical reality is the FoI Act contains numerous exemptions that adequately protect any document that warrants exemption. It is probable that leaks and selective releases lie behind many irksome disclosures. Despite the challenges and complexities, having effective public access to government information through an FoI Act is a cornerstone of democracy. We must ensure that the operation of the FoI Act is uncoupled as far as possible from political and bureaucratic expediency. Leaving the FoI Act and the information commissioner in limbo for 16 months — and counting — is a shameful way to deal with this perennial tension in government. Nor is this an issue for the government only. The opposition, which first promoted open-government reform in government in 2010, then went cold on the idea, has as much responsibility to fashion an enduring and workable FoI scheme. The FoI Act ushered in a new era of open government in 1982. Ever since, government in Australia has been more responsive, engaged and transparent. The Australian lead was followed in many other countries. And yes, the FoI Act is not perfect. It doesn’t balance well the administrative demands on government with the ideal of public access to government information. Many recommendations for reform have been made during the past five years by the OAIC and others. There has been scant government consideration of those proposals, at least outside the bunker. There is an urgent need for constructive debate on future directions in FoI. No political party can truly claim to subscribe to a policy of open government while this impasse continues.
Independently of Right to Know day or week - now there's a missed opportunity - Australian media organisations and journalists are finding new strong voice about freedom of speech, press freedom and related issues, decrying poor efforts to speak up as the wave of national security laws washed through and freedom of information went backwards in the last few years.
The chair of the Australian Press Council Professor David Weisbrot said laws proposed as a counterterrorism measure threatened the future of investigative journalism and must be revisited. He told The Australian the council had an important advocacy role, a role for a long time left to the publishers:
“My
view is that the issues are so central to all of our constituency, our
readers and the newspapers, that we need to be involved and we can do
that because if The Australian or the Tele or the Herald
argues about these things, many people will see that as
self-interested, whereas The Press Council, when we speak we’re
representing the broader community and we’re more at arm’s length than
an individual publisher is.”
And the doyen of the Canberra Press Gallery Laurie Oakes in his address (pdf courtesy MEAA) to the Melbourne Press Freedom Dinner blamed government for the intrusions and journalists and media organisations including those publishers for complacency as the screw turned.
Oakes said
"it’s.. incumbent on
journalists and publishers and broadcasters to fight the press freedom
side of the argument. It’s not going to be given due weight by
governments of any stripe otherwise.”
Oakes included in his list of issues that journalists in the main have ignored, Freedom of Information backsliding under successive governments,culminating in the attempt to abolish the Office of Australian Information Commissioner, and Australia's lack of interest and enthusiasm for the Open Government Partnership.
(Press freedom is) not going to be given due weight by governments of any stripe otherwise. I repeat, press freedom,transparency etc. are rarely high on their list of priorities.
You can see that from what’s happened with the Freedom of Information system. There’s been a steady retreat by politicians and bureaucrats from the freer flow of information that briefly gave cause for optimism following John Faulkner’s reforms in 2009 and 2010. The retreat started under the Labor government. And it had nothing to do with security merely old habits reasserting themselves.
John Faulkner as Special Minister of State was a true believer in government transparency, and introduced reforms to the FOI system that unequivocally conveyed a presumption in favour of disclosure. When Faulkner went, so did enthusiasm for his approach.
A key reform was the appointment of an Australian Information Commissioner to review access refusals, publish FOI guidelines for agencies to follow, and act as a kind of champion of open government. We get an idea of what happened to that from a 2013 paper by Professor John McMillan, the first Information Commissioner and, in any meaningful respect, the last one as well.
When an event was organized to mark the 30th anniversary of FOI in Australia, no minister attended or made any contribution. Legislation to entirely exempt the Parliamentary Departments from the FOI Act was rushed through Parliament, even though this was contrary to a submission from those departments. The Government stopped responding to key reports from the Information Commissioner. It ignored a suggestion that ministerial appointment diaries be published on the web. Australia did not join the International Open Government Partnership formed in September 2011 and which now has 64 member countries. And so on.
And when the coalition came to office? It announced the abolition of the Office of the Information Commissioner in its first Budget. The senate blocked that, so the government effectively defunded the office. McMillan, largely stripped of staff, spent his last eight months in the job working from home. A disgrace.
And the media were pretty much silent throughout.
The welcome mat is out if these issues are given new prominence in media circles.
Professor Weisbrot and Oakes both are guardedly optimistic about the arrival of Malcolm Turnbull - so is Open and Shut - but regardless, media organisations and journalists should be reaching out to others in the broad community who share these interests to establish a formal or informal coalition to argue the case and seek to safeguard freedom of speech, press freedom and transparent, open government.
A Right to Know Day panel that includes me (under my Twitter handle FOIGuru) is happy to respond to any questions about right to know, information access and related questions on Reddit.
But at 11.30pm local time in Sydney, with 28 September drawing to a close here as other parts of the world awake, I'll chime in with my take in the morning. Good night all.
On Right to Know Day NSW Information Commissioner Elizabeth Tydd
released a report by Professor Anita Stuhmcke of the University of Technology,
Sydneycommissioned by the IPC that provides an insight into the types of practical mechanisms
utilised in selected international jurisdictions to promote open
government through information sharing and citizen engagement.
Despite the title "Advancing the
objects of the Government Information (Public Access) Act 2009 (NSW): an
international comparative evaluation of measures used to promote
government information release" the report is relevant anywhere policy makers (hopefully) and advocates (certainly) are wrestling with the challenge of how to encourage proactive release of government information.
From the Executive Summary
SECTION 3: The Concept of Open Government: History and challenges "This report bases its findings upon the three characteristics of open government as defined by the Organisation for Economic Co-operation and Development (OECD): transparency, accessibility, and responsiveness. Proactive release of government information is a critical plank in building these characteristics.
In Australian
jurisdictions there are cultural and organisational barriers to
information release. These barriers have become increasingly evident due
to the rapidly changing context within which the promotion of
government information sharing occurs. Technology has heightened
expectations as to efficient release and effective use of government
data. However as technology continues to drive change to governance
models the government response can be characterised as slow and
uncoordinated. In Australia macro and micro policy reform has not
grappled with information sharing between agencies nor adequately
addressed existing barriers to information release from government
agencies to the public. This approach seems set to continue."
(Comment: Is that noise in the background Prime Minister Turnbull coming down the corridor to set the situation right ?)
SECTION 4: Leading International Jurisdictions: How open government should look "The open government movement is global. Public data is big business and promises a new model of democratic interaction between citizen and government. In 2011 the international Open Government Partnership (OGP) was launched as an initiative by 8 founding governments. Today this includes 65 countries. This report identifies the governments which lead the international open government rankings. The United Kingdom is typically identified as the world leader in this area. The report then uses these comparative jurisdictions to identify: (a) three switches to encourage inter-agency information sharing (see Section 5); and (b) eight practical mechanisms to encourage proactive government information release to the public (see Section 6)."
(Comment: PM Turnbull-a great week to end years of dithering and commit Australia to continuing as a member of the Open Government Partnership?
SECTION 5: Encouraging information release in open government: Strategic tangible mechanisms to promote information sharing by government agencies "In Australia the closed government culture is a barrier to open data policy. This section identifies three switches to overcome the behavioural/oganisational issues which prevent information sharing: Switch 1 Legislative/structural features that build success: promoting a model of proactive agency information sharing Best practice UK regulatory model that facilitates exchange of data between agencies (Data Protection Principles and Data Sharing Code of Practice) Switch 2 Promoting proactive release of government data across organisational walls: Recognise and reward the individual Promote agency Open Data Champions; individual data release prizes and challenges; and identify agency data ‘boundary spanners’ Switch 3 Build inter-agency trust: the use of soft regulation Adopt UK ‘Personal Information Promise’; investigate multi-agency models; develop feedback loops on information sharing."
(Comment: follow the UK lead where the legal requirements for data sharing are legally enforceableby the ICO.)
SECTION 6: Encouraging information release in open government: Strategic tangible mechanisms to promote information release by government to the public "This project approaches the sharing of government information between agencies and release of government information to the public as initiatives which involve more than putting government data on the Internet. The eight mechanisms identified in Section 6 are: Mechanisms to promote transparency: 1: Democratize information sharing through using Games Contests, App development and Hackathons (Civic Hacking) to crowd source ideas and promote government information release 2: Measure government performance and encourage citizen rankings Mechanisms to promote accessibility: 3: Select policy area as the moderator for transparency and usage by combining a bottom-up and top-down approach to select specific data sets for release 4: Use non-government platforms to promote government information 5: Promote republishing and re-using government data Mechanisms to promote responsiveness: 6: Integrate citizens, consumers and non-government organisations into policy making 7: Ensure sustainable change through the integration of “ecosystems” of key actors 8: Encourage production of government information through individual citizen contributions."
(Comment: law review is also necessary - to broaden pro-active publication requirements to reflect 21st century public expectations, and modernise freedom of information still stuck in a 1980s paper world in some jurisdictions. (NSW and Queensland better than the rest but statutory reviews in both states, conducted largely behind closed doors, have disappeared into government black holes.) And ensure there is a clear leader and advocate, and an oversight body with resources and clout to make things happen)
Right to Know Day or Week is coming your way next week if you are in 40 countries around the world that celebrate it and here at least in NSW and Queensland thanks to information commissioners in both states. Queensland's Right to Know Day theme this year is ’A right to information. Play your part.’ Yesterday Emeritus Professor Richard Mulgan played his part delivering the Annual Solomon Lecture which I'll read with interest In NSW the Information Commissioner announced a "proactive campaign to encourage public sector agencies, universities and regional councils to champion open government and spread the message of proactive release of information to their stakeholders and communities."
I'll be an interested listener at the “Switch on Open Government in NSW” event on 29 September, where a panel will "examine the barriers to information sharing and showcase tangible manifestations of Open Government in achieving better service delivery through information access, increased accountability, and increased citizen input to government service delivery and policy development."
Australia's efforts are not quite up there with the citizen centric celebration of Right to Know elsewhere but hey, small steps, long journey.
It didn't take long for the Prime Minister to put down a marker that he is serious about the shift to 21st Century openness. The Administrative Arrangements Order (pdf) released yesterday sets out changes in ministerial responsibility. "Public data policy" gets a mention for the first time and with "Gov 2.0 and related matters", for years the bailiwick of Finance, is now a function for the Department of Prime Minister and Cabinet. The PM and the newly appointed Minister Assisting the Prime Minister for Digital Government Mitch Fifield are sure to be very 'hands on.' "Related matters" presumably signals that the Digital Transformation Office transfers from Communications where the PM as Communications minister got things going. The PM has ambitions in this field. In a speech in May Mr Turnbull said Australia "should aim to become the world's leading digital economy" and foreshadowed international and national initiatives:
"Governments across the world are at varying stages of their digital
transformations so the DTO has an opportunity 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. I have spoken
to Victor Dominello, the NSW Minister for Innovation, and we’re on a
unity ticket on the need to collaborate. We will also make myGov available to all other state and local
governments at no cost, other than those associated with the initial
onboarding."
In an earlier opinion piece in The Australian Mr Turnbull said Australia would join the D5.
The D5 Charter (pdf) at 3.5 requires members to belong to the Open Government Partnership.
After years of being in the dark about our intentions the OGP has put Australia on notice that patience is running out and asked for a recommitment by the time of the Global Summit and Ministerial meeting in Mexico next month.
Where else "Gov 2.0 and related matters" takes us remains to be seen, The Finance website defines Gov 2.0 as "the use of technology to encourage a more open, transparent and engaging
form of government, where the public has a greater role in forming
policy and has improved access to government information."
The intersection with Freedom of Information and the Office of Australian Information Commissioner is obvious.
Given the objects of the FOI act and the functions of the OAIC (once its future is assured and mindful of the continuing need for independence) both fit more neatly with the PM alongside "Public data policy" and "Gov 2.0 and related matters" than with the Attorney General.
Bringing policy in these areas together would provide the opportunity to integrate Open Data and the publishing and access provisions of the FOI act and modernise an act still locked in a written document world as well.
It's never too late to tweak the Administrative Arrangements Order!
(Additional thought: make it a box set by also taking responsibility for Archives which also sits with the Attorney General for no logical reason.)
At the swearing in of the Turnbull Ministry yesterday the Prime Minister told the Governor General
Your Excellency, today we are ... forming a government for the 21st
century. A ministry whose composition and focus reflects our
determination, to ensure that Australia seizes the opportunities of
this, the most exciting times in human history.
The Prime Minister repeated these descriptors a number of times over the last few days. He has also talked about his "wonderful new Cabinet, with brilliant younger people." A government wishing to be seen in these terms will want to ditch the 'at war with transparency' tag that the Abbott government seemed to wear with pride. (Update: some movement underway)
The PM has said we need a new type of leadership and a government that is open and engaged.
I don't expect this means a burst of transparency regarding 'on water' activities, but an early move on two related fronts would evidence the good intent.
The Abbott government attempt to legislate to abolish the Office of Australian Information Commissioner and in the meantime defunding its FOI and information policy functions, and the non decision after two years about joining the Open Government Partnership represent 19th not 21st century thinking.
Withdrawal
of the bill and announcement of a decision to join the OGP would pave the way for
development of a national action plan through consultation with civil
society as required by OGP rules. The plan would list concrete steps to improve transparency, open government and public participation- objectives the Turnbull government wishes to achieve.
Once the bill to abolish the OAIC is laid to rest some thought can be given to evidence and changing times. The plan might identify the need for a comprehensive review of information access issues including scope to move Freedom of Information law into the digital open data era and improve efficiency and effectiveness within agencies and at the OAIC if the evidence suggests.
In a conversation in July Mr Turnbull showed interest in such a review (see below).
The Prime Minister is clearly up also for changing direction when its the wrong way to go, telling ABC radio
When governments change policies, it's often seen as a back flip, or a
back-track, or an admission of error. That is rubbish. We've got to be
agile all the time. if you can't get something through the Senate, it is, I would say it's
highly possible that you could change it to something that will get
through the Senate. This is what John Howard calls the iron laws of arithmetic.
I had an opportunity to discuss FOI and the OGP with Mr Turnbull, my local member of paliament in July. These are emails exchanged at the time.
Prime Minister Malcolm Turnbull is interested in a different approach to governing.
In outlining the case for change of leadership on Monday he spoke of the wisdom to be found outside Canberra's parliamentary triangle, the intention to be truly consultative and the importance of open government:
We need to be truly consultative with colleagues, members of
Parliament, senators and the wider public. We need an
open government, an open government that recognises that there is an
enormous sum of wisdom both within our colleagues in this building and,
of course, further afield.
An early test of the strength of this commitment will be whether the government withdraws the bill to abolish the Office of Australian Information Commissioner still sitting in the Senate Bills List after 16 months without majority support, and ends the two years of dithering about 'will we won't we' sign up to the Open Government Partnership.
Decisions to stick with the bill and funding cutbacks for the FOI and information policy functions, and to turn our back on the OGP will speak louder than words.
My local member Malcolm Turnbull is challenging for the leadership of the Liberal Party. There was plenty in his statement this afternoon including:
We also need a new style of leadership in the way we deal
with others whether it is our fellow members of Parliament, whether it
is the Australian people. We need to restore traditional Cabinet
government. There must be an end to policy on the run and captain's
calls. We need to be truly consultative with colleagues, members of
Parliament, senators and the wider public. We need an
open government, an open government that recognises that there is an
enormous sum of wisdom both within our colleagues in this building and,
of course, further afield.
Farrah Tomazin in the Sunday Age focuses on Freedom of Information as one of the areas where the Victorian Government needs to deliver results if as promised it intends to strengthen the integrity system it inherited.
As mentioned previously the Victorian FOI act represents the finest thinking of the nineteen eighties about government transparency and accountability but public expectations and international standards have moved on.
Then there's the issue of implementation, lack of leadership and proper forceful oversight, and what appears to be a failed attempt by the previous government to establish an FOI commissioner with clout, resources and the capacity to get things moving in the right direction.
Dark Green excellent, Green substantial, Red and Yellow not flash or worse, Grey 'not on our radar' New Zealand again is ranked first in the International Budget Partnership 2015 Open Budget Survey of budget transparency, public participation, and the performance of oversight agencies, the widely accepted authoritative international voice on such things.
Congratulations to all five rated in the top category-NZ,Sweden South Africa, Norway and the US.
However budget transparency is rated Limited, Minimal, Scant or None in most countries surveyed particularly in our region. This fifth survey covers 102 countries but continues to not include two G20 members Australia and Japan (Oops, add Canada as well). When I raised questions about this two years ago I said Australia likely would rate reasonably well if we were assessed, although some Budget Portfolio Statements challenge this reader at least. Elena Mondo Supervisor, Open Budget Initiative replied to my email in 2013 explaining it was mainly a matter of resources.Whatever the reason for Australia not rating a mention, nothing much appears to have changed since:
"The
choice of including additional countries in the Open Budget Survey
depends on a number of factors: in first place, however, we aim at
having a reasonable global representation in the countries that we
include, so that we have, as much as possible, good geographical
representation and countries with different characteristics across the
world (income level, aid dependence, oil/mineral producer, democracies
vs. autocracies, etc…).
We
do have a fairly good representation of western/high income/OECD
countries, and we receive a significant amount of requests every round:
so we have to prioritize quite a lot when faced with the decision of
which countries we could add into the Survey. So, unless a country is
absolutely strategic to IBP and not yet included in the Survey (I cannot
think of any at the moment), we do not really go in search of new
groups in new countries – if anything it’s the other way round!
At
the beginning of each Survey research round, we receive many requests
from many countries (I think I counted as many as 20 last round) , and
we do not have financial or staff resources to take on many additional
countries: so we have to go through a touch selection process. We do not
work in Australia, and we were not in touch (from what I can remember)
with groups that expressed interest to complete the Survey. But, beyond
that, as explained above, we have many request and limited financial and
human resources, so we would still need top prioritize quite
drastically.
Ideally
we would like to expand in order to cover the whole world, but we are
already over stretched in terms of how much we can realistically deal
with, and the inclusion of any new country is weighted against those
factors. We have not yet started the process to undertake the 2014 Open
Budget Survey, and we will start discussions in May, most likely. We are
keeping a shortlist of countries where there has been interest in
participating in the research, and depending on whether we will have
additional resources, we will then decide whether and which ones to
add."
While governments – and major institutions – find new ways to limit
transparency, the media industry itself is equally culpable, trading
away its freedom to investigate for short term access. There is a war on
transparency underway and the media is colluding with the wrong side.
Australia's fence sitting on where it stands on the Open Government Partnership continues to attract international interest.
Included in commentary by Toby McIntosh in Washington last week was the response from the Department of Finance to the news, as McIntosh puts it, "that the OGP Steering Committee recently gave Australia until the end of
October to indicate its intention to be an active member, or to join
Russia as an OGP drop-out":
“The Australian Government is positively inclined towards joining the
Open Government Partnership but has yet to make a final decision,” the
official said, adding, “The Government intends to form a view as soon as
possible and will take as long as necessary.”
As McIntosh received a response and having asked twice in recent weeks without success for answers from the Minister's office, this prompted me to try again, running these questions past the Media Centre:
Has the government responded to the OGP Support Unit following reports of concern reflected in the minutes of the July meeting of the Steering Committee over Australia’s lack of action as a member? What are the government's intentions regarding the request to “recommit' to the OGP by the deadline imposed by the Steering Committee, the October Global Summit meeting in Mexico? Will the government be represented and by whom at the preparatory OGP Asia Pacific Regional Meeting to be held 7–8 September 2015 at Asian Development headquarters in Manila, Philippines? If the intention is to proceed with OGP membership, what steps are envisaged for public consultation on a national action plan?
The Department replied today although the response reveals nothing new, and for the public record at least indicates nothing has happened since the same responses were given to questions in Senate Estimates in February.
As has been stated publicly previously, the Government is positively inclined towards finalising its membership of the Open Government Partnership but is still considering its position. Once the decision is made, it will be conveyed to the OGP. If the decision is to join, then a national action plan, developed in accordance with the OGP’s guidance<http://www.opengovpartnership.org/how-it-works/action-plans>, will be produced. In the interim, Australia continues to provide appropriate representatives to observe at relevant OGP meetings, as is occurring currently at the regional meeting in Manila through the attendance of an embassy official, Mr Daniel Featherston, Counsellor Economic.
'Considering' (in a fashion) started when Australia was first asked to join the OGP in August 2011 and started again sometime after the Abbott government came to office two years ago.
In response to a request in recent weeks from the US a decision on whether Australian air force jets will bomb in Syria is expected any day now.
The Abbott government continues to confuse some and dismay others following years of dithering about whether it wants to be part of the international movement committed to reform efforts designed to make government more open, accountable, and responsive to citizens.
Nothing to show for years of 'considering' Four years after Australia was invited to join the Open Government Partnership, 28 months after a previous government lodged notice of intention to join, and two years since coming to office the Abbott government has not responded publicly to queries from the OGP and prefers to say nothing in response to requests for clarification of where things stand.
For example these unanswered questions sent to the office of Minister for Finance Cormann twice in the last 10 days
Has
the government responded to the OGP Support Unit following reports of concern reflected in the minutes of the July meeting of the Steering
Committee over Australia’s lack of action as a member? What
are the government's intentions regarding the request to “recommit' to
the OGP by the deadline imposed by the Steering Committee, the October
Global Summit meeting in Mexico? If the intention is to proceed with OGP membership, what steps are envisaged for public consultation on a national action plan?
No answer from the Minister's office either to a question about whether the government will be represented at the OGP Asia Pacific Regional
Meeting to be held 7–8 September 2015 at Asian Development Bank headquarters in Manila.
However the organisers are more forthcoming telling me Daniel Featherston Economic Counsellor at the Australian Embassy in Manila is down to attend. (I suppose that's something and indicates we are not out of it entirely but it conveys the message our interest is near bare minimum.Then again they could have sent the third secretary!)
Unfortunately it is part of a pattern - Australia is yet to be represented by a minister at any OGP meeting. Prime Minister Abbott didn't take up the invitation from President Yudyohono to attend the OGP regional meeting in Bali in May 2014, sending an official from Finance Canberra, nor attend President Obama's OGP gathering in New York in Leaders Week at the United Nations this time last year.
While Australia on the sidelines maintains an aloof position on the OGP and its goals, others note that the Asia Pacific region is under represented with regional initiative left to Indonesia, recently re-elected to the Steering Committee, Korea, New Zealand and the Philippines, supported by the Asian Development Bank and other donors.
Silence since February The last time anything was said publicly about Australia's OGP intentions was February2015 when the Minister for Finance told Senate Estimates the issue of Australian membership was still under consideration and the government was 'positively inclined' to join.
Has the PM yet seen a draft? We know thanks to documents released under Freedom of Information that in August 2014 Prime Minister Abbott wrote to the Minister for Finance instructing that no announcement of
Australia's position on membership of the OGP 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." Finance told the Minister work was coming along and should be in hand by the end of 2014. We don't know what happened since.
OGP in the dark In November 2014 the OGP Support Unit, taking the May 2013 notice of intention at face value, wrote to the Department of Finance pointing out Australia had acted contrary
to the OGP process in failing to meet deadlines for lodgement of a national action plan. There is nothing publicly available to indicate they received a reply.
Or that they have heard back from Australia after they upped the ante more recently following the OGP Steering Committee discussion about government intentions at the July 2015 meeting:
The
case of Australia was highlighted as particularly
concerning, and the Steering Committee agreed on next steps and a deadline for Australia
to recommit to OGP by the time of the Global Summit (October 2015).
The company Australia keeps? So with a deadline in October and no doubt lots of questions for Mr Featherston in Manila next week will Australia recommit to "the international platform for domestic reformers committed to
making their governments more open, accountable, and responsive to
citizens" shared by 65 others?
Or join Russia as the only country to sign on to these objectives then think better of it by withdrawing?
Eric Schlosser Author,Command And Control, interviewed last night on ABC Lateline:
TONY JONES: Now, if this is all happening in the world's most advanced
technological nuclear power, what's happening in Pakistan, which has the
fastest-growing nuclear arsenal in the world, but we know the problems
of the political system in Pakistan?
ERIC SCHLOSSER: We don't
know. We don't know how Russia is handling its nuclear weapons. I'm very
critical of my government in my book, but the United States has been
much more open about its nuclear weapons systems than any other country
in the world and much more open about its accidents and mistakes. I
mean, it took me years through the Freedom of Information Act to get
this information, but at least I was able to get it.
TONY JONES: It was kept secret until then.
ERIC SCHLOSSER: It was kept secret ...
TONY JONES: Hundreds of pages of incident reports which you acquired had all been kept secret.
ERIC
SCHLOSSER: I found more than 1,000 accidents and incidents involving
nuclear weapons. And in many ways it's a testament to the skill of our
weapons designers that none of them detonated full scale, but I
interviewed many of them for my book and they feel it's not a question
of whether this is gonna happen, but when.
ICAN lists the following countries with, or hosting nuclear weapons. Many (well there are obvious exceptions) have FOI/RTI acts. Important challenging comparative study there for the taking.
Nations with nuclear weapons
United States, Russia, Britain, France, China, Israel, India, Pakistan, North Korea
Nations hosting nuclear weapons
Belgium, Germany, Italy, Netherlands, Turkey
Schlosser will participate in the Guardian Masterclass on Investigative Journalism in Sydney on 6 September to be hosted by Paul Farrell as part of the Festival of Dangerous Ideas.
Emeritus Professor Richard Mulgan in The Canberra Times The slow death of the Office of Australian Information Commissioner recites the history of the government's (to date) failed attempt to abolish the office suggesting the government's cut in funding the FOI functions when the will of parliament is to maintain the office "rests on a strict, and distinctly "tricky",
interpretation of the law."
More significant is what happens to the information commissioner's
function to report generally on government policies in relation to
information, including the disclosure and accessibility of government
information. This function casts the commissioner in the role of public
champion of open government, a role which McMillan performed, for
example, by monitoring agencies' administration of FOI and generally
advocating a more proactive approach to disclosing information. The
claim that the Attorney-General's Department can adequately cover for
this function is disingenuous. Expecting the attorney-general to act as a
champion of open government is asking the fox to act as the defender of
hens.
Farrah Tomazin in The Sunday Age summarises the report commissioned in April by the Department of Premier and Cabinet into the office of Victorian FOI commissioner Lynne Bertolini that exposes "a
litany of problems, including "unusual" procurement practices, unmet
targets, and "poor conduct" towards some staff."
"The final report, now with Parliament's joint accountability and
oversight committee, paints the picture of a dysfunctional office,
with "poor conduct" towards the two assistant commissioners; a backlog
of reviews and complaints by people seeking FOI documents; and
favouritism towards some staff, with "considerable anxiety and stress"
among others. It also reveals:
Since December 2012 the FOI office spent $825,946 on contracts with
two selected legal service providers when equivalent organisations in
NSW, Queensland and the federal sphere use little or no external legal
advice.
A further $55,000 was spent to hire the Agenda Group for three days
of work, including a former executive and colleague from the gambling
regulator.
The average time taken to complete an FOI review was 90.4 days –
well in excess of the government's 30-day target. Ms Bertolini completed
130 reviews between last October and April this year, but her assistant
commissioners Michael Ison and Rachel Westaway had only been assigned
a combined 19 reviews over the same period."
Ms Bertolini announced her intention to stand down three weeks ago, effective last Saturday.
Legislation to create the Andrews government answer, a new Office of the Public Access Counsellor, is expected early next year.
