Where else but Queensland.

Online Freedom of Information applications have been possible in Victoria for some time (at least to the 10 Government Departments and Victoria Police). In Queensland the Government's Smart Service website now shows the way with a more comprehensive online application service. Just about everywhere else in the country it's still paper and pen, but glad to be corrected. Queensland is also now selectively posting on the web information about issues considered by cabinet and cabinet decisions - the latest for matters considered last October. The earth still turns, the sun still rises....

Decision 2010 and Freedom of Information

The Attorney General's debate on Friday saw Opposition shadow Senator George Brandis announce an FOI initiative, but otherwise there has been no mention during the campaign about this or related transparency and accountabilty issues. Brandis said:

".. a Coalition Government will transfer responsibility for freedom of information laws from the Special Minister of State to the Attorney-General’s portfolio and a pro-disclosure culture will be observed in fact not merely in rhetoric. As Attorney General I will drive the right to know agenda just as former Liberal Attorneys-General, including Peter Durack, the father of FOI, in Australia, have done." 

Putting policy responsibility for FOI and privacy in the Prime Minister's Department with the Special Minister of State responsible for this area and other accountability and integrity issues from November 2007 was a Rudd government initiative that deserved a tick. The proposal to put FOI (and presumably privacy, also administratively linked with FOI in the Office of Australian Information Commissioner) back in Attorney General's doesn't.

Major parties respond with faint praise but nothing else to Senator Patrick's FOI reform bill

 In 2018 Senator Rex Patrick sponsored the introduction of the Freedom of Information Legislation Amendment (Improving Access and Transparency) Bill and made the second reading speech, the bill was referred to the Legal and Constitutional Affairs Legislation Committee, the Committee report recommended the Senate not pass the bill (Senator Patrick and Greens senators dissenting)......

And there the bill sat until last week when it came on for Senate debate for 70 minutes before time expired.

The major parties did not support the bill in 2018 and reaffirmed that in 2020, so its fate is clear. 

Senator Patrick managed to get an acknowledgement that the government respects the intent to 'make government more transparent and more accountable, to assist citizens and the media to access information under the law and to improve the effectiveness of Australia's freedom-of-information laws' and from Labor that the bill was "well intentioned, and many of the proposals it puts forward warrant close examination' , but that was as far as they went.

Among the remarks worth highlighting:

Senator Amanda Stoker (Queensland, Liberal Party)

The government remains steadfast in its support for transparency, for the value of the freedom-of-information arrangements and for providing substantial funding to the Office of the Australian Information Commissioner so that it can do its job of making sure Australians can access important information from governments.... the objectives of transparency, accountability and freedom of information are objectives that are highly valued and shared by this government.

(Spoken apparently with a straight face)

Senator Murray Watt (Queensland ALP)

This government hates scrutiny. This government has contempt for basic notions of accountability. This is a government that prefers to operate in the shadows. It is not difficult to see why, because, every time sunlight does find a way in, Australians do not like what they see. Whether it's sports rorts, Angus Taylor's latest outrage, the awarding of contracts worth hundreds of millions of dollars to companies headquartered in beach shacks or the government's shocking and scandalous record on aged care, the Morrison government does not want Australians to know what it is up to. Make no mistake: that is why the government hates our FOI laws and treats those laws with such contempt. That is also why the government continues to starve the Information Commissioner of resources—so that it takes the commissioner so long to review a rejected freedom-of-information request that the applicant just gives up.

....since this Liberal government took power in 2013, they have been at war with freedom of information, at war with transparency, at war with accountability to the Australian people, who elected them, so Senator Patrick is to be congratulated for bringing forward this bill, which demonstrates his belief that FOI laws need to be strengthened and in the need to undo some of the harm that the Morrison government has done to our democracy in its trashing of FOI and its obsession with secrecy and cover-up.

(Spoken without reference to the fact Labor has not put forward comprehensive, concrete reforms proposals during seven years in opposition.) 

Senator Larrisa Waters (Queensland Australian Greens)

...this is the least transparent government in history.

(Spoken ignoring the fact any government before 1982 when FOI was introduced would beat all since for the least transparent trophy.)

Senator Paul Scarr (Queensland Liberal Party)

...about resourcing. I think it's a key point, to be frank. It's absolutely a key point. If we are going to have an FOI Act regime, there needs to be appropriate resourcing provided for it. It doesn't matter who's in government; there needs to be that appropriate resourcing. When I read the report of the Legal and Constitutional Affairs Committee, page 9, paragraph 2.9 says: 

When asked whether there needed to be more resources at both the early resolution stage, as well as at a later stage, to enable more Information Commissioner reviews to be finalised earlier, Ms Falk stated:

'At this point in time, that's not what I'm seeing. I'm seeing that where I need to focus is on working with government to increase the offices resources to increase the capacity at the case-officer level and potentially, the executive level. If that were to be increased and then have a flow-on effect to more Information Commissioner reviews being required of the commissioner and that being something that's not manageable within other functions then that would be something that I would bring to the attention of government.'

Those are the actual words from the Information Commissioner in the report. In my respectful view, they do not support the characterisation of this matter by Senator Watt,

(Spoken in apparent ignorance of the fact that while the Information Commissioner did say this in 2018, she said something different in Senate Estimates in October 2019:

Senator KIM CARR: Did I hear you correctly in your opening statement? Did you actually say that you're under-funded?  

Ms Falk: I did raise the issue of resourcing in terms of FOI. It's a matter that's been discussed before this committee on a number of occasions, where I've indicated that really where the stresses in the system lie, from the OIC's perspective, are with the need for more staffing. I've set out the fact that we've had an 80 per cent increase in Information Commissioner reviews and I have worked very purposefully since being in the role on looking at how we can increase our efficiency. Over that same period of time—the four-year period—we have increased our efficiency by 45 per cent. But I've formed the view, having conducted a number of reviews of the way in which we're carrying out our work, that the only way in which the gap is to be bridged is for additional staffing resources to be provided

... 

Senator KIM CARR: I see. That's where the confusion lies. So, since August last year, you've been seeking additional support?  

Ms Falk: Sometime after that date, Senator. 

 Senator KIM CARR: And what was the government's response? Ms Falk: The government has acknowledged my request and is working through it in terms of normal budget processes.  

..

Senator KIM CARR: So how much did you ask for?  

Ms Falk: Senator, you appreciate that the information I've provided to government is through budget processes. I can give you an indication that, at present, my funding envelope allows for around 19 case officers to work on FOI reviews—there are additional staff who work on the FOI function more broadly—but just looking at FOI reviews, there'd need to be at least a half increase in the number of those staff.

 Senator KIM CARR: What you mean by 'a half? 

 Ms Falk: A half again. Senator KIM CARR: So—Ms Falk: Another nine staff. 

...

Senator KIM CARR: What will that cost in terms of your normal profile?

.. 

Senator KIM CARR: Can you take that on notice, please?  

The OAIC subsequently provided this response to the question: 

"The Office of the Australian Information Commissioner has estimated that the annual cost to fund nine (9) additional staff to undertake FOI regulatory work, including processing IC review applications, would be approximately A$1.65 million with an additional capital amount of approximately A$0.3 million for accommodation in the first year." 

.....

We live in hope....

Victorian FOI commissioner bill no joke, worth at least a grin

Wikimedia Commons Vigneron

Victoria's proposed freedom of information commissioner scheme is under the hammer in today's Herald Sun dismissed as " a joke" in this editorial and as a "toothless tiger" in an accompanying report by Peter Rolfe who quotes Rick Snell describing the legislation as

"a patchwork job on an existing dodgy framework legislated in the early 1980s on 1960s principles"."It's a further step backwards and a further authorisation of management and top-level executives in the decision-making process," he said.

Rick Snell is right about what amounts to a bandaid over a slerotric artery. The underlying Victorian FOI act reflects thinking circa 30 years ago about getting the balance right between the private space necessary for good government on the one hand and and public access to government information on the other. Things have moved on apace since then particularly in recent years in Australia and the "dodgy framework" badly needs attention in Victoria as well.

No mention of this bigger reform landscape in Minister McIntosh's Media Release or speech to Parliament (Assembly Hansard 8 December 60-64)-no one else spoke and debate was adjourned until 22 December.

The weaknesses in the commissioner bill cited in the Rolfe article are significant-review by the commissioner will not extend to cabinet documents or documents denied access on national security grounds, or in respect of any decision by a minister on a request for a minister's documents or on a request to an agency any decision by the principal officer-and unjustified. However not mentioned in the Herald Sun is that these and other matters not subject to review such as the adequacy of search for documents and third party objections not acted upon by an agency, can be the subject of a complaint to the commissioner. A complaint is different from a review application- after any investigation the commissioner in these cases only has recommendatory powers-see Complaints below.)

While not a complete zero the case for the carve-outs is weak or in the case of the last mentioned simply not made.

But "joke" and "step backward" for the whole shebang are too strong. The bill is worth a grin at least while muttering "could do better" at the same time. Despite the limited scope of reform and some weaknesses there are positives in what is being proposed.

If passed, the bill's provision come into force no later than 1 December 2012 but the search for a commissioner is still ongoing, and the budget allocation for 2011-2012 for the office is $1 million a small proportion of the four year figure of $7.9 million much trumpeted by the government. FOI applicants in Victoria may have a while to wait before the turn for the better.

Queensland Integrity-where to from the Open Government Policy Forum?

The transcript of the Open Government Policy Forum in Brisbane on 13 August is now available. 

Of interest to all who follow such things are the Premier's opening remarks (1-6) which include references to open data and Right to Information issues and his views about the need to protect deliberative process documents.

Session 2 on Creating an Open and Accessible Government (20-34) includes comments from Professor Bill Lane and me on transparency generally and RTI, and from the floor by Michael McKinnon of the Seven Network who raised issues concerning charges, proposed a public interest test for confidentiality and legal privilege claims, responded to the Premier on deliberative process, and reminded that public servants have a duty that should not be shirked by not recording elements of the decision making process.

There are other points of interest of course. The Forum provided an opportunity for an airing of a range of issues about the integrity system. 

The importance of culture change was ever present.

Always in the background, rather than up in lights, perhaps because the Government has already accepted the majority of recommendations, was that things are moving in the direction suggested in the Callinan Report on the Crime and Misconduct Commission: the whole integrity system needs rationalisation and simplification because in post Fitzgerald Queensland, it has grown into an industry, has too many elements, is too complex with dispersed responsibilities and overlapping functions, and is confusing to both insiders and those who seek to utilise it. 

Support for the proposition was not tested at the Forum and some influential figures clearly question this. Ombudsman Phil Clarke for one responded (29) to suggestions the complaints system is broken, commenting that he is yet to see the evidence.

A question mark that hung over proceedings was the purpose of the Forum and where things go from here. Professor AJ Brown raised this directly with the Premier in the first question of the day, and it came up again in the final session with Jon Grayson, Director General of the Premier's Department.

In the earlier exchange the Premier indicated the Government 'had views' about where it wanted to head but would take on board 'recommendations from the Forum.'  However the Forum didn't operate in a way that could have produced anything of the kind, and this role hadn't been suggested beforehand. 

I was glad of the invitation to be involved to a degree in reasonably informed discussion covering a broad range of issues. But discussion was wide ranging rather than focused, and none of the issues were covered in sufficient depth to lead to any conclusions.

Prof. BROWN: Thank you, Premier. My name is AJ Brown from Griffith University. My question to you and the Attorney would be what is the process from here? There has been the parliamentary committee review of some aspects of the recent management of matters by the CMC. There has been the Callinan/Aroney review. There are conflicting interpretations, I think, about what that review started out to do versus what it may have done. There are processes underway for finessing the implementation of the recommendations of those reviews. What is the outcome of today's forum going to feed into that process and how are those questions going to be resolved relative to the ones that we are doing today? What is our process for feeding into your thinking on this?
Mr NEWMAN: In relation to the two bits of work on the CMC, being the inquiry led by the chairman over here and the Callinan/Aroney review, the government has been considering that. I suppose it is fair to say that, if nothing else happened, we would have a way forward.We have views .We would be implementing what the member for Gladstone’s committee said and what Aroney and Callinan have said. We will be seeking to fuse those things together, particularly mindful of the very important role of the member for Gladstone in coming up with a way forward for the CMC . I guess the idea was to bring people together to consider more than just that. As I outlined, for example just on the complaints system, there is an opportunity— I suppose a bigger opportunity and a more strategic way we could go—which is to not just go and undertake the implementation of some of those CMC recommendations but, as a result of your deliberations, to take what you good people say today, take that on board and have a more comprehensive set of reforms that we could bring into the parliament. I guess that is the opportunity today.We are here, we are listening and the people in this room really are the key thinkers in the space. That is our view. If you have some strong recommendations out of today, I can assure people that that is going to be something that the government is going to take extremely seriously. Did you want to comment, Jarrod?
Mr BLEIJIE: Professor, in terms of the timeline, we have a few things on the plate at the moment with respect to the implementation panel for t he CMC review, working with the PCMC committee.We would probably expect by the end of the year to have it all wrapped up.The right to information/privacy legislation discussion paper that we have out at the moment is due to finish in November .It would be the comments from today and the feedback from today, with the implementation panel on the CMC and then the RTI, and hopefully bundle it all up at the end of the year so we can say, ‘This is the integrity framework in Queensland.'

Director General Grayson said next steps, well, remain to be seen:

The next steps: let me in the spirit of this forum be open and say that there is not a prescribed path forward. This was the first step and I will certainly be talking with the Premier about the next step. But the first step was to encourage an expression of views, which then the government and indeed the parliament can decide how we go forward

So watch that space.

Queenslanders and others with direct experience in dealing with complaints bodies and with other aspects of the integrity system there might want to complete  the Open Government online survey.

Queensland takes gold on FOI reform

Queensland Premier Anna Bligh has announced that the Government has accepted all but two of the Solomon review Panel's 141 recommendations for Freedom of Information changes, 23 with some qualification. There are still steps to be taken to translate intent into law, and to change attitudes in government about the public right to access information, but this is rolled gold reform.

A whole of government information policy to increase proactive release of information, with CEOs to be told to get cracking now to see what can be done straight away; a new simplified act to be called the Right to Information Act with a strong objects clause to ensure disclosure considerations don't get waylaid by "exemption creep"; clear governance responsibilities for making all this work assigned to the Premier and the Director General of her department.This is seriously good stuff.

Congratulations to the Premier and the many others involved who have brought the reform package to this stage, particularly David Solomon and his small crew who crafted ideas about best practice in the information age into a workable set of measures.

Not surprisingly there is room for a few quibbles but not today. For the moment at least, Queensland has set the standard for the rest of the country, where reform is still in the air. Some such as the Federal Minister John Faulkner, the ACT and Tasmanian governments have shown real interest in what's been happening in Queensland. Who knows some of the sentiment may waft over borders to effect even those who have shown no interest (South Australia) or who can manage only a polite nod when someone else- the Ombudsman- starts to do some work on the subject (NSW).

Here is the Government response and the Solomon Review

A couple of days out of town and look what happens..

You go off to the National Information Law Conference in Canberra, an otherwise good and useful gathering that FOI reviewer Dr Hawke apparently was too busy to attend, and where it was hard to escape the chill wind of FOI blow-back, in the corridors at least. And, mostly "worst fears" type news emerges while you're pre-occupied:

• integrity failings that came to light in Queensland and led to the resignation of the Minister for Housing include that the minister, his son and the minister's chief of staff were communicating on official matters using private email addresses; the minister's register of contact with lobbyists released during a Budget estimates committee hearing that he declared"very accurate" did not list extensive contact with his lobbyist son on a range of issues; and according to the opposition the minister's ministerial and electorate diary released under Right to Information laws had been doctored to hide the fact he was continuing as a GP to see patients. "A series of Wednesday afternoons at his Morayfield clinic seeing patients was allegedly erased and replaced with 'electorate office' work...the section on electorate office work was redacted because it was outside the scope of the application."
• at the end of the week the Courier Mail reported the Attorney General spoke of a hitherto unpublicised review of the RTI act underway as necessary "because too much public scrutiny is scaring people away from becoming politicians." Hold your sides as you read that it is highly unlikely they'll abolish the RTI act, but most of any information anyone will want will be available on the open government website. The extracts from the article are repeated here in case the archive becomes hard to find in future: "Mr Bleijie denied the use of private emails was a tactic to avoid having them released under the RTI Act, but said he used private email at home because he didn't have access to his work email. "I wouldn't envisage that's a systemic problem, no," he said. "Everyone should be careful what they put in writing no matter what communication you use." Mr Bleijie said abolishing the Right to Information Act, which was introduced in 2009 by former premier Anna Bligh, was "highly unlikely" but changes would be introduced as part of his review. Mr Bleijie said Premier Campbell Newman's plan for an open government website posting all non-confidential documents would greatly reduce the need for RTI. He said he also was investigating the cost and scope of the RTI Act, and extending it to capture information within the Office of the Opposition. A discussion paper will be publicly released for comment. "We'll certainly be canvassing the options of whether the current Act in its form can actually be broadened with the open government and, rather than using an RTI for basis, people can go straight on to government website and get the information themselves," he said. "We're intending that most of the information will be available on the government website. "Some of the information, if it's not statistics per se, there might have to be the mechanism remaining that people can still access that information."
• Bill de Maria formerly of the University of Queensland and a long time sceptic about commitments to transparency took off from there to say FOI laws are useless unless political leaders are fully committed to them. "The best laws aren't worth a row of beans unless..." And there's something in that.
• with the 30th anniversary of the commencement of the Commonwealth Freedom of Information Act on 1 December days away, Jack Waterford of The Canberra Times received a response to a Freedom of Information application 29 years, 11 months and about two weeks after it had first been submitted on 2 December 1982. The application had been deferred, but never heard of again and Waterford subsequently applied in August 2011.  This time PM&C took 18 months to release in full the appendix of a 1981 Royal Commission into a beef substitution racket. "How they fed us donkey burgers"is one thing; how they fed Jack something else in dealing with his FOI application is another. The Canberra Times editorial  draws on what amounts to thirty years in the deep freeze to comment generally on the FOI runaround, delay and impact on citizens and the media of either under-resourcing the function or opposition in most government agencies to releasing information in response to legitimate requests.
• and in the Sunday Age Farrah Tomazin with an almost audible sigh, welcomes the inaugural, confident and optimistic Victorian Freedom of Information Commissioner who has been given just a couple of weeks to get organised from 1 December to conduct reviews of decisions in place of the agency internal review function, investigate complaints and lead ministers and the public service into a new era of open and transparent government. Tomazin (and Open and Shut) wish her well. From everything credible we see, turning this ship around will be a monumental task. Experience elsewhere suggests it will be resource intensive, and require clout and a combination of carrot and stick that she doesn't appear to have in the tool kit. Ministers in Victoria show no sign of public recognition that in this area they and Ms Bertolini are administering a thirty year old act that is no longer fit for purpose, against a backdrop of the nation's most conservative jurisprudence in some respects, with a well developed capacity at middle and senior public service ranks to distinguish what ministers say and what they really mean. The former Victorian Premier John Cain added "monumental" political interference to the mix.

Amid the stench of political donations, a whiff of reform

 Well in some places at least.

You may have missed the final report delivered to NSW Premier Baird on 24 December on options for long term reform of political donations by a panel chaired by Dr Kerry Schott.

By Martin Kingsley from Melbourne, Australia (Cashmoney) [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons

NSW already has the strictest election funding laws in Australia, but the report puts forward 50 recommendations for legislative change and a new more vigorous approach to implementation of the law and oversight by the regulator.

 Nicole Hasham in the Sydney Morning Herald said the report revealed 

"a political donations system riven with loopholes, weaknesses and corruption opportunities. ...The panel ... found "systemic failures" in laws that govern electoral funding disclosure, spending, caps and bans. It called for an immediate review. The archaic, paper-based system of delayed donation disclosures should be replaced by an online system where disclosures were made in real time, allowing meaningful scrutiny of potential relationships between donations and government decisions, the panel said.

No media release from the Premier accompanied publication but Hasham reports Premier Baird said "the government would consider the report and respond before the March election" adding that it "is understood that most recommendations will be supported."Nothing from Labor so far but NSW Greens welcomed most recommendations
 
NSW with an election on 28 March, ten Liberal members of parliament sidelined by the party because of revelations about breach of the donation rules as a result of revelations in ICAC last year, and Labor carrying the dead weight of former ministers Eddie Obeid and Ian McDonald, the integrity issue is unlikely to sink from sight in NSW as is the fate of most Christmas period releases. 

Some Schott recommendations are subject to the outcome and impact of a High Court decision later in the year in the McCloy case which is challenging an existing NSW prohibition on donations by developers.

That case has the potential to slow down national action on political donations also, something the Panel regards as essential for meaningful reform. (Alas the Federal government is yet to show a flicker of interest in this or anything else on the integrity front.)

As long as the rules governing political donations differ across Australia, there is a risk that any NSW law will be circumvented. The evidence brought to light by the ICAC in Operation Spicer shows how the lack of regulation of political donations at the federal level can be exploited to avoid the bans and caps on political donations that apply in New South Wales. We note that the Premier has recently introduced a new anti-circumvention provision targeted at those who deliberately seek to avoid the election finance laws, as recommended by the Panel in its Interim Report. The federal structure of some political parties creates opportunities for avoiding NSW restrictions on political donations. We believe that the Premier should support greater co-ordination of election funding laws across jurisdictions. A co-ordinated approach to disclosure would be a useful start. We recommend that the Premier seek to put the issue on the agenda at COAG. We also recommend that the Premier report to the NSW Parliament on progress against implementation of our recommendations, to ensure that the current momentum for change is maintained.

Labor and others are pushing integrity and accountability issues in the Queensland campaign leading to the election there on 31 January, just prior to this conference  on the subject in Brisbane on 9 February. Plenty of big donations are being accepted by the LNP Newman government from companies pushing controversial resource developments, caps on donations have been scrapped and disclosure thresholds increased twelvefold.

Unlike NSW and Queensland, Victoria does not regulate political donations and disclosure except for a cap of $50,000 on donations from casino proprietors. But on the good news side perhaps the Andrews government includes Special Minister of State Gavin Jennings listed third in the cabinet line up who will oversee government transparency, accountability, integrity and public sector administration and reform, supported by the Department of Premier and Cabinet.

In addition, the department portfolio now includes providing support in relation to the Auditor-General, the Commissioner for Privacy and Data Protection, the Freedom of Information Commissioner, the Independent Broad-based Anti-corruption Commission, the Local Government Investigations and Compliance Inspectorate, the Public Interest Monitor, the Victorian Electoral Commission, the Victorian Competition and Efficiency Commission, and the Victorian Inspectorate.

Political donations, lobbying, getting the BACC fit for purpose, and long overdue freedom of information reform have to be in there somewhere.

Victorian CEOs responsible for FOI basics-will it make a difference?

The Victorian Information Commissioner in accordance with Section 6U of the FOI act has issued Professional Standards for government agencies The standards, a legislative instrument, came into effect from 2 December.

Section 6W(1) of the FOI Act states the principal officer of an agency, and any officer or employee of the agency concerned in the operation of the FOI Act, must comply with the standards.(The new standards don't apply to ministers who would be subject to any standards issued-none so far- by the Premier.)

The responsibilities include (emphasis added)

1.1 An agency must consider whether a document in its possession, that is requested under the Act, can properly be provided to an applicant outside the Act.

1.3 A principal officer must ensure information statements published in accordance with Part II of the Act are available on their agency’s internet site, where one exists.

8.1 An authorised officer must not be directed to make a particular decision under the Act, when properly exercising their statutory decision making power.

9.1 A principal officer must ensure their agency has the necessary resources and procedures in place to be able to meet their agency’s statutory obligations under the Act, including: (a) being sufficiently resourced to receive and process requests, as and when required, within the required statutory time;
(b) the necessary software or systems to enable officers to process requests;
(c) internal policies to enable officers to carry out their functions across the agency; and
(d) anything else reasonably necessary for the agency to carry out its statutory obligations in an effective and efficient manner.

 9.2 A principal officer must ensure, or must be actively working towards ensuring, all officers who are responsible for responding to requests have the appropriate skills and training to perform their responsibilities.

9.4 A principal officer must ensure all officers are informed about the agency’s statutory obligations under the Act.

9.5 A principal officer must ensure all officers are aware they have a duty to assist and cooperate with officers who process requests under the Act.

Putting the CEO in the frame with responsibilities of the kind articulated in 9.1-9.5 is a welcome development.

But an admonition and nothing more that decision makers are not to be pushed around (8.1) highlights the fact that the Victorian FOI act does not include offence provisions of the kind enacted in other jurisdictions (the Commonwealth a notable exception):
NSW  (SS 116-120-acting unlawfully, directing unlawful action, improperly influencing decision, unlawful access, concealing or destroying government information,-with maximum penalty $11,000)
Queensland (Chapter 5, part 2)
Tasmania  (S 50)
Western Australia (Section 110)
Northern Territory (SS 145-147)
ACT (SS 89-94)
(An offence provision (new section 49A) is included in this draft bill available for public comment at present in South Australia.)

While on the statute book, in some cases for many years, I'm not aware of prosecutions anywhere.

The very existence of offence provisions however is likely some help in keeping things on the straight and narrow.

In one reported instance, the NSW Information Commissioner, acting on a referral from ICAC in 2016, conducted an investigation  (Pdf), concluding individuals in this case should not be referred to the DPP or the Attorney General for a decision to prosecute over destruction of documents.

The only tool in the Victorian commissioner's toolbox is potential name and shame.

Guidance
Victoria legislation is also at the weak end of a weak spectrum in terms of commissioner clout when it comes to 'guidance' for agencies on the exercise of their FOI functions.

The Commissioner has issued Practice Notes that "provide detailed guidance on how the Freedom of Information Act 1982 should be administered and how the Professional Standards should be interpreted." However while it is put forward by OVIC as best practice there is nothing in the act that requires agencies to comply.

It's not a lot better elsewhere where in some jurisdictions an agency must 'have regard' to guidance issued by the commissioner. For example Section 93A of the Commonwealth act  empowers the Australian Information Commissioner to issue guidance and requires Australian Government ministers and agencies to 'have regard' to the guidelines when performing a function or exercising a power under the FOI Act generally and specifically in relation to:

• the Information Publication Scheme (s 9A(b)) (see Part 13 of these Guidelines)
• in working out whether access to a conditionally exempt  (document) would, on balance be contrary to the public interest (s 11B(5)) (see Part 6 of these Guidelines)
• in making a decision on a request for access to a document of an agency or an official document of a minister (s 15(5A)) (see Part 3 of these Guidelines)

'Have regard to' probably means can't be ignored or must be considered but it doesn't mean followed.

Note in passing:
No one here has gone as far as India where the Right to Information Act requires each agency to designate a Public Information Officer who carries some personal responsibility for compliance. Section 20 of the Act provides that where, in the course of deciding a complaint or appeal the Information Commission finds that a PIO has failed to provide access (without reasonable cause) or "malafidely" denied a request, knowingly gave incorrect or misleading information, destroyed information, or obstructed furnishing information, a penalty of 250 rupees (about $A5) per day may be imposed with a cap of 25,000 rupees.)

FOI disclosure not necessarily disclosure to 'world at large'

There were a few important Freedom of Information decisions around the country over the last month or so (will try to catch up soon) but a decision by Justice Hansen in the Victorian Supreme Court has overturned in that state at least, a time honoured concept that a decision about disclosure of documents in response to an FOI application should be dealt with on the basis that disclosure, in effect releases documents into the public domain and should be considered disclosure to the 'world at large'.

In Marke v Victoria Police (2007) VSC522, Justice Hansen found that the Victorian Civil and Administrative Tribunal had erred in law in taking this approach in deciding whether disclosure of information to the applicant involved unreasonable disclosure of information concerning another person's personal affairs.

Justice Hansen said that the personal affairs exemption, and the test of unreasonableness of disclosure required an assessment of all relevant circumstances. One relevant consideration was the extent of the likely disclosure. In some cases, for example where the applicant was a journalist or someone else clearly in a position to make information publicly available, disclosure to the 'world at large' was likely. However, while subsequent use of documents released under the Act was entirely in the hands of the applicant -

"it does not follow as a matter of logic that the applicant will disseminate the documents widely, or at all. Further in my view there is nothing in the FOI Act or the authorities that require the Tribunal in this case to assume, without reference to the appellant, that disclosure to the appellant would effectively be disclosure to the world at large".

Justice Hansen said that any person was entitled to make an application for documents, and there was no requirement that the applicant have standing or have any special interest in the document. In this respect the characteristics of the person making the request are irrelevant. However in deciding whether a document was exempt, a decision maker must apply the relevant exemption provision. Where this involved assessment of "unreasonability", the characteristics of the person making the request (to the extent they may be known) are relevant. The Tribunal was wrong in law in concluding that release of the documents, including the identity of people who had complained about the FOI applicant, would be unreasonable because the world at large would then know who they were. Justice Hansen referred the matter back to the Tribunal for a proper assessment of whether disclosure in this case would be unreasonable.

The Federal Freedom of Information Act (Section 11) is the only Australian FOI Act with a specific provision that says that the identity or purposes of the applicant in seeking access, are not to be taken into account in assessing whether a document should be disclosed - a provision that the Australian Law Reform Commission 12 years ago said should be amended.

There and in the other states however the general guidance on the interpretation of the Act (and decisions by the NSW Administrative Decisions Tribunal, and the Information Commissioners in WA and Queensland), has been that disclosure should be judged on the basis that disclosure is to the world at large. This approach has produced some strange results. The Victorian decision may mean that it's back to the drawing board not only in Victoria but in other jurisdictions where this has been the recommended approach to assessing "unreasonable" disclosure.

Too much tugging over who ministers meet

Queensland is soon to publish lobbying contacts.  

And Queensland Premier Campbell Newman and his Cabinet Ministers already publicly release information about portfolio related meetings and activities from their diaries. Not as fulsome as some might wish but a far sight better than other Australian jurisdictions. No other publishes lobbying contact information. Only one publishes the government leader's diary but the Prime Minister's Public Schedule lists media and public engagements and little else. 

In Canberra, as Anne Davies of Fairfax Media can attest, and Sean Parnell of The Australian knows from experience, and in the other states, access to ministerial diaries is still a freedom of information tug of war. In each case access decisions turn on facts, often the legislative prescription for a minister's document and relevant exemptions. In this day and age it's way short of the standard we should expect, the UK providing one good practice example.

1904 Olympics{PD-US}

 Back to the tug of war.

The Full Court of the Supreme Court of Victoria in Office of the Premier v Herald and Weekly Times Pty Ltd [2013] VSCA 79 recently ruled that the electronic "private diary" of the then Victorian Premier's Chief of Staff was an 'official document of a Minister' and was subject to legally enforceable public rights of access under the Freedom of Information Act 1982 (Vic).

That was a threshold question. The HWT applied in November 2011 for access to the diary entries for the period 1February 2011 to 28 February 2011. It's not over yet despite having won on preliminary points in both VCAT and the Supreme Court. It's back to the Office of the Premier (neither the premier nor the chief of staff involved are there any longer) to decide "whether any exemptions are applicable and also whether any irrelevant or exempt material can be deleted so that the OTP can grant access to the HWT to a redacted copy of the diary' [86]. Oh dear, patience where are you?

The Court upheld the decision of the Victorian Civil and Administrative Tribunal although on three points of construction of the act it took a different view: the diary was a single document not a series of separate documents each containing one entry [52-55]; a document held by a minister is subject to the act only if it is in the actual or constructive possession of a Minister in his or her capacity as a Minister [56-67]; and the words ‘relates to the affairs of an agency’ in the definition of official document of a Minister or official document of the Minister in Section 5 of the act should be interpreted more narrowly. 

On this point Judge Tate (Whelan JJA and Kaye AJA concurring) said:

77 However, I consider that the Tribunal was wrong to construe the phrase ‘relates to the affairs of an agency’ as ‘includ[ing] anything that could be considered the business of government or the exercise by a Minister of his or Ministerial functions’.[79] In my opinion, the phrase is clearly restricted to the business of those entities that fall within the definition of ‘agencies’ and not more generally to the business of government. Moreover, it is restricted to the ‘affairs’ of an agency which must include at least the business and activities of the agency. In addition ‘affairs’ must include an agency’s ‘concerns’ in the sense of the area of governmental responsibility the agency is designed to discharge, or the area of government policy it is designed to implement, in keeping with its function of supporting the Minister with respect to a ministerial portfolio.
78 While the word ‘operations’ does not appear in the phrase there is nothing to preclude the ‘affairs of an agency’ from including its operations, but there is also nothing to support restricting those operations to internal operations. Indeed, the submission ultimately made by the OTP, that a document which relates to the ‘affairs of an agency’ must be one that ‘require[s] the document to relate to acts or actions being done by or within an agency’, to my mind, would extend to the external operations of an agency. In particular, the ‘affairs of an agency’ would include actions taken, including meetings arranged, between an officer of a government department, or other agency, and an external entity (regardless of whether the external entity was also an agency). Such an arrangement is an action taken by the agency. Arrangements made between, on the one hand, officers of a government department, or other agency, and, on the other hand, a ministerial adviser from an external entity, including the OTP, are included within the ‘affairs of an agency’. Documents that bear a direct or indirect relationship to those arrangements are thus included within the documents that ‘relate to the affairs of an agency’.
79 In summary, a document ‘relates to the affairs of an agency’, and thus falls within the second limb of the definition of an ‘official document of a Minister’, if it bears a direct or indirect relationship to the business and activities of an agency, or the agency’s area of governmental responsibility, or to arrangements between government departments or other agencies and external entities, including arrangements between agencies and Ministerial advisers from the Office of the Premier.

As I commented previously argy-bargy on this question would be less if something along the lines of the NSW GIPA act formula was adopted in Victoria and elsewhere (emphasis added):

A reference in this Act to government information held by an agency is, when the agency is a Minister, a reference to government information held by the Minister in the course of the exercise of official functions in, or for any official purpose of, or for the official use of, the office of Minister of the Crown.

  
Overall though, on who ministers meet, way too much argy-bargy.