Anti-Money-Laundering and Counter Terrorism legislation makes headway despite concerns

Concerns about the Anti-Money Laundering and Counter-Terrorism Financing Bill expressed by the Victorian and Federal Privacy Commissioners (see item below) were the tip of an iceberg. The Senate Legal and Constitutional Affairs Committee report on its inquiry was released on 28 November. Over 40 submissions were also tabled on its website. This report in the Australian summarises some of the concerns.

The legislation itself has wide support given that it would bring Australia into line with the recommendations of an OECD task force concerning anti-money-laundering and counter terrorism safeguards. Its taken 3 years to get to this point. However its all been a bit of a rush in recent weeks with only 3 weeks for submissions and committee consideration.
The Senate Committee supports the Bill but, (in polite language) draws attention to a number of problems with the legislation and makes a series of recommendations for amendments.

The Privacy Impact Statement prepared for the Attorney General's Department by Salinger & Co. has also been posted on the AG's website together with the Department's response. Only 20 of the PIA's recommendations were reflected in the Bill presented to Parliament. The Federal Privacy Commissioner in a supplementary submission supports the major recommendations not acted on by the Government to date, and most of the others. PDF 99KB

The Bill nonetheless passed the House of Representatives without amendment on 28 November and now awaits Senate consideration.

Shortcomings in standards of government

There is plenty to read about the final report of the Cole Royal Commission. Its 5 volumes come down to findings of potential criminality for a raft of senior AWB executives, but ministers and public servants are in the clear. Their "we knew nothing" stories were accepted by the Royal Commissioner.

Several commentators have suggested that while the Royal Commission found no illegality in the conduct of ministers or public servants, it might have been a different story if the terms of reference were also to look at neglect, stupidity or naivete in the conduct of those responsible for foreign affairs and trade.

Patrick Weller is a distinguished Australian academic and an expert on the operations of government. His column today in the Australian "The system is crook" says that the whole affair raises major concerns about public administration and ministerial responsibility and accountability. At the very least there are major shortcomings that the Howard Government should address, once it recovers from self congratulation over the Royal Commissioner's findings.

Shrill whistle about privacy implications of extension of money laundering law

That warning bell from the UK (see item below) has at least this counterpart here - a shrill whistle from the Victorian Privacy Commission about the Federal Government's proposed Anti-Money Laundering and Counter-Terrorism Financing Bill. Hopefully it's loud enough to be heard in Canberra this week.

The Bill is currently the subject of an examination by a Senate Committee due to report today.

In this submission ( 21 November 2006 ) the acting Victorian Privacy Commissioner points to a few inconvenient facts - despite the title, there is a "significant risk that the proposed measures will lead to pervasive monitoring of the financial affairs of ordinary citizens" engaged in what may be ordinary every day transactions; reporting obligations on financial providers and others covered by the law concerning "suspicious matter" will mean that details of financial affairs will be held on a government database without the knowledge of those concerned; a database, in theory developed for counter terrorism and anti-money laundering purposes, may be accessed be a range of other government agencies for a variety of purposes; and state and territory designated agencies will be required to comply with Federal privacy principles where they access data, giving rise to further confusion about the interplay of Federal and state privacy laws.

The Federal Privacy Commissioner has also lodged a submission on the Bill. It's in more muted terms but you get the drift that anyone who thinks seriously about the privacy implications would have grave concerns about the Bill.

Warning bells about UK surveillance society echo here

Britain's Channel 4 aired an extraordinary documentary "Suspect Nation" last week. You can view the program (warning it is 47 minutes long but worth every special minute) via the Google video. Thanks to PogoWasRight for the lead.

This program outlines the extent to which surveillance in the UK and the US is changing the world in which we all live, from a focus on those suspected of wrong doing to a focus on each of us, going about our daily lives.

It points up the potential misuse of data collected about us and fatal flaws in mass surveillance technology.

Just about everything covered - CCTV, tracking movement of cars on tollways and people on public transport, motor vehicle registration identification, RFID, national "Identity Card" and electronic health records, biometric data on passports - is also happening in Australia as well.

The program called for a national debate in the UK about where all this is headed.

View this program and I'm sure you'll agree we need the same debate here.

NSW local council contract disclosure

We have had a number of queries from local councils about the effect of the NSW Freedom of Information Amendment (Disclosure of Contracts) Bill referred to in the item posted on Friday.

The Bill as passed confers powers on the Government to make regulations that would apply the contract disclosure requirements to local councils. In the original Bill, as proposed by the Independent Member for Bligh, Clover Moore, councils were included. She subsequently agreed to a Government amendment to simply provide the power to impose such a requirement by regulation.

Moore said during Parliamentary debate that the City of Sydney Council where she is Lord Mayor, would now voluntarily act in accordance with the requirements. There is nothing to stop other councils following the same path.

No doubt Premier's Department (responsible for FOI) and the Department of Local Government will be looking at what, if anything should now be done by way of regulation to apply this requirement to local councils.

Two FOI exposures in the interests of transparency

With the Cole Royal Commission report on AWB and the UN sanctions now with the Government and scheduled to be tabled in Parliament this week, the Opposition has obtained under FOI documents that show that AUSAID had some dealings in 2003 with the Jordanian trucking company that played a key role in sanction busting.

FOI has also helped in some further exposures concerning the traffic fine evasions of former Federal Court Judge Marcus Einfeld. The Sydney Morning Herald reported that Einfeld went to great lengths to avoid most of the 9 traffic fines incurred while driving his Federal Court supplied motor vehicle over 4 years. Einfeld's lawyers are contesting the release of other documents concerning the fines, on grounds that it would involve unreasonable disclosure of personal information.

In to-day's Sydney Morning Herald "There's spittle under the polish", Paul Sheehan links these new revelations about Einfeld to comments made in September by NSW Crown Solicitor Ian Knight who railed against the media and its "disgraceful" treatment of Einfeld. This was Knight's speech that contained an over the top spray about Parliament and the media obtaining too much information, with FOI one of the contributing factors.

Sheehan today says that Knight didn't include in his analysis the reality that "lawyers are allowed to omit, distort, exaggerate, confuse, dissemble and delay" the course of justice when claiming to act in the best interests of their client. He concludes:

"The Crown Solicitor's commentary suggests that a misapprehension exists in senior legal circles that the Einfeld controversy is an aberrancy, the latest media blood sport, another beat-up. The opposite is true. The story is bigger than Einfeld. The judiciary was a fertile field for his portentous narcissism. A succession of magistrates failed to check his numerous evasions. It was the media, not the Crown, that finally brought this travesty to light"

Over to you Mr. Knight.

Clover Moore Bill to become law and require publication of NSW contracts

Two of the FOI amendments mentioned in our recent blog passed Parliament but the Legislative Assembly has concluded sittings and won't sit again before the March election so the Bill requiring independent review of the Act didn't survive the cut.

The Education Legislation Amendment Bill passed both Houses although not without quite a lot of discomfort on privacy grounds concerning the powers granted to gather and disseminate information about students who may pose a risk to safety. There were several amendments made during debate. The consequential FOI amendment is minor. Debate in the Legislative Council is here.

The NSW Legislative Council passed the Freedom of Information Amendment (Disclosure of Contracts) Bill on Wednesday, and it now awaits assent and will become law 28 days thereafter.

The text of the Bill as passed is here, and the debate in the Legislative Council here. The Government contribution to debate came down to - "The Government supports the Bill" said the Treasurer. Greens MLC Lee Rhiannon described it as "a grunt".

The Bill will require the publication of information on a designated government website of information about contracts, including the contracts themselves in the case of those that involve more than $5million. A summary of each contract above $150,000 (there are two classes of contracts) will also be required. The publication requirement is for the information to be posted on the website within 60 days after a government contract becomes effective. A material variation (not defined) must also be published within 60 days.

The Bill exempts from publication certain information including commercial-in-confidence provisions as defined. It will also not apply to contracts entered into by the Department of State and Regional Development that involve the provision of industry support.

The legislation will apply to any agency subject to the NSW FOI Act except State Owned Corporations. While local councils are excluded, the Bill says regulations may be made to apply all or any of the publishing requirements (or a modified version) to them.

The Bill adds to the business affairs exemption in the FOIA, a new limited exemption of "commercial-in-confidence".

The legislation was the initiative of Independent Member for Bligh, Clover Moore, following an earlier attempt to have similar legislation adopted by Legislative Council Democrat Arthur Chesterfield-Evans.

While it's very welcome, it's hardly earth shattering given that similar requirements have existed in other Australian jurisdictions for some years and are commonplace overseas.

There are some interesting issues arising. For example the law will apply to an "agency" as defined in the FOI Act. In addition to state government bodies, this includes any organisation established by an act for a public purpose.

While universities and other bodies have long accepted that the Act applies to them, no one to my knowledge has ever put together a full list of who might be covered by this provision. One of the first ADT cases in NSW, for example found the Royal Society for the Prevention of Cruelty to Animals was an agency for FOI purposes, and now presumably for the publication of contract purposes. There are probably quite a few others that we normally don't associate with "government" who may be subject to these new requirements.

Depending on when the legislation receives assent, it could be a busy Christmas end of year for those who are responsible for making it all ready to work.

Congratulations Clover.

NZ Opposition Leader not so Brash

The NZ Opposition Leader may have won a restraint order on publication of emails taken from his computer, but is now seeking withdrawal of the injunction, and has announced his resignation.

Should do a lot for book sales of "The Hollow Men - a study in the politics of deception" - the book about to be published on the NZ National Party.

Its expected revelations about the Exclusive Brethren may have some reverberations on this side of the Tasman.

Australian e-health report card disappointing

We have commented before about the difficulty in understanding what, if anything, is happening about the various Federal and state initiatives on electronic health records.

I don't know Dr. David More, but his blog on e-health confirms that the report card for what has been achieved in 2006 is pretty ordinary and likely to be a disappointment for Federal Health Minister Tony Abbot who, in September 2005 said that he would do everything he could to deliver benefits from the $128million national electronic medical health records program within 12 months.

It's big business in the US, but cost and privacy concerns remain. Thanks to PogoWasRight for these two leads.

Costs at the forefront of FOI battle at home

Meanwhile back at the Administrative Appeals Tribunal in Sydney, Matthew Moore and the Sydney Morning Herald have had three days trying to challenge a Federal agency refusal to grant a public interest rebate on fees for access to documents now 18 months old. See our earlier story.

Moore's account today of the hearing has the Government's key witness (a lawyer from an outside firm and not even a public servant) trying and failing to explain the calamitous events that would occur if these documents were published.

The reality is that claims like this are made every day and are rarely tested or publicised.

Good on the Herald for bringing the ridiculous nature of the assertions about the public interest to the attention of a broader audience.

Cost battle over FOI in UK

Quite a fuss in the UK, after the Government responded to a report about the first year of operation of the FOI Act by announcing some changes to the fees regime. The effect would be to increase the number of applications that can be rejected on cost grounds and limit applications from the same person or organisation.

One of the documents released is a research report by Frontier Economics. It includes some interesting detail about the cost of FOI - the total for central government agencies is 24.4million UKpounds. The average cost of the 7.5 hours involved in dealing with the typical application is 254 UKpounds.

Here is what one critic says of the Government proposal. There is plenty more on Steve Wood's UK FOI blog.

NZ Opposition Leader has right to privacy in emails

In what appears to be a first in New Zealand (and maybe anywhere), Opposition Leader Don Brash won an interim injunction in the High Court last week that restrains anybody from putting emails taken from his computer on a website, broadcasting them, handing them to someone else, or revealing what is in them.

Given the global reach of the internet, its not hard to imagine how this order could be circumvented, at least outside NZ.

It's turning into a broader restraint on speech issue, with doubts cast, but now removed, concerning the impact of the court order on the publication later this week of a book about the NZ National Party.

The Australian Privacy Act (Section 98) provides for an injunction to restrain conduct that would constitute a breach of privacy principles.

What was unique in NZ was the scope of the order restraining "anybody", and no one was named in the order. The Australian Act would seem to only contemplate action restraining a named person.

US transparency blog "world's best"

Deutsche Welle, the German international broadcast service has awarded the US Sunlight Foundation its 2006 award as best blog in the world.

Sunlight Foundation is about increasing transparency in government, in particular by enabling citizens to learn more about what Congress and their elected representatives are doing.

It recently reported that 40 citizen volunteers had helped figure out that Congress is a family business, finding that 19 members had paid their spouses a total of $US636,000 this year.

FOI shows NSW ex-premiers double dipping

Kelvin Bissett's front page story in yesterday's Daily Telegraph "Morris defends Bob's book bills" about the cost to the taxpayers of former premiers, was a direct FOI hit but you have to wonder why this sort of material has to be dug out through the FOI process. It's the type of information that should be posted on a government website as a matter of routine. We commented earlier in the year in our blog "Journalist scoops the pool - FOI unmasks MPs expenses", about how information concerning allowances is freely available on the web in Scotland, for example. Check it out here.

The Tele has a couple of good follow ups today.

As the Premier says "Ex-premiers free to spend", the expenditure is in accordance with guidelines which do not spell out how the money can be spent. Perhaps the guidelines will get an overhaul in the current pre election climate.

This opinion piece "Free subscription to our dollars" reinforces the point that the whole idea of special lifetime benefits for ex premiers doesn't make much sense in an era when they go straight onto subsequent lucrative careers.

Former premiers Carr, Greiner and Wran epitomise the double income strategy, but congratulations to Barry Unsworth who didn't claim a cracker and still pays his fare on public transport. But he may be the last of the Mohicans.

FOI opens window on plagiarism

The Sydney Morning Herald today "Copying and cheating rife at universities" reports on plagiarism in NSW universities, based on responses received to FOI applications.

It's not surprising that plagiarism is a major problem and is on the rise, but it is interesting that, according to the report, Sydney University posts the number of incidents on its website, while the University of NSW and University of New England are yet to even respond to the FOI applications.

Victorian Government to ban conclusive certificates in promised FOI review

Hullo, hullo. Premier Bracks on the FOI bandwagon - a promise to ban conclusive certificates under the Victorian FOI Act. Well, at least it's something and got a mention ahead of his plan to "review the use of wigs by parliamentary counsel".

This privacy policy is a joke

David Fraser's Canadian Privacy Law blog provides this link to Southeast Texas Live.com and its unique privacy policy statement - unique because it contains some humour. As David rightly says, privacy policy and funny don't hang together, at least intentionally.

Victorian election - FOI reform commitments

According to The Age, "Libs pledge overhaul of FOI system", the Victorian Opposition is committed to FOI reform, including the establishment of an FOI Commissioner to handle complaints and review decisions, and to enforce a code of professional standards for the handling of FOI applications. This is an update on our previous election blog.

As we have noted before, every opposition party running for office in any Australian election makes these sort of noises. So while a commitment to reform is a good thing, it's a first step in a very long journey that often gets sidetracked the moment they arrive in office.

The Bracks' Government - likely to be re-elected - isn't saying anything.

The party that probably would do something about FOI is Stephen Mayne's "People Power" party running candidates in the Victorian election for the first time. Its Governance policy, "Cleaning up politics" is a good read ( download policy ) and the sort of thing that any informed voter would support but I'm afraid its chances of seizing power are about as good as mine - and I don't even live in Victoria.

Mr. Moore goes to the AAT

Sydney Morning Herald FOI Editor, Matthew Moore, now has a new weekly spot for his "What they won't tell you" column - it now appears each Thursday in the Stay in Touch section.

His column today "What price the public interest", is a continuation of the battle with the Commonwealth Department of Employment and Workplace Relations over a request for a 50% discount on public interest grounds on an estimated charge of $13,000 for access to documents about the development of the Government's Welfare to Work policy. The online version of the column includes a link to the letters received from the Department - have a read and weep!

Moore estimates the Federal Government is spending around $200.000 on high powered legal advice and representation in an attempt to save $6500. It comes down to a government agency fighting on all fronts, just because it can, and has the resources to do so.

FOI can become a technical, legal battleground and a far cry from its spirit and intent.

Matthew Moore versus the combined forces of the Government in the Sydney Office of the Administrative Appeals Tribunal next Monday should be worth watching. It will be a bit like that idealistic James Stewart character taking on a corrupt US Senate in the old movie "Mr. Smith Goes to Washington"

Privacy and FOI essentials for public sector investigators

I spoke at the 6th National Investigations Symposium last week on "Living with FOI and privacy laws: tips for investigators". A copy of my powerpoints used during the presentation is here and the text of a submitted paper is here.

The relevant privacy and FOI rules that apply to public sector agencies vary. Public sector investigators need to be familiar particularly with privacy laws and how the impact on the handling of personal information in the course of an investigation.

Non compliance with privacy laws by those charged with responsibility for investigating the compliance of colleagues with law and agency policy isn't a good look.