Hyperbole and the human rights debate

The Sydney Morning Herald in its editorial was sceptical about actions recommended in the Brennan Report to protect human rights. But the Weekend Australian was in a class of its own slamming the report in two front page leads, this by Paul Kelly and another by Kelly and Chris Merritt. Kelly labelled "hyperbole" the claim by Opposition Attorney General that the report threatened "the most important de facto alteration to Australia's system of government in our history. " I sent a letter to the editor on Saturday, but no dear reader it's not published today. However to the editor's credit the one letter that made it, written by a manager of a legal service for the homeless, rightly took issue with another claim that a Human Rights Act would be a triumph for elites, arguing instead it would be "a victory for the most marginalised and disadvantaged members of our community."My unpublished contribution:

"George Brandis wasn’t the only one resorting to hyperbole.Your reports of mixed fact and opinion under headlines featuring” enormous problems,” “chaos,” and “poisoned chalice” on the “human rights lobby”, its alleged political agenda to obliterate the Howard cultural legacy and its plans to change our system of government, were over the top.The Australian’s “Right to Know” banner only makes sporadic appearances these days but its interest in rights clearly stops short of any meaningful embrace of broader internationally accepted rights and ways to best protect them. Victoria and the ACT don’t seem to be on another planet despite adopting comparable schemes to the dastardly proposals put forward by Brennan. By the way 16 of the 31 proposals were for protections other than by way of a Human Rights Act. What’s the problem again with initiatives that Paul Kelly acknowledges would bring Australia “into line with international human rights norms”? You give little hope to those of us who are confident we can better define and protect rights and sort out the wrinkles and problems on the way through."

Australians say human rights need better protection.

The Brennan Committee report to the Federal Government on the National Human Rights Consultation makes 31 Recommendations, 16 concerning action to protect and promote human rights more effectively and 15 about a Human Rights Act for Australia and the preferred model- the "dialogue" model allowing for judicial opinion concerning incompatibility, but Parliament at the end of the day to prevail, along the lines of models currently operating at state level in the ACT and Victoria. Rights in seven international treaties signed by Australia (subject to any claimed reservation) including the International Covenant on Civil and Political Rights (Articles 17 and 19 confer a right to privacy and to information respectively) should be protected and promoted; and the right to privacy and the right to freedom of expression are among those listed for inclusion in the Act. The Chairman on ABC PM explained the proposed model and discussed what turned him from a self-confessed sceptic - it all makes welcome good sense to me.

Best public service should lead on open government as well

In the weeks since the Prime Minister set the Australian Public Service what he said was the "entirely reasonable and achievable" aspiration to be "the best public service anywhere in the world", an Advisory Group on Reform of Australian Government Administration has been appointed, chaired by PM&C Secretary Terry Moran to point the way. Verona Burgess in her Government Business column in the Australian Financial Review recently (no link available) criticised the composition of the group- all but four of the ten are insiders- and the decision to leave out some former insiders and others such as heavies from the Department of Finance and the former Finance boss Ian Watt now running Defence.

Another omission was any link with the Gov 2.0 Taskforce whose terms of reference include to advise and assist the Government " to establish a pro-disclosure culture around non-sensitive public sector information; ...to maximise the extent to which government utilises the views, knowledge and resources of the general community;.. to ensure that government is receptive to the possibilities created by new collaborative technologies and uses them to advance its ambition to continually improve the way it operates" etc, etc, all a good fit you might think with a world's best ambition.

The Advisory Group has released a discussion paper, again criticised by Burgess last week on several fronts including that it makes a weak case for some changes, and that in shooting for the stars, it may be putting the cart before the horse.

While the paper includes various references to the importance of improvements in transparency and accountability, citizen engagement and collaborative policy development (page 11) there is no reference at all to the Gov 2.0 project. The section (page 15) on "Trust and accountability" is self-congratulatory ("Australians have more trust in their government than citizens in most other comparable jurisdictions") but at least acknowledges:

"Maintaining trust and confidence arguably depends on a robust approach to transparency and openness. Transparency ensures that the public is well informed, that taxpayers can determine whether their tax dollars are being spent effectively and efficiently, and that as many decisions as possible impacting on the public and the public interest are subject to appropriate scrutiny. An open approach requires a culture of disclosure and cooperation which facilitates the transmission of ideas and allows critical review of performance and actions. To this end we note the contributions of reforms currently at various stages of development and implementation including:

• freedom of information reforms to promote a pro-disclosure culture across government

• the provision of greater protection for public service whistleblowers

• reviewing the privacy framework to ensure effective protections are in place for personal information."

However "Possible reform directions" doesn't take things in this area much further suggesting (page 19) simply "there may be room for further work" to strengthen accountability and trust,

"particularly in relation to performance and reporting on the achievement of outcomes. Increasing the public availability of government data and performance related information could enable citizens to better understand what the government does and how it affects them, as well as how the public service is performing."

Well yes, but it's all a bit skinny on the well-known and oft canvassed problems that need to be addressed if we are to move in the direction of greater openness and transparency beyond what might come from long overdue FOI reform and whisleblower protection.

For starters, the climate created by over 500 secrecy provisions in Federal laws (the ALRC is due to report on this by the end of the month); what is seen to be the political sensitivity associated with some government information, for example the options considered and the basis for many decisions, and the zealous attempt at the top to micro-manage as many information flows as possible, especially to the media; an overly risk-averse attitude generally within the public service and the encouragement this receives within a system that sees protection of the minister as the vital part of the job; the absence of incentives for, and limited recognition of, those prepared to challenge entrenched preferences for secrecy, yet plenty of interest in finding someone to blame when things go wrong; the leadership vacuum within the public service on the importance of open government principles and making democracy work better through improved dialogue and participation, while at the same time plenty of highly placed advocates who emphasise the need for confidentiality if the public service is to do its job properly; technical, legalistic interpretation and application of disclosure law, and at some points in the recent past, questionable attempts at very senior levels to outmanoeuvre FOI applicants who seek to exercise their rights- see Andrew Podger's account.

Onward to world's best- or moving forward to world's best practice, as the PM might say, much to the delight of Don Watson.

Some sunshine in the Queensland childcare industry

The Courier Mail following a series of stories highlighting unsuccessful freedom of information applications seeking to identify child care centres issued with compliance notices, is no doubt pleased to report today that Education Minister Geoff Wilson has introduced legislation into State Parliament allowing centres seriously or repeatedly breaching regulations to be named online from February 1 next year. Of course it makes sense. As to other states???

Taxi audit hailed down

www.abc.net.au

The Sydney Morning Herald has been on the job for several weeks about the NSW taxi industry, and today reports on a 2007 audit released yesterday, after unsuccessful attempts to obtain it under the Freedom of Information Act, and the commencement of an Ombudsman investigation, at the Herald's behest, into the handling of the matter. The audit reveals breaches of conditions of a special license category, resulting in substantial profits for some key industry players and was made public by the Minister for Transport as part of an announcement of major reforms to taxi licensing. No sign so far of the report online on the Minister's Media Release website. Update- thanks for the comment- the Report is here.

Public broadcasters and the right to know-about them

In a recent post I commented on the Australian Broadcasting Corporation's various views about it's current exclusion from the Freedom of Information Act "with respect to documents in relation to its program material" and whether this matched or should match the BBC's exclusion from the UK FOI Act "in respect of information held for purposes other than those of journalism, art or literature". Two decisions last Friday in the UK reversed previous thinking there that the predominant purpose for keeping the material determined whether it was covered by or excluded from the Act. Justice Irwin in the High Court said information fell outside the FOI Act if it was held to any significant extent for one of the purposes mentioned in the exclusion provision. The Federal Court of Australia in 2006 interpreted the ABC exclusion as covering anything that had a direct or indirect relationship to program material, so welcome aboard BBC. Martin Rosenbaum at Open Secrets has more about the UK developments. As to any real difference between the formulations or at least court interpretations of them.....

"People,not laws block freedom of information"

Matthew Moore in the Sydney Morning Herald gives the recent NSW Deputy Ombudsman's report on the Board of Studies a going over, citing it as providing a "standout example of what is wrong with freedom of information in NSW". The title as above, says it all, although the law does play a part. Moore concludes:

"It was precisely the behaviour of agencies such as Office of the Board of Studies that prompted the Parliament to pass a new freedom-of-information law, the Government Information (Public Access) Act. This act, which comes into force early next year, will be overseen by an Information Commissioner. There is much to like about the new law, especially the principle that all government information is to be made public unless there is an overriding public interest against disclosure. But as the Ombudsman's investigation shows so clearly, it is not the law that will make a difference; it is the attitudes of people who administer it, the Board of Studies bosses and a hundred other agencies. Unless their attitudes change there will be no improvement.."

NSW Information Commissioner hits the web

Judge Ken Taylor AM RFD Acting NSW Information Commissioner

The Office of NSW Information Commissioner is up on the web as of today, with details of preparations for the commencement of the Government Information (Public Access) Act, to replace the Freedom of Information Act in early 2010. Among the materials posted is this plain-English guide to the new act Right to information in NSW which provides an overview including the many significant changes from FOI "pull" to the GIPA Act "push" model with its emphasis on proactive disclosure.

For the record I was engaged by the Office to research and prepare a draft of the Guide .

More disclosure might lead to less questions about public servant travel

Damien Brown in The Mercury reports that questions in State Parliament in Hobart yesterday about travel expenses of Health Secretary David Roberts had the Minister and Deputy Premier Lara Giddings crying foul, suggesting professional public servants would be discouraged from relocating to Tasmania by "appalling" and "disgusting" questioning.

Hmm, there I was hoping governments and senior public servants there and elsewhere would be working on the basis that the publication of this sort of information on a regular basis is one of the things that might be expected in the new or coming era of proactive disclosure. As Attorney General, Minister Giddings has carriage of that matter in Tasmania (referred to here yesterday) as well.

Brown reports:

"Mr Roberts' 60 intrastate, interstate and international trips between December 2007 and May this year were part of a $110,000 travel bill for Tasmania's top health bureaucrats obtained by Mr Whiteley (Opposition Health spokesman) under Freedom of Information legislation. The figures also featured the travel movements of deputy secretary Alice Birchall.

Mr Whiteley defended his questioning."I asked them questions. Can't I do that?" he said in Parliament."All I am doing is asking questions and for you to justify these expenses -- they are massive expenses. You must be joking if you think we can't ask questions."

The Minister said:

"We have had FoI after FoI on two specific individuals -- that is what I call a personal attack. Why are we not asking questions of all of our public servants?

I'm not against travel when its necessary and useful, but the question for the Minister is why not publish this information regularly- and for ministers as well. I doubt the slightest slowdown in recruitment of public servants as a result. Anyone concerned should try private sector transparency demands for top executives these days.

The Oz splashes out on whistleblower protection

www.cpsu.org

Chris Merritt in The Australian gives whistleblower protection a solid run today, at least those aspects regarding disclosure to the media: comparisons between the Dreyfus proposals before the Federal Government and US schemes, courtesy of a visiting academic; and comparisons between Federal proposals and what Merritt refers to as a report to the Queensland Government - I think this is a submission by Dr AJ Brown on the Green Paper on Integrity and Accountability which is yet to appear on the published submissions list. The article includes comment about Section 70 of the Crimes Act and the need to review it, but, as in a long line of earlier reports in The Australian, contains no acknowledgment that the Australian Law Reform Commission has been examining Section 70 and other secrecy laws since August 2008, has published papers on the subject that identify the problems, and possible answers, and will report to the Government with final proposals by the end of this month.

In a third article Merritt makes some observations about Senator Ludwig's difficulties: responding to the Dreyfus Report by the end of the year, making the response consistent with the Government's open government commitment, and with any response to an application for a pardon by Allan Kessing:

".. the debate on Ludwig's (response) will coincide with the government's decision on whether Kessing's conviction for revealing airport security flaws should be wiped away by a pardon. Superficially, the Kessing affair might appear to be complicated by this retired Customs officer's assertion that he never leaked a report to The Australian outlining those security flaws. But that is a red herring. If Kessing did leak that report, he is hero. He deserves a pardon as a long-overdue "thank you" from a grateful nation. His actions placed the public interest ahead of his own and may well have saved lives. If Kessing was not responsible for that leak -- as he asserts -- a pardon is even more justified. Kessing's claim of innocence must be seen as far more credible because he now admits that he leaked that material to an employee of Labor's Anthony Albanese, who is now Transport Minister. Why would Kessing lie about his lack of involvement in the leak to The Australian while taking responsibility for a leak that, until now, had remained a closely guarded secret? It is also clear that the court that convicted Kessing -- and the appeal court -- were never given the full story. In the light of the disclosure about the Albanese link, the weight given to at least part of the circumstantial evidence that was used to convict Kessing must be reassesed."

Merritt reports Kessing is hard at work drafting an application for a pardon, and that he will need to persuade the government he can be deemed "morally and technically innocent of the offence" and show that exceptional circumstances have precluded him from going to the High Court. Kessing's principled stand and his cause deserve our full support.

Not much Gov 2.0 detail in Tasmania's RTI Exposure Draft

Submissions closed today on the Tasmanian Exposure Draft Right to Information Bill 2009, to replace the Freedom of Information Act, and the Personal Information Protection Amendment Bill 2009. I didn't manage a submission, but make these couple of comments.

While there are some positives, the RTI Bill is not all you hope for in a modern, plain - English, access to government information act. The drafting for a start strikes as "old-style" - even "impecunious" gets a run in Section 17 - but that's neither here nor there in the broad scheme of things.

More importantly, while the Department of Justice Review team's webpage states the Bill proposes (among other things) to "mandate greater proactive release of information by the Government", the Exposure Draft does nothing of the sort. It does not require the proactive publication of any information, simply authorising agencies to release information by way of "routine" (in the public interest), "active" (in response to requests outside the Act) or "required" (by another act) disclosures, all to be preferred to the last option of "assessed" disclosure- release in response to a formal application under the Act. No further requirements are imposed regarding proactive disclosure. The Ombudsman who has specified powers may (Section 50) issue guidelines relating to disclosure under the four specified types. But if any guidelines are issued there is nothing in the Exposure Draft that requires an agency to have regard to or comply with them. There is a general power to make regulations for the purposes of the Act (Section 55) but under the Bill as it stands, each agency will decide what if any information should be proactively released. There is no mention of the Internet in 85 pages.

A couple of other points.

The application fee for assessed disclosure applications for the "impecunious" and a Member of Parliament acting in connection with official duties can be waived (Section 17) but no-one else who might be seeking information for broad public purposes gets a mention. Neither is there any mention of processing charges, so maybe there's to be none?

Grounds of exemption are to a large extent Australian standard, and for those subject to a public interest test, some relevant considerations for and against disclosure are listed (Schedule 1) to be taken into account in deciding whether disclosure would not be contrary to the public interest. A couple are unusual and may be unique- (t) whether the applicant is resident in Australia; and (u) whether the information is wrong or inaccurate.

Schedule 3 includes matters relevant to refusing an application on grounds of substantial and unreasonable diversion of resources. Regular users of the Act for example journalists, interest groups and politicians might be a little wary about what could constitute "applications of the same kind" and "similar information" as in:

(g) the extent to which the applicant is a repeat applicant to the public authority in respect of applications of the same kind, or a repeat applicant across government in respect of applications of the same kind, and the extent to which the present application might have been adequately met by those previous applications; and (j) the number and volume of assessed disclosures of information to the applicant about similar information in the 12-month period immediately prior to the present application.

There is no Information Commissioner as such and the Ombudsman (Section 48) has various powers some of which need beefing up from the discretionary "may", and as mentioned above, given some clout, although in one respect - the power to direct an agency to implement the Ombudsman's decision after considering a review application - the Tasmanian Ombudsman is a step ahead of what the information commissioners can deliver under Queensland, NSW or proposed Federal legislation.

Other good elements: the Act (Section 8) covers information related to performance, evaluation or progress of work provided to a public authority by a private organisation that is funded by or performs a role of that public authority unless the information is exempt; the shift from "documents' to "information" and clear search requirements for electronic information (Section 10); the inclusion of an offence for "unduly" influencing a decision (although there appears to be a drafting error in Section 51 which seems to apply to internal review decisions, but not not others).

Talking up RTI in Queensland

Speeches this week by David Solomon and Queensland Information Commissioner Julie Kinross on separate occasions in Brisbane are both of interest. They cover some common and different ground, with Kinross providing record managers with some historical context for Freedom of Information reform, and explaining the broad scope of change underway as a result of the Right to Information Act 2009 (RTI) across many parts of agencies that demand the attention and leadership from the executive level.

Dr Solomon's Right to Know Day speech, "The sky didn't fall in", included an account of the developments leading to the RTI Act, and the flow-on effects in other jurisdictions.

He also commented on an issue emerging from his other involvements as Queensland Integrity Commissioner and member of the Federal Government's Gov 2.0 TaskForce: how little community awareness there is about integrity and accountability measures, and the need for
initiatives to increase awareness of government decision-making processes, structures and policies. And that the availability of information is not an end in itself- it's the means to improving democratic practices:

"Of course the fact that agencies proactively make more information available to people, that they adopt publication schemes that enable people to better understand what the agency is doing and how it works, that they develop websites that are easily accessible and searchable, that they release information administratively rather than forcing everyone making an inquiry to use the RTI processes – all these aspects of the “push” model won’t necessarily mean that people are better informed about how the government works, what processes and institutions it has developed to try to ensure integrity and accountability. People have to want to know, they need to be motivated to seek information whether from websites or other forms of publication. Establishing transparency is one thing – persuading people to look through the portal and read what is there may be another. That motivational task is probably a matter for government, particularly if the high ideals of the Right to Information legislation are to be met, and it will probably need to begin in the education system. Ensuring a better flow and availability of government information is not just a good in its own right. It has an important purpose in the scheme of government."

Dr Solomon concluded:

"The message is that RTI is the beginning. It provides a framework for more developments, for better communication between the government, its agencies and the people. Ultimately its success will be judged by the extent to which Parliament’s aims in passing the legislation are satisfied. A final word about our new RTI Act. What is does is create a framework for the evolution of a better-informed community, where the government is more open and responsive. In our report we stressed the importance of cultural change and political leadership in driving that change. There can be no doubt that the Premier is anxious to ensure that RTI succeeds. It is to be hoped that the most recent message she sent to all government agencies on RTI principles, gets through to everyone involved in its administration."

Integity and accountability paper sparks ideas

There were 114 submissions in response to the Queensland Green paper on Integrity and Accountability with many urging parliamentary reform, including for Australia's only unicameral state system, an upper house of parliament. (The 17500 word submission from the Clerk of the Parliament makes the news in the Courier Mail this morning)

The Information Commissioner made some suggestions including specific transparency and accountability measures that would be applicable in other jurisdictions as well. Some could have been but weren't included in the Ministerial Guidelines on Publication Schemes

All expenditure of public money
The push agenda of Right to Information reforms (transparency) should be applied to the expenditure of all public monies, including Ministerial and Parliamentary allowances unless it can be shown to be clearly contrary to the public interest.

Who's influencing what
Ministers should be required to publish the names of the groups whose interests are brought to their attention ; inviting submissions during public consultations should be on the basis that submissions will be made public, unless it can be established that publication would be contrary to the public interest and to be made in a form that the writer is comfortable with the document being made public; the community should be informed how that information was used and weighed in the decision making process.

Gifts hospitality and travel on-line
Gifts and hospitality received by Ministers, Members of Parliament and public sector employees and travel and entertainment expenses should be registered and published online.

Government intentions
There should be more publication of information about forthcoming projects, upcoming consultations and the forward policy agenda, not just what has been done.

Agency files
The publication of a list of titles of files created in the central office of a department or portfolio agency for the relevant period, with some exemptions should be included in agency publication schemes.

The Commissioner also plans to take some initiatives regarding contract disclosure, and raises the need for specific powers to investigate the use of confidentiality provisions.

Transparency and school performance

Associate Professor Tony Taylor of Monash University in Crikey today on why we need more accessible information about school performance, and three spot-on suggestions about what can be done to combat silly sensationalism from some champions of the right to know (you know who they are):

"First, the authorities must publish reports that give accessible, clear and authentic information that paints a fair, a detailed and a broad picture, and Barry McGaw, the federal curriculum head honcho, has promised this. It may take time, since it has taken Ofsted eighteen years to get to where they are today (with some major diversions along the way), so be patient. Second, all governments, federal and state/territory, must educate parents and teachers so that they will actively look for the more complex backgrounding and make informed judgements about education, instead of just relying on banner headlines and crude rankings. This approach, presumably, is on its way and may result in an increasingly knowledgeable public disposition about schools and schooling. We live in hope. Third, tabloid journalists must change their ways, look for a deeper meaning in life and disdain league tables. Don’t hold your breath."

Two out of three's not bad.

Something's gotta give.

In a comment on a post last week, an anonymous reader who claims to have worked in media relations in the Keating, Howard and Rudd governments said he had never witnessed anything in his professional life like the present government with its "paranoia and centralised control of media management." On Radio National's FutureTense last week in a discussion "Participatory Democracy, Web 2.0 and the Government 2.0 Taskforce," Taskforce Chair Nicholas Gruen said:

"We know what we have to do, and that is to take the situation that we're in now, where government information is secret, unless a decision is made to release it, and basically reverse that, so that government information is in principle, open, accessible, available, unless there's some good reason for that not to be the case. Now the government has in some senses signed on to that principle. It's clearly indicated that it's keen on that principle in appointing us, but it's also been co-author of a set of OECD principles which we reproduced in our Issues paper, which say that. The hard part is actually getting it to happen."

A fair bit of what followed was about the culture change needed in the public service to bring this about, but if Anonymous is right that isn't the half of it. In addition new legislation that requires proactive publication of government information will blur distinctions between media liasion, public affairs and FOI related work, making for interesting times, particularly for those intent on controlling all information flows.

Queensland marks Right to Know Day

Tomorrow 28 September is International Right to Know Day in some parts of the world, and usually passes largely unnoticed in this neck of the woods, so congratulations to the Queensland Information Commissioner for organising in the morning the first Solomon Right to Information breakfast featuring Dr Solomon, chair of the FOI Review panel that got things moving there, on the Right to Information Act " How we will know when we've succeeded." That map needs a little flag in the upper right hand side of Australia from here on, and maybe more to follow.

Queensland whistleblower reform

Haven't seen Dr AJ Brown's report but Chris Merritt's story in The Australian about what's on the table in Queensland for reform of whistleblower protections sounds good and positive.

"Interesting' Ombudsman report-a serious understatement.

Following on from the previous post, and thanks to James King for the comment and lead, those seriously interested in Freedom of Information processes will find the NSW Deputy Ombudsman's 120 page report on the handling by the Office of the Board of Studies (OBOS) of FOI applications for HSC marks and related documents, posted here not just interesting but instructive, and... well, shocking.

Words that stay in the mind after reading the report about OBOS handling of the matters are adversarial, defensive, combative, obfuscatory, technical, legalistic, uncooperative, and according to the Deputy Ombudsman's interpretation of the Act, plain wrong on a number of counts, including regarding the limitation on the need to search for computer records mentioned here the other day. The Ombudsman reports on a couple of firsts in 20 years experience reviewing FOI complaints - senior officers writing letters for more junior officers to sign, and a senior officer "independently" reviewing the exercise of his own statutory powers - twice.

The reported cost of employing the Crown Solicitor's Office, $15000 for representation of OBOS for a technical but in the end pyrrhic victory in the Administrative Decisions Tribunal, is just the tip of the direct and indirect cost of the exercise including loads of legal advice also from the Crown Solicitor (66 documents the Ombudsman's Office couldn't access because of claims of privilege) on the way through, not to mention his lengthy investigation and report.

Make what you will of the fine detail. The Deputy Ombudsman's findings were:

"19.1 I find that the OBOS’s failure to have a person with sufficient knowledge, skills and experience, in relation to the FOI Act and the relevant case law and government
policy, to make an appropriate determination in relation to the December 2005 or January 2007 applications, was unreasonable. (s. 26(1)(b) of the Ombudsman Act)

19.2 I find that the handling of the December 2005 application was unreasonable, based on irrelevant considerations and partly on a mistake of law. (s. 26(1)(b), (d) and (e) of the Ombudsman Act)

19.3 I find that the handling of the January 2007 application (including the handling of the ‘fresh’ FOI application) was unreasonable, based on a mistake of law and based on irrelevant considerations. In particular, I find that the OBOS’s actions in not treating the Lane letter as a determination were based on a mistake of law. (s. 26(1)(b), (d) and (e) of the Ombudsman Act)

19.4 I find that the denial of access to the documents sought in the January 2007 application constituted conduct of the OBOS for which reasons should have been
given but were not given. (s. 26(1)(f) of the Ombudsman Act)

19.5 I find that the handling of Mr Parsonage’s complaint of 15 January 2007 about the way his December 2005 application had been handled was unreasonable and
otherwise wrong. (s. 26(1)(b) and (g) of the Ombudsman Act)

19.6 I find that the handling of Mr Parsonage’s complaint, made at the end of his request for an internal review in a letter dated 12 April 2007, about having to pay another $40 internal review fee, was unreasonable and otherwise wrong. (s. 26(1)(b) and (g) of the Ombudsman Act)

I note that in its comments on a draft copy of this report, the OBOS stated that it does not agree with the generality of these findings with respect to the application of the law. However, during consultation on 2 September 2009, the Minister and the President of the Board of Studies accepted our findings. I welcome this positive and constructive response."

Roll on that culture change.

Here is an additional piece in today's SMH , and this from the editorial:

"To eliminate what it sees as needless worry ( over scaling) the board has turned it into what the Ombudsman describes as a black box: raw marks go in at one end, and final marks come out at the other, but as for what goes on in between, no one outside the board is allowed to know. To those who ask, ''But what if a mistake is made?'', the board answers only, ''Trust us.''

The board has said it will not release raw marks because they would only be misleading. Certainly, if people do not understand the process, the experience of having a raw mark scaled down to a lower final mark will seem baffling, possibly unfair and certainly suspicious - despite all the professionalism of markers and board personnel intended to ensure the opposite.

Will, as the board appears to fear, releasing candidates' raw marks give them the opportunity and motivation to contest the final mark - to kick up a stink and waste board resources in pointless challenges? Quite possibly. It comes down to a question, though, of how best to uphold the board's integrity. We believe transparency is more likely to boost public confidence than the present policy of keeping candidates in the dark.

The HSC is a public examination, and all results should be available to candidates. It is worrying that the Ombudsman found the board went to considerable, and highly questionable, lengths to keep the marks secret. The culture of secrecy runs deep in NSW. Constant vigilance is needed to ensure this oppressive instinct is kept in check."

NSW Board of Studies fails FOI test

The NSW Ombudsman's report of an investigation into the Board of Studies and scaled exam results sounds interesting, but given confidentiality limitations on the Ombudsman the report itself will only come into the public domain if the complainant or the Sydney Morning Herald posts the text somewhere.The (ex) student who pushed the issue, Hugh Parsonage, started this four years ago. The Ombudsman found the Office of the Board of Studies was wrong in rejecting his Freedom of Information application, saying its handling of the case ''from beginning to end, is of serious concern''.

Struggling with "communicative abundance" and "monitory democracy"?

Professor Jonathon Keane of the University of Westminster, an Adelaide boy still at heart, has been in Australia speaking about his almost 1000 page book "The Life and Death of Democracy." If you haven't caught up with this- the text of an occassional address at the Senate a few weeks ago will give you the gist of what he is on about with "communicative abundance" and "monitory democracy." Makes those of us who are trying to keep an eye on a little of what is happening in government feel part of a wider and important trend.

At a local level, the following struck a chord, and had me hoping the techniques mentioned are all ancient history:

"In the era of monitory democracy, government media management is partly a ‘top down’ process. Governments hack in to the system of communicative abundance using various instruments, blunt and sharp. In recent years, John Howard did this to a worryingly unconventional degree. The formula of his governments’ media strategy is clearer in retrospect: build a team of tough-minded public relations people who are good at spinning everything. Get them to cultivate the image of the Prime Minister as a dedicated, hard-working, self-made man, a leader in whom everyone can recognise something of themselves, and what they want to be. Grant access of journalists to government plans in return for favourable coverage. Put senior bureaucrats on notice that they are required to report all contacts with journalists to the Prime Minister’s office. Stop leaks from retired or serving bureaucrats (Howard called it ‘democratic sabotage’, and explained that leaking is bad because it wrecks the tradition of fidelity and confidentiality upon which the provision of frank and fearless advice by civil servants to politicians depends). If necessary, get the police to turn up on doorsteps to ask questions of suspected infidels. Pass legislation to slap bans on reporting high-priority matters, detention without trial of suspects and witnesses, for instance. Pursue journalists who are troublemakers, especially those who refuse to divulge their sources. Threaten them with prosecution for libel, or contempt of court. Cultivate deaf ears for requests for disclosure of information. Keep trusted commentators at the ready, on duty at all times. Ignore calls by lawyers’ groups, NGOs and the press for new freedom of information laws, or their reform. Say often that you favour ‘freedom of communication’, but make it clear that there are strong grounds for withholding information, such as security, public order, fair play, the rights of business, the protection of the vulnerable, the needs of government."