Trust me with your details, I'm a politician

www.musiczoo.com

Liberals' battle plan to win key marginal seats in The Advertiser last week reported that Liberal South Australian Senator Alan Ferguson had sought "personal profiling information" from up to seven local councils in Adelaide's north. One council helpfully passed news of the application to the former mayor who happens to be the Labor Federal Member for the area, who appears to have passed it on to the paper. Senator Ferguson is said to have used freedom of information laws to request details of all businesses in the area, including names, postal and physical addresses; lists of all citizens naturalised since January 2006; copies of all petitions lodged with council; names of all registered volunteers; data on all council buildings used for community activities and the people or groups who use them; and all committees connected to the council.

I agree with many of the comments that much of this is or should be in the public domain, available to anyone interested in knowing about local happenings.

But politicians "trawling" the record raises a broader issue - and no one is holding breath expecting action on this before the Federal election later this year, or ever - concerning the large hole in privacy laws for political parties and those engaged in politics. The gap permits collection of personal information not just from the public domain but from wherever they can find it, subject to little scrutiny, with no citizen rights to know or correct what is held, or limitations on subsequent use and disclosure.

Legal privilege should not stand in Ombudsman's way

NSW Ombudsman Bruce Barbour

Sean Nichols cracked the front page with "Labor shuts off access to secrets" in the Sydney Morning Herald on Friday and the paper follows today with an editorial "The watchdog barks back" about an issue the NSW Ombudsman has raised with the government for years without success: the limitation in the Ombudsman's general powers of investigation on access to an agency's documents that are claimed subject to legal privilege. The Ombudsman and the Parliamentary Committee that oversights the office have got nowhere on this with the Ombudsman citing a series of unhelpful fob offs from the Department of Premier and Cabinet, over the last two and a half years. 

The Ombudsman has a point about what is a unique NSW limitation on ombudsman powers (section 21 of the Ombudsman Act)  and the lack of consistency in NSW where such a limitation does not apply to other investigatory bodies such as the Police Integrity Commission and the Independent Commission Against Corruption. However NSW is not the only jurisdiction with a consistency problem.This was a key element in an Australian Law Reform Commission 2008 Report on privilege and investigations. The report, which lends support to the NSW Ombudsman's argument, is yet to be acted upon by the Federal Government.

Note to PM: "FOI=administrative chaos"

16 May. Note for Prime Minister from Secretary of PM&C:
Freedom of Information legislation  would result in administrative chaos.. departments keeping dual filing cabinets."

20 May. Handwritten note to Prime Minister from Secretary PM&C marked "not for file": "Were I not under threat of my advice being made public I would be questioning with you this whole legislation. It is a can of worms, political commitments notwithstanding."

The heads of Defence and Treasury are opposed to the legislation. Broader and in some cases blanket exemptions are necessary.

More delay, reconsideration and advice is needed.

"What we've got here would go further than any other country with a similar system of government and is an "experimental step of major dimensions.. Whatever the politics of the decision it is certainly a gamble in the administrative sense."

Something this week off the back of a truck? No, just some extracts from "Malcolm Fraser The Political Memoirs" by Malcolm Fraser and Margaret Simons (The Megunyah Press $60) pages 404-405 about events in 1977-the last paragraph 1980, after three more years delay- in the lead up to enactment and commencement of the Commonwealth Freedom of Information Act in 1982, ten years after the initial commitment. The notes to the Prime Minister were from then Secretary Geoff Yeend and the material is sourced to documents available in the National Archives- even the handwritten "not for file" note made it onto the files and survives.

What public service players in these positions had to say to the PM or ministers about the 2008-2010 reform process might make an interesting FOI application- or become clear in 20 years (following a shift from 30 to 20 years in the FOI Reform legislation) when records come into open access.

Reports today are that Fraser resigned from the Liberal Party in December, concerned at its direction. He told Jack Waterford three years ago that FOI was his most important legacy.

Open government job no state secret

I have had a couple of exchanges with people who heard that the Federal Freedom of Information and Privacy commissioner jobs-part of the new system yet to commence with the Information Commissioner at the top- had been advertised recently but couldn't locate the ads. After a bit of searching and some help, it seems they were advertised in the Australian Financial Review on 14 May, but that appears to be it as far as media advertising goes.(Correction: also in the Weekend Australian 15 May page 5).The positions are also listed at Executive Intelligence Group #167(Privacy) and #168 (FOI). I haven't come across the Office of Information Commissioner website if it's up and running. No mention of the jobs on PM&C  (Correction: see here) and Privacy Commissioner websites. (Update:also at Seek Online.) Don't know where this leaves incumbent Privacy Commissioner Karen Curtis. Leadership baton, and the rest in your kitbag? Applications close 8 June. The AFR ad was as follows:

Campbell and a cause of action for breach of privacy

I imagine racing off to court is the last thing on David Campbell's mind at the moment.The current uncertain state of the law wouldn't suggest any clear claim of action for breach of privacy. There's nothing defamatory about any allegations I've seen, and truth is a defence in any event. The proposals on the table, but so far not acted upon by government, for a statutory cause of action for breach of privacy ( broadly framed and not just aimed at the media) would if acted upon, raise additional questions in any subsequent legal proceedings than the one currently getting media attention: whether there is public interest that justifies publication of information about a person's personal or private affairs.

Premier Keneally gives the word on opening up

A good and strong message from NSW Premier Keneally to ministers, ministerial,staff and public servants about what's expected come 1 July with the commencement of the Government Information (Public Access) Act in this memorandum dated 14 May, and given wider circulation in Matthew Moore's article in today's Sydney Morning Herald.

The Premier says::

Central to the new Act is the presumption that all Government–held information should be accessible to the public and that information should only be withheld if it is necessary to do so in the public interest...

The cultural shift that is necessary to realise the full promise of the new legislation will require leadership. Ministers and heads of agencies need to set the tone and cultural expectations which support the release of Government information. It is important that agency staff be given the confidence and support they need to make decisions that further the objects and intentions of the new Act...

There will, of course, continue to be certain types of information that it will be inappropriate to release. Information revealing Cabinet deliberations, sensitive personal or commercial-in-confidence information, and information that could jeopardise public safety, law enforcement or the fair trial of a person are examples. In all cases, however, public interest is the relevant touchstone. Political considerations must not come into play.

Leading by example will be crucial, and Ministers are asked to emphasise the need for all agencies (including Ministers’ own offices) to comply both with the letter and spirit of the new Act..

Ministers should also be aware that the new Act expressly provides that, in dealing with a particular access application, agencies are not subject to the direction and control of Ministers.

"Right to know" about Campbell has Channel 7 making news

Plenty of opinion and even some social analysis out there arising from the decision by Seven Network News to out now former NSW Transport Minister David Campbell and plenty more to follow, I'm sure. Politicians differ on the question, so too do senior journalists who have opined so far. Public sentiment is strongly against. Debate about the framework within which the media deals with matters that have a private dimension, and the way it works in practice is necessary and welcome. An issue for 7 is whether what happened here constitutes a breach of standards that underpin the licensing system. Another for any MEAA journalist member involved is how it sits with their code of ethics.

NSW Premier Keneally left the question of propriety in publishing hanging:

 “I do think it’s a matter for debate whether or not a person’s sexuality is of relevance to their role as a minister or their role as a member of Parliament.”

Deputy Federal Opposition Leader Julie Bishop on The Insiders  surprisingly was prepared to accept virtually any media intrusion:

BARRIE CASSIDY: How do you feel about the way the media handled it?

JULIE BISHOP: Well that's a matter for the media to judge. I think that politicians know that they are fair game. We know that going into politics means that you don't have any private life and so the media is doing its job. But it's a sorry incident in Australian politics.

It will be a sorry day for politicians and others if we have reached the point where "they don't have any private life" although this might have been one of those Tony Abbott "not considered, not on paper" comments.( Graham Richardson shares her view according to this report : 'There is no privacy. Politicians don't have a right to any sort of private life any more,'' he told Channel Nine. ''And I don't think they've had that right for 20 years; it's been eroded steadily over time but now anything goes.'')

77% of more than 50000 votes on a poll on the Herald website are critical of 7's decision. So is David Marr whose opinion piece appears on the same link, who categorically dismissed any "right to know" argument.  Marr at the Sydney Writers' Festival responded to an assertion that any media organisation worth its salt would have published, by saying Herald journalists had known about Campbell for some time but had decided not to publish. Mark Day in The Australian says "by today's standards, an individual's sxxual preference is considered to be of no consequence." Day says news like this should have provoked a "so what" response and that Campbell could have chosen quite properly to hold his ground and dismiss a report about a private matter. However Day attaches weight to Campbell's statement in resigning and his admission of wrongdoing in some respects. On the question of whether politicians should be treated differently to the rest of us, Day says:

"Broadly, I'd say .. the answer is yes. When politicians stand for election they say, in effect, "Here I am; this is what I stand for; these are my values - vote for me." Therefore, if the truth is revealed to be something other than the intended projection, and if that truth is known to the highest echelons of those who govern us, but is kept secret from us, then the public is entitled to know it, too.

Dr Simon Longstaff of the St James Ethics Centre, taking the opposite view, said a key point was that Mr Campbell did not make his political career campaigning on moral issues.

"It doesn't seem to be true that it holds for David Campbell, who ... has done nothing more than be truthful about the fact that he has a family," he said. "I mean, you might think that using one's family to promote a political career has all sorts of problems. "But as far as I know, David Campbell is married, he does have a family and he has indicated that in his Christmas card because that is part of who he is. "I mean he is obviously a complex person. But to say that he has engaged in some kind of gross act of political hypocrisy is to make too great a statement in relation to this particular case."

On the rules that apply, the Seven Network is a member of the industry body Free TV Australia. The 2010 Code of Practice forms part of a regulatory framework that operates under the Broadcasting Services Act and comes within the purview of the Australian Communications and Media Authority. The Code states:

In broadcasting news and current affairs programs, licensees:
4.3.5 must not use material relating to a person’s personal or private affairs, or which invades an individual’s privacy, other than where there is an identifiable public interest reason for the material to be broadcast.

As reported by Matthew Moore in the Sydney Morning Herald Channel Seven dropped the principal claim of the public interest justification, that Mr Campbell used a ''taxpayer-funded car'' to visit the club, conceding that driving a car provided as part of a salary package to and from the club was not an issue of impropriety. News Director Peter Meakin said there were two other  justifications for  running the story - Mr Campbell was leading a double life unknown to his family, and had campaigned for election as a family man. These and the fact that Mr Campbell had served as police minister for 18 months up until September 2008 tipped the balance in favour of publication.

''If it's someone's private life and it does not impact on his job or potentially impact on his job, it's a private life, but if it impacts on his portfolio or potentially on the execution of his duties, I think it's a matter of public interest.''

Apart from the industry code if those involved in running the story at Seven are members of the MEAA, its code of ethics requires a journalist to "respect..personal privacy," a provision suitably vague and deserving closer examination of what it means in practice.

John Hartigan of News Limited observed in March last year that " the current media privacy framework is effective and working well." I think incidents since raise serious questions about this,. The Australian Law Reform Commission has recommended significant changes to the current system that gives media organisations an exemption from privacy legislation in favour of self regulatory schemes. The Commission has drawn attention to gaps, inconsistencies and weak enforcement provisions in these arrangements.

I'll have something to say about the separate issue of the Campbell outing and the proposed cause of action for breach of privacy in another post.

FOI awareness and alphabet soup

Twenty eight years on since our first law arrived, and even among the 400 interested enough to show up on a wet Saturday in Sydney to a discussion on Press Freedom and the Public Right to Know, its still a puzzle.


Before the session started at the Sydney Writers' Festival on Saturday I was amused to hear two people sitting behind me puzzling over the meaning of the program description of Michael McKinnon as "FOI Editor, Seven Network." One suggested it was probably a misprint of Folio Editor, whatever that meant. Mike Carlton in introducing the panel cleared that mystery up. More lie ahead with new acronyms RTI, GIPA and who knows what might still come in jurisdictions beyond NSW and Queensland.

Lively interest in right to know

At the session on Saturday on Press Freedom and the Public's Right to Know (packed, with over 400 people), excessive secrecy and government attitudes and barriers to disclosure came in for the inevitable serve. Mike Carlton suggested things are getting worse not better, citing suppression orders in the courts as a particular trend in the wrong direction. The point was hammered home by David Marr who cited a "barmy" court order (I haven't seen this mentioned anywhere else) that prevented publication of The Weekend Australian Magazine in Victoria on Saturday because it contained an article about the murder of a child in Western Australia that a judge decided may have influenced jurors in a completely unrelated trial in that state of a man charged over the death of his three children; orders that prevent the publication of the names of many involved in court proceedings including names of rxxpists serving life sentences for acts committed when they were underage; the difficulties of accessing court documents in NSW while proceedings are underway and a reform process that is "going nowhere"; and the $8 per page cost of transcripts that poses a "horrendous" obstacle to digging into what has happened in open court if you didn't happen to be there. 

Anne Davies, recently returned from Washington, spoke of the "startling contrast" between her experiences there-even under the Bush administration, and things have improved since - in terms of access to government information and what she encounters here, using examples about the premier's appointments diary ( technical hoops here, versus 300,000 entries online at the White House website), and the release of political donation details (180 days after the end of the financial year here, versus something closer to real time there.) 

Michael McKinnon claimed government secrecy is about protecting policy failures (it's a bit more nuanced than that); gave some examples that readers here will be familiar with of the need for constant vigilance as quiet steps backward often accompany big announcements of moves in a positive direction; and was particularly critical of delay tactics in the Freedom of Information arena that have the effect of turning important information concerning accountability into unusable stuff because of the lapse of time. It won't be news for public servants who deal with McKinnon's FOI applications to hear his stated modus operandi: proceed with obsessive bloodymindedness and demonstrate you will never give up. 

This led to some questions about the media giving up on some topics, first from a small number of 9/11 conspiracy theorists, encouraged by the session title, who tried to put the panel on the spot about the media's complicity in an alleged cover up- no one was having that - and another about the truth behind the AWB Iraq scandal. Marr was critical of the Rudd Government's timidity in office on the issue given what was said when in opposition , and indicated the matter still has a way to run-watch this space.

"Privacy laws", said to be misused to protect important information that should be released,  received a general caning- more about the media, privacy and the Campbell episode in another post.

NSW ministers-even the standards are opaque

We might be hearing more than we need to know about former NSW Minister for Transport David Campbell but there are large gaps in our knowledge about the standards of conduct and integrity of ministers in the NSW Government.  This extract, with emphasis added to the last sentence, is from an Issues Paper on lobbying (page 22) released last week by the Independent Commission Against Corruption (more about lobbying in another post.)

In NSW there are currently no restrictions on former MPs or staffers becoming lobbyists, although ministers must consult the Parliamentary Ethics Advisor should they consider such a position within 12 months of leaving office. This is similar to the UK and Scotland although both those jurisdictions are in the process of developing restrictions (and, my comment, NSW is unique in Australia in not having legislative or other restrictions on such post office employment.) As the current NSW Ministerial Code of Conduct is not a public document it is not known to what extent, if any, it addresses this issue.

That issue or anything else to do with what is expected in the conduct of duties as a minister.

Then there's this provision in the soon to commence Government Information (Public Access) Act (Schedule 1, Clause 11) the need for which has never been explained, and represents a new departure in the direction of non-disclosure in that the Register of Minister's Interests is not given specific exemption in the Freedom of Information Act that has been in operation since 1989. The provision attracted virtually no attention when the legislation went through Parliament last year.

 Ministerial Code of Conduct

It is to be conclusively presumed that there is an overriding public interest against disclosure of information the disclosure of which would disclose information contained in the Register of Interests kept by or on behalf of the Premier pursuant to the Code of Conduct for Ministers of the Crown adopted by Cabinet.

That is an absolute protection against disclosure, with no public interest or other factors to be weighed in the balance.In my submission  to the Department of Premier and Cabinet on the Exposure Draft dated 3 June 2009 (page 11) I commented:

Ministerial code of conduct: why the Register of Interests kept by the Premier should have the status of an exempt document in all circumstances is hard to reconcile with the need for accountability and transparency in the conduct of public duties. 

And then there's the matter of members of parliament and the decision to not extend the access to information law to the parliament, rejected by the Government after the Speaker and President ran up arguments that don't hold water including their assertion that sufficient public scrutiny comes from publication of the annual reports of the Department of Parliamentary Services that include aggregate data about expenditure on members' entitlements. Last year the Department spent a total of $123 million. There is a single line item in the accounts of expenditure of $29 million on members salary and allowances plus superannuation plus tax. What allowances are included isn't mentioned in the report. There is no break down of other expenditure on members electoral offices and staff. 

Part of the argument was that no Australian jurisdiction has done this- Tasmania since has. Another was that the separation of powers meant that the parliament had to have the same rules as the courts to preserve independence. Yes, but the courts are covered by the Freedom of Information Act and the new law in respect of information other than that relating to the exercise of judicial functions, ie matters of an administrative nature. 

The open government promise rings a bit hollow when these gaps in transparency and accountability of ministers and parliamentarians remain.

Testing the limits of privacy and public office

The resignation of NSW Minister for Transport David Campbell after revelations about aspects of his private life once again raises the issue of what if any right to privacy those in public life can expect. The answer appears to be very little. Campbell is accused of no wrong doing, but having presented himself as one type of person presumably for political advantage, the argument is that the media have a responsibility to test such claims and to publish in the public interest information that shows deceit. Evidence of deceit by a politician raises broader issues of character and fitness to hold office. Even Campbell seemed to accept this, apologising in his resignation statement to his family and the community for letting them down.

However politics probably trumped all else when it came to Campbell's future. The  reality was that with the government already a basket case, the Premier couldn't afford to keep him  in the light of these developments. As a former Police Minister  who appears to have led something of a double life and with plenty of controversy about the Transport  portfolio during his term of office the Premier and Campbell obviously judged nothing to be gained and a lot lost by him staying on. Another name to add to the list of NSW ministers to come a spectacular cropper in recent years.

Further debate on privacy, public life and the media (hopefully the issue of journalistic standards as well-on this score Andrew Crook in Crikey raises some relevant points about the Seven Network and its report on Campbell ) is sure to follow- starting with that Sydney Writers Festival session tomorrow on Press Freedom and the Public Right to Know where David Marr who has been on the air today decrying media reporting on Campbell as an unjustified invasion of privacy gets a chance to elaborate.

Update: on journalism standards see also Andrew Bartlett drawing on his own experience in politics and Bernard Keane (subscription) both in Crikey. Keane comments:

Gadens Lawyers on FOI Reform legislation

This summary from Gadens Lawyers of the Federal Freedom of Information Reform legislation isn't bad, and the table of exemption provisions is helpful, although the article doesn't cover much beyond changes to exemption provisions.

McKinnon's Open Queensland picture not so pretty after all

Michael McKinnon FOI Editor, Seven Network might be taking back some of those fine words of praise for Premier Bligh and Queensland's approach to open government. In an article in yesterday's Courier Mail under the headline "Sordid deal makes a mockery of open government" (no link- the CM didn't post in online) McKinnon picks up from an article earlier in the week that had raised concern about a cabinet style exemption for the Brisbane City Council. I think giving the Executive Committee of a local council cabinet status and similar protections from disclosure would be a first for local authorities in Australia, but have a vague recollection of something similar in the UK. An extract from the article and the proposal follows.

Hansard mix up on FOI Reform bills leads some (one?) of us astray

We all know you shouldn't believe everything you read, but news that a speech in Hansard-the record of parliamentary debate- was the wrong speech comes as a surprise. I had a phone call yesterday from the Department of Prime Minister and Cabinet that my posts ( here, here  and here) about what was "said" or "not said" in the Second Reading speeches on the Freedom of Information Amendment (Reform) bills in the Senate last week had sounded some alarm bells in Canberra (well, at least among those managing this legislative process.)

My points didn't gel with what the speeches were supposed to say. PM&C told me "Hansard had made an error by including in the first published version the wrong Second reading speeches"- those that had been made when the bills were introduced into the House of Representatives last November. The error had now been rectified and the record now is of what was tabled (or, my comment, intended to be tabled?) as the Second reading speeches. 

Seeing as how the speeches were not read aloud but simply incorporated in the record, no one present in the Senate would have known anything had gone amiss (won't ask who was paying attention), but readers like your scribe had (understandably) gone off on the wrong track on the basis of what Hansard originally reported. ( How often does this happen, you have to wonder, and what gets missed in the wash?)

What was meant to be said by Senator Sherry on behalf of Minister Ludwig now appears as the Second Reading speeches on the bills in the Proof Senate Hansard for 13 May pages 17 -21. You wouldn't know of the error in reading this. Open Australia still has the original.

Where the correct version parts company with what I reported based on Hansard Version 1 includes these points:

Rather than not saying a word about capitulation by the Government on the onus in the AAT issue, the speech includes a defence of the Senate Committee recommendation, and the decision to backdown:

The Committee’s recommendation to amend the Freedom of Information Amendment (Reform) Bill to remove the concept of onus in both review proceedings by the Australian Information Commissioner and the Administrative Appeals Tribunal (AAT) is not supported by Coalition Senators, nor by some stakeholders who use the FOI Act. The Government does not accept that the Committee’s recommendation to remove the onus would have disadvantaged applicants. The removal of the onus was recommended to ensure that FOI applications were not treated as adversarial court processes. Notwithstanding this view, the Government has decided to retain the concept of onus in FOI proceedings, making it clear that the Bill is designed to make access to documents easier for applicants, with the agency or Minister under an obligation to justify why non-disclosure is necessary. Under an existing obligation in the AAT, an agency or Minister is required to use their best endeavours to assist the AAT to make a decision on an FOI review application. That obligation will also be applied to a review by the Australian Information Commissioner."

Rather than reiteration of the intention to provide a reference to the Australian Law Reform Commission concerning FOI for the private sector, as stated last November, the speech says nothing about this. I understand from PM&C that it remains on a list of possible references- sounds like a little backsliding to me.

Rather than indicating draft privacy legislation would be released early in 2010 the speech says release will be later in the year.

There is also this specific reference to attention to Senator Ludlam's concerns about blanket exclusion of intelligence agencies, obviously part of the deal to move the bills into the noncontroversial category:

To ensure the reform package delivers effective change, provision is made in the Bill for the Act to be reviewed two years after the commencement of the reforms. The review will be comprehensive, and will necessarily cover all aspects of FOI, including how well the two-tier review system is working, how the Office of the Australian Information Commissioner is operating, the exemptions in the Act, and agencies’ implementation of the new information publicationscheme. In order to address the concerns raised by the Australian Greens, the review will also need to include a consideration of whether the exclusion of agencies, including intelligence agencies, from the application of the Act is still appropriate and necessary. Naturally, such a consideration would require reference to international practice and consideration of what is in the Australian public’s interest. and that the review of exclusions from the act for intelligence agencies would be a matter to be examined in the comprehensive review of the act in two years time. 

On this issue Andrew in a comment on this post says Senator Ludlam was incorrect in claiming the UK's MI5 and MI6 are covered by the FOI Act. I commented last year that the US CIA and New Zealand Intelligence Service are covered by relevant legislation in those countries.

Press Freedom and the Public's Right to Know

Mike Carlton

One of the many offerings at the Sydney Writers Festival this week. Saturday, May 22 10:00 - 11:00 Sydney Dance Company, Studio 2/3 Pier 4/5, Hickson Road Walsh Bay. Mike Carlton moderates a discussion with David Marr, 2009 Walkley Award winning Seven Network FoI editor Michael McKinnon and former Washington correspondent Anne Davies about freedom of expression and freedom of the press in Australia. It's free, no bookings. I'll be there-say hello if you are.

WA review of FOI processes

The Western Australian Information Commissioner is conducting a review into the manner in which Western Australian State and local government agencies administer the freedom of information (FOI) process. Submissions closed on 30 April and the review is expected to be completed by August 2010. Presumably submissions will be published although there is nothing to indicate one way or the other.(Correction thanks to a reader. The website states- "All submissions received will be treated confidentially and not attributed to individuals or organisations." Just why this is the default position you have to wonder. ) The Australian today reports the WA branch of the Media Entertainment and Arts Alliance( obviously happy to let others know what they think) has criticised the "limited scope" of the review's terms of reference to examine administration of the FOI Act, but not the content of the legislation. "The system was too slow and costly and government agencies lacked a culture of active disclosure, the union argued..", calling for a quantum leap out of the dark ages and the adoption of the Queensland Right to Information model.

Government repeats commitment to "private sector FOI" inquiry

It's been mentioned twice before by Government speakers going all the way back to Senator Faulkner in March last year. The mention of acting on this by the end of 2009 has long faded. There hasn't been a skerrick of detail. But it popped up again in the Second Reading Speech in the Senate on the Freedom of Information Reform bills last week.

"The Government will also consider further improvements and will ask the Australian Law Reform Commission to inquire into whether the FOI Act or another disclosure regime should apply to the private sector."

Thanks to Open Australia for the link.

(Update and Correction: see this later post as to why this wasn't the case.)

Draft privacy reform legislation due "early in 2010"

Also in the Second Reading speech on the Freedom of Information Reform bills in the Senate last week, this indication of intention to proceed with legislation to shift personal information applications from FOI to privacy legislation, and to release draft privacy reform legislation "early in 2010". Time is passing.

While the Privacy Act 1988 largely regulates the handling of personal information by Commonwealth agencies, access to and correction of a person’s own information is currently enforced through the FOI Act. Around 85-90 percent of FOI requests annually are for personal information. The Government proposes to amend the Privacy Act so that it is the principal legislation which provides for an enforceable right of access to, and correction of, an individual’s own information. That proposal will be addressed in draft legislation covering broader reforms to the Privacy Act expected to be released for public comment early in 2010.

 Thanks to Open Australia for the link.

(Update and Correction: see this later post as to why it will now be later in the year.)

Intelligence agencies remain out of FOI focus

The Greens Senator Ludlam in speaking in the Senate last Thursday to his unsuccessful motion for removal of the blanket  exemption of intelligence agencies from the Federal Freedom of Information Act, asked the Minister several times but failed to get a response:

What is it about Australian security agencies that should render them entirely immune to freedom of information that does not apply, for example, to the CIA, to United States intelligence agencies and to intelligence agencies like MI5 or MI6 in Britain which are subject to freedom of information laws?"

He could have added New Zealand there as well. Good questions that deserve a considered answer. As Senator Ludlam said there are plenty of exemptions that would always cover those aspects of intelligence agency operations that legitimately deserve protection, but the blanket exemptions remove scrutiny even of how many paper clips they buy-should you be interested. 

All Senator Ludlam managed was an acknowledgment from the Minister Senator Ludwig that exclusions from the act should be looked at in the proposed comprehensive review of the act two years after these changes commence.

Thanks to Open Australia for the link.

The 2010-2011 Budget for PM&C included money for an independent review of Australia's intelligence agencies. Will the terms of reference extend to issues of transparency and accountability? Tim Lester's report in the Sydney Morning Herald doesn't raise hopes.

NSW Information Commissioner set to lead the revolution

Ben Rushton SMH

Best wishes for an exciting journey. NSW Information Commissioner Deirdre O' Donnell, a week into the job, told Matthew Moore of the Sydney Morning Herald  she is ready for the challenge of leading from the front on implementation of the GIPA act, to commence on 1 July.

'The role of champion is really what most excites me. This is a revolution and it needs a champion, someone visibly proactive, engaged and engaging who will be out there to show this thing really matters and things will change....O'Donnell ...... concedes that, as part of the revolution she is planning, it is inevitable some people may get hurt as they are forced to change well-established patterns of behaviour. Her fundamental challenge, she says, is to change the culture of the public service, to make it far more open. To help do that she is drawn to the idea of varying the performance agreements of the heads of department to include compliance with the new laws as one of the measures by which they are judged. ''It focuses the mind wonderfully, you really internalise it, you really give it your attention,'' she says of the proposal."

Shades of former Premier Nathan Rees who pushed the legislation through and now watches from the backbench, who told Parliament  almost a year ago the new legislation would

"turn the freedom of information regime on its head. The bills establish a framework to actively promote the release of Government information and they offer the opportunity for a fresh start...These bills constitute a fundamental freedom of information revolution... New South Wales will gain the nation's best freedom of information laws. The public's right to know must come first. As well as comprehensively responding to the Ombudsman's report, they pick up reforms arising from the Solomon review in Queensland and recently proposed changes to Commonwealth legislation. The bills mark a paradigm shift. Our public sector must embrace openness and transparency and governments must forever relinquish their habitual instinct to control information. This is generational change and reform that is long overdue."

 All aboard...