Senate Committee on National integrity Commission, Government senators not interested in this or political donation reform

 It's not simply that when Quentin Dempster speaks, things happen.

After all The Greens have been on about the need for a Federal anti-corruption commission for years, so too a whole raft of organisations and individuals who don't buy the idea that the government and all its constituent parts and players are unique in the long history of humankind.

So while the commission or some other much needed response that tightens things up at the federal level may still be far off in the distance, yesterday some stirring.

On the motion of Senators Wang and Madison the Senate took two minutes to vote to establish "the Select Committee relating to the establishment of a National Integrity Commission" to report to the Senate by September 2016 with these terms of reference. 

Labor, The Greens and cross bench senators voted for. 

None spoke, if you discount a minor intervention by Greens Senator Siewert. 

But the vote is a welcome confirmation of Labor's current interest, having passed up on the opportunity to act when they were in office and darting and weaving on the subject since.

Government party senators voted against. One, Senator Scott Ryan, Minister for Vocational Skills and Training had one minute for the stock standard government line:

The government has a zero tolerance approach to corruption and is committed to stamping out corruption in all its forms. We have a multifaceted approach to combating corruption. We are always looking at how we can strengthen that, rather than throwing the whole system out based on the presumption that a national anticorruption commission will be more effective. The Australian Commission for Law Enforcement Integrity is responsible for preventing, detecting and investigating serious issues of corruption in federal law enforcement agencies. Furthermore, the Commonwealth Ombudsman performs an important function in investigating and auditing various agencies and functions. The Australian Federal Police also play a fundamental role in investigating serious corruption issues. The government will continue to take a strong approach to tackling corruption in all forms.

DIVISION:AYES 37 (10 majority) NOES 27 PAIRS 6
AYES	NOES	PAIRS
Brown, CL Bullock, JW Cameron, DN Carr, KJ Conroy, SM Dastyari, S Day, RJ Di Natale, R Gallacher, AM Gallagher, KR Hanson-Young, SC Ketter, CR Lambie, J Lazarus, GP Leyonhjelm, DE Lines, S Ludlam, S Ludwig, JW Madigan, JJ Marshall, GM McAllister, J McEwen, A (teller) McKim, NJ McLucas, J Moore, CM Muir, R O'Neill, DM Rhiannon, L Rice, J Siewert, R Simms, RA Singh, LM Sterle, G Wang, Z Waters, LJ Whish-Wilson, PS Xenophon, N	Abetz, E Back, CJ Bernardi, C Bushby, DC (teller) Canavan, MJ Cormann, M Edwards, S Fawcett, DJ Fierravanti-Wells, C Fifield, MP Heffernan, W Johnston, D Lindgren, JM Macdonald, ID McGrath, J McKenzie, B Nash, F O'Sullivan, B Parry, S Payne, MA Reynolds, L Ronaldson, M Ruston, A Ryan, SM Seselja, Z Smith, D Williams, JR	Bilyk, CL Scullion, NG Collins, JMA Birmingham, SJ Peris, N Brandis, GH Polley, H Cash, MC Urquhart, AE Sinodinos, A Wong, P Colbeck,

 Earlier in the day more voices were heard in debate on a Greens urgency motion:

"The need for immediate action on political donations reform, to address the corrupting influence of political donations, including from property developers and fossil fuel companies."

Debate here and there strayed into broader anti-corruption issues and took an hour.

The motion passed without a vote so Senator Seiwert may get a spot higher on the agenda sometime for the substantive issue.

No surprise that Greens senators and crossbenchers Leyonhjelm, Madigan and Lambie are up for action on this front. Senator Rhiannon outlined how the system is broke but Government senators clearly think things are pretty rosy. 

Labor is committed to significant change but some of its speakers seemed glad to change the subject.

Senator Lambie told the Senate of a close encounter with the PM, looking deeply in his eyes, listening to his low deep voice saying.... 

'there's no corruption in federal politics.'

"I recently met the Prime Minister and when I raised the issue of establishing a federal commission against corruption, a federal ICAC, he dismissed the idea by trying to tell me that a federal ICAC was not warranted because there were not many opportunities in federal politics, compared with state politics, for corruption to occur. I almost believed that nice story from our PM—and I mean who wouldn't? As I looked deeply in the PM's eyes, he said with that low deep voice with that nice smile repeat after me : 'There's no corruption in federal politics—only in state politics. There's no corruption in federal politics—only in state politics. I was left with that fuzzywuzzy feeling of hope for a few days after my meeting with the PM that 'there's no corruption in federal politics— only in state politics.'

And then—what do you know?—Veterans Affairs Minister Stuart Roberts was forced to resign; we found out about the rich Chinese businessman having drinks with Liberal Party members and the $10,000 watches that were given out as gifts.

The same sort of thing happened after I wrote to former Liberal PM Abbott asking him effectively whether any people associated with the Liberal Party and mentioned in the Heydon Royal Commission secret reports were corrupt. And PM Tony Abbott wrote back to me, essentially saying that no-one in the Liberal Party was corrupt; and then seven days later we found out the Liberal Party President in Victoria had defrauded their members to the tune of about $1.5 million.

Last year's Roy Morgan Survey of Professions saw 13% rate Federal politicians highly on ethics and honesty.

If every state in Australia has one what's holding back the establishment of a Federal anti-corruption commission?

Quentin Dempster in The Saturday Paper 

The case for a federal ICAC is compelling. With highly skilled forensic accountants, metadata analysts and IT specialists; phone tap, covert surveillance and search warrant powers to gather evidence; and the power to compel attendance at preliminary in-camera interrogation, a federal commission against corruption could start to correct the myth that there is little or no corruption at the Commonwealth level......
Resistance to a federal corruption commission is expected to be intense from within the political parties and the Murdoch press because, as in NSW, its very existence would confront Australia’s corruptible and influence-peddling political and commercial cultures.
Examples of corruption will be fobbed off as “just a few bad apples”. As in NSW, such an investigative body will be likened to a “star chamber” or a Russian show trial. But the need and the benefits are manifest.....
The NSW ICAC, with a budget of $25 million, assesses an annual state public-sector budget of $70 billion. With the Commonwealth’s annual expenditure now running at $434 billion, the case for an adequately funded countermeasure for a culture vulnerable to corruption would seem to be self-evident. 

Important to you?

Join the like-minded such as Transparency International Australia, Accountability Roundtable and others as discussion gets underway about public integrity, anti-corruption measures  and related topics in the context of development of Australia's Open Government Partnership National Action Plan.

Lots of room for your thoughts, ideas, suggestions and observations.
 
Become a member of the Australian Open Government Partnership Network, or tell the Prime Minister's department directly what you think.  

What's holding us back from strengthening democracy?

The Human Rights Law Center Report Safeguarding Democracy released yesterday 

"documents how federal and state governments are adopting new laws and practices that undermine critical components of Australia’s democracy like press freedom, the rule of law, protest rights, NGO advocacy and courts and other institutions. It outlines 38 recommendations to stop the erosion and strengthen our democracy."

Is democracy important to you? Are you up for the cause of strengthening and improving democratic practices?
 
Join the like-minded as discussion gets underway about open, transparent government, public integrity, citizen engagement and related topics in the context of development of Australia's Open Government Partnership National Action Plan.

Lots of room for your thoughts, ideas, suggestions and observations. 

Join the Open Government Partnership Network, or tell the Prime Minister's department directly what you think. 

What's holding us back from doing something about money, politics and influence?

Important to you?

Join the like-minded as discussion gets underway about public integrity and related topics in the context of development of Australia's Open Government Partnership National Action Plan.

Lots of room for your thoughts, ideas, suggestions and observations. 

Join the Open Government Partnership Network, or tell the Prime Minister's department directly what you think. 

A selection below from media commentary in the last few days prompted by the Stuart Robert scandal - following years of deaf ears to calls for reform.

 Lenore Taylor (Guardian Australia) on Q&A

I think these scandals come and they go, the person resigns if there is enough political pressure but the only thing that will change the system is if we change donation laws and change the relationship between politicians and big money.

Katherine Murphy (Guardian Australia) and Mark Riley (Seven Network) on ABC Insiders (at 37 minutes), in summary:

the conduct of the minister in the Robert case where he seemed to assume he was a tourist while involved in activities to advance the interests of a business friend and political party donor in China, a business in which he held shares, was appalling. It revealed a political culture where people don't know where to draw the line, and pointed up the need for a hard look and a national conversation about corporate interests, money, politicians and power.

Stephen Mayne Crikey: Can Cormann (and Stuart Robert) fix our broken campaign finance system? (Subscription)

Paul Bongiorno in the New Daily

"..the Robert affair points up the shocking inadequacy of Australia’s political donation regime. There is not enough accountability or transparency....Greater donation limitations and transparency are needed urgently to preserve the national interest from greedy vested interests."

Mike Seccombe, The Saturday Paper "Stuart Robert and political donations."

"The evidence of any significant difference between the parties when it comes to ministerial standards is very weak. But there is a difference when it comes to the corrupting influence of political donations, and a very strong correlation between ideology and money. The conservative parties and their big money donors are the major enemies of limits, accountability and transparency...

The conservatives have also pioneered various means of circumventing disclosure, setting up associated entities to collect money, and by moving it between various party divisions to exploit differences in rules between states. That is not to say Labor is squeaky clean, either, but the record clearly shows that when it comes to dubious means of collecting funds, the Coalition tends to be the initiator and Labor the imitator. ....

[as (High Court) Justice Stephen Gageler (in McCloy) noted] that while buying preferential access to government did not necessarily result in corruption, “the line between a payment which increases access to an elected official and a payment which influences the official conduct of an elected official is not always easy to discern”. The implication of his words is obvious: the bigger the donation the bigger the risk of corruption. The elimination of preferential access to government that resulted from the making of political donations was not just “a legitimate legislative objective,” said Gageler. “More than that, the elimination of that form of influence on government is properly characterised as a compelling legislative objective.”

In other words, let’s set limits on donations, so moneyed interests can no longer buy politicians. Because this is not about Stuart Robert; it is about the whole system."

Editorial The Canberra Times "The public service not ministers, remains Australia's corruption risk."

"Ultimately, the Robert affair distracts attention from a deeper failing in government transparency. Federal parliamentarians' financial interests are generally well known; and, as a result, politicians mostly steer clear of obvious conflicts of interest. Yet, in practice, the vast majority of public spending is co-ordinated and approved by senior bureaucrats, not ministers. Unlike politicians, these officials have no need to make any public disclosures of their private interests. Yes, they are required by law to "take reasonable steps to avoid any conflict of interest (real or apparent)" – usually to their direct manager. However, the lack of regular or systematic investigation of these hidden disclosures begs the question: just how many scandals go undetected within the government?
While this secrecy remains, Australians will be unable to be entirely confident that their government – the executive and the bureaucracy – is as squeaky clean as it should be."

Challenge for new minister: If open data is changing the world, what's holding things back here?

Following the ministerial reshuffle on Saturday, Angus Taylor is Assistant Minister to the Prime Minister for Cities and Digital Transition. On digital government, he replaces Communications Minister Mitch Fifield appointed last September. 

Mr Taylor's Twitter account states

"Rhodes scholar. Business consulting and agriculture background @mckinsey and Port Jackson Partners. Passionate about good government"

So roll out the red carpet as discussion gets underway about access to information, public data, public integrity, use of technology, better services and public resources, in the context of developing Australia's Open Government Partnership National Action Plan.

Lots of room for your thoughts, ideas, suggestions and observations. Join the Open Government Partnership Network, or tell the Prime Minister's department directly what you think.

On access to government data, below two reports about opportunities for giant steps forward and another close to home about how the Federal government's "capacity to fully derive value from public sector data is constrained by competing priorities and the lack of an overarching strategy" and a plan what to do about it.


Worldwide 
The GovLab (@thegovlab), in collaboration with Omidyar Network (@OmidyarNetwork) has published detailed open data case studies that seek to provide understanding of the various processes and factors underlying the demand, supply, release, use and impact of open data. Conclusions:

• Open data is improving government, primarily by helping tackle corruption, increasing transparency, and enhancing public services and resource allocation.

• Open data is also empowering citizens to take control of their lives and demand change; this dimension of impact is primarily mediated by more informed decision making and new forms of social mobilization, both in turn facilitated by new ways of communicating and accessing information.

• Open data is also creating new opportunities for citizens and organizations, by fostering innovation and promoting economic growth and job creation.

• Open data is playing an increasingly important role in solving big public problems, primarily by allowing citizens and policymakers access to new forms of data-driven assessment of the problems at hand. It also enables data-driven engagement producing more targeted interventions and enhanced collaboration.

 Australia 
The Bureau of Communications Research report Open Government data and why it matters now on the impact of open government data tends to focus on economic impacts with not much attention to other positives that feature prominently in the GovLab report.

The Bureau reveals open government data has potential to generate up to $25 billion per year.or 1.5 per cent of Australia's GDP. Conclusion:
 
"Open government data invariably has a net economic benefit
While there is little consensus on the magnitude of the economic benefits of open government data sets, it is apparent that they provide substantial current and potential net benefits to the economy and society.
In Australia, the estimated economic value of open government data sets range from a lower boundary of $500 million to an upper boundary of $25 billion—per year. Globally, the potential value of open data (both public and private) could be up to $4 trillion per year. Significant benefits associated with open government data include improved government services, more efficient operations and business practices, better information exchange, and more engaged citizens, as shown by the sample projects and initiatives discussed in this report.

The maximum public benefit will accrue from free provision of raw government data, or at the most pricing data at the incremental cost of provision
Given that the government collects a significant amount of raw data in the course of its usual operations—for example the provision of broadband and public transport services —much of the fixed cost associated with data collection is already incurred. Net public benefits of open government data are likely to be maximised by pricing at zero or, at the most, the incremental cost of provision (short-run marginal cost), reflecting its public good characteristics of being non-rivalrous and non-excludable.

Value-adding in open government data is generally better left to the private sector   
The rationale for the Australian Government’s provision of open data is strongest for raw data. Raw government data is likely to exhibit the strongest public good characteristics, and hence the broadest benefits from its release. In general, net public benefits will be greater if significant value adding (beyond provision in machine-readable form) is left to the market, as the market sector will generally have more informed insights in identifying what value-add is of benefit to the users. The private sector, especially in developed industries such as ICT, generally have a more established capability and capacity in transforming raw data into products and services that could be introduced in the market. 

Certain government data sets that are likely to have more significant economic impacts
Some of the potential high-value data sets held by governments that have been identified to date are spatial data, health data, transport data, mining data, environmental data, demographic and social data, and real-time as well as past emergency (e.g. bushfire) data."

Australia
Then there's the report on Public Sector Data Management published by the Department of Prime Minister in December 2015. Conclusions:

"Data is under-utilised in the APS. 

Currently, the Commonwealth’s capacity to fully derive value from public sector data is constrained by competing priorities and the lack of an overarching strategy:

• There is no clear mandate for the Commonwealth to use and release public sector data.

• There are barriers (perceived and real) to sharing data within the Commonwealth and with jurisdictions to improve policy and service delivery.

• The APS lacks sufficient incentives, skills and organisational arrangements to capitalise on its data.

• The Commonwealth does not have a strong culture of publishing data to foster economic opportunities."

The recommendations in the report set out an 18 month timetable of actions to change the way government does business by setting up the right frameworks, systems and capability to use, share and value data.

........................

Hmm, won't go into how opening government data and turning the culture around
gels with closing down the government watchdog charged with promoting that culture change and the oversight of our legislated right to access government information-  legislation oversighted by the Office of Australian Information Commissioner that includes an agency obligation to publish certain information....

And how we address two policy directions pulling against each other in the OGP National Action Plan

A challenge I expect even for a Rhodes scholar with McKinsey and Port Jackson experience. 

So far as I'm aware the words "Open Government Partnership" are yet to pass this Attorney General's lips.

No sign of the siege lifting

Attorney General Brandis told Senate Estimates this week that the government position on the future of the Office of Australian Information Commissioner has not changed. As Senator Brandis recounted the government announced in May 2014 that the office would be abolished; it has been made clear the Senate would not pass the bill to achieve this outcome; the governmernt has not brought the bill  (on the Senate Bills list since October 2014) on for a vote; the FOI functions of the office were allocated $1.7 million this financial year. As to where to from here:

"The circumstances are that the government has an intention, which it has declared, for reasons which it has explained, but that intention cannot be given effect to. So the arrangements continue as they are for the time being."

 The transcript for the hearing is at pages 44-49 in the Hansard.

When Senator Collins asked how this squared with the decision to join the Open Government Partnership and an accompanying announcement that the 'government is committed to openness as a basic principle of modern government,' Acting Australian Information Commissioner Pilgrim responded

My understanding is that the bill is still before the Senate or on the list and that is the status at the moment.
Senator JACINTA COLLINS: So if the next budget does not include further funding then you will be without funds?
Mr Pilgrim: That would be true. If there is no funding for the FOI function then we would not be able to undertake it.

Senator Brandis told the committee "that as an economy measure the office would be abolished and its functions consolidated."

The Siege of Leningrad lasted two and a half years. How long will this siege last?

OECD: Political donation rules must be part of overall integrity framework

Ross Gittins in the Sydney Morning Herald writes about a new report published by the Organisation for Economic Co-operation and Development Financing Democracy: Funding of political parties and election campaigns and the risk of policy capture, and goes on to highlight weaknesses in Federal Government rules,

... our electoral commission..reported on political donations only last week. The donations it informed us of had been made up to 19 months earlier. Even so, the figures may not be complete. There is little penalty for late disclosure.
Parties are not required to disclose donations under $12,800, and buying a seat at a dinner table with a minister is not classed as a donation.
The OECD report says public reporting of donations should be timely, reliable, accessible and digitally searchable. Why? To make it easier for civil society groups and the media to be effective watchdogs.
Perhaps that's why we don't do it."

Main Findings of the report:

• Finance is a necessary component of the democratic processes.
• Money enables the expression of political support. 
• It enables competition in elections.
• However, money may be a means for powerful narrow interests to exercise undue influence e.g. newly elected officials maybe pressured to "return the favour" to corporations.
• Infrastructure and urban planning are particularly vulnerable to the risk of policy capture.
• Consequences include inadequate policies that go against the public interest.

Loopholes in existing regulations

• Current funding rules need attention to ensure a level playing field for all democratic actors.
• Loans, membership fees and third-party funding can 'go-around' current spending limits.
• Countries are struggling to define and regulate third-party campaigning (charities, faith groups, individuals or private firms).
• While many countries have adopted online technologies to support proactive disclosure.
• There is a need for more efficient and independent oversight and enforcement.

Political finance regulation as part of an overall integrity framework

• Political finance regulations are ineffective in isolation.
• They need to be part of an overall integrity framework that includes the management of conflict of interest and lobbying.

• Fewer than half of OECD countries have set or tightened lobbying standards

What's holding back political donation law reform and full transparency?

A selection of editorial opinion follows.

Contrast these sentiments with the absence of any sign of interest in reform from the Federal Government and the observation by Gary Gray, Shadow Special Minister of State on Sunday in conversation with Jonathon Green on Radio National that Australia has the best system of disclosures in the world. 

Yes, truly.

Crikey Editorial 1 February
Every year we go through the same shabby ritual: up to 19 months after some of them have been made, we finally learn who is trying to curry favour with our political parties with donations.

Or rather, we learn about some of the donors. Courtesy of donation disclosure laws that are a relic of the Howard era, parties and donors are not required to disclose donations of under $13,000 (although to its credit the ALP has consistently reported all donations over $1000, as the Greens now do as well). Moreover, there are huge loopholes in the definition of donations. For example, “purchasing” a good or service from a political party, such as a seat at a dinner table with a minister, is not considered a donation.

The entire reporting system is woefully out of date. We should have online, near-real time reporting of donations by federal, state and territory branches of political parties. Instead, we are required to wait until February 2016 to find out who was donating to politicians as long ago as July 2014.

Most of all, there is little penalty for late disclosure. Political parties routinely get away with declaring hundreds of thousands of dollars in donations years later, long after anyone has stopped scrutinising them. Bill Shorten's convenient failure to declare an in-kind donation from a company to his 2007 election campaign is just the tip of the iceberg.

Every year, Crikey makes the same editorial call: our analog-era joke of a disclosure regime needs to be overhauled. But there is little political will within the major parties for greater transparency. The last politician to seriously attempt reform was John Faulkner under Kevin Rudd. To its shame, the Coalition thwarted his efforts. Since then, both sides have treated voters with contempt.

SMH Editorial 2 February
As the Herald has argued many times, Australia needs to stop the gaming of Upper House election preferences, apply stricter limits to political funding and demand full transparency, including continuous real-time disclosure of donations...
...the source of most Liberal funding from big business and wealthy donors remains secret due to outdated rules and the $13,000 federal disclosure threshold. Labor donations as small as $1000 are mostly disclosed but remain entwined in union coffers....
Federal Treasurer Scott Morrison labelled as "very shabby" the donations from Palmer interests. The Liberal heavyweight  warned voters that if something in politics looked too good to be true it probably was. But Labor and the Coalition have repeatedly derailed attempts to fix the system.
To his credit, NSW Premier Mike Baird has toughened the state electoral funding laws and is rightly pushing for reforms across other state and the federal jurisdiction. The Herald has argued for lower limits on political donations from individuals and organisations; the continuous real-time reporting at which Mr Baird has baulked, limiting it instead to six months before an election; a ban on associated entities; and clear definitions about where the money comes from and goes. Extra options include a ban on political donations from foreign sources, spending caps for parties and third-party supporters, and more public funding to reduce reliance on donors.
Voters should demand change from the major parties and support reformers who reject the current sordid arrangements. The likes of senators John Madigan, Nick Xenophon and the Greens have proposed new rules for donations and Upper House elections. Some in Labor, including former minister of state John Faulkner, proposed changes to donations rules only to have them kyboshed.

The Age Editorial 2 February

Those who argue, in the face of all evidence, that Australia's political donations disclosure laws are robust are fooling themselves and voters. That goes for every level of government – federal, state and local council – and every political party and opportunist that feeds off this woeful regime.
The arrangements for disclosing political donations are disjointed, varying from one jurisdiction to another. The delays in publishing donation details are so lengthy that the whole process becomes almost pointless. And the threshold for disclosing donations ($12,800 in 2014-15) is too high, leaving the system vulnerable to exploitation.

Why does this matter? Because the transparent and timely disclosure of political donations helps to inform voters about the sources of potential influence on a government. It is intended to allay the risk of undue, secret or corrupting influences by exposing who is behind campaigns. It helps to preserve and protect the integrity of the electoral process, and is a form of insurance on government decisions.....

The Age has said for decades that the existing system is flawed. So, too, have commissions of inquiry, joint parliamentary committees at both federal and state levels. At the federal level, the Coalition has repeatedly opposed or sought to weaken proposed disclosure reforms. In Victoria, there has been no sign the Andrews government plans any change.
All parties are dragging their feet on reform, leaving voters with a lame system that is open to rorting. What is needed is a first-class, uniform and transparent electoral disclosure regime, one that includes online access to donations in local council elections and which has rigorous requirements to ensure full disclosures by the umbrella foundations and other cloaked organisations favoured by the major political parties.
Importantly, publication must be timely. The current laws do not require donors to submit returns until 20 weeks after the close of the financial year. There is no sensible reason for this lax deadline. The 2014-15 returns for political parties were published yesterday, meaning some of the information was more than 18 months old. The technology exists for real-time (or near-enough) lodgement and disclosure. The law must be changed to speed this up.
It is time to stop ducking and weaving on this important integrity issue. Politicians and parties that refuse to support reforms towards transparency, efficient and timely disclosure must be condemned.

Crikey Editorial 2 February:

The Coalition’s long war on transparency continues in the government’s childish games with an allegedly sensitive confidential volume of the trade union royal commission report.

The government has had three separate positions on the volume: first it was to remain confidential on the basis that royal commissioner (and would-be Liberal Party speech maker) Dyson Heydon claimed (without providing any evidence) that releasing it might place royal commission witnesses in danger. When crossbench senators whose votes are necessary for the government to pass its anti-CFMEU bill re-establishing the Australian Building and Construction Commission demanded access, the government changed its mind and offered access to a redacted version of the report. Yesterday it changed its position again and offered access to a single representative of the Greens and Labor as well -- an offer that has correctly been declined on the basis of arrant silliness.

Since its election in 2013, the Coalition has consistently tried to curb transparency. Entire areas of government operations have been ruled beyond the scope of parliamentary scrutiny. Ministers have misled Parliament with impunity. The public service has been encouraged to treat freedom of information laws with contempt. Whistleblowers have been pursued and journalists threatened with jail.

It was to be hoped that Malcolm Turnbull, a man who made his legal reputation on one of the signal moments of transparency in Australian law, the Spycatcher case, would bring a change from the Abbott government’s deep-seated loathing of transparency. So far, the signs are that we’re in for more of the same.

Tl Australia urges inclusion of anti-corruption measures in OGP National Action Plan

"Transparency International Australia is calling on the Australian government to address critical deficiencies in Australia’s anti-corruption laws, as the country falls further on the international Corruption Perceptions Index (CPI) for the third year in a row.

 Today it was revealed that world-wide perceptions of the level of corruption in Australia’s government sector continue to worsen, with Australia’s CPI score falling to 79, down from 85 in 2012, 81 in 2013 and 80 in 2014.

Australia is now ranked 13^th out of the 168 countries included in the Index – down six positions since 2012, and joining countries like Libya, Brazil, Spain and Turkey as big decliners over that period.

The annual Index compiled by Transparency International uses 12 surveys of expert assessment and views of business people globally. The highest ranked country is Denmark with a score of 91.

TI Australia’s incoming chairman The Hon. Anthony Whealy QC described the continued slide as “the result of inaction from successive governments who have failed to address weaknesses in Australia’s laws and legal processes.

“The delay in responding to these issues has now made reform critical and a commitment to ramp up efforts to tackle foreign bribery, which has particularly impacted perceptions of Australia, is now urgent.”

As a priority action, Mr Whealy and new TI Australia CEO, Phil Newman, are calling on the Australian Government to commit to enacting long overdue reforms to Australia’s foreign bribery laws before the end of 2016, as a crucial indicator of the country’s seriousness in fighting corruption.

“With Australia’s worst foreign bribery offences having been committed by former or current government-owned entities – the Australian Wheat Board, Note Printing Australia and Securency Limited – there is no excuse not to have implemented all of the OECD’s reform recommendations in this area by the end of the year,” Mr Newman said.

“TI Australia welcomes the Turnbull Government’s move to develop a national Open Government action plan in 2016, and looks forward to working with it on the many issues that must be addressed if we are to improve our corruption perception score and regain leadership on anti-corruption.”

Other key actions identified by TI Australia for arresting the slide in Australia’s global position include:

• A stronger, broad-based federal anti-corruption agency
• Reformed, more consistent anti-corruption and political finance regimes across Australia’s State, Territory and Federal governments
• Strengthening Australia’s anti-money laundering regime and enforcement to ensure public regulators, and key industries like finance and real estate, are not compromised by the flow of dirty money from overseas.

“TI Australia stands ready to work alongside the government and other organisations to improve our anti-corruption measures and uphold Australia’s commitments in this area internationally,” Mr Whealy concluded.

The full Corruption Perceptions Index ranking and regional tables can be found at: www.transparency.org/cpi

..................................................................................

If you are interested in the Open Government action plan, see the Department of Prime Minister and Cabinet materials.
 
And get involved with the Australian Open Government Partnership Network, an independent coalition of individuals and organisations like TI Australia, formed for the purpose of engaging with government in this process.

Attorney General Brandis unhappy with the Tribunal over his diary and still intent on wiping out the Office of Information Commissioner

The Attorney General is to appeal the Tribunal decision against his office handed down by Justice Jagot in December and the subject of three posts here earlier in the week. 

No surprise, the appeal to the Federal Court is "in the public interest" according to a spokeswoman for Senator Brandis, quoted in Fairfax:

"the tribunal's findings had "wide-ranging implications for the FOI system. Accordingly, it is in the public interest that there be judicial clarification of how the FOI system operates," she said. Senator Brandis' lawyers will argue that Justice Jagot "erred" by not deciding that FOI decision makers needed to consult all third parties named in diary entries, where "there was some prospect that such an entry might be exempt [from disclosure]," court documents say.

Not sure how the appeal advances the Attorney General's concern expressed before Christmas that "as a general rule minister's diaries ought not to be the subject of FOI Legislation."
 
Fairfax Media also reports that former Australian Information Commissioner Professor John McMillan said the almost two-year battle between the Coalition and Labor over the diaries could have been avoided with better disclosure rules.

"There is something to be gained by having more predictable standard practises about disclosure rather than tying up enormous resources in disputes of this kind," he said. (McMillan) is renewing calls for Federal Cabinet ministers to regularly publish their diaries on the internet, after they have been edited to remove sensitive information such as private phone numbers.Doing so, he said, would remove the need to ask for diaries under FOI laws and put the information into the public space without a political battle.

Meanwhile the Attorney General apparently was happy to leave it to the Office of Australian Information Commissioner, picked up by ItNews and others that Acting Commissioner Timothy Pilgrim had his term extended for three months until April 2016, the third short term extension since Professor McMillan left.

It's 20 months since the AG announced the intention to ask parliament to abolish the Office which the numbers in the Senate are against with good reason. In the meantime the government has used control over funding to limit OAIC funds for FOI- not a bean for such things as own motion investigations for example- and provide none for information policy functions.

 The top level Organisation Chart from the OAIC website sadly summarises

The contrast between then Senator Brandis in Opposition and as the minister responsible in 2016 couldn't be more stark:
Senate Hansard13 August 2009

Senator Brandis.....The coalition’s commitment to open, responsible government is well known. It was the Liberal Party which pioneered freedom of information legislation in Australia. The Freedom of Information Act.. is the act of a Liberal government—the Fraser government. It is a vital measure to ensure that government remains open, responsible and accountable for its decisions.....The true measure of the openness and transparency of a government is found in its attitudes and actions when it comes to freedom of information. Legislative amendments, when there is need for them, are fine, but governments with their control over the information in their possession can always find ways to work the legislation to slow or control disclosure. That is the practice we are seeing now under the Rudd government, whose heroic proclamations of commitment to freedom of information are falsified by the objective evidence of their practice.

Crikey today has later grand rhetoric:

Contrary to the Attorney General's view, who ministers meet and why should be no state secret

The third of three related posts.

Justice Jagot in Dreyfus and Attorney General (Commonwealth of Australia) [2015] AATA 995 found the the Office of the Attorney General got it wrong in refusing to process a Freedom of Information application for the AG's appointments diary.
 
 Of course the office involved isn't just any ministerial office. 

It's the office of the minister with overall responsibility for administration of the Freedom of Information Act. And the Attorney General has plans before Parliament that if passed would see him play a bigger role in guiding other ministers, agencies and the tribunal on interpretation and application of the act.

The Attorney General's initial and so far as I have seen only response to the decision is that he opposes release of ministerial diaries as a matter of principle:

"Let's be clear that the principle that I was upholding is the same principle Mr Dreyfus when he was a minister in the previous labor government himself upheld. That is as a general rule minister's diaries ought not to be the subject of FOI Legislation. That was a principle that was invoked by Mr Rudd when he was Prime Minister and by Ms Gillard when she was Prime Minister."

That principle wasn't argued in the Dreyfus case. 

Or argued in the two cases in previous governments the Attorney General may have had in mind, Fletcher and Davies. 

If a class of documents such as 'ministers' diaries' are to be excluded from FOI, that's a matter for parliament not the courts or tribunal.

Justice Jagot in her decision noted a quite different principle: the "significant public interest in knowing the outline of the daily activities of elected representatives, particularly a senior Minister in charge of such an important portfolio as the Attorney-General."[77].

In Davies, then Australian Information Commissioner Professor McMillan in the course of finding that there was a 'practical refusal reason' to refuse to process the application, referred to the public interest in disclosure and the practice in other jurisdictions of pro-active release of information about ministerial meetings [45-50]. The up to date list of jurisdictions where information about appointments is published includes Queensland, NSW, (in both cases as a matter of policy not a legislative requirement), United Kingdom (example) and United States.  

The commissioner in deciding in Fletcher that parts of a minister's diary should be disclosed noted various court and tribunal decisions in the UK, Western Australia and Canada where access to appointments diaries had been granted because exemption claims fell flat and/or the public interest in disclosure was strong:The Cabinet Office v Information Commissioner EA/2008/0049 (UK Tribunals Service, 5 January 2009); Re Ravlich and Attorney-General; Minister for Corrective Services [2009] WAICmr 17 (Information Commissioner (WA), 14 August 2009); and Canada (Information Commissioner) v Canada (Minister of National Defence [2011] 2 SCR 306 (Canadian Supreme Court).

The Attorney General's opposite view is of particular interest given the bill in his name before the Senate since October 2014 that would abolish the independent Australian Information Commissioner position and among other arrangements, transfer to the Attorney General himself authority to issue guidelines on the interpretation of the FOI act. Decision makers must have regard to the guidelines in exercising functions under the act. 

From the Explanatory Memorandum: 

Items 12, 13, 16, 17 and 20 omit references to the Information Commissioner in connection with guidelines issued under section 93A of the FOI Act consequential to item 53, which amends section 93A to provide that the Attorney-General, rather than the Information Commissioner, may issue guidelines.

Items 18 and 19 amend section 11C of the FOI Act to replace references to the Information Commissioner with the Attorney-General, as the Attorney-General will have the power to make a determination about matters that would be unreasonable for an agency to publish on the disclosure log.


Item 50 inserts new section 92A of the FOI Act which provides for the Attorney‑General to prepare a report on the operation of the Act each financial year and sets out the matters that must be reported. This ensures that the annual reporting requirements in section 30 of the AIC Act in relation to FOI matters will continue. The Attorney-General will be responsible for reporting on the FOI Act instead of the Information Commissioner. 

Item 53 replaces references to the Information Commissioner being responsible for issuing guidelines under the FOI Act with references to the Attorney-General.

Fortunately the bill seems well blocked in the Senate, so we might be spared the AG's version of guidelines on ministerial diaries and other matters where the public right to know  as set out in the FOI act must be weighed against valid government needs for secrecy and confidentiality.

Ah but the Attorney did say before Christmas he hadn't read the AAT decision and when he had done so would decide if it should be appealed.

It ain't over till its over.

Two posts on related matters here and here.