Parliamentary entitlements reform: a case study in slow motion

CD cover

The long awaited Belcher committee report released on 24 March and the way successive governments have handled (or not handled) federal parliamentary entitlement reform hardly engenders confidence that we are about to see anytime soon the changes necessary to ensure parliamentarians are paid appropriately for what they do, provided with support facilities to do it well, and operate within a simple clear framework that ensures the highest standards of transparency and accountability. I'll leave to others comment on the substantive recommendations for change to entitlements and services intended to be fair and equitable to parliamentarians. Comments follow on the review process, and some of the transparency and accountability issues raised in the report.

Reform, openness, transparency- for parliamentarians

The Australian National Audit Office Report Administration of Parliamentarians' Entitlements by the Department of Finance and Deregulation was tabled in Federal Parliament today (Steve Lewis of News had a couple of pre-release exclusives). Its not a happy tale of a cosy generally opaque system that has gone merrily along since the last comprehensive review (in 1971!!!!) with limited regard for the sort of standards we should expect, even when (make that particularly when) our politicians are on the receiving end of a swag of public money. All aided by a "gentle approach" to oversight by the Department of Finance and Deregulation. More on that in another post.

The good news was this announcement by Special Minister of State in response that the Government has accepted all the ANAO recommendations and major reforms to the parliamentarians' entitlements are on the way, in two phases.

"We are committed to reform, openness and transparency to ensure that we maintain the trust and confidence of the Australian people,” Senator Ludwig said.

From 1 October:

• a further 25% cut to the current printing entitlement, from $100,000 to $75,000 per annum for Members and $16,667 to $12,500 for Senators (this is in addition to the 33% cut by the Rudd Government when elected to office);
• ending the use of printing entitlements for electioneering such as printing how to vote cards;
• capping, for the first time, expenditure by MPs on office consumables such as toner and paper;
• combining the current printing and communications allowance entitlements into a single entitlement;
• establishing a rigorous vetting and checking system within the Department of Finance to ensure the material Members and Senators print is within entitlement;
• reforming the current newspapers and periodicals allowance; and
• expanding the current reporting system to publish all expenditure of Senators, Members, former Parliamentarians, family members and employees, of entitlements administered by the Department of Finance and Deregulation. ( I understand "online" despite the fact Report the media release didn't mention this.)
  

Other matters- including reform of a complex framework based on "a mix of Acts and Regulations, Remuneration Tribunal Determinations, Ministerial determinations, executive decisions, procedural rules, non-binding conventions and ‘accepted practices" - have been referred to a panel for report within six months. I don't see the terms of reference anywhere but ABC News quotes the Minister or some source that it will cover

".. entitlements provided at Parliament House itself, remuneration allowances including the current electorate allowance, private plated vehicles, overseas study travel, entitlements to life gold pass and severance travel, entitlements of former prime ministers."

Particularly pleased that the entitlements administered by the Parliamentary Departments (which include payment of electoral allowance as a straight no questions asked entitlement, period) is to be under the microscope.

Memo state governments:take a leaf out of this book.

The OGP: Senator Faulkner says the time for Australia to join is now

Well goodness gracious me.

In a speech at the Melbourne search conference "Integrity in Government - A Work in Progress" today highly respected former minister, now government backbencher Senator John Faulkner spoke about the putative national anti corruption plan, the need for a Code of Conduct for parliamentarians, the long overdue comprehensive whistleblower protection legislation and electoral funding reform, and why there is no excuse for further delay on these important integrity reforms. And

the case for  Australian membership of the Open Government Partnership.

Excuse me while I pass the parcel - sorry can't help adding some emphasis. Is anyone in PM&C, DFAT, OAIC, and AGIMO listening? Take it away Senator:

The fourth key step the Commonwealth Government should take is to become a signatory and support the Open Government Partnership. Launched last year in New York, the OGP was established to promote transparency, tackle corruption, invigorate civic participation and, especially important in this digital age, harness new technologies, so the ideals of freedom and democracy are strengthened in implementing countries.

As the Open Government Partnership Declaration observes: “People all around the world are demanding more openness in government, calling for greater civic participation in public affairs, and seeking ways to make their governments more transparent, responsive, accountable and effective”. With its membership now numbering 57, national governments of the Open Government Partnership commit:To be more transparent at every level, by increasing the availability of information about the activities of government.To engage more citizens in decision making, so they participate more actively in their democracy, thereby making government more effective and responsive.To implement the highest standards of professional integrity throughout administrations, and To increase access to new technologies for openness and accountability.Though it goes by the name “Open Government Partnership” – it is in equal measure a partnership with civil society. Government does not have a monopoly on wisdom. The commitments of OGP member states are put into practice by working with civil society organisations to implement concrete plans of action. Already the OGP is setting a new global standard for good governance.

The OGP roll call of democracies committed to strengthening a global culture of transparency and accountability includes some of our oldest friends: the United States of America, the United Kingdom, Norway, and Canada. I am disappointed that Australia is a notable absentee.

The Australian Government has indicated that it is considering the detail of the initiative but has so far reserved its decision on participating in the Open Government Partnership.

Given the Government’s stated commitment to transparency, accountability and good governance, we should not hesitate to join this international effort to promote these fundamental values.  

Australia has always embraced and benefited from participation in international institutions and initiatives. We should seize the opportunity to do the same with the OGP.

It is ironic that the largest recipient of Australia’s overseas development assistance, Indonesia, is a very active member of the Open Government Partnership and currently a co-chair, yet, Australia is nowhere to be seen.  

When other recipients of Australia’s aid, such as the Philippines and Tanzania, are also members, I find it very hard to justify Australia’s absence. Membership of the Open Government Partnership would assist Australia to spread values of transparency and accountability in our region – a region where 22 of Australia’s 24 nearest neighbours are developing countries.

In light of the Gillard Government’s recent Asian Century White Paper and Australia’s new role as a member of the UN Security Council, Australia should utilise the OGP to encourage and support continuing efforts in our region to strengthen democratic processes and encourage greater scrutiny of government. 

Australia has a wealth of knowledge and experience to share with other nations who comprise the growing Open Government Partnership. For example, last November the Government unveiled a new Transparency Charter, which now publishes, online, detailed current information and results about what our aid program is delivering.

Internal audit reports and strategic direction documents are also being published online. Against this backdrop it is not surprising our Agency for International Development – AusAID  - was recently ranked 18 of 72 donors in the 2012 AID Transparency Index developed by Publish What You Fund – The Global Campaign for Aid Transparency.

Encouragingly, the report notes that AusAID had improved its transparency score by 31 percentage points and its rank by 16 places, but, it also made quite clear that Australia should consider joining the OGP.

One example of an international transparency and accountability initiative which Australia has committed to is the Extractive Industries Transparency Initiative or EITI. At last year’s Commonwealth Heads of Government meeting in Perth, Australia actively urged leaders to recognise the importance of sustainable natural resource management and commit to the EITI.

The EITI promotes better governance in countries rich in oil, gas and minerals by seeking to reduce the risk of corrupt diversion or misappropriation of funds generated by the development of a country’s resources.Australia is a member of the EITI Management Committee and has so far committed $17.45 million (2007 to 2015) to the World Bank administered Multi-Donor Trust Fund and the EITI Secretariat.

With the only other EITI-compliant country in our region being Timor Leste, the OGP would provide an excellent opportunity for Australia to encourage our other developing resource-rich neighbours such as Indonesia, Papua New Guinea, and the Solomon Islands to sign on. 

The OGP presents a great opportunity for Australia – a technologically advanced and open democracy – to underpin future commitments to openness, transparency, and accountability through engagement with an internationally recognised and respected multilateral initiative. Membership could only strengthen our democracy and governance. Through the Open Government Partnership we can advocate strongly for more openness in other nations while enriching our own.

The time for Australia to join is now.
 

Polly perks, lobbying, probity, sunshine...

From Saturday's Sydney Morning Herald further instalment about the scribbled system of disclosure of parliamentarians' interests and extras on the side:

An Australian National University professor who has written extensively on accountability, Richard Mulgan, says transparency is vital. "There is a very strong court of public opinion when it comes to parliamentarians," he says. "This is where transparency seems to me to be key. Politicians do live in a glass house and it's harder for them to get away with things."
But the present regime of disclosures presents many hurdles to accountability - not least because the forms are scratched in handwriting on unsearchable pages that must be examined individually. In the words of John Uhr, a professor of politics at ANU, the present system of disclosures "has still got a kind of 'club rule' about it, where the information is registered with the club official for club purposes"....
Australia's parliamentarians are not subject to many of the checks and balances that govern behaviour of parliamentarians in other Western democracies...Most politicians who accept gifts and lavish trips don't have to meet standards expected of federal public servants, whose behaviour must comply with a code of conduct.... The requirements for politicians to reveal duchessing and the like are based on a list of necessary disclosures set down in 1984 for members of the House of Representatives and 1994 for members of the Senate, and hardly changed since. The lists of disclosure are often obscure, poorly framed and inconsistent between the two houses... Confidence in the overall state of disclosures - and their ability to provide the "glass house" envisaged by Professor Mulgan - is not helped by omissions, opaque or illegible reporting and silliness.

Reminder: Prime Minister Gillard on forming government in August 2010 :

So, let's draw back the curtains and let the sun shine in; let our parliament be more open than it ever was before.

Reminder: the  Senate Finance and Public Administration Committee in March 2012 concluded everything was rosy with how the current regulation of lobbyists and lobbying in the form of a registration requirement is framed and works in practice. No recommendations for improvement according to the majority. The Greens Senator Lee Rhiannon in a dissenting report strongly disagreed and made eight recommendations for major change.

(Update: Senator Rhiannon reiterated the call last week for publication of "full details of MP’s interests, entitlements and perks online rather than unsearchable formats and paper records gathering dust in Canberra.")

Reminder: a  review of the system of parliamentarians entitlements commenced in September 2009 with the appointment of the Belcher committee, following critical findings about accountability and transparency by the Auditor General. The Committee Report came into the public domain when tabled in Parliament in March 2011, close to a year after it had been completed and handed to the government. "We are committed to reform, openness and transparency to ensure that we maintain the trust and confidence of the Australian people,” Senator Ludwig, the minister then responsible had said at the time the Committee was appointed.

Some improvements have been made since 2009 in public reporting on payments made by the Department of Finance separately from the Belcher review process, but that's just part of the picture- and the parliamentary departments are subject to the FOI act at least for the moment. Minister Gray in March 2011in announcing that two (of 16) Belcher committee recommendations had been acted upon, said the remaining recommendations had been referred to the Remuneration Tribunal, although some have nothing to do with that body. The minister said nothing then or since about when the tribunal should complete its work or when if at all the government will act on the recommendations.

Reminder: Speaker Peter Slipper and President of the Senate Senator John Hogg have said nothing on any of these issues.

Reminder: members of Federal (and state) parliament were rated very high or high for honesty and ethics in the Roy Morgan Survey of Professionals May 2012 by 10% of those surveyed- just ahead of the last three of 30 categories, real estate agents, advertising people and used car salesmen.

Ah, you've got to love 'em.

Queensland transparency-ticks and crosses

Time was tight, given speakers on the panel at the Queensland Premier's Open Government Policy Forum in Brisbane this week had five minutes apiece before the Q&A.

I tried to get through as many points as I could with observations drawn from the following rather cryptic notes. There are some issues that I didn't mention on the day, but meant to and was beaten by the clock. 

My central point was a government committed to the fine principles of openness, transparency and accountability should be consistent.

While Queensland leads in some respects, there are gaps and weaknesses in the transparency framework.

One issue rarely discussed in the context of open, transparent and accountable government concerns the measures or indicators of performance-what and how? 

Particularly pertinent if, as most discussion on the day suggested, culture change within the governmental system is essential. Making and measuring change in this respect remains a major challenge.

(Update-transcript and comments here)

My notes..

---

Ticks

Open data- nation leading in publication of data sets and plans for continuation of this journey, according to what I hear.

Transparency reform- national leading performance 2007-2009 with the Solomon review report and the push model, most of which made it through to the RTI act.

Continuing nation leading performance through publication on line of some cabinet information, publication on line of Premier and minister diaries, and recording, reporting and publication of lobbying contacts-the last mentioned as a result of changes by Integrity Commissioner David Solomon to the Code of conduct.

In the publication of gift registers such as this  Queensland is ahead of most.

And the Parliament as far as I can see, is the only jurisdiction to publish tabled papers on line. It also publishes the Member's Interest register

Crosses:

In my humble, plenty of scope for improvement...

Starting with Parliament, the Clerk's rejection of a request from Open Australia Foundation to allow republication of Hansard online which would enable OA to add the search capabilities that have made their Federal effort a real winner.

   

No disclosure or publication of payments to parliamentarians. The Department of Parliamentary Services is specifically excluded from the RTI act.The Department is responsible for payment of salaries and allowances to Members of Parliament, electorate offices and staffing and support services provided to Members at Parliament House. The accounts include expenditure of over $40 million on "Members Salaries, Entitlements and Electorate Office Services." No details of payments to individual members, including travel allowance are officially published or accessible.

The Callinan Report on review of the Crime and Misconduct Commission recommended legislative changes to the RTI act that would remove the requirement for reasons to be given for any RTI refusal of access decision until nine months later. The Government has accepted the recommendation in principle. This is a seriously bad move involving use of a blunderbuss to seek to protect privacy when a complaint has been received or an investigation is under way. A polishing cloth would do.

Unique and unprompted changes to the RTI act earlier this year that involve public disclosure of application details, and the scrapping of the exclusive use period which journalists argue is designed to discourage their use of the act.

The Premier's remarks at the Forum and the reference in the RTI issues paper suggesting the need for more protection for deliberative processes within government.

The review of the RTI and IP acts by the Department of Justice and Attorney-General is being conducted "with oversight by a steering committee of senior representatives from relevant departments." Submissions are invited. But a more citizen -centric approach would have been oversight of the review by a steering committee of senior public servants and community representatives with or without experience in the area.

The scope of RTI act- the issues paper released by Attorney General Bleijie raises the possible extension of the act to Government Owned Corporations not now fully covered, to corporations established by the Queensland Government under the Corporations Act, and to contracted service providers where they are performing functions on behalf of government. It stops short of suggesting extension proposed in 2011 by Mr Bleijie in Opposition to extend the act to cover any corporation supported directly or indirectly by government funds or other assistance, or over which the state, a minister or a department is in a position to exercise control. The privatisation agenda suggested in the Costello audit report might raise further issues about the public right to know and private sector entities.

No discussion in the paper of the absolute exemptions and whether a public interest test should apply. (Michael McKinnon of the Seven Network subsequently pointed to situations where the absolute protections for commercial in confidence and legal privilege had worked against community interests by contributing to a cover up of fraud and maladministration.)

No specific mention or querying the necessity for several unique Queensland absolute exemptions: the equivalent of a cabinet exemption for the Brisbane City Council Establishment and Coordination Committee, championed by the Premier when Lord Mayor; the ten year exemption for information relating to state and local government budgetary processes; and the eight year exemption for Investment incentive scheme information, to use one example that surfaced this week, the cost to the taxpayer of the deal for Virgin headquarters to relocate to Brisbane. 

The question raised in the issues paper about whether further protection is necessary "for information about successful applicants for public service positions."

The position of Information Commissioner has been filled on an acting basis for over a year.

The lobbyist registration and disclosure regime only applies to third party lobbyists.

According to media reports changes to electoral laws proposed by the Attorney General

will mean the political donation process would become "more transparent" with all donations of  $12,400 or more subject to monthly disclosures. Monthly disclosures will be an improvement on the current system where donations become publicly available 6 months after polling day. But as donations of less than $12400 would not be covered this is a retrogade step given the current cut off for declared donations is $2300. Labor in the federal arena has been pushing for $1000 but was blocked by the Opposition.The NSW Liberal Government has banned corporate donations.

 

The website listing Government Contracts, to this outsider at least, has limited search capabilities that make it difficult to use for accountability purposes

TI Corruption Barometer puts spotlight on open, transparent government

The Transparency International Global Corruption Barometer 2013 reports on public perceptions of corruption in 107 countries. 

Results for Australia are based on a survey (prior to March 2013) of 1200 people and includes ratings of institutions as corrupt/extremely corrupt.

Should we be surprised?

Political Parties 58%
Media 58% ( Only four countries gave corruption in the media a high rating-Australia, Egypt, New Zealand and United Kingdom.)
Business 47%
Religious bodies 44% ( But least corrupt in worldwide rankings.) 
Judiciary 36% (Third worldwide)
Parliament/Legislature 36% (Fourth worldwide)
Public officials and civil servants 35% (Fifth worldwide)
Police 33% ( Second worldwide)

We aren't alone on concern about political parties. Globally, "the driving forces of democracy, are perceived to be the most corrupt institutions." 

But Australians put the media and religious bodies way up the list compared to global rankings. And public office holders - judiciary, parliament, public servants and the police - lower down the scale than most others.

However, it's hardly reassuring that more than 1 in 3 rate the parliament and public servants as corrupt.  (NSW developments of course would have clouded the picture.)

And then there's the judiciary!

Five per cent report paying a bribe in the last 12 months.That's remarkable, or I'm showing my innocence or ignorance.

(Correction-5% appears in the published graphic but a reader points out the report doesn’t say that. "On page 10, Australia is listed amongst the countries where ‘<5%’ of respondents reported having paid bribes in the past year.  On page 33, the percentage for Australia is given as 1%.  And that’s in relation to any one of eight services: ‘education system, judiciary, medical and health services, police, registry and permit services, utilities, tax and/or customs, or land services’ (see endnote 11 on page 42)." The reader comments "1% is remarkably high —  but it’s not nearly as bad as 5%." I agree.)
 
In 88 countries the majority of those surveyed consider their government to be ineffective in addressing corruption.

Recommendations in the report won't surprise. They include making integrity and trust the founding principles of public institutions and services with transparency at the top of the list.

(Separately a recent study shows freedom of information laws work to reduce corruption over time, although they are not a quick fix.)

So as we head into pre-election or high election mode, some reflections on recent developments and inaction.

I'm sure these factors don't impact overly on public perceptions. 

But you can only speculate about the influence of a more positive, comprehensive embrace of an openness, transparency, accountability and integrity agenda:

• The Federal Parliament has just voted to exclude the parliamentary departments from the Freedom of Information Act, and none of the state parliaments other than Tasmania are covered by state FOI law.

• Dr Hawke's report on review of the Freedom of Information Act is yet to appear in public, and may or may not suggest changes that could see Australian FOI law move up from the current ranking of 48 of 93 countries surveyed. 

• Despite undertakings by former Prime Minister Gillard in 2010, we don't have a Parliamentary Integrity Commissioner. Legislation proposed by The Greens Adam Bandt. in May 2012 to create  the National Office of Integrity Commissioner, comprising three elements—the National Integrity Commission, the existing Australian Commission for Law Enforcement Integrity (ACLEI) and a new Office of the Independent Parliamentary Advisor - got nowhere.

• Similarly a Code of Conduct for Federal parliamentarians. Opposition backbencher Steven Ciobo told Parliament these sort of feel good things are a waste of time:

"The reason that there is still behaviour that people frown upon is that, fundamentally, it comes down to individual choice. Simply adding one more document to a pile of documents and simply having one additional public servant called an integrity commissioner is not going to change a thing. Anyone who believes that it will is delusional. It has not changed things in other jurisdictions. It is not as if in the United Kingdom or in the state of Queensland, where these types of vehicles exist, there is this great love of the parliament or towards parliamentarians. No. The same problems exist in those jurisdictions. This is nothing more than a feel-good exercise that will deliver no net tangible benefit whatsoever."

• The Government has been thinking and consulting about a National Anti Corruption Plan since 2011. It says it is "giving detailed consideration" to it all but we have nothing to show so far despite obligations under the UN Convention Against Corruption ratified by Australia on 7 December 2005.

• Political donation and lobbying laws are weak and reform efforts in recent years amounted to nothing.

• Silence on the Australian Law Reform Commission recommendation five years ago that the exemption for political parties from the Privacy Act should be removed. ("In the interests of promoting public confidence in the political process, those who exercise or seek power in government should adhere to the principles and practices that are required of the wider community..")

Yes, yes i know good whistleblower protection legislation did pass in the dying days of the last parliamentary sitting after Attorney General Dreyfus rescued the bill from years in the too hard bin. Addendum: but as a reader points out, the major parties opposed changes to the legislation that would provide protection for public officials who report wrongdoing by, you guessed it, politicians.

Bearing all this in mind, we wait to hear what the Government or the Attorney General's Department has to say about a National Action Plan, required by our membership of the Open Government Partnership, with transparency and accountability the touchstone to improving the way our democracy operates.

FOI transparency and accountability for parliamentary departments an "anomaly"?

Well, according to the Attorney General, it seems so.

Sean Parnell reports in The Australian today that the departments of the House of Representatives, the Senate, and parliamentary services are understood to have challenged the OAIC interpretation that they are subject to the Freedom of Information Act, have taken the issue up with Attorney General Roxon, and that she supports their view that the act was not intended to extend to these bodies:

"It has been long-accepted practice that the parliamentary departments are exempt from FOI," a spokesman for Ms Roxon said yesterday. "The government is currently considering its options to correct this anomaly."

This will be interesting, at a time when regard for politicians and parliament is at a low ebb, and "integrity" in public life in some respects at least seems missing in action. And when parliamentarians are only asked "voluntarily" to certify that use of entitlements is in accordance with the rules, and 52 still haven't done so for the period January-June last year.

The Greens Senator Rhiannon has fired off a media release this morning expressing concern about what may be coming:

 “Public money is what keeps the House of Representative and the Senate functioning and the public have a right to know how that money is spent. Parliament should not be beyond the reach of FOI...“Greater disclosure of the workings of parliament and the work of MPs is critical to a healthy democracy...“The Australian Greens have welcomed the news that the Australian Information Commissioner has found that parliament is subject to FOI laws, and that has been the case for the past decade...“While it is good news that the FOI laws apply to parliament, the information still needs to be made more accessible for the public. All parliamentary department websites should include up to date, easily searchable records of expenditure by MPs,” Senator Rhiannon said.

Couldn't agree more-that raises the unacted upon recommendations of the Belcher committee report as well.

But of course all it needs is for the major parties simply to vote together to amend the law to put the parliamentary departments beyond the reach of the FOI act. The opposition when in government between 1996 and 2007 did nothing to advance openness, but are yet to say anything on this one.

However while the OAIC opinion came as a surprise, arguing that the parliamentary departments should be exempt from FOI should require at least passing attention to the following:

1. The Australian Law Reform Commission recommendation in Report 77, December 1995, that the parliamentary departments be made subject to the FOI Act. The relevant section of the report reads:

1.8 The parliamentary departments are currently excluded from the coverage of the FOI Act.[23] In 1979 the Senate Standing Committee expressed the view that the 'parliamentary departments should be encouraged to act as if the legislation were applicable to them'.[24] DP 59 proposed that the parliamentary departments should be brought within the scope of the FOI Act on the basis that documents that warrant protection would be adequately protected by the exemption provisions, for example s 46 (parliamentary privilege).[25] A number of submissions, including that of the Clerk of the Senate, support the proposal.[26] The Department of the Senate has, in any case, always acted as though it were subject to the FOI Act, releasing documents unless they would have fallen within an exemption. In contrast the Department of Parliamentary Reporting Staff considers that it should remain outside the Act because it does not have a public policy role or provide services to the public. It claims that extending the FOI Act to the parliamentary departments could expose them to lengthy and costly legal challenges in respect of material they would claim to be exempt under s 46.[27] The Department of the Parliamentary Librarian also opposes extending the Act to the parliamentary departments for similar reasons.[28] The Review is not persuaded by these arguments. It remains convinced, particularly in light of the experience of the Department of the Senate, that there is no justification for the parliamentary departments to be excluded from the Act and that being subject to the Act will not cause any greater inconvenience for them than is caused to other agencies subject to the Act. Accordingly, it recommends that the parliamentary departments be made subject to the FOI Act.

2. Why the law should apply to the executive and judicial branch (in respect of matters of an administrative nature) but not the agencies that support the work of the legislative branch.

3. Why the Federal Parliament should remain outside the act while one jurisdiction that engaged in a wholesale review of the kind yet to be undertaken in Canberra, Tasmania, extended its act to cover state parliament on matters of an administrative nature.

4. Why the parliament should be excluded while respected bodies that promote accountability and transparency internationally such as the Carter Center advocate as a standard that all three branches of government should be subject to FOI law. The Australian FOI act was marked down on this in an international survey last year that saw it ranked 39 of 89 laws examined. And why in contrast to the home of Westminster, and elsewhere  where parliaments are covered, our's should be beyond the scope of FOI.

5. Why expenditure by parliamentary departments of funds allocated or administered on behalf of other agencies, around $230 million in this year's budget, by my reckoning (see 1.20), should not be subject to the same accountability and transparency requirements as other government agencies. Apart from what the 800 plus employees of the three departments do with public money, the allocations appear (it's murky territory) to include funds for salaries and electorate allowances of parliamentarians, additional salaries of parliamentary office holders, superannuation entitlements, resettlement allowance payments, and services and facilities to support parliamentarians in Parliament House including the cost of office accommodation, computing and other equipment, telephones, newspapers and stationery. And perhaps while the Speaker Mr Slipper who is accountable for the Department of House of Representatives is under investigation regarding travel as an MP, travel and entertainment for office holders such as the speaker and deputy speaker when on business connected to that office.

Let's hope common sense and good public policy prevails.

Same old, same old in South Australia

In preparation for an interview this morning with Radio Adelaide about the Hawke Freedom of Information review, and anticipating a couple of questions that didn't eventuate about South Australia, I had a quick look for an update on the local scene, and found-not much at all. 

SA stood to one side, along with the west, from the FOI reform movement of 2007-2010 that saw significant change at the national level and in Queensland, NSW and Tasmania. The SA FOI act of 1991 remains as it has always been since commencement 21 years ago and way short of a modern information access law that reflects 21st century expectations and norms.

In a recent reshuffle Premier Jay Weatherill assumed responsibility for the Public Sector and has announced political donation reform but is yet to mention transparency or open government as far as I can see. Tom Kenyon who had the job among others a year ago didn't seem well disposed to FOI but said something at the time about more pro-active publication. That may have been it.

The Ombudsman continues to haul some agencies back to toe the line when asked.

But it's the same old, same old in SA - an out of date law, limited publication requirements, the exclusions include parliament, no online publication of parliamentarians entitlements, no legislated requirement for publication of contracts (note in passing: no disclosure of payments to Lance Armstrong), no transparency regarding grants to industry, lobbying rules limited to registration for some but that's it, lack of leadership on openness and transparency, closed government culture, delay, high cost, limited resources, etc, etc. 

SA alone has an accredited FOI decision maker system, but I've not seen any evaluation of how that has worked.

With a year to go to the next state election, perhaps time for some pressure on the major parties to join The Greens Mark Parnell and Family First Robert Brokenshire in at least talking about transparency and open government?

If only Radio Adelaide had asked....

Bipartisan support for overkill, and a shared blindspot in quarantining parliament from FOI

Fairfax papers gave prominent coverage - "Secrecy law veils MP perks" the front page lead in the Sydney Morning Herald and elsewhere on Saturday - to the other result of the outbreak of bipartisanship in Canberra last week: legislating without dissent in  the House to exclude the departments that support the Parliament from the Freedom of Information Act

Not in the 11 minutes that it took to debate and pass the bill in the House last week, or elsewhere publicly since has there  been any attempt to explain why the legislation is needed now as an interim measure a year after the situation emerged. And with the report on the operation of the FOI act by Dr Hawke still under wraps but due to be tabled any day soon..

Nor why the exclusion is total and retrospective when in a joint submission to Dr Hawke, the three departments argued for less than what the bill gives. Simply for FOI coverage to be restricted to matters of an administrative nature , along with a few other specific amendments.

Something less than the proposed Government-Opposition complete FOI wipeout might be acceptable although you have to wonder how they've coped at Westminster with the full nelson for the last eight years (no, we know the answer, uncomfortably-see Robert Hazel), and in parliaments also subject to FOI in Scotland, Wales, Northern Ireland and elsewhere.

I'm wary of  the inclusion/exclusion "in relation to matter of an administrative nature" because these words used in a number of exemption provisions are being interpreted narrowly in the courts. Decisions regarding the Governor General's office and the FOI act for example in effect mean (paraphrasing) any document that relates to supporting, assisting, facilitating, or implementing what the Governor General does as part of her functions is beyond the reach of the FOI act. The Federal Court  in that case said the bright new shiny objects of the act were not relevant, so there was no leaning in favour of a broad interpretation of words such as this to assist the exercise of rights of access, and scrutiny of decision making. (There is an application for leave to appeal to the High Court awaiting to be heard.) 

A turf war over what "matter of an administrative nature" means in the context of the parliamentary departments is to be avoided. Certainly where payments to, for, in support of or on behalf of  parliamentarians are concerned.

A better approach if there is to be a carve out would be to legislate with some degree of specificity what is or isn't subject to the act . And ensuring payments to members and senators, and expenditure incurred in providing support are part of the publication requirement. Something recommended generally as a transparency initiative by the Belcher committee way back in 2010:

1. That the government’s decision to publish details of all expenditure on parliamentary entitlements administered by the Department of Finance and Deregulation be underpinned with a legislative basis.
2. That all senators and members be required to provide a link on their official parliamentary websites (at www.aph.gov.au) to their individual expenditure reports on the Finance website.
3. That the presiding officers be encouraged to publish on a regular basis details of expenditure on services and facilities provided to individual senators and members by the chamber departments.(Recommendation 11.)

Last time I looked two only of the many Belcher committee recommendations, and not No 11, had been acted upon.

Back to Parliament and the FOI act.....

In an interview on ABC Radio AM on Saturday Keith Breene asked what could be potentially hidden as a result of the FOI move:

PETER TIMMINS: Well, these three departments have an allocation of about $170 million-odd a year, so I guess like any government department there are important scrutiny issues about how government agencies go about making decisions, spending public money, letting contracts. In this case, some of this money is spent on our parliamentarians.

A lot of that information about their entitlements is published by the Department of Finance, but there are other payments made by the Department of the Senate and the Department of the House of Representatives to our parliamentarians, and I guess that's a bit of a strange anomaly in the system, that that should be given special protection by not being subject to the FOI Act.

KEITH BREENE: Are there any reasons apparent to you why these three departments should be treated differently to other parts of the Parliament or the government?

PETER TIMMINS: No, not really, and there's some very strong reasons why they should be subject to scrutiny. I mean, we live in a democratic society; in a democratic society, transparency and accountability are important values.

Public scrutiny is essential for anti-corruption purposes. The Government has on the record an open government declaration of 2010, and importantly, on the day that the Prime Minister formed government - Julia Gillard formed government in 2010 - she said that day, and I quote: "let's draw back the curtains and let the sun shine in, let our Parliament be more open than it ever was before."

So all this seems to be a rather strange move at this stage.

KEITH BREENE: And what do you think it says about the attitude of Parliament to openness generally?

PETER TIMMINS: I think it sends a pretty strong message that they'd like to leave things the way they used to be, and in the modern context, I think the demand for transparency and accountability runs quite counter to that idea.

This is the source of that quote from Prime Minister Gillard (7 September 2010) which reads

Throughout this process of forming a new government we've been open with the Australian people. To quote Rob Oakeshott, sunshine is the best disinfectant, and we've agreed to far-reaching reforms that make me as Prime Minister and our government and how it functions more accountable to the Australian people. So, let's draw back the curtains and let the sun shine in; let our parliament be more open than it ever was before. That's real reform, and that's the direct result of the election.

 The Prime Minister also said that day:

 Well this is an opportunity for the nation.. to listen to what the Australian electorate told us at this election. I've heard the message loud and clear. People do wanna (sic) see us more open, more accountable, more transparent. I am going to be held to higher standards of accountability than any Prime Minister in the modern age. I'm well aware of that, and I'm going to focus on being up to that challenge. And I'm also well aware that when we go to the polls next time in 2013, Australians are going to hold me to account and I wouldn't have it any other way.

Ah, those were the days:

Some analysis of the FOI reform package.

Minister Faulkner's Freedom of Information reform package is draft legislation to give effect to Labor's election commitments. ( Memory jogger- pre-election policy.pdf ).The commitment apart from words about the end of excessive secrecy, change in culture across government, and promotion of greater opennness and transparency, was to implement "key findings" of the Australian Law Reform Commission 1995 Open Government Report to revise (in largely unspecified ways) the Freedom of Information Act, to rationalise exemption provisions, abolish conclusive certificates, review charges and establish an information commissioner. The Minister clearly sees the draft legislation as something to wave in front of the public service as evidence that the government is serious about culture change.He said last week he had a memo to public service leaders sitting on his desk to this effect, hopefully sent by now.

The proposals deliver mostly on a legislative scheme to deliver on the commitments. Selectively mind you when it comes to the 106 Recommendations of the ALRC-see below. Here and there, for example in abolishing application fees entirely, the draft goes beyond what was proposed by the Commission.The Government's separate move to abolish all conclusive certificates also goes further than the Commission recommendations.

But "rationalise exemption provisions" has produced a bit of a damp squid with the abolition of two rarely used exemptions (Executive Council documents and documents prepared in accordance with companies and securities legislation) and a sub-section relating to documents concerning the conduct of industrial relations, all as recommended by the ALRC. All other 16 exemptions (including many internal combinations and permutations) remain, with a couple of welcome changes but some ALRC recommendations not acted upon. Exemptions will now be arranged in two neat boxes - absolute exemptions, and conditional exempt documents where a public interest test applies. (More about these in another post shortly.)

Some media reports suggest confusion that the Minister's statement about a single public interest test means there will be one exemption. That's what Queensland is proposing. Federally it means only that the current situation of several different formulations of a public interest test in the Act will be replaced by one test- whether disclosure is contrary to the public interest, relevant only to specified exemptions but not others.

Many of the ALRC's 106 recommendations related to non-legislative measures but quite a few statutory changes on issues other than exemptions have been rejected without explanation. As already pointed out, its a big x for the recommendation that the parliamentary departments which spend and pay money on and to our parliamentarians be brought within the scope of the Act; ditto for a recommendation now 13 years old to reduce the time limit for dealing with an application in three years from 30 days to 14 days; ditto that charges should only be imposed in respect of documents released; and ditto for other proposals of varying significance such as that chief executives of government agencies should have a duty under records legislation to create "such records as are necessary to document adequately government functions, policies, decisions, procedures and transactions." You might be surprised they don't have such a duty already, only an obligation to safeguard records once created.

Overall there are important positive changes- notably the proactive publication requirement- even if it falls way short at this stage on detail as mentioned here last week- and the pro-disclosure bias achieved through a clear statement of the objects of the act and a more forceful expression of relevant and irrelevant public interest factors.

But what we will end up with is hardly an access to government information act tailored to community needs and expectations and reflecting 21st century realities. It's still essentially the 1982 Act- in fact drafted in the 70s- with a lot of legalisms and horse and buggy features of the original, amended to reflect some aspects of the internet, to give effect to election commitments, and informed by many but by no means all of the changes recommended by the Australian Law Reform Commission all those years ago.

The reforms therefore represent significant incremental change but limited rethinking of basic concepts. In the dry and dusty 130 pages of proposed changes to the legislation there is no hint of bigger, broader consideration of access to government information in the Google Age. It wasn't much of an issue way back in 1995 when the internet and the information age had just dawned. But the debate (as picked up to some degree in the Queensland Solomon Report Chapter 3) these days has in some respects moved on from a good law that fairly balances the right to know and the imperatives of good government. The discussion is about government wide information access policies; the linking of public access considerations to an approach to information and communications technology management that is geared to reflect the changing sensitivity of information over time; access to search tools that would enable the citizen to search for government-held information of interest; improved access to digital information including government databases that might promote investigative reporting and further action by those outside government to achieve government policy objectives. And agency score-cards, performance agreements with chief executives, and penalties for obstruction.

Maybe the Government recognises this and expects the detail to flow forth when we have an information commissioner, or when we have a further review of the Act two years after the new legislation takes effect. In the meantime once the legislation passes Parliament later in the year, you will in 2010 be able to lodge an FOI application by email!!

If you are interested in ideas about FOI 2.0 this presentation by Rick Snell last year outlines what openness and accountability could mean in our times. (Pdf)

One reason we won't be spending much time tossing around these ideas is that the Government has done a neat job of "framing" the problem and the answer by putting on the table the proposed amendments to the Act in a way that will certainly limit public input to the proposals put forward, not broader concepts. In addition the technical language of the bill will limit participation in the discussion to the boffins and usual suspects. Few others will get through the draft and the links back to the Act, ALP policy and the ALRC Open Government Report to try to work out what was promised and recommended, and the merits of what is now proposed.

To the outsider, the bulk of available time to date on FOI reform appears to have been spent by Minister Faulkner, his office and the public service engaging in a 16 month, largely private internal seminar on drafting legislation to enable the Government to tick the box on another election commitment. It could have been different if there had been a serious attempt to reach out to engage the community on the subject of government transparency and accountability, not now after 16 months, but way back when minds first turned to the subject.That didn't occur. Overall, however its way better than what was on offer-nothing- from the last lot.

The rest of us have about six weeks now to offer a comment.

Check your Federal MP, while Belcher bounces

Reports on Parliamentarians Entitlements and study reports on overseas travel for the six months to December 2010 were tabled in Federal Parliament this week. Check your local and anyone else of interest. And Special Minister of State Gary Gray said the Remuneration Tribunal is considering the remaining recommendations of the Committee for the Review of Parliamentary Entitlements (the Belcher Report). 

You may or may not be impressed by the Minister's statement that the Government has acted on two recommendations. The first ensured the allocation of positions to the Opposition now reflects the number of Government positions at each classification grouping, not just in total numbers. The second in legislation passed this session gives the Remuneration Tribunal the power to determine parliamentary base salary and requires decisions and reasons to be made public.

Nothing has been said about any of the other recommendations some of which go to transparency issues that are for the Government and the presiding officers of the parliament to act upon, and have little or anything to do with the Remuneration Tribunal. This summary and comment  in April provides more, if you are interested.

Reminder The review of parliamentarians entitlements started in September 2009, following critical findings by the Auditor General. The Belcher Report was tabled in Parliament in March 2011, close to a year after it was completed and handed to the government. "We are committed to reform, openness and transparency to ensure that we maintain the trust and confidence of the Australian people,” Senator Ludwig, the minister then responsible said at the time the Committee was appointed. Some improvements have been made in public reporting on payments made by the Department of Finance separately from the Belcher review process, but that's just part of the picture. Minister Gray's Media Release said nothing about when the Remuneration Tribunal will complete its work or when the Government will act on the Belcher recommendations. The next election will be in 2013 if the parliament runs full term.