Prime Minister's travels: missed opportunity No 1

Indonesia:

Prime Minister Abbott Joint Press Statements 4 June:

I want to congratulate Bapak President Yudhoyono for the leadership that he has shown - not just here in Indonesia, but in this region and in the wider world over the past decade. President Yudhoyono has been one of the senior statesmen – perhaps the senior statesman – of ASEAN and has helped to make ASEAN strong and more influential in the councils of the world. I want to stress that a strong ASEAN is important to our region; it’s very important to Australia...Finally, may I say that when President Yudhoyono leaves office, Indonesia will have lost a statesman and Australia will have lost a friend....President Yudhoyono has been a great President and a good friend to Australia. I believe that when the history of Indonesia is written, the Yudhoyono presidency will be a watershed - marked by peace abroad, prosperity at home, the consolidation of democracy and the strengthening of national unity.

The missed opportunity (my words):

A sign of your commitment to democracy and your standing as a leader is evident in the key role Indonesia as the current lead co chair has played in the Open Government Partnership   The OGP now includes 63 countries committed to open, transparent and accountable government and to increased citizen participation. I very much regret that I was unable to join you in Bali recently for the first Asia Pacific Regional Conference. As you said on that occasion, other countries in the region should stand with Indonesia in promoting the OGP particularly in this dynamic region. I am pleased to announce today that Australia will proceed forthwith to join you and other partnership members in this important work.

So, onto France.

OAIC, a casualty in the name of efficiency, or set to fail: you choose.

Plenty of futile back and forward between Attorney General Brandis and Senators Singh and Rhiannon during Senate Estimates for the Attorney General's portfolio left little time for scrutiny of the decision to abolish the Office of Australian Information Commissioner in the name of 'efficiency.' 

When it comes to that however it's a matter of blind faith (and I'm not one of the faithful) when the Attorney General asserts:

"The government is committed to transparency and openness and these measures serve those objectives. The budget measures have been designed and crafted to ensure that the transparency and openness of the system remains but that the system can be administered more efficiently."

I'll leave you to pick through the extract from the transcript below, which will surely test your mettle, noting tidbits such as 23 of the current OAIC 63.3 staff  will go as the rest are reassigned (I seem to recall the estimate of what would be required before the Office opened for business was 100?) ; Privacy Commissioner Pilgrim stands by earlier support for mandatory serious data breach notification legislation; and a single focus one sided discussion about FOI costs and charges, as per usual based entirely on agency estimates with no regard to the waste and inefficiencies in the way many chose to handle this function.

Starved to death?
In contrast there is a lot more insight than you'll find in the Hansard in the opinion piece by Emeritus Professor Richard Mulgan of the ANU in The Canberra Times, on Tuesday: "How the FoI watchdog was starved to death. The Information Commissioner was set up to fail: denied the resources it needed to do its job." 

We share a fair bit of common ground but wouldn't want you for that reason to miss these extracts (emphasis added)

... the budget papers say that ''simplifying and streamlining'' FOI review processes by transferring them from the OAIC to the AAT ''will improve efficiencies and reduce the burden on FOI applicants''. There is no mention of the fact that external reviews will now cost over $800 instead of being free. Certainly, if re-imposing a significant fee leads, as it must, to a substantial reduction in the number of appeals, those who can afford to seek a review can expect a faster, more efficient service. For this reason, the changes have been welcomed by representatives of media businesses, which have chafed at the increasing delays caused by the flood of less well-off appellants. But it is a deceitful sophistry to describe improved service caused by pricing out most would-be applicants as ''reducing the burden'' on applicants.

If the government had been sincere in its aim to simplify service while minimising burdens on the public, it could have adopted other reforms canvassed by Hawke, such as abolishing the second tier of appeal to the AAT, leaving the OAIC as the sole avenue of external review while imposing a small application fee..

.. ...The position of information commissioner was established in the context of the digital revolution, which has transformed the collection and dissemination of government data. One of the commissioner's main statutory functions was to report on ''the collection, use, disclosure, management, administration or storage of, or accessibility to, information held by the government''. As part of this responsibility, the OAIC has concentrated on issues of transparency and accessibility, particularly through government websites. In a number of reports and policy statements, it has stressed the values of open government and sought to encourage a culture of proactive disclosure, whereby agencies take the initiative in publishing the types of information and data that they would be willing to release under FOI...

In trying to fulfil this mission, the Information Commissioner has faced strong institutional headwinds. With a few notable exceptions, ministers and bureaucrats remain stubbornly attached to a culture of secrecy and confidentiality. The digital revolution and the internet may have greatly facilitated the mechanics of government transparency. But they have also spawned the continuous media cycle and the premium on government management of information. Agency compliance with the new information policies has often been perfunctory and tokenistic. Even so, as statutory champions of open government, the Information Commissioner and his office have at least flown the flag for greater government transparency. That they have not been able to achieve major cultural change within the bureaucracy is hardly surprising, given their modest resources, the absence of strong political backing, and their relatively brief existence. But if opponents of open government are happy to see the office abolished, that in itself may be some testimony to its effectiveness.

Senate Estimates extracts here.

Prime Minister's travels: sign up to OGP for an easy announcable all hosts will welcome

The Prime Minister leaves tomorrow for visits to Indonesia, France (First World War  commemoration) Canada and the USA. British Prime Minister Cameron is sure to be at events in France as well.

The briefing books have been done and dusted, and behind the scenes discussions have already taken place to sort out what leaders want to say has been accomplished during meetings.

 But has anyone joined these dots for an 'announcable' that all the PM's hosts would welcome? 

The Prime Minister in this Media Release, issued before the announcement of the visit to Indonesia, spoke of the United States, Canada and France as long standing friends of Australia who "have always shared a commitment to democracy, to enterprise and to people’s right to be free."

That commitment is one we share with Indonesia as well.

Indonesia is lead co-chair of the Open Government Partnership. France has announced its intention to join. The UK and US  are both founding members and former co-chairs and Canada is also a member.

The Prime Minister only weeks ago declined an invitation from President Yudhoyono to attend OGP meetings in Bali. Other Australian ministers invited did not attend. A Finance official attended as an observer.

Opening the Asia Pacific Regional Conference President Yudhoyono, as reported in The Jakarta Post said

 Indonesia encourages Asia-Pacific countries to join the Open Government Partnership (OGP), a movement that is aimed at promoting openness, accountability and transparency to establish an effective government. “Only 10 Asia Pacific countries are OGP members. We want more countries to join with this movement so that our voices can be represented well via the OGP,”...The President said the role of the OGP, especially in Asia Pacific, was crucial as it wielded influencing power to facilitate the sharing of ideas, expertise and lessons learned on the issue of government transparency. “I believe this region is crucial to promoting the OGP. I’m sure Asia Pacific can be a global growth machine. Together, we declare an Asia Pacific that is prosperous, stable, dynamic, inclusive and oriented to the future,” said Yudhoyono.

Finance Minister Cormann last week said the government had not yet decided to join the OGP. Nor had it decided to withdraw the previous government's notice of intention to join.

An announcement this week that Australia will join the OGP would clearly be welcomed by the Indonesian Government.

And by France, the UK, Canada and the US whose leaders the Prime Minister meets later in the week.

Hopefully we might see something along these lines during the PM's travels:

 The Joint Statement issued in February by President Obama,Canadian Prime Minister Harper (and President Pena Nieto of Mexico) included a commitment to support the OGP, transparency and open government and to promote democracy, human rights and respect for international law throughout the world.

In September 2013 following a meeting with Prime Minister Cameron, New Zealand Prime Minister John Key announced that at "the request of the UK, New Zealand will formally express its intention to join the Open Government Partnership.
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OAIC to be scrapped, Victorian scheme to be bolstered

Go figure.

The Federal Government plans to scrap the whole idea of non-litigious merits review after a three year experiment with an underfunded scheme and in the absence of a comprehensive review.

Fairfax reports Victoria is to provide additional staff for FOI Commissioner assigning two assistant commissioners to help. "Several staff will also be seconded from the Justice Department to create an education program for the public sector, which collectively receives more than 33,000 FOI requests a year. Attorney-General Robert Clark said the changes would strengthen the role of the FOI commissioner, a reform he said ''Labor refused to do in their entire 11 years in office.'' 

No mention there of the inefficiencies from a multi- tier review process that Attorney General Brandis cites as justifying the decision to abolish the OAIC. 

The Victorian scheme does have its shortcomings and this latest announcement won't address them all but it's not for the scrap heap Canberra plans to establish.

Australia ends confusion about OGP: firmly on the fence, thank you.

Minister for Finance Cormann in Senate Estimates last week cleared up any lingering uncertainty about Australia's current position regarding the Open Government Partnership. 

Australia hasn't joined, and hasn't made a decision to join or not join.

To be in this position almost three years after the initial invitation puts us out of step with more than sixty other countries that have signed on, including from the G 20 that we chair this year, the US, Brazil, UK, Indonesia and Mexico ( who have all played OGP leadership roles), Argentina Canada, France, Italy, Korea, South Africa and Turkey. That's before we get to Denmark, Hungary, Ireland, Israel, Italy, Netherlands, Norway, NZ, Sweden, the Philippines and plenty of African and South American countries. Others that we encourage along the path to good governance including Myanmar and PNG are showing an interest as well. 

Of the G7 countries that endorsed the Open Data Charter in 2013 calling for government data sets to be open by default, only Germany and Japan aren't currently OGP members.

The glimpse into our thinking about the OGP reveals a lack of interest, enthusiasm and urgency, and the low priority Canberra attaches to an international initiative designed to improve democratic practices at home and abroad.

In response to a series of questions from Senator John Faulkner (left) who  raised the OGP issue with PM&C, AGD and Finance during the week, Minister Cormann left no doubt where we stand. Time and time again:

• "It is a matter that is currently under consideration...."

• "we are not in the process of joining.."

• "At this stage Australia has not formally joined the open government partnership. And the previous government did not. The previous government gave an indication that it was committed to joining, but it did not actually formally join. So this is a matter that we are now considering to give consideration to...(sic)"

• "the previous government expressed an intention to join.They did not finalise that and proceed to the ultimate joining, and at this stage we are considering how to progress this from here. We have not made a decision not to join but we also have not made a positive decision to join....

• "we have not decided yet on whether we will or will not proceed with that intention to join..."

• "we have not actually made a decision..."

The Minister made it clear that Finance Secretary David Tune (who has since announced his retirement apparently for other reasons) was off target in relying on information on the OGP website to tell Senator Faulkner: "There are 64 participating countries in the OGP, of which 57 have joined and seven are in the process of joining...We are one of the seven." No we aren't said the Minister, confirming that the related statement on the OGP website that Australia is one of 10 countries that comprise Cohort 4 and will join in April 2014 "is not right as far as Australia is concerned." Minister Cormann was less fussed about a reference to May 2015. 

By the way, the OGP appears to have jumped well ahead of where Minister Cormann finds himself, announcing last week that Daniel Stewart, an ANU law academic had been recruited to undertake the Independent Review of Australia's National Action Plan. That's a plan we need to develop if and when we decide to join.

There wasn't a word from the minister or officials about what has prompted the overall lack of enthusiasm for the cause and our adopted position on the fence.  

The Open Government Partnership is "a global effort to make governments more open and responsive." That sounds like a universally shared democratic value.  

Things appear to have changed since September when the White House made this statement supportive of the OGP and the principles that underpin it on behalf of 20 governments including Australia.
  And since October/ November when according to these Department of Finance documents released to me in April in response to an FOI application, officials were saying

the Government (has been) briefed about OGP, and agreement (now reached) at least in principle across several departments and Ministerial offices that this is a good thing to pursue. Next steps will be continuing to work through the process to get formal endorsement to pursue OGP membership, formal delegation of responsibility to Finance, more consultation on the approach, and hopefully the ability to launch a consultation in the coming month or so. We need to have our National Action Plan developed by April 2014, so the timeline is tight, but doable.

Hmm.

Not that there is much effort going into pondering our situation.

John Sheridan First Assistant Secretary and Procurement Coordinator told Senator Faulkner the work in Finance on the OGP is "done by myself and one of my direct reports, an EL2 who works on these matters and related Gov2.0 matters, and she is occasionally assisted by one of my other staff, a more junior staff member who works on related IT matters." Around five per cent of Sheridan's time, and all up "half an FTE at the most."

As to the previously described (months ago by Attorney General Brandis no less and reiterated in AGD Estimates earlier in the week) "interagency meetings" of officials, Mr Sheridan now says "I am hesitant to call it formally an interagency committee as opposed to just a series of meetings." The Minister took this up:

Senator Cormann: But Senator Faulkner, we don't want to get caught up in semantics either. One person's meeting is another person's committee. Let us say that there have been interdepartmental committees, even though they might have been slightly more on the informal side than on the structured side.

Senator FAULKNER: What you are saying—and I am just trying to establish the facts here—is that there is no formal IDC. Is that a fair comment to make?

Senator Cormann: That is right, and there has not been previously.

Mr Sheridan : No, Minister, there hasn't.

An indication of the informality of the gatherings perhaps: in responding to my FOI request for the record of the three inter agency meetings Attorney General Brandis said had been held last year Attorney General's Department told me they only had a record of one of the three!

Departments involved in the less than formal chitchat apparently are AGD, Finance, PM&C, Communications, DFAT, DRET,, Archives and (vale) OAIC. 

Hope someone has better records than AGD.
 

Senator Faulkner spoke for all those who share his interest in integrity and open, transparent and accountable government when he said towards the end of the session

I am very, very disappointed that we are not strongly committed to progressing a very active role in the OGP. I am very, very disappointed with the proposed policy changes in the Office of the Australian Information Commissioner and the like.... I have had a longstanding interest, as I think you and perhaps officials would know about, in Australia's commitment to the OGP and broadly in relation to transparency and accountability measures in government...... My views on this have been expressed publicly and consistently for a very long time and probably have not found a lot of favour with the current government or the previous government.....My intention is to try to progress these matters and ask questions as I am asking. And I flagged with you and the department that I will continue to ask questions...

 Senator Faulkner earlier in the week in Attorney General's Estimates established that responsibility for the OGP had been transferred from that department to Finance on 1 April, but no one including the Attorney General could add much by way of explanation other than Senator Cormann "was quite eager that policy leadership in relation to the Open Government Partnership lie within his portfolio." Finance Secretary Tune referred to the OGP fit with the department's "ICT functions."

The PM and the invitation to Bali  
As to Australian participation in Bali OGP Asia Pacific Regional Conference, officials from Prime Minister and Cabinet responded to questions from Senator Dastyari and Senator Faulkner with the news that the Prime Minister was invited to attend by President Yudhoyono on 19 March, and that we told the Indonesians he wouldn't be going on 2 May, days before meetings commenced. 

John Sheridan of Finance said the PM had been invited to the OGP Steering Committee meeting that preceded the regional meeting.

Officials from PM&C had no knowledge of invitations to the Attorney General, Minister for Foreign Affairs or the Minister for Finance. When asked, Attorney General Brandis couldn't recall receiving an invitation but intends to inquire further. John Sheridan confirmed the Finance Minister had been invited to the Regional Conference.

In the end Sheridan was our only representative in an 'observer' capacity.

Below in the order in which the hearings took place are the relevant extracts from the Estimates Transcripts for PM&C, AGD, and Finance. 

Estimates have another week to go. Maybe the issue will be raised with Communications, given the Minister's interest in open data, and Foreign Affairs given the foreign policy interests involved. 

So far it's not a pretty picture.

Cost recovery waylays FOI access

A portent of things to come?

Media photo.org

The Agricultural and Veterinary Chemicals Legislation Amendment (Removing Re-approval and Re-registration) Bill 2014 is one of a number of bills in the pipeline designed to reduce "red and green tape on business by at least $1 billion per year," in this case, "the burden imposed on the Australian economy and agricultural sector." It's a hot potato involving significant changes to the regulatory system administered by the Australian Pesticide and Veterinary Medicines Authority.

The Bill, introduced in March, passed the House this week. Labor waved it through, reserving its position in the Senate until the Rural and Regional Affairs and Transport Legislation Committee reports by 16 June.

While not the key focus, the Bill includes this amendment, as explained in the Second Reading Speech:

Obliging access to information about chemicals that the APVMA holds
Currently, the APVMA is often asked to provide information to the company that is responsible for a chemical product about its registrations. This information is then provided under the Freedom of Information Act 1982 (FOI Act).
Payments for information sought under the FOI Act are not covering the costs of providing the information. As a result, companies that do keep good records are subsidising the records costs of those that do not.
The bill amendments will allow persons to apply to the APVMA for copies of documents it holds about a chemical for a fee. This provision will not allow release of confidential commercial information unless the recipient was entitled to the information. For example, because they were the person that provided the information.
Schedule 2 of the bill proposes to 'turn off' access under the FOI Act for these documents but will not prevent access to the information. The FOI Act anticipates this by allowing an exemption for access to documents (at paragraph 12(1) (b) of the FOI Act) that is open to public access in accordance with another enactment, where that access is subject to a fee or other charge.

Section 12(1)(b) excludes from FOI access "a document that is open to public access, as part of a public register or otherwise, in accordance with another enactment, where that access is subject to a fee or other charge."

One hundred and fifty FOI applications were received during the 2012-13 year according to the APVMA Annual Report.

But while the Second Reading conveys the impression that more cost recovery is justified because poor record keepers are using APVMA through FOI to find their own documents, the situation as revealed in the annual report is that registrants and approval holders also seek information relating to other companies, and less frequently, individuals, community groups, policy institutions or industry bodies also seek access to documents. Requests for information generally relate to:

• formulations and product specifications
• active constituent specifications
• identity of manufacturing sites
• manufacturing and formulating processes
• certificates of analysis and declarations of composition
• analytical methods, validation methods and batch-analysis results
• data submitted with applications, including studies, reports and trial results
• other information contained on relevant files for certain applications, such as application forms, evaluation reports and adverse experiences.

The wording of the amendment is such that anyone seeking a document held by APVMA "in relation to an approved active constituent or registered chemical product" (presumably all of the above) will be required to pay the prescribed fee, something more closely aligned to cost recovery by some government calculation. 

Access is likely to become a lot more expensive, not just for the so called poor record keepers.

8W  Access to certain documents in the possession or custody of the APVMA

 (1)  A person may, in writing, apply to the APVMA for a copy of, or extract from, a document (other than a document in any part of the Record or Register) in the possession or custody of the APVMA in relation to an approved active constituent or registered chemical product.

 (2)  The APVMA must provide the copy or extract to the person if the person pays the prescribed fee (if any).

Note 1:See subsections 17(4) and (5) and 18(4) and (5) for access to the Record and Register.

Note 2:This subsection does not authorise the disclosure of confidential commercial information whose disclosure would otherwise be prohibited by section 162: see section 8X.

8X  Confidential commercial information must not be disclosed under certain provisions

 (1)  Engaging in conduct in the performance of functions or duties, or the exercise of powers, under any of the following provisions does not authorise the disclosure of confidential commercial information whose disclosure would otherwise be prohibited by section 162:

                     (a)  subsection 8F(2);

                     (b)  subsection 8S(2);

                     (c)  subsection 8W(2);

                     (d)  subsection 17(4) or (5);

                     (e)  subsection 18(4) or (5);

                      (f)  subsection 34AB(2);

                     (g)  subsection 34AC(2).

            (2)  Subsection (1) has effect despite subsection 162(1A).

It remains to be seen if other moves towards cost recovery for access to documents emerge under the banner reducing "red and green tape on business." To date cost recovery has not been part of the FOI 'right to access' equation.

Policy approach in Canberra: Ready, Fire, Aim

The Commonwealth Ombudsman wasn't consulted prior to the announcement of the decision to abolish the Office of Australian Information Commissioner and to reassign the FOI complaints function to that office. No additional resources were allocated in the Budget but some informal talks have started with AGD. Good luck. Extract from Estimates below.

The intelligence agencies, the Inspector-General of Intelligence and Security, and the National Security Legislation Monitor Brett Walker SC weren't consulted either about the abolition of Mr Walker's position and he got to know about it on 13 May, Budget day.

Rest easy in your beds though, we have plenty of oversight of those protecting national security according to Dr McCarthy, the Associate Secretary of National Security and International Policy, Department of Prime Minister and Cabinet:

 Senator JACINTA COLLINS: Why is the government abolishing the position?

Dr McCarthy : The government concluded that there is a range of oversight mechanisms available for national security legislation in addition to the National Security Legislation Monitor. Over the course of his three-year term, the monitor has conducted a very thorough review of national security legislation. At the same time the Council of Australian Governments commissioned a review of counter-terrorism legislation. That was a review that was agreed to when the Commonwealth and the states and territories agreed to new counter-terrorism legislation in 2005. At the moment, the government is considering some 98 recommendations in total from the monitor's second and third reports and the COAG review of national security legislation. There are also oversight mechanisms such as the Inspector-General of Intelligence and Security, the Parliamentary Joint Committee on Intelligence and Security, and of course other committees of the parliament.

Senator JACINTA COLLINS: Why then would the UK independent reviewer of terrorism legislation, David Anderson QC, have cited our legislation as a model for other democracies to follow?

Dr McCarthy : Well, that is the view of the UK monitor.

 Extracts from both Estimates hearings on 26 May below. 

Abolish OAIC, evidence or no.

The Government claims this decision to abolish the Office of Australian Information Commissioner will save $10 million over four years. Not mentioned is the cost to transparency, accountability and the open government cause certain to be of a high order  but impossible to quantify in dollar terms.

Attorney General Brandis announced the decision in the broader context of a move to simplify, streamline and improve efficiency and effectiveness in the conduct of merit reviews.

The claim is that these broader changes will deliver total savings of $20 million over four years.


 
Government goal
According to Senator Brandis:

The complex and multilevel merits review system for FOI matters has contributed to significant processing delays. Simplifying and streamlining FOI review processes by transferring these functions from the OAIC to the AAT will improve administrative efficiencies and reduce the burden on FOI applicants.

Dismantling the office goes far beyond what would be necessary to achieve this. What is proposed will not reduce the burden, financial or otherwise on FOI applicants.

Other options
The Government has overlooked other available options to improve the significant and unacceptable processing delays in merit review at the OAIC. The Office got nowhere over the last two years on the need for additional resources or at least to get the level of resources identified as necessary before it opened for business in 2010. Or any exemption in full or part from sharp cuts in the form of annual 'efficiency dividends.' Senator Brandis was very interested in exploring these issues two years ago in Senate Estimates. Not these days, apparently. 

The OAIC also put forward suggestions for changes to processes that would free up resources but required legislation to which the government, this one or its predecessor, never responded publicly. One was authority for the commissioners to delegate some functions.

Those of us on the outside also had ideas. Beefing up the OAIC, and limiting further review rights to a question of law, as is the case in WA and Queensland is just one of many that could streamline the multi-tiers. Another that might free up resources could be penalties of some kind or powers to be used that might dissuade agencies from resort to exemptions that have no merit and serve only to bide time and waste resources.

Leadership out the window
More broadly, dispensing with the independent statutory monitor and champion role for information access and open government takes us back to the 1995 Australian Law Reform Commission Open government report that identified the absence of such an office as an impediment to the administration of the FOI act. 

FOI was leaderless and rudderless then and for the next 15 years until this and more than 100 other recommendations were considered and acted upon in 2008- 2010.

So too synergies 
Much was made of the benefits also of combining information access and information privacy functions in the one office, and conferring  strategic information management functions on the Commissioner as well. As stated in the Second Reading Speech

The establishment of an Office of the Information Commissioner not only supports the important outcome of promoting a pro-disclosure culture and revitalising FOI, but also lays new, stronger foundations for privacy protection and improvement in the broader management of government information.

In unwinding the crucial underpinning of the 2010 reforms three and a half years on, none of this rates a mention.

Counter to trends
Abolishing the OAIC runs counter to international trends and to experience (to varying degrees of satisfaction) with information commissioner schemes in Queensland, NSW, NT, and WA and Victoria (FOI commissioners), and under the guise of an Ombudsman with special powers for this purpose in SA and Tasmania.

Not supported by evidence
I'm no fan of the Hawke review process but Attorney General Brandis has had the that report in his in-tray since taking office in September. There is nothing in it that justifies the abolition of the OAIC. Generally (page i)

the Review found the recent reforms to be working well and having had a favourable impact in accordance with their intent.  It (open government) has engaged more senior people in the process and triggered a cultural change across the Australian Public Service, although there is still some way to go on this aspect.  Further effort, driven from the top, will be required to embed a practice where compliance with the FOI Act is not simply perceived as a legal obligation, but becomes an essential part of open and transparent government.

More directly: (page 24):

The Review considers that the establishment of the OAIC has been a very valuable and positive development in oversight and promotion of the FOI Act.

And specifically on the review system cited by the Attorney General as the policy reason for the decision: (page 36)

The current system of multi-tiered review has been in operation for two and a half years.  At this stage there is insufficient evidence to make a decision on whether this is the most effective or efficient model for reviewing FOI decisions, particularly in relation to the two levels of external merits review.  The Review considers this issue warrants further examination and recommends that the two-tier external review model be re-examined as part of the comprehensive review recommended in Chapter 1.

The government chose to reach for the knife rather than look for evidence.

Costs to individual
A direct hit  to the hip pocket is coming for anyone unhappy enough with an FOI decision to want to box on with an external review application. There is no charge for review by the OAIC. But come 1 January complaining types who don't accept often questionable wisdom explained in convoluted and obscure language in an FOI knockback will be up for $816 for starters at the AAT. Demand for OAIC review (pdf) of agency decisions, running at around 500 a year in the OAIC, indicates a high level of ongoing dissatisfaction with agency decisions. Eight hundred and sixteen dollars can be expected to work wonders on the numbers. 

Unacknowledged cost to agencies
If as might be expected one of the changes arising from going back to the pre reform era will involve reinstating mandatory agency internal review before a matter can be taken to the AAT, there will be additional costs to agencies, already subject to resource limitations.
............

I'm looking forward to the Government's elaboration if the OAIC decision crops up in Estimates this week or when the significant changes to legislation to give effect to the proposal make their way into Parliament. And what Labor, The Greens and the cross benchers make of it all.

If you are concerned drop your local member a line. Mine, Malcolm Turnbull, will be hearing from me.

Relevant media and other comments, for convenience:

Estimates might shine the torchlight on disinterest in Open Government Partnership.

Senate Estimates next week will see plenty of probing on a whole range of issues in the transparency and accountability space. One that deserves a run despite the surfeit of competition for precious time is the continuing uncertainty over our intentions regarding the Open Government Partnership.

The OGP is an international initiative by governments, civil society and the private sector to promote transparency, empower citizens, fight corruption, and harness new technologies to strengthen governance. It should be right up the alley of any genuine democracy and those that have that aspiration. 

The Abbott government is fence sitting on whether it will proceed with the membership application foreshadowed by the Gillard government in May 2013. "Matter under consideration" has been repeated ad nauseum in the eight months since the election, but the foot dragging didn't start then.

I guess its long past  the point that any individual or agency can be held responsible for this start/stop/start/meander process.

But the timeline below of close to three years (and counting) of shuffling or standing on the spot shows what can happen when an issue lacks ministerial ownership or interest (this goes all the way back to Kevin Rudd and continues over the years to other Labor ministers and now to Attorney General Brandis and Finance Minister Cormann) leaving the public servants without direction to dabble with it from time to time.

Grrr!

The timeline includes brief commentary along the way. Would love to see the insider's version. Maybe in 28 years. Any senators doing the probing might find this useful.

Of course disinterest in the OGP is just one aspect of the bigger picture of declining interest in open transparent and accountable government. Estimates will have plenty of burrows that need the torchlight including the decision to abolish the OAIC.

The Trust Thing

A month before the furore over the Budget and broken promises,12% of Australians rated Federal (and state) parliamentarians highly for ethics and honesty, according to the most recent annual Roy Morgan poll of attitudes towards 30 professions. Nurses (91%), doctors and pharmacists (86%) were way out in the lead.

The pollies were down two (state parliamentarians three) points in a year, and a whopping 11 points since 2008, only matched by Ministers of Religion who dropped 13% in the same period.The ministers' current 37% score however is three times that of the politicians who tied with union leaders and in a field of 30 came in ahead of just three, real estate, advertising and car sales types.

With confidence in politicians to do what is right at such a low level, you would have to think someone in government is thinking about how to reverse the trend. It's not evident anywhere I look. 

Tony Abbott seemed onto this, citing the trust deficit as the biggest of those facing government from the time the election was called in August 2013. But it hasn't proved his strong suit then or since.

The Coalition for example had nothing to say during the campaign about how it planned to restore trust other than the mantra 'stop the boats' etc. The Budget, and denial that any promises have been broken will relegate the 'say what we do, do what we say' part of this to a storage box in the attic

Within a month of being elected, in response to the first integrity blow up, the government initially ignored abuse of entitlements by parliamentarians that came to light then spoke of changes at the margins rather than taking this head on and acting to ensure full transparency and accountability.

Our leader(s) in eight months haven't spoken up about the importance of open transparent and accountable government, leaving Immigration Minister Morrison unchallenged to set secrecy as the prevailing 'tone at the top.'

Agencies seemed to get (in some cases welcome) the message, almost uniformly refusing FOI access to incoming government briefs, a monumental turn around from three years ago. Some, well experienced in gaming the system, have taken this to new levels.
(Addendum: during Labor's last gasp, they and the Coalition rushed through legislation to exempt the parliamentary departments from FOI.)

Against this backdrop (and no response to the Hawke review which said someone should do the job thoroughly, he couldn't and didn't) the FOI framework is set to return to darker days that predate the 2009 reforms with the Budget announcement of the abolition of the Office of Australian Information Commissioner. FOI seems headed back to 'orphan' territory with no high level advocate or sponsor to proclaim, safeguard and nurture its essential elements. Reviews are headed back to the AAT at $816 flagfall plus plenty for help to match the legal resources available to the agency.

As to the goverrnment's intentions about proceeding with its predecessor's application to join 63 other countries in the Open Government Partnership all we hear is the matter is 'under consideration.' After eight months this reminds of Yes Minister where the phrase meant 'we have lost the file.' 'Under active consideration' at least meant 'we are trying to find it.' 

We didn't manage to send a minister to an OGP conference in London last year, and told Indonesian President SBY none could be spared to take up his invitation to Bali earlier this month..

We claim "Global leadership in combating corruption" but having ratified the United Nations Convention Against Corruption in 2005, we are yet to complete the required National Anti Corruption Plan.(The link to the Plan at the bottom of the page on the AGD website leads to "Not Found", no irony intended I'm sure.)

We have heard nothing about political donations and lobbying reforms despite regulations that are inadequate and pathetic disclosure requirements and the fact that the Federal Liberal Party is feeling the heat from the NSW ICAC hearings.

The Greens introduced the National Integrity Commission Bill in the Senate last Thursday. The Bill

"establishes a National Integrity Commission as an independent statutory agency which will consist of the National Integrity Commissioner, the Law Enforcement Integrity Commissioner and the Independent Parliamentary Advisor and provide for: the investigation and prevention of misconduct and corruption in all Commonwealth departments, agencies, and federal parliamentarians and their staff; the investigation and prevention of corruption in the Australian Federal Police and the Australian Crime Commission; and independent advice to ministers and parliamentarians on conduct, ethics and matters of proprietary. Also: provides for the establishment of a Parliamentary Joint Committee on the National Integrity Commission.." 

Three Coalition speakers spoke in the adjourned debate and generally poured a bucket on Labor and The Greens, but did not indicate government support. Labor (see John Faulkner's speech) is generally supportive although yet to decide.

Related issues such as a code of conduct for parliamentarians don't rate a mention anywhere.

Last week, both major parties passed legislation that confirm that refugees subjected to an adverse security assessment by the Australian Security Intelligence Organisation, have no right to know the reasons, can be detained indefinitely and can't challenge the merits of the decision.

Let me know what I've left out.

That 12% in April may prove to be a high point. 

Press Freedom in Australia stuck in the middle rankings

The 2014 Freedom House report on Press Freedom ranks Australia 33 of 197 countries.We have  hovered around this position since 2006. There is no published country report. The criteria involves 23 questions concerning the legal, political and economic environment. Sweden, Norway and the Netherlands are tied for first; New Zealand 22, Canada 26, the US 30.

The Press Freedom Report 2014 (pdf) published by the Media Entertainment and Arts Alliance doesn't go in for ratings but cites plenty of concerns in particular the need for uniform shield laws to protect confidential sources, the star chambers where current shield laws have no effect, and ongoing excessive government secrecy of the kind we see with 'Operation Sovereign Borders." 

Michael McKinnon's article on Freedom of Information for the third year slams the Office of Australian Information Commissioner, arguing for a direct right of review by the AAT. While some criticisms of the OAIC about timeliness are valid and have been made here as well, others in my view aren't. With the budget decision to abolish the OAIC, assign the FOI review function to the tribunal and complaints to the Ombudsman with no additional resources, 'guidance' functions to AGD, and drop leadership responsibillity for open, transparent and accountable government over the side altogether, McKinnon may have got more than he asked for.

Interesting that Section 18C of the Racial Discrimination Act was and continues to be seen as the greatest impediment to free speech in this country according to both Prime Minister Abbott before and Attorney General Brandis before and after the election. Ardour for repeal may have waned somewhat since but Commissioner Tim Wilson is still on the job, warning that s 18C in its present form is dangerous, potentially discriminatory and must be changed. To be met by other arguments for limited if any change.

But repeal or amendment of s 18C doesn't appear to be high on the journalists' priority list of freedom issues and concerns if the content of the Press Freedom Report is any indication. In 63 pages, it rates four sentences in the Law Summary (page 7) by Peter Bartlett of Minter Ellison who makes a plea for better ways to deal with frivolous complaints against the media, and adds:

"that said, we need anti-discrimination legislation to cover appropriate cases."

David Marr tries to jolt media organisations into action, suggesting government secrecy has reached the same low point of 2007:

There was such a campaign once: the Australia’s Right To Know coalition of proprietors and  the Media, Entertainment & Arts Alliance  (MEAA) formed in the last years of the Howard government which for a while galvanised  attention on problems that still face us today. But  it petered out in the Labor years – and not because  government under Labor was an open book. It’s time to revive the Right To Know. Journalists  will report and mock, but the union and the  proprietors need to insist. MEAA wrote to its  partners in the coalition in early February in the  hope that  “a comprehensive industry approach  may help in getting some movement in this area”.  A month later, not a single media outlet had  replied.  Yet the rhetoric  The Oz used when we were all  fighting for the Right To Know still looks good  today: “Australia has nothing to fear from  transparency, openness and access to information,  except that the workings of government, and our  journalism, will improve.”

In that year Australia was 39th in the Freedom House rankings, prompting media organisations to say 'enough.' 

The ARTK website has been dormant for years. As Marr recounts the MEAA attempt to get things moving came to nothing.

If the beast stirs, there are plenty of potential partners interested in holding government to the hard won improvements from a 30 year battle, and to take things further.

NSW lobbying reforms-not quite up to ICAC standards

NSW Premier Mike Baird announced yesterday further detail of changes to lobbying rules, which he said "will immediately implement ICAC recommendations on lobbying that were ignored by NSW Labor." 

Yes, they have been sitting, unattended in someone's in-tray for three and a half years.

But the changes, welcome as they might be, don't quite follow the ICAC recommendations summarised here in 2010 when the report was released.

The Premier said the package will increase transparency and enhance regulation of lobbying by:
. Establishing the Electoral Commission as an independent regulator of lobbyists;
. Applying a set of ethical standards to all third-party lobbyists and other organisations that lobby government;
. Empowering the independent regulator to investigate alleged breaches and impose sanctions, which could result in lobbying firms being removed from the Lobbyist Register and other organisations placed on a Watch List and their access to government restricted.   . Requiring Ministers to publish quarterly diary summaries of scheduled meetings with external organisations on portfolio-related activities; and
. Approving a recommendation from ICAC that the Ministerial Code of Conduct become applicable under the ICAC Act, giving the watchdog the power to investigate and make findings on a Minister’s compliance with the Code.  
(The Media Release is reproduced in full below-the new Premier doesn't appear to have a website for such things yet.)  

The ICAC Report proposed that an independent entity such as the Information Commissioner should maintain, monitor and enforce the rules ( Recommendation 8, and Chapter 9). Just why the Electoral Commission is a better choice hasn't been explained.

Other ICAC recommendations that seem to have been, ahem, overlooked include:
 • establish a public sector meeting protocol for the conduct of meetings with lobbyists, for the minuting of these meetings and relevant telephone calls, and for the retention of records of Lobbying Activity in accordance with the State Records Act 1998 (Recommendations 2 and 3, and Chapter 7)

• amend the Government Information (Public Access) Act 2009 (“the GIPA Act”) to include records of Lobbying Activity in the definition of “open access information”, for which there is no overriding public interest against disclosure. Under the GIPA Act, open access information held by an agency must be made publicly available, including on a website maintained by the agency ( Recommendation 4, and Chapter 7)
• the Lobbyists Register should  disclose the month and year in which they engaged in Lobbying Activity, the identity of the government department, agency or ministry lobbied, the name of any Senior Government Representative lobbied, and, in the case of Third Party Lobbyists, the name of the client or clients for whom the lobbying occurred and the name of any entity related to the client the interests of which did derive or would have derived a benefit from a successful outcome of the lobbying (see Recommendation 7, and Chapter 9)
• enable an interested person to use the information disclosed on the proposed Lobbyists Register, in relation to the date of lobbying and who was lobbied, in order to seek access to further information from the relevant public sector agency through the various mechanisms set out in the GIPA Act ( Chapter 9)
• impose restrictions on former ministers, parliamentary secretaries, their staff and senior government officers from acting as lobbyists ( Recommendation 10, and Chapter 10)

There were separate recommendations (13-17) for a new regime for local councils as well.

Alas, still a long way to go on the journey towards high standards of integrity in public life. 
Maybe more to come Premier?

But NSW is moving more than a tad ahead of Canberra and most other states - not before time of course.