Media almost missed MPs privately sponsored travel

Most observers (including me) were surprised at developments last week that revealed it was commonplace for members of parliament to accept sponsored travel from private interests. The hot issue was the revelation that the Prime Minister when Opposition Spokesman on Foreign Affairs had accepted travel paid by Beijing AustChina for a number of trips to China and other destinations such as the US, UK and Sudan. Other frontbenchers now ministers such as the Treasurer and the Minister for Foreign Affairs also took advantage of this generosity.

The Prime Minister's response was that as the Opposition had no funds for such travel, there was nothing untoward in all this and details had been included at the time in his returns provided for the Parliament's register of interests.

It sounds like the media wasn't paying much attention to what was in these returns, and the paid trips only came to light when Crikey.com ran the story a couple of weeks ago.

At present the returns and the register are available for public inspection during business hours at Parliament House Canberra.

This isn't good enough. As the headline on the Canberra Times article mentioned above, this is everybody's business. We shouldn't be dependent on the media alone to scrutinise the interests declared by members of parliament. This sort of stuff should be published on the web as a matter of routine. Just as it is in Scotland where this website includes a link to the current return of interests by each member of the Scottish Parliament. Or as it is in NZ where the latest annual return for all members is on the web. Or as it is in the US Senate where a database of all approved travel paid for by private interests is available for all to see.

We shouldn't have to plan a trip to Canberra to see who has been 'generous' in helping our parliamentarians see the world. It's another initiative that should appeal to any government interested in improved standards of openness and transparency.

I haven't looked but presume we have the same blinkered approach to the publication of the declaration of interests of state and territory MPs.

Whisteblower law commences, to mostly silence, little applause

The Gazette of Law and Journalism (subscription) has published my article on the Commonwealth Public Interest Disclosure Act. 

The act came into force on 15 January 2014. 

To almost no acclaim, despite the fact it brings the Commonwealth public sector somewhat into line with all the states and territories, was first recommended by a parliamentary committee in 1994, and is seen by the experts (with various qualifications) to be a reasonably good shot at a scheme of this kind. 

Parliament passed the bill through the final stages in the last days of sittings prior to the September election, six years after Labor put in on their agenda. The Coalition supported the bill through both houses. Now in government, it has the task of implementing the law.

The Prime Minister is the responsible minister. On leave at the time, neither he nor then acting prime minister Warren Truss issued a media release regarding commencement of the scheme, or commented then or since. SBS was one of the few media outlets to mention it.(The Ombudsman issued a media release in June.)

This was a missed opportunity to set tone at the top by drawing to the attention of officials and the public the worthy objects of the act: to promote integrity in government by encouraging officials to make public interest disclosures, ensuring those who do so are supported and protected from adverse consequences, and that disclosures are properly investigated and dealt with.

The only reference to whistleblowers from Abbott government ministers to date concern the 'treacherous' Edward Snowden.
(By the by an Australian in similar circumstances wouldn't find any solace in this law as going public with any intelligence information or information about intelligence agencies is not a protected disclosure. Sections 70 and 79 (based on provisions of the Official Secrets Act 1911 (UK)) of the Commonwealth Crimes Act impose a duty to treat this type of information as secret, full stop. Four years ago the ALRC identified over 500 other secrecy provisions in the law book and recommended changes. No minister in any government since has said a word in response. Meanwhile those in Australia who work at the Guardian and the ABC who have accessed Snowden's documents can ponder what they would do if a Snowden showed up here with Australian material: s 79 as it stands provides for between two and seven years imprisonment for a person receiving information knowing or having reasonable ground to believe, at the time when he or she receives it, that our official secrets have been communicated to him or her without authorisation. I digress..)

The absence of high level, visible and forthright leadership on this integrity measure, in the current context - Snowden the 'traitor', the absence since assuming office of government statements about the importance of transparency and accountability, the closed shop regarding "border security," the uniform shift away from publication of incoming minister briefs, silence on the previous government's commitment to join the Open Government Partnership - will see public officials draw their own conclusions about the significance that should attach to it.

That's even before any attempt to come to grips with exceedingly complex legislation.

Guidance material concerning the PID act has been published by the Ombudsman.

But more guidance, awareness, training and evidence or scuttlebut that conveys the general impression over time to those gathered around the water cooler that the scheme works will be needed to counter the view that many of the public spirited who have trod this path in the past have done so with career ending consequences.

In the article I work through the definitions of "disclosable conduct" and "protected disclosure" to illustrate that any public official inclined to seek the protections will need to tiptoe carefully through a minefield, where missteps and mistakes could prove costly. 

You might like to test your own level of understanding of the definitions in Part A Division 2 of the act.

There are lots of questions that arise about what constitutes disclosable conduct. One, the scope of “an abuse of public trust.” The term is not further defined in the Act or the published guidance so far and could prove to be a lawyer’s picnic, given the notion that something akin to a trustee describes the relationship between the government and the people in a democratic society.

FOI in the news

Media reports based on FOI applications over the last week included:

Daily Telegraph 24 July:
” Secret police file of shame” - The NSW police training College at Goulburn has become riddled with poisonous culture where sexual and workplace harassment is rife according to The Daily Telegraph. This report is based on documents released 12 months after the FOI application and following a complaint to the Ombudsman. A separate AAP report said that the Police Commissioner will review all serious allegations of misconduct.

“$1.6m on buses as trains fail” NSW Countrylink spent more than $1.6 million providing emergency buses in the first four months of this year because of derailments, missed connections, late trains and mechanical failures. The figure -- on top of the money spent providing buses when planned trackwork is being done -- has blown out to $4 million over the past two years.

The Australian 24 July: “Aged care Michelin Guide mooted” Choosing a nursing home could be as easy as browsing a Michelin-style guide that assigns a star rating to the food, services, and quality of care providing by different facilities.A five-star rating system was just one of the options considered in a report commissioned by the federal Government on how to best match people with available aged care homes. But the report, obtained by The Australian under Freedom of Information legislation, finds a rating system that could be used by a matchmaking agency not dissimilar to a travel agent is not feasible at present, because long waiting lists mean most people have no choice.

The Herald Sun 25 July: “Fatter and fatter” Melbourne Market Authority chief Bob Penter has spent almost $210,000 in expenses in the past five years and spent a total of three months overseas at a cost of $85,000 between 2000 and 2005.

The Australian 26 July: “Minister exposed on parrot” Federal Environment Minister Ian Campbell ignored explicit advice from his own department that stated a $220million windfarm posed no obvious threat to an endangered parrot and should be approved. Senator Campbell vetoed the project despite warnings from one of his top bureaucrats that using the orange-bellied parrot to stop the windfarm could have widespread ramifications for coastal development in four states. See also this report in the Age.

The Age 28 July: “Switched off on digital TV “ in this opinion piece the author claims the Federal Department of Communications responded to an FOI application for information about conversion from analogue to digital television by saying there was already plenty of information publicly available.

The Weekend Australian 29 July: "Cheques and balances"- this article about Centrelink includes information obtained in response to an FOI application that almost one in two records in a random sample contained errors.

Sydney Morning Herald 29 July: In his weekly “What they won’t tell you column” FOI Editor Matthew Moore in “Dead letter office” reports on a one year delay in seeking access to a letter to a NSW farmer regarding illegal land clearing. You can see the letter that caused the fuss.

As usual some links not available in free content.

Freedom of Information: High Court Osland decision

ABC TV

The High Court in Osland v Secretary to the Department of Justice [2010] HCA 24 decided that the Victorian Court of Appeal had failed to do what the High Court in an earlier decision had ordered, and stepped in to do the job itself. In a unanimous decision ( three separate judgments) the six judges found there was no error of law in the decision of the President of the Victorian Civil and Administrative Tribunal Justice Morris in August 2005 that the differences between the advices from senior counsel to the Victorian Attorney General whether to grant a petition of mercy on behalf of Mrs Osland provided the "powerful reasons" for requiring access to the documents in the public interest. In the circumstances of this case, the Court decided public interest considerations overrode the valid claim of legal professional privilege, and granted access to the 300 pages of advice received by the Attorney General from all sources . The decision is an important precedent on how factors particular to the applicant can be highly relevant to the public interest in disclosure, and on the interpretation and application of the almost unique override discretion conferred on VCAT by s 50(4) of the Victorian Freedom of Information Act. "Almost" because the NSW Administrative Decisions Tribunal has some capacity to override an exemption in dealing with FOI matters, but not in respect of legal privilege, and the GIPA act to commence this week will have the effect of winding back the the discretion in some respects as well.

Since Justice Morris made his decision five years ago this matter has been the subject of a Court of Appeal decision, a High Court decision, a further Court of Appeal decision and finally this decision in favour of Mrs Osland. There is an interesting question about what all this cost the Victorian taxpayer, also stuck with an order to pay her costs in the High Court. She will now get to see, nine years after her Freedom of Information application, that there was more to the advice received by the Attorney General than indicated in this media statement in 2001:

"On July 5, 1999, Mrs Osland submitted a petition for mercy to the then-Attorney General, Jan Wade. That petition set out six grounds on which the petition should be granted.  Following consultation with the State Opposition, I appointed a panel of three senior counsel, Susan Crennan QC, Jack Rush QC and Paul Holdenson QC, to consider Mrs Osland's petition.This week I received a memorandum of joint advice from the panel in relation to the petition. The joint advice recommends on every ground that the petition should be denied.  After carefully considering the joint advice, I have recommended to the Premier that the Governor be advised to deny the petition.  The Governor has accepted this advice and denied the petition."

While not mentioned in the release, advice had been received from the Victorian Government Solicitor, and a senior counsel, Robert Redlich QC, among others, in addition to the three counsel referred to in the statement. Differences between advices, the basis of the decision by Justice Morris, turned out to be a crucial point in the case in the High Court.

Crennan QC, now Justice Crennan of the High Court did not sit in proceedings for obvious reasons.

Data security breaches: is the US unique?

Incidents concerning major data security breaches have been reported in the US media with such regularity over the last year or so that they seem commonplace.

Privacy Rights Clearinghouse has put together a chronology of data breaches reported since the ChoicePoint incident in February 2005 involving the access to credit card processing details by ID thieves (ChoicePoint was subsequently fined $15million over this incident).

The Clearinghouse list includes data security breaches by private companies, government organisations, hospitals and universities.

They claim details of 88 million Americans have been put at risk.

Incidents over the last week are listed on Pogowasright. Both lists just missed a report of data stolen last month from a government employees house about 2.2million US troops in the National Guard and Reserves.

Is this just a US phenomenon or is the rest of the world missing something?

This article in Computerworld Security "Why isn't Europe suffering a wave of security breaches" says that a recent survey found US privacy practices do not suffer in comparison to European counterparts but 50 privacy experts in North America and Europe cite 3 major factors to explain the difference: US practices are under the microscope,with obligations to report these incidents that don't apply elsewhere; European data practices are more robust; US data collections are more attractive and lucrative targets.

Could the same factors explain the difference between what's been happening in the US and the very limited public information about data breaches in Australia?

The prevailing view here seems to be that we are travelling pretty well - see the Federal Privacy Commissioner's comments to a NZ conference recently. At a symposium in Sydney recently the Commissioner in response to a question about this issue, said Australian organisations generally were a compliant lot(really?) and this might explain the difference .

I've got my doubts. I think the absence of an obligation to notify those affected by a data security breach (now the law in almost 30 US states) is a major difference.

Who knows what might emerge here if our regulators had the resources and drive to dig deeper?

Thanks to David Fraser's Canadian Privacy Law blog and Pogowasright for some of the leads.

Australian Information Commissioner accused of lacking "teeth and ticker"

The 2012 Report on Press Freedom in Australia released by the Media Entertainment and Arts Alliance, Kicking at the Cornerstone of Democracy (see the full report here pdf), includes four articles on Freedom of Information. One unattributed (p 22) and one by academic Johan Lidberg (p 29) make reasonable points about shortcomings in the law and the system. Another by Christian Kerr of The Australian (p 20) provides a couple of FOI war stories. Then there is an article by Michael McKinnon, FOI Editor at the Seven Network (p 26) that makes some valid critical comments about the state of play but over-reaches in a couple of respects.

Michael McKinnon

McKinnon, a Walkley award winner in 2009 for leadership in this field, (and a winner for investigative journalism as well) has a great record as a vigorous applicant, has blazed many FOI paths, and is an exceedingly able advocate in his own cases in the tribunal and courts. He knows his FOI oats, so his observations about the state of the game deserve attention. However...

The heading, "An Unwelcome Freedom Rider" (probably not McKinnon's doing), is one of those ambiguous sub-editor smarty jobs, but in the context of what follows comes across as a personal shot about lack of ticker:

Freedom of information requests are all too often subject to unwarranted delays, bureaucratic wrangling and nit-picking refusals, writes Michael McKinnon The reformed FoI Act announced three years ago was to have its own watchdog, the Commonwealth information commissioner. But Seven Network’s FOI editor Michael McKinnon has found the watchdog lacks both the ticker and the teeth for the job

The watchdog could do with more teeth for sure in the form of powers to lay down the law and pull some out there on board, or in line. But the lack of "ticker" charge is unwarranted.


As to the article itself, the Commissioner Professor McMillan doesn't need me to defend his administration, or his views, but the following is a summary of what McKinnon had to say, with a few counter-points of my own.

(I notice Professor McMillan responded to recent commentary about the charges review by Perrin Brown of Monash University on The Conversation,. He is welcome to respond to this, as is Michael McKinnon.)