Freedom of Information Conclusive Certificates for Senate Committee hearing this week.

The Senate Finance and Public Administration Committee has a half day scheduled this Thursday for a hearing on the abolition of conclusive certificates bill. The line-up of witnesses is here (PDF 7KB). The hearing was bumped from last Thursday as a result of the Senate's close interest in the Government's plans to spend $42 billion. A week is a long time, as they say- last week then Deputy Secretary (Governance) of the Department of Prime Minister and Cabinet Mike Mrdak was down to appear.He's now off on other things having since been appointed Co-ordinator General in charge of herding cats for the management of expenditures associated with the economic stimulus package(s).

UNESCO World Press Freedom Conference in Brisbane in 2010.

In a first for Australia and the Pacific, the University of Queensland, home of Australia's oldest school of journalism, has won the right to host UNESCO's global World Press Freedom Day conference and Guillermo Cano World Press Freedom Prize-giving ceremony in Brisbane on 3 May 2010. The theme is 'Freedom of Information: The Right to Know', focusing particularly on freedom of expression issues in the Asia-Pacific region. Organisers plan to also encourage a wider 'fringe' program of activities to promote the importance of media freedom to the general public. Let's hope by that time that a series of very positive host-country reports are justified by developments on Freedom of Information reform, whistleblowers protection, shield-laws for journalists, winding back some of our over-reaching secrecy and anti-terrorism laws, clear principles regarding privacy and the right to know and publish, and the generous approach to court suppression orders in some jurisdictions.

Get it off your chest about secrecy laws.

Got something you would like to say about Australia's secrecy laws, how they impact on you as a Commonwealth public servant in the workplace or what you think of them generally?

The Australian Law Reform Commission from later this week wants to hear from you and will be running a national two day phone-in and an online discussion forum as part of its commitment to engaging in widespread community consultation on the topic. Let it all hang out....

Some questions arising from Federal Annual FOI Report.

A few other points and queries arising from the Federal Freedom of Information Annual Report 2007-2008 in addition to those made in The Australian last week: that requests were down (25%), delays were up (proportion of applications taking more than three months to process doubled), and the number of instances where documents were released in full fell from 80.6% to 71.4%

"29000 FOI requests across all government agencies- the lowest number since 1991-1992."
No explanations offered for the drop- perhaps more information is being made available from government agencies on-line or without the need for formal FOI processes, as was the case last year with Immigration? Maybe potential applicants have become disheartened by perceptions of cost, delay, and chances of success? Has the Government this year or previously done any research on applicants and the general population to find out about public attitudes awareness and understanding of FOI?

"15% of all applications were for "other" documents- those concerning policy development and government decision-making."
While this is a slight increase on the previous year the low level of applications for documents that go to the heart of government accountability confirms that FOI isn't working as a means of fostering participation in the processes of government. Why- lack of awareness, cost, complexity, time apathy? Do we know the categories of users of FOI and why particular groups (such as the business sector) apparently have always been significantly under-represented?

"406 requests for internal review (215 in connection with"other" documents)".
Very few of those who don't get everything they ask for contest the decision. However 56% of those who sought internal review had some degree of success.So do quite a few who keep going and seek external review. Of the 125 requests for external review dealt with by the Administrative Appeals Tribunal Table 15 says only 25 were affirmed, a very low figure, although no details are given on what happened in the 38 withdrawn cases. The Ombudsman doesn't provide any information on the disposition of the 206 FOI complaints received, so we are in the dark on what happened there. Based on the information available about decisions that get challenged, you have to wonder about the quality of some original decisions that are not challenged?

"The total reported cost attributable to the FOI Act in 2007–08 was $29,474,653, which is an increase of $4,538,475 (or 18%) on the previous year, while total request numbers decreased by 25%. One reason for the increased cost of FOI in 2007–08 is a $2,000,003 (45%) increase in non-labour costs."
Yes but according to Table 20 the Government spent $4.9million for its own solicitors and legal counsel fees, accounting for $1.6million of the $ 2 million increase.Is anyone watching how much is being spent defending what?

"The average cost per application increased over the 12 month period from $730 to $940."
Why is it so? How much was spent on technology, systems or other initiatives to increase efficiency?

"$672 in total was paid by the Government as costs to a successful applicant"
Presumably paid on the recommendation of the Administrative Appeals Tribunal.$672 last year compared to $85000 in the previous year. No other details of the payments this year or last- that $85k sounds interesting. The low amount this year and most years illustrates the very tight criteria (success, financial hardship, no grounds for original decision etc) for such a recommendation by the Tribunal and the Act provides that the Attorney General is not bound to act upon any recommendation.Were there any recommendations for payment that the Attorney General did not accept?

Not happy Kevin or John, but Anna and Nathan are moving in the right direction.

Sean Parnell, The Australian.

The Feds, Victoria, Queensland and NSW all received a mention in dispatches about Freedom of Information reform over the weekend.

Sean Parnell in The Australian:

"In reality, the Prime Minister is no different to his predecessor on this important accountability and transparency ( Freedom of Information) legislation. Why else would Rudd let other jurisdictions, such as Queensland, go it alone on FOI reform? Why else would he allow obstinate states such as NSW to continue debating the issue? Why else would we still be waiting for him to reveal his hand? Don't be fooled into thinking FOI reform should be delayed, or limited, because the Government is dealing with weightier issues. Recent cases, and this week's FOI annual report, show the Rudd Government is becoming an insular society, a bureaucratic closed shop. Last year, The Australian applied for documents relating to Rudd's apology to the Stolen Generations. The response is now six months overdue, unlikely to be finalised in time for next week's anniversary."

And a converation about FOI reform in Australia between Peter Mares and Matthew Moore of the Sydney Morning Herald on Radio National's The National Interest, with this lead-in:

"If you're a journalist keen to shed light on Melbourne's public transport woes, you'll want to be very young. Victoria's state transport minister, Lyn Kosky, has decided to lock away documents relating to the construction of the $700 million Southern Cross Station for 50 years. That's two decades longer than the general blackout that applies to cabinet papers. By the 2050s, the station will be the tiniest of footnotes in the State's history. It's an extreme example of the ingrained reluctance of Australian governments - whether state or federal - to submit their decisions and actions to public scrutiny. Before the last election, Labor accused the Howard government of cultivating a 'code of silence' and promised a thorough overhaul of Freedom of Information laws - with a view to fostering open government. How well has Kevin Rudd done on that front since becoming PM?"

The answer?- not too flash. We live in hope and know that patience is a virtue but....

Moore in his weekly column suggests NSW Premier Rees, now with a reform package on his desk would be better to follow President Obama's approach to change than our own Federal Government's ponderous approach.

The twin crises an opportunity if players aren't distracted

Who is this? Is he The MAN on Freedom of Information in NSW? Last para for answers, sort of.

Anonymous in a comment on the NSW Review post yesterday is a bit too prematurely pessimistic:

"Rees is too busy pretending to do something about the so-called “Global Financial Crisis” and watching out for his own back to worry about Freedom of Information. Oh what a sorry state of affairs we have here."

The Premier deserves a go but the going is sure to be tough, given the twin crises, the Premier's "back problem", and some of the attitudes towards openness alive and well in some ministerial offices and at senior levels in some government agencies as documented in the Ombudsman's report. The Premier's initial response also was far from "Obamalike" with no strong in principle acceptance (in essence thanks for the roadmap- that's the direction we'd like to go in) or new directives about immediate changes. The lead up to cabinet consideration of "each of the Ombudsman's 88 recommendations" (the Premier's words sounded like the wheels of public service process starting to creak), and the absence of a specific deadline could suggest a bureaucrats' picnic.

The point is that the crises shouldn't be a distraction but an opportunity for a government looking for ways to show it's different. New thinking about transparency and accountability needs to be evident now about all aspects of government, particularly the allocation of large dollops of taxpayers' money. Old thinking in government was that someone might might ask in a year's time who got what, for what purpose and for the details about how decisions were made and how the taxpayers money was spent, so we need to be careful to not leave too many tracks.New era thinking is the public have to be kept fully informed about our decisions and the use of public money so we need to have relevant information up on the web in easily accessible and searchable form so anyone interested can follow the decision making trail as we go.

As mentioned earlier in the week the concept of a local equivalent of US Recovery.org (still only at the ready) should be part of our new thinking about these things.

Meanwhile deep in the towers in the city plans for the interdepartmental committee are being drawn up as we speak, terms of reference are being drafted and a bit of pushing and shoving is going on about who will be in the chair and in the room, and particularly who is going to keep the minutes. Only joking....?

And if the Premier is the ball-carrier on the Open Government Information Bill, where if anywhere does the newly sworn in Minister for Public Service Reform (the first in living memory- at least mine), John Robertson, fresh from years at Unions NSW fit into the picture? Maybe the biggest distraction at the moment, from the Premier down, is one of another name.

[Update:Its a great sounding title and the sort of thing the NSW Ombudsman is talking about in the report on Freedom of Information released last week sure sounds like it will require plenty of public sector reform but no, it looks like the Minister who bears the title Public Sector Reform in NSW won't have anything to do with moving FOI reform right along. John Robertson's responsibilities are limited to matters concerning the following according to the latest allocation of ministerial responsibilities:
Anti-Discrimination Act 1977 No 48, Part 9A (remainder, the Attorney General)
Government and Related Employees Appeal Tribunal Act 1980 No 39
Public Sector Employment and Management Act 2002 No 43, jointly with the Premier (except, Part 2.2, section 63(2), section 116 and Chapter 4, the Premier; and Chapter 7, jointly the Treasurer and the Minister for Commerce)
Statutory and Other Offices Remuneration Act 1975 (1976 No 4)
Transport Appeal Boards Act 1980 No 104]

Premier Rees takes the ball- now to run with it.

In the report on his review of the Freedom of Information Act released today, NSW Ombudsman Bruce Barbour has given Premier Nathan Rees a plan on what should be done in order to deliver on the Premier's commitment last October to change the secrecy culture in government and to turn the "broken" FOI Act on its head. It's a good and comprehensive report, reflecting the general approach taken by the Solomon Review in Queensland. The recommendations show the way forward for more open and transparent government in the modern context of digital records and higher public expectations concerning the right to information.

The report has three key elements - greater proactive disclosure of government information with publication schemes and FOI disclosure logs of information released of broad interest; a new principles-based Open Government Information Act with a stream-lined set of " reasons for refusal" all subject to a public interest test, and containing strong protections for those who make decisions on access; and robust leadership and oversight from an independent information commissioner in the Ombudsman's office charged, amongst other things, with guarding the legislation.

The Premier has responded in a media release with a general commitment to greater transparency, to Cabinet consideration of the report's 88 recommendations, and to introducing the new Open Government Information Bill in "the upcoming session of parliament." Good, but a little short of President Obama's example of how to get the message out there that things were to be done differently from day one. The Premier might have done better by adopting some or all of the suggested policy and management changes to get the ball rolling now [1.6], and giving someone very high up in the system some very public accountability for finalising the details for the proposed new legislative framework within a specified but short timeline. Some muscle, clout and capacity to knock heads together will be necessary as the 152 page report leaves room for argument and bureaucratic infighting about the details. Just one - the suggestion for consideration that the Information Commissioner should take over as privacy overseer as well. Others are the recommended review of NSW secrecy laws, and resolving which agencies should continue to enjoy a partial blanket exemption for information about particular government functions.Get the picture?

Some notable recommendations are for the houses of parliament (an Australian first) and any private body contracted to carry out public functions to be included in the scope of the act; the option of direct recourse to external review without the need to first seek internal review; the Administrative Decisions Tribunal to retain determinative review powers; automatic contract disclosure obligations to extend to State-Owned Corporations and local councils; tighter definition of "cabinet documents"; offence provisions for a person placing undue pressure on a decision- maker or wilfully failing to comply by destroying or concealing records; 20 working day time period for processing; no changes to the fees and charges that remain the same as 1989; access to personal information through privacy legislation not the OGI Act; and local councils will be pleased at the recommended repeal of Section 12(6) of the LGA.

The report [3.6] confirms that officers at working level contend with ministers and CEOs who would not countenance pro-active disclosure of documents regardless of the sensibility of such a move; and [3.6.5] that special arrangements apply to the handling and internal reporting on "contentious applications"- defined as "you know one when you see one", with the common characteristic of potential bad press or embarrassment for an agency minister or the Government.

Just two of many mind-sets that need to be addressed as the culture-change train moves forward. I detect a few others in some of the submissions to the review from state government agencies.

Rudd Government's first not the best year for FOI applicants.

Haven't read the Federal Government's Annual Report 2007-2008 on the operation of the Freedom of Information Act released yesterday but The Australian says requests were down (25%), delays were up (proportion of applications taking more than three months to process doubled), and the number of instances where documents were released in full fell from 80.6% to 71.4%. A closer look may reveal some good news as well..

Bouquets and brickbats.

Congratulations to OpenAustralia for putting up on-line the Register of Interests return for each Senator- a laborious task of scanning the paper documents and providing a link to the return on each Senator's page.It's something of an indication of where we are that many of the returns consist of scrawly handwriting- nothing too 21st century here.

Open Australia plans to do the same thing for returns by members of the House of Representatives- if they can get a bulk scanner!

But brickbats to the Parliament itself and the Government from whom we expect leadership in this area, for not seizing the initiative and doing what was necessary well before now to make this type of information available on the web in an easily accessible click-through form. Ditto the state equivalents (all but South Australia I understand) where this information is still stuck in paper form in the Parliament Tabled Papers Office. Ditto most of them when it comes to other disclosures such as details of payments and expenditure by MPs. I could go on, but......

Fiscal stimulus AND transparency both needed.

spinningmoney.blogspot.com

There are a whole raft of transparency and accountability issues that need to be examined as soon as anyone can catch their breath in trying to respond to the economic and financial markets crises. One element of all this is who gets what from the government, for what purpose and what they do with the taxpayers money. Michael West in today's Sydney Morning Herald comments on the debate in the US on the " bad bank" bailout and a corresponding issue here about the "Rudd bank" to support the banks in funding commercial property projects:

"Combining the TARP handouts with other Federal lending programs such as the New York Fed's swapping US treasury bonds for toxic assets from the banks, the total taxpayer bail-out figures are in the trillions of dollars. Yet the Government has so far rebuffed Freedom of Information requests from the likes of Bloomberg to reveal who got the money, for what assets and at what price. This sort of secrecy doesn't exactly inspire confidence in the system. And confidence and trust, above all, are what are needed to reboot the system. Should the Australian Government similarly obfuscate with its Rudd Bank - and it will surely be under pressure from the banks and corporate borrowers to hide the substantial details - it could not expect to enjoy the confidence of its taxpayers either."

Well the US has the benefit of many reasonably resourced groups who are highly skilled at keeping a close eye on what goes in Washington. And despite West's comment, a government that appears to at least recognise that these issues can't be left till you have time to think about them.

The Colombia Journalism Review has helpfully put together a list of organisations with the curiosity and resources to help figure out where the money is going. So Subsidyscope and Bailoutsleuth are essential reading for those keen to follow the money trail.Then there's the Congressional Oversight Panel established to “review the current state of financial markets and the regulatory system, ” with two published reports highlighting what the public knows and needs to know. The Treasury itself is publishing reports on the use of some of the money. And the Government's Recovery.gov website is in place and apparently getting ready to tell the public "how and where your tax dollars are spent."

On the other hand here, I can't find anything much along these lines to keep the public informed about the detail of grants, guarantees, loans and other forms of assistance. In December Minister of Finance Lindsay Tanner announced "from 1 January 2009, agencies will be required to publish the details of individual grants on their website." As mentioned at the time we need a whole of government picture as well, and not just for grants but in the light of what is happening, any form of government assistance to industry, business, local government and the states. There is already the wonderfully titled Grantslink website which seems brimming with information about how to get one but tells us nothing about who has received them.

How about a Recovery.gov.au website with details about "how and where your tax dollars are spent" for starters?

Pork sale details hard to find

Not only were yesterday's political donations disclosures so long after the event as to be laughable, but the gory detail of large contributions to oil the wheels of democracy by foreign casino operators, developers, unions, ethanol manufacturers, clubs and others reported in today's press still don't add up, according to Malcolm Knox:

"Attempts to make the political donations process more transparent have been hampered by startling discrepancies between donor and recipient declarations in the latest Australian Electoral Commission figures. Of the top 20 donations to the major parties, more than half show inconsistencies between what the donors and recipients say. With the ALP's top corporate donor, the Hong Kong casino billionaire Stanley Ho and his associated companies, the discrepancy is the largest. Dr Ho signed a declaration saying he had given $200,000 to the ALP in NSW on May 29 last year. In the party's declaration, however, ALP official Brendan Kavanagh signed documents saying Dr Ho gave $400,000 on October 31, 2007. With other donations by Ho-related entities tallying up to $700,000, it is unclear whether Dr Ho gave the party $900,000 or $1.1 million. Eight of the Labor Party's top 10 corporate donations and five of the Coalition's top 10 fail to add up. The largest discrepancy was on the Coalition side: Iain Thompson, the company secretary of Brickworks, declared it made three donations totalling $265,000 to the Liberals in the months leading up to the 2007 federal election. But in the Liberals' declaration, there was no sign of Brickworks - or any donation from it."

" For gorsake stop laughing: this is serious."

This famous old Australian cartoon by Stan Cross came to mind today as The Australian Electoral Commission released information about disclosures of donations to candidates and political parties relating to the election....on 24 November 2007... 16 months after we voted. [It's not a user friendly website but if you try to can find gems like Kevin Rudd and Wayne Swan lodged nil returns.]

The Government's Green Paper on electoral reform released just before Christmas was at least straight-faced in acknowledging the problem:

"Clearly the major point of public disclosure, particularly in the absence of comprehensive regulation through bans or caps on financial activities, is to allow the public to form judgements about political parties and candidates and to apply that knowledge in exercising their franchise at the ballot box. However, the.. considerable time lags (permitted by current requirements for reporting and public disclosure) do not allow the voting public to be informed of election campaign finances at the end point of those campaigns when casting their vote." (emphasis added)

Submissions on the Paper close on 23 February.

Minister Faulkner has amendments before Parliament for six-monthly reporting, with donors and parties to have eight weeks to lodge returns and information to be publicly available promptly. Still far too gentle to my mind. And to others. Bernard Keane in Crikey:

"The only problem with Faulkner’s proposals are their lack of ambition. There is no reason why disclosure of donations shouldn’t and couldn’t be required far more often than six-monthly. Nick Xenophon has called for continuous online disclosure during election campaigns. That model could be extended to all donations to political parties and candidates. Why does anyone need more than a few days to report that they’ve given politicians some money?"

Rough public service justice.

Almost no media reporting of this decision just prior to Christmas by the NSW Court of Criminal Appeal dismissing an appeal by Allan Kessing against his conviction for breaching Section 70 of the Crimes Act in disclosing government information without authorisation.

The details of the case are well known- Kessing, who pleaded not guilty, was charged, convicted and given a nine month suspended sentence in 2007 after The Australian reported on serious security failings at Sydney Airport, drawing on internal reports prepared in Customs that had not been acted upon for years. After the publicity the Government moved promptly to action stations and spent a couple of hundred million dollars to fix problems some insiders knew about, but of which millions of travellers had previously been blissfully unaware.

The unanimous decision handed down by Justice Bell (to be installed on the High Court of Australia next week) saw the Court of Criminal Appeal reject arguments that the verdict in all the circumstances was unreasonable or could not be supported by the evidence. Nine errors by the trial judge were cited [at 11]. The Court agreed that only one error had occurred when the trial judge wrongly answered two questions from the jury [58-64], but decided no substantial miscarriage of justice actually occurred.

I understand Kessing and his advisers were dismayed at what they see as clear failures to prove the case against him, and errors in the Court of Appeal decision, and Kessing has lodged an application for special leave to appeal to the High Court.

Courts examine evidence, reach conclusions and apply the law. A major problem highlighted by the Kessing case however, is the law itself: the general prohibition in Section 70 against unauthorised disclosure of official information by current or former Commonwealth officers. There are no available defences regardless of the triviality of the information disclosed or, at the other end of the scale, the public interest in disclosure. A version of this law has been on the statute book since the enlightened days of 1914, based on a Queensland act of... 1899! The substance of the current formulation is basically unchanged from that enacted in 1960.

Australia's secrecy laws in general are a problem, so much so that the Australian Law Reform Commission has been asked to undertake a review. Nine days before the Court of Criminal Appeal handed down its decision in Kessing, the Commission released an Issues Paper on the subject. ALRC President, Professor David Weisbrot stated

“The federal statute book has become riddled with secrecy provisions, which make unauthorised disclosure of government information a criminal offence. So far the ALRC has identified over 370 distinct secrecy provisions scattered across 166 pieces of legislation—many more than we expected to find.... A threshold question is whether we should ever charge someone with a crime for disclosing information that a citizen has the right to obtain under Freedom of Information laws? And how do we reconcile the increasing need of public officials to share information with each other and with the private sector to tackle the big issues facing us, such as terrorism, climate change and dealing with the global financial crisis? We seem to be caught in a time warp, between an old culture of secrecy in government and more modern ideas about the fundamental importance to democracy of ensuring openness and accountability.”

Chapter 2 of the Issues Paper includes a discussion of Section 70. The Paper identifies problems in the ambiguity and broad nature of the provision, and lists the numerous bodies and government inquiries, going back years, that have recommended it be reformed, all to no avail so far: a Senate Committee in 1979 when Freedom of Information legislation was under consideration; the Human Rights Commission in 1983 which thought the section could be inconsistent with the International Covenant on Civil and Political Rights; an inquiry in 1991 headed by former Chief Justice of the High Court Sir Harry Gibbs; and in 1994 another Senate Committee that recommended the Act be amended to allow disclosure in the public interest as a defence.

So maybe movement at the station sometime down the track to ensure a proper balance in the current era between the need for secrecy and the public interest in disclosure. None of this will be of assistance to Allan Kessing.

However there are still some highly influential players who are not convinced we- and that means all of us- have a problem. In appearing before the House Committee inquiry into Whistleblowers in November , the relatively new Secretary of the Attorney General's Department Roger Wilkins, fresh from years of experience in the upper echelons of the NSW Premier's Department, said he was mightily impressed by the sensitivity of the information that crossed his new desk, compared to ( my words) the dross back at the state government level. So much so that he expressed this personal opinion (page three of the transcript Thursday 27 November 2008 (PDF 192KB)

"Mr. Wilkins - This is my personal view. I am not sure of the government's view on this. My personal view would be that you should not interfere with section 70 of the Crimes Act. That should remain intact".

If that view remains unchanged Kessing won't be the last to suffer as a result of a law that pays no regard to the public right to know even where government's failure to disclose could seriously endanger the life and safety of the rest of us. Maybe the Russians are onto something in putting the boot on the other foot- criminal penalties for those who fail to disclose in these circumstances.

Public Service Medal for delivering greater transparency.

Verona Burgess in today's Financial Review shows she did a better job than me in scanning the Australia Day Honours list, to find the award of the Public Service Medal to Jennie Granger, Second Commissioner Australian Taxation Office (pictured here), " for delivering greater transparency and openness to the ATO's activities."

Hopefully those who follow ATO affairs closely are enjoying the benefits of her work, and good to see those leading progress in this direction are receiving proper recognition.

UK Committee recommends 15 instead of 30 years for automatic disclosure

Paul Dacre, editor Daily Mail.

The Dacre Committee report on the UK 30 year rule was released this week, and as predicted in The Independent, recommended automatic release of government records after 15 years, and a phasing in of the new rule by releasing an additional year's records each year till catch-up is achieved.

The final report provides a valuable overview of the issues, including international comparisons of archives and Freedom of Information laws, all highly relevant to Australia. Our governments should similarly be reflecting on a rule Dacre describes as "anachronistic and unsustainable" and a"relic from a different age."

The evidence before the Committee:[ 6.1]

"The majority of evidence we have received and heard strengthens our preliminary view that the maintenance of the present 30 year rule is anachronistic and unsustainable. Indeed the case for reduction is very powerful: internationally and domestically, that is the direction in which both government practice and public expectation are moving; the passing of the Freedom of Information [FoI] Act has decisively and irreversibly enhanced the right of the public to have greater access to much more recent official information; and a rule that allows records to remain closed for 30 years, unless access is requested under FoI, thus appears to be an unenforceable relic from a different age."

The Committee's conclusion[6.18-19]

"The drawbacks of instant or premature disclosure of official records, both in terms of collective responsibility and effective government, and also in undermining the orderly and scheduled transfer of official records to The National Archives, mean that there must be some rule. But we do not believe that earlier general access, which would be made possible by a significant reduction in the 30 year rule, would be detrimental to good government. On the contrary, we consider it to be desirable in the public interest. Accordingly, we conclude that the 30 year rule is no longer appropriate in the current climate of public opinion and expectation, and with a functioning FoI Act which allows access to many official records at much earlier dates."

More submissions to Senate Committee on FOI certificates

Senator Helen Polley, ALP- Tasmania, Chair Senate Committee Finance and Public Administration

Submissions to the Senate Committee on the inquiry concerning the bill to abolish conclusive certificates jumped from four to eight this week with Rick Snell, Michael McKinnon, Moira Paterson and myself all rising, if somewhat late, to the occasion. All eight submissions are now posted on the Committee site.

None of the submitters have any concerns about abolishing certificates. Are there any defenders of the status quo prepared to publicly mount the argument against change? Has there been any advance on the Opposition's position in December that it didn't have a view?

Snell and I both comment on the slow and inelegant two stage process of FOI reform underway and each make some observations about aspects of the bill and related matters concerning Archives.Paterson is concerned about changes to Tribunal procedures. She and Snell (as PIAC and the APC had earlier) both query the attempt to fix what is claimed to be a loophole to give blanket protection to documents received by a minister from specified national security agencies. (This has nothing to do with certificates but for some reason has been given priority in this first stage bill while many possible disclosure improvements must wait for another day.) Paterson also points out some problems with another change unrelated to the abolition of certificates-a proposed qualification to third party notification requirements.

McKinnon goes into some detail about why certificates should go, illustrating the lack of fairness in the review process and the contentious public interest arguments (usually not supported by evidence) put forward in defence of non-disclosure. As McKinnon was on the receiving end of many of the 14 or so certificates issued during the Howard years, particularly by Treasury, he is well placed to comment:

"... the basis for Treasury’s certificate issue is not the claim of some higher public interest determined by a conscientious politician in the national good. Instead it is the protection of political interests on issues that would be revealed under a more rigorous and fair FOI system. Treasury’s motive for issuing certificates is to prevent apparent “embarrassment’’ to the government. It is axiomatic that no government would be embarrassed by good policy or programs. Instead, it is policy and program failures, flawed administration or management, corruption or waste that are embarrassing to governments because of the impact on voter support and judgement about the government’s performance. Effectively,( Treasury Secretary) Dr Henry argues failings should be kept secret, and indeed, can be kept secret, by the use of conclusive certificates. The attitude reflects a fundamental contempt for the electorate’s right to be informed and is only possible because of the existence of conclusive certificates."

Readers will be aware of my views about Treasury and transparency, most recently on show in the Fisse case.

McKinnon also reminds the Committee of his application for access to the incoming government brief prepared for the Rudd Government in November 2007 and what emerged about Treasury's views on certificates:

"This FOI application is before the AAT at the moment but the documents already
released show Treasury provided advice to the incoming Rudd Government on why it
should break its election commitment to remove certificates from the FOI Act. The brief advises: “We are concerned that the abolition of conclusive certificates, without
a new and transparent safeguard, will adversely impact on the provision of advice to
government….While conclusive certificates should only be used in exceptional
circumstances, they play a valuable role in cases where the material in question is of
extreme sensitivity for the workings of government. Reliance on conclusive certificates has in part occurred because the exemption for deliberative documents under the FOI Act does not expressly exempt documents on the grounds of frank and fearless advice to the government.’’

McKinnon speaks for many in suggesting another perspective:

"The release of documents to the public on policy issues and options improves debate, informs voters and provides context for judgements about government decisions. This information is not only immensely beneficial to our political system but is a right. Deputy President Forgie questioned the government’s claims in the judgement in McKinnon v Dept PM & Cabinet V2005/1033: “Why is it that the APS can only behave as a professional apolitical body if its work in giving high level advice is kept out of the public arena?’’

McKinnon highlights the energy and resources that agencies are prepared to use in protecting what they regard as sensitive information with the example of the Reserve Bank spending over $300,000 to protect Reserve Bank minutes with a certificate in 2004 and fend off a challenge.Last year the Bank decided more transparency about monetary policy would be a good thing, agreeing that a version of the minutes would be publicly released some weeks after each meeting. The earth still turns...

Serious need to know more

I guess you would expect some important Freedom of Information applications to follow when you open up vaults tightly locked for years and full of dark secrets. Writing in the Kyiv Post Jed Sunden's interest in the Holodomor (the death by starvation of between two and 10 million Ukrainians during a famine in the 1930s that Soviet authorities denied through the 1980's) led him to the FOI Act, and now to apply for documents about why the State Security Service declared him persona non grata from Ukraine in 2000. All a touch more important even than ministers' expenses....

While in that part of the world the Russian Duma passed the Freedom of Information Act last week. More details here.

UK and Australia cabinet documents in stark comparison.

The contrast with Australia is marked- for all the preciousness here about the need for cabinet documents to be virtually inaccessible for 30 years, the UK Information Tribunal has upheld a decision by the Information Commissioner that cabinet minutes of the decision to commit troops to the war in Iraq, particularly the legal advice from the Attorney General, were not exempt and should be released in response to a Freedom of Information application. As mentioned previously the UK Freedom of Information Act contains no specific "cabinet document " exemption and the test required an assessment of the public interest in disclosure or non-disclosure.

See Martin Rosenbaum and Nick Robinson's Blog for neat summaries and a link to the decision. But it may not be over yet- an appeal or a ministerial veto/ certificate (never previously used in the UK) may still be in the offing.

Unless the system changes in the meantime similar Australian documents about the decision to commit to the war in Iraq are likely to surface in .... 2033

Faulkner, maybe a gong in a year's time?

John White Rippa Collection

No gongs this year in the Australia Day Honours for Freedom of Information and privacy advocates or practitioners (although nice to see Julian Burnside and Marion Le recognised for their advocacy of important causes) but Ross Fitzgerald in The Australian today paints a picture of Minister Faulkner's long and somewhat lonely battle for Federal FOI and electoral reform that almost suggests he's due for public recognition for diligence, persistence and political courage:

"In his quest to restore trust, this year Faulkner not only intends to rewrite the Freedom of Information Act to free up government information, he has indicated that he also wants to change key elements of Australia's electoral system. It's difficult to tell which is the tougher task. Fundamental FOI reform will change the modus operandi of bureaucracy and media. Electoral reform will change the way our democracy operates. Resistance to these reforms will almost certainly be strong and often subterranean. While we are unlikely to see anyone bagging transparency and accountability in public, behind the scenes there will be considerable resistance."

There's more along these lines.

Fitzgerald managed all this without once mentioning the slow pace of reform on FOI, originally said to be a high government priority, but still largely just being talked about 14 months later. Or mentioning the considerable slippage that has occurred in Minister Faulkner's second stage reforms with the FOI Discussion Paper and draft FOI Bill to be released for public comment, according to Fitzgerald, "in the first half of this year." Or making any comparisons with President Obama who set a new tone on transparency in government from Day One in office....

With Australia Day behind us may the 2009 show begin.

NSW Lobbyist Register generally in line with Australian precedents but that's about it.

This editorial in the Sydney Morning Herald is right in welcoming the NSW Government's Register of Lobbyists and in pointing out a major weakness: that it only applies to those who for a fee represent the interests of others, not those who seek to influence government on their own behalf.

In this respect NSW is simply following the lead of the Federal Government whose scheme has the same deficiencies.The Feds followed Western Australia where the Government is at least now in post election mode talking of legislation for a proper register- whatever that might mean.

As Professor John Warhurst of ANU and author of Behind Closed Doors: Politics, Scandals and the Lobbying Industry UNSW Press 2007) pointed out in Eureka Street in November the distinction between representatives engaged to lobby (who are subject to some regulation) and an organisation that employs staff to do the same thing directly (who aren't subject to any) is untenable.

"What applies to one should apply to the other if the public are to have confidence in a relatively transparent level playing field in dealings with government."

Warhurst was commenting about the move by David Epstein last year from a position as the Prime Minister's closest adviser to head of government relations for Qantas:

"The appointment breaches the spirit if not the letter of the Lobbying Code of Conduct and makes a mockery of the intentions of the scheme to calm popular concerns after the squalid Burke affair in Western Australia. It clearly allows a situation where big corporate money is allowed to buy special access to government. Epstein has not been offered this job because of his 'good looks' or even his undoubted generic skills and broad experience, but because he is an insider. He not only knows how the Rudd government works at the highest level but also how the levers of government can be pulled. The unfortunate consequence is to reinforce once again the widespread popular belief that Australian democracy is not played on a level field."

Epstein was a lobbyist in the "hired gun" sense before he joined Rudd's team and in the US would now fall foul of a new Obama order both in coming in, and going out of government:

"If you are a lobbyist entering my administration, you will not be able to work on matters you lobbied on or in the agencies you lobbied during the previous two years. When you leave government, you will not be able to lobby my administration for as long as I am president."

Registration of lobbyists-even a comprehensive scheme- is a small step forward (30,000 are registered in Washington and that doesn't seem to have fixed much), but in many areas associated with guarding against undue or improper influence, we're miles behind best practice standards such as publicly available information about what contacts lobbyists have with government, bans on gifts and political donations, and post separation employment. In NSW despite an ICAC recommendation in 2004 there is still no cooling-off period when a minister leaves office- resigning Premier Bob Carr's almost immediate move to Macquarie Bank setting the bar at a depressingly low but still within the law level.