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Wednesday, September 29, 2021

The COAG Legislation Amendment Bill likened to the Dog is a Cat Act

I was one of the witnesses at yesterday's Senate Committee hearing on the government's wrong headed, bizarre attempt to legislate that anything considered or decided by the 'National Cabinet' (the PM, state premiers, and territory first ministers) is not for any us to know unless the PM at his discretion decides to let it loose in the public domain.

The contention in putting forward the COAG Legislation Amendment Bill 2021 (Schedule 3) is that 'National Cabinet' is a committee of the Federal Cabinet and entitled to all the secrecy that goes with that. In addition to an amendment to the Freedom of Information Act in an attempt to achieve that purpose, having lost when Justice White was not persuaded by the government's evidence, the bill would amend fourteen other acts. 
 
If it becomes law 'National Cabinet' documents-inputs, deliberations, decisions- would  attract the (absolute, no public interest test) Cabinet Document exemption in the FOI act, be locked up and maybe released in 20-30 years time.
 
The government says the same should go for documents considered or concerning deliberations and decisions for any group consisting of any Tom Dick or Mary the PM designates as a subcommittee of the 'committee' known as 'National Cabinet'.
 
As one witness yesterday said it's like proposing a law that a dog is a cat.
 
The bill-yet to be voted on-got a real pasting from everyone who testified, except the three public servants from the Prime Minister's department who tried in answer to questions to explain and justify this further backward step in transparency. 
 
From within the ranks, the Australian Human Rights Commission spoke up against and the Australian Information Commissioner in a submission supported by all eight state and territory counterparts said it was unnecessary.
 
Although government senators are in the majority on the Committee considering the legislation, only one the Chair, turned up, leaving open slather to Senators Ayres (NSW ALP), Rex Patrick (Independent SA) and Larissa Waters (Greens Qld). They had a field day getting plenty of confirmation the legislation proposed is a dangerous dud, and leaving those three public servants perplexed and pained in trying to justify it.
 
Most of those following this closely are doubtful it will pass the Senate where the government will need two crossbenchers to vote with them to get it through. Make that three-one government senator today said he would cross the floor to vote against.
 
I'd worry about any senators who see more secrecy as just what our democracy needs these days and suggest they should be tested for cognitive decline.

Tuesday, August 10, 2021

The Tribunal gives Government a drubbing: "National Cabinet is no cabinet committee "

The decision in the Administrative Appeals Tribunal by Justice White rejecting arguments that documents concerning the operation of the "National Cabinet' are exempt as cabinet documents cheered up those among us who keep lamenting the decline in  transparency.Thanks to Senator Rex Patrick, something to cheer about, the first in a long time for years.

The matter took a year to get to this stage (speedy compared to delays some of us are enduring in a queue at the Office of Australian Information Commissioner) and it may not be over yet. The Secretary of the Department of Prime Minister and Cabinet is considering an appeal to the Federal Court.

There's no reason to think the Australian Government Solicitor who ran the case for exemption didn't put their best case forward, or were rushed and caught off guard in marshaling evidence in support, but it fell way short. I canvassed some of the problems the Government faced last year. By the look of it AGS didn't have much to play with in addressing them before the AAT.

Decision

On the cabinet exemption issue Justice White concluded

Having addressed several matters bearing on the question of whether the National Cabinet is a committee of the Cabinet, I have then sought to consider their collective effect. In my view, taken together they point persuasively against the National Cabinet being a committee of the Cabinet within the meaning of the statutory expression. At the very least, I am satisfied that the respondent has not discharged the onus of establishing that Mr Hupalo’s decisions about these matters were justified or that the Tribunal should give a decision which is adverse to the applicant. [210}

Professor Anne Twomey has a good piece on The Conversation about the decision and its consequences. 

The evidence and contentions

In his decision Justice White was measured but scathing in observations about the evidence put forward and the contentions on behalf of the Secretary of the Department of Prime Minister and Cabinet in arguing the case for a finding the documents were exempt.

It's a real drubbing, both on the cabinet document claim and a claim made for the first time when the matter reached the AAT that disclosure of minutes of a meeting in March 2020 would damage relations with the states.

Not for the faint hearted, but here's (a selection of) what Justice White said about the case put for the cabinet document claim (emphasis added):

Thursday, May 13, 2021

Diary of a despondent: an FOI journey to nowhere (so far)

Almost a year ago the Minister for Foreign Affairs Senator Payne drew attention in speeches to two matters of significance in Australia's international affairs-an audit report completed by the Department of Foreign Affairs at the request of the Prime Minister on Australia's engagement with multilateral institutions, and what the Minister described as the important role Australia played since assuming a position on the governing board in advocating for greater independence and transparency at the World Health Organisation.

Hmm, important stuff, I thought.

FOI application  

Wanting to know more about both I made separate FOI applications for documents on 18 June to the Department of Foreign Affairs and Trade 

A year later after tortuous drawn out processes in both cases I've got nothing to show.

DFAT's decisions have been with the Office of Australian Information Commissioner since 13 November seeking review of the knock backs received as well as a response to a complaint about the department's handling of these, and presumably other FOI applications.

The blow by blow details are in the public domain on the Right to Know website here and here

Below is a potted summary of the pursuit of the Audit report-a tale of delay, long silences and obfuscation stretching from June to November.

It's a far cry from Parliament's intentions that the FOI act promote Australia's representative democracy by contributing towards increasing scrutiny, discussion, comment and review of the Government's activities, increasing recognition that information held by the Government is to be managed for public purposes, and is a national resource, and that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.

18 June 2020

FOI application lodged for a copy of the audit report on Australia's engagement in key multilateral institutions mentioned and summarised in the speech by the Minister to the National Security College on 16 June.

24 June

DFAT acknowledgement (emphasis added here and elsewhere):

"Searches are now being undertaken in relevant areas of the Department for documents relevant to your request.""You should.. expect a decision from us by 20 July 2020. The period of 30 days may be extended in certain circumstances." "..the Department issues charges for processing FOI requests." It is the Department’s policy to withhold ... the names and contact details of government officials not in the Senior Executive Service (SES) If we don't hear from you "we will take it that you agree to that information being excluded from the scope of your request."

26 June

My response: Guidance from OAIC makes clear, the imposition of a charge is at the discretion of the agency. There is no obligation to charge. In the middle of a pandemic surely simple is better than complex. "In my submission, a charge for processing an application for one clearly identified document is not warranted." On names, the Department's policy is inconsistent with Guidance issued by the Australian Information Commissioner (6.154)
"When considering whether it would be unreasonable to disclose the names of public servants, there is no basis under the FOI Act for agencies to start from the position that the classification level of a departmental officer determines whether his or her name would be unreasonable to disclose."

7 July

DFAT makes no reference to either point raised and imposes a charge of $108.67 with the full amount or a deposit payable in advance.

9 July

My response notes no mention of matters raised on 26 June, and that the charges for processing the application are not broken down into how they will spend time in dealing with the application. Presumably little if any time is involved in searching for and identifying the one document requested.  

Still arguing DFAT has a discretion not to charge and why in difficult Pandemic times not charging is likely to save time and resources of both of us, I pick up on their mention of waiving or reducing charges on financial hardship or public interest grounds. As a self funded retiree my super and savings have taken a hammering I say, but no worse than many or most and I won’t make a special case out of that. On the public interest, what the Minister said in that speech that prompted the application made multilateral engagement a very important aspect of protecting and advancing Australia's interests. The minister said on 18 June it's about using "..Australian influence and agency to shape a safer world, and to make us safer at home."

Access to the report is in the public interest because it will help inform the community of the Government’s conduct of this important aspect of international affairs, contribute to debate on a matters of public importance, and enable scrutiny of performance in the achievement of government policies and goals. 

5 August

Nothing from DFAT.

I query what is going on?

11 August 

DFAT responds on charges, accepting 'this matter may be of some public interest. However I am not satisfied the giving of access to the specific document in question would be in the general public interest,nor of interest to a substantial section of the public." 

Followed by a lecture:"Charges are a vital component to the FOI process that make it sustainable and appropriately balanced from a public policy perspective. Significant public resources are engaged in processing non-personal FOI requests. Processing charges are designed to ensure that the Australian community recoups a proportion of the costs of processing these types of FOI requests, given that processing such requests diverts significant resources from policy areas away from other priorities."

But yes, DFAT reduces charges by 50% to $54.33.

18 August

My reply: "Gee, I'm sorely tempted to seek a review, given the reasoning provided, but in the interests of time, I'll pay up.Your message does not mention how to go about this. Nor does the website.Please inform.Thanks."

18 August

DFAT quick to respond: "Please see attached available payment methods."

19 August

Paid full amount rather than the $20 deposit by direct debit.

27 August

DFAT asks my consent to an extension of time of 30 days to process the request.  

Searches"have been undertaken.. material falling within the request is currently under consideration" but "the department will be unable to finalise the request within the statutory timeframe." 

No reasons given

28 August 

My reply:

"I understand its a difficult time all round but even in these trying circumstances, an additional 30 days to process the application seems unreasonable and unwarranted.You have had this application since 18 June-70 days, 50 if we are more generous than the FOI act and exclude weekends from the equation...The request is for access to one document, clearly described by title and publicly referred to in that way by the Minister, so it is reassuring that 'the searches in relation to the request have been undertaken"and that "the material falling within the request (ie one document) is currently under consideration." I can't see how this might render the request complex or voluminous. I'm hoping for a decision any day now. I do not agree to any extension."

31 August

DFAT advise they have asked OAIC for a thirty day extension.

15 September

My message to DFAT "Can you let me know where things stand? Nothing heard from OAIC about your application so I'm thinking an extension was not granted? Deemed refusal? Refund the charges paid?"

18 September 

OAIC write to tell me the DFAT application for extension of time has not been granted-"not satisfied an extension of time is appropriate in this circumstance... The effect of this decision is that the Department is deemed to have refused your FOI request...the Department continues to have an obligation to provide a statement of reasons on the FOI request...the agency or minister cannot impose a charge for providing access, even if the applicant was earlier notified that a charge was payable (regs 7(2), (3)). Any deposit you have paid should be refunded."

29 September

Nothing heard from DFAT but my follow up query met with a same day response 
"Thank you for your email and your continued patience.....complete the attached form for refund and return it at your earliest convenience. I otherwise confirm we are working to finalise this matter at the earliest opportunity."

My same day response to the response points out that the form says don't use it if you don't have an ABN. Instead use the “Statement by supplier form. I don't have an ABN. The link doesn't take me anywhere. A search turns up an ATO form and quite a few others. Phew-what a process."

1 October

DFAT "Apologies, statement by supplier form now attached."

2 October

Completed 'Statement by Supplier 'form sent together with a few comments to DFAT:

"Gee its hard to keep a straight face- and not weep- at the complications in the processing of the application that have arisen to date...I'm no expert on the GST, but how an FOI applicant entitled to get charges back transforms into a suppler providing a supply in the form of goods or services to your business (read explanation in Fact Sheet) is a real mystery... The form supplied can't easily be filled on line and comes without a way to automatically return it to you. I took a photo. (Please don't tell me you need the original-by snail mail!

DFAT reply same day, confirm receipt of the form and will now arrange refund of the charges.

"We otherwise confirm are working to finalise this matter at the earliest opportunity.Thank you for your continued patience."

16 October  

DFAT: "In order to process the refund, we need your bank account details to make the deposit. Grateful if you could please provide the same at your convenience and I will continue to process the refund. Again, my apologies that the processing of this refund is again delayed. I otherwise confirm we will provide you with an outcome to your request shortly

Details sent same day.

21 October 

Nothing from DFAT-my query, can you confirm receipt?

22 October 

DFAT-no we didn't receive bank details.

Same day, I resend. 

(Money paid into my account on 6 November)

5 November  

Nothing heard from DFAT- I say time to pass to OAIC for a review of the decision DFAT hasn't made 

6 November

DFAT reply:

"Unfortunately Danielle has been out of the office this week.We are continuing to work on your FOI request for you.

Regards

DFAT FOI Team"

13 November 

Still nothing from DFAT. 

My message:  

"I think I've shown understanding in difficult times but there are limits. An application for IC Review has been lodged today. And a heads up, I'll be lodging a complaint about the handling of the current two applications." 

30 November 

DFAT advise of decision on my application for the report after months of searching, considering..

The report is exempt in its entirety-cabinet document, release would damage international relations and national security. 

No reasons beyond broad general assertions. All conveyed in a tad over one page. Have to wonder what those months of 'consideration' of the application involved.

3 May 

The OAIC contacted me about the review application that I lodged on 13 November telling me the matter is awaiting further consideration by a review adviser and this may take up to 12 months and then the review adviser will review any documentation or submissions provided by Department in support of its decision of 30 November 2020.

.....................................

Intrigued by what this exercise might have cost the taxpayer, I made another application to DFAT on 7 December for the details of time spent and the dollar amount attributed to dealing with my request.

DFAT was at the ready for months arguing why i should pay for time spent so presumably someone somewhere was keeping tabs, but remarkably the agency says it does not hold any such documents.

.....................

Still living in hope!

Monday, April 19, 2021

Neither open nor ambitious when it comes to Australia's open government plans

Having spent time and energy, commencing in 2011when the initiative was first announced, in encouraging, advocating and participating in Australian involvement in the Open Government Partnership, my optimism and enthusiasm for the cause has taken a nose dive in recent times. 

I'm glad a small cohort of determined supporters of democratic principles hang in there.

But with no champions at the highest levels of a government that some suggest is allergic to transparency our commitments to reform have been mediocre in ambition, modest at best in terms of results, limited in reaching out to raise awareness and extend participation beyond usual suspects (no offence intended), and opaque when it comes to what is going on behind the scenes.

On the last mentioned:

The Open Government Forum "Australia's multi-stakeholder forum" comprised of members from government and civil society hasn't met for five, almost six months- since November.

The minutes of the last meeting on 27 November 2020 are yet to be published. 

(Update Sometime after I asked PMC about the minutes on 7 April they appeared in the meeting papers on the PMC website available here)

A document in published papers for that meeting refers to a planned Forum meeting on 18 February 2021 for 'Formal Close out of NAP 3 Development Process."The meeting wasn't held then, or since apparently. Presumably the Forum is yet to formally 'close out.'

The process to develop a third national action plan commenced in November 2019 with a requirement at that stage that the completed plan would be submitted to the OGP in August 2020. The Pandemic saw the due date extended to 28 February 2021. PMC tell me the plan is yet to be submitted because the government has not formally considered and endorsed it. (And of course the Forum hasn't closed out yet on what the government will later consider. The draft commitments as they stood in November-Item 5 in this list-bear little resemblance to what most commentators and experts regard as priorities in addressing the current retreat from accountability and transparency)

Then Minister Cormann was the 'co-ordinating minister' for Australia's OGP commitments and the development, adoption  and implementation commencing with the first national action plan in 2016-2018 but if he spoke publicly about the OGP during the ensuing five years apart from a short attendance at a meeting in Paris some years back, I must have missed it. He resigned from the ministry on 30 October 2020. You'll struggle to find any mention of who took his place but PMC advise its Assistant Minister Ben Morton- who hasn't spoken a word about it either that I can find. A speech to the Australian Public Service by the Assistant Minister in February 2021  includes a section headed "The Government's ambition Inspiring Australians to engage in democracy" but not a word about open government, the OGP, anything the government might claim as reforms past or planned.

In early 2019, then Civil Society Co-Chair of the Forum Fiona Mcleod SC (Chair of Accountability Roundtable) and a candidate in the Federal election held at that time stood down. While the position has been capably filled on an interim basis by Adjunct Professor Ken Coghill, no replacement for Ms McLeod has been announced for over two years. 

The OGP requires independent assessment of the design and implementation of the commitments adopted by OGP participating governments in their country action plans. Three reports have been published on Australian plans, way too late to have much impact. None give Australia much in the way of commendation, no commitments qualify as ambitious. None are published on the PMC website. The government is also required to publish a midterm and closing report on each plan.  The most recent self assessment (pdf) published on the PMC website is at mid term of the 2016-2018 plan.

Along this ten year journey I've often concluded that when it comes to high standards and practices regarding accountability, transparency and integrity, I live in hope but on form to date the Morrison government makes hope look futile.

Friday, February 05, 2021

Senator Patrick chalks up important FOI win

He''s a vigilant determined defender of the spirit and intent of freedom of information.

May the wind be at his back!

In the Senate on Tuesday Senator Rex Patrick recounted a drawn out and eventually unsuccessful attempt by the Department of Prime Minister to deny access to the complete performance audit report into the handling of a $1.3 billion dollar Defence contract for the procurement of the Hawkei light protected mobility vehicle from Thales Australia Ltd. 

The government had refused to table the complete report in response to a Senate Order; Attorney General Porter issued a (rare?unprecedented?) certificate under the Auditor General's Act preventing disclosure of parts of the report on public interest grounds; and various FOI exemption claims, some dropped on the way, were advanced on this journey to the Administrative Appeals Tribunal.

Deputy President Britten-Jones concluded no additional harm to national security or Thales commercial interests would result from disclosure, given information already in the public domain in a redacted version of the report, and information made available by Thales when it commenced Federal Court proceedings in January 2018. 

The Deputy President[ 70-78] was dismissive of another claim that the Auditor General's analysis and conclusions involved deliberative processes: "Rather than disclosing a deliberative process, the Redacted Report discloses a final conclusion based on an analysis of factual findings.....Section 47C does not operate to disallow access to a report of this nature generated by an independent officer of the Parliament exercising his statutory functions. The Disputed Material is not conditionally exempt under s 47C(1) of the FOI Act."

Senator Patrick posted the report and relevant documentation following notification the decision will not be appealed, observing

"In this matter the Attorney-General’s judgement was clearly unsound. He was  incapable of properly assessing national security claims This raises a most serious question - what else has the Attorney-General got wrong in the national security space?”

Indeed.

Senator Patrick in the Senate 2 February

Monday, December 07, 2020

Reveal: Politicians easily dodge accountability for their mistakes-because they can!

Damian Shaw/AAP
Chris Aulich, University of Canberra

In recent days, the issue of government accountability was brought into sharp focus — again — when NSW Premier Gladys Berejiklian admitted that community grants awarded primarily to councils in Coalition seats ahead of the 2019 state election was pork barrelling.

In defence, she said the practice of pork barrelling was “rightly or wrongly” normal and wasn’t illegal, and that governments of all colours engage in election spending in order “to curry favour” with the electorate.

When the premier of NSW uses as a standard of integrity that pork barrelling is “not against the law”, she shows contempt for democratic conventions and a U-turn from the views she expressed in February 2019 when introducing measures to strengthen integrity in government.

These measures included a revised code of conduct for ministers and a stern reminder to politicians that they “always remain accountable to the community”.

Ministers were once held to a higher standard

In the 1960s, the eminent scholar Roger Wettenhall argued ministers were accountable for all that occurred within their departments.

This was a recognition that even if ministerial action was not directly responsible for errors, ministers were nonetheless accountable for them. In the most serious cases, there was an expectation that ministers should resign, though in reality, few ever did.


Read more: As the government drags its heels, a better model for a federal integrity commission has emerged


Ministers are not just accountable for significant errors made within their departments, but also for behaviours deemed contrary to their ministerial code of conduct. Again, conventions hold that ministers should resign if their actions are deemed dishonest, were intended to mislead parliament or the public, or brought the government into disrepute.

Many ministers have resigned over improprieties in the past. For instance, Immigration Minister Mick Young stood aside over the “Paddington Bear” issue, Jim Cairns resigned over improperly seeking overseas loans, Jamie Briggs stepped down over his “personal behaviour” and Michael MacKellar resigned over importing a colour television.

Briggs resigned as a minister in the Turnbull government.
Briggs resigned as a minister in the Turnbull government over an incident in a Hong Kong bar involving a female public servant. MICK TSIKAS/AAP

How ministers today have dealt with scandal

But fast forward to today, and neither Richard Colbeck nor Stuart Robert have resigned over major blunders within their ministries related to aged care and the “robodebt” scandal, respectively.

This begs the question why Prime Minister Scott Morrison did not deem it sufficiently important to exact accountability from his ministers for their major mistakes, especially when these two cases cost more than a billion dollars of public funds.

It also remains unclear why minister Angus Taylor, who sent a letter to the lord mayor of Sydney making false accusations about the Sydney City Council’s travel expenses, was not asked to resign.

Taylor was forced to apologise for the letter.
Taylor was forced to apologise after the figures in his letter were proved incorrect. He says he now considers the matter ‘finalised’. MICK TSIKAS/AAP

Similarly, the personal conduct of ministers Alan Tudge and Christian Porter has come under scrutiny thanks to an ABC Four Corners investigation, but has been dismissed by Morrison on the basis their alleged actions occurred during the watch of the previous prime minister.

And on numerous occasions, the travel allowances for ministers and MPs have been challenged, without serious repercussions. The current federal ministerial code of conduct spells out clearly that such indiscretions are not acceptable.


Read more: What's in the 'public interest'? Why the ABC is right to cover allegations of inappropriate ministerial conduct


This brings us back to the issue of pork barrelling. At the federal level, minister Bridget McKenzie did resign this year over the “sports rorts” affair. The code of conduct provides that ministers allocate the funds available to them in “the public interest”. McKenzie’s view that the public interest was the same as her party’s interest was unacceptable.

This scandal has parallels with an earlier “sports rorts affair” that cost Labor minister Ros Kelly her position in 1994, as well as with the current NSW local government grants scheme with its shredded papers.

Rather than accept their accountability like McKenzie and Kelly, Berejiklian is maintaining that pork barrelling is common practice — an opinion that might well be contested by parliament and the community.

McKenzie resigned from Morrison’s ministry.
McKenzie resigned from Morrison’s ministry in February over her role in the sports rorts affair. MICK TSIKAS/AAP

Have politicians been emboldened by their COVID successes?

Why, then, are so many current politicians willing to dodge taking accountability for their actions? The easy answer is because they can.

After all, the government conventions around accountability have no legal force. They have merely been “honoured” by politicians as part of our democratic culture – as sociologist Edgar Schein suggests, it is “the way we do things around here”.


Read more: The long history of political corruption in NSW — and the downfall of MPs, ministers and premiers


It seems current politicians are re-setting this democratic culture and the conventions that go along with it. Modern politicians are now very savvy in managing the press, and deft at reframing issues to their advantage.

Berejiklian gave a master class in this when she was confronted with accusations of failing to disclose an intimate relationship with disgraced former MP Daryl Maguire.

She reframed the issue as a personal one, in which she had been swept along by a romantic attachment. She argues, probably correctly, that she did nothing that was illegal. However, her actions were highly questionable from an ethical point of view.

Berejiklian has been under intense media scrutiny.
Berejiklian has been under intense scrutiny since revealing her relationship with Maguire in October. DEAN LEWINS/AAP

Perhaps our current federal and NSW leaders have been emboldened by their successes in responding to the pandemic and are counting on this to defuse criticisms of their actions. They likely believe that issues of accountability — at least in the public mind — might pale in relation to the “big” issues of bushfires and COVID-19.

As such, ignoring accountability is seen as merely a small peccadillo.

Independents may be the key

In the broader context, voters have shown they are more willing to elect local independents, such as Helen Haines, Rebekha Sharkie and Zali Steggall at the federal level and Roy Butler, Joe McGirr and Helen Dalton in NSW, who are not seen to be in the mould of other politicians.

There is clearly a move towards candidates who place a very high value on conventional values, such as representation and integrity. And it is these members who may act as circuit breakers to stop the further corrosion of democratic conventions in our governments.

Simon Longstaff, executive director of The Ethics Centre, summed this up well when he noted

we want politicians who see engagement in public life as a vocation and not just a game. We want politicians who will speak the truth - even when it harms them to do so. We want politicians who respect us as citizens and not just as voters.

If the major parties continue to ignore accountability, perhaps the election of independents and minor parties will provide the stimulus for truth to power.The Conversation

Chris Aulich, Adjunct Professor at the University of Canberra, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Wednesday, October 28, 2020

Cabinet secrecy for the National Cabinet-maybe, maybe not

Seven months after its formation, the National Cabinet has made its way into the just published new edition of the Cabinet Handbook. (Pages 30-31) but is still to get a mention in the Government Directory

Anyone looking for an explanation about what makes the NC and a range of committees and groups that come within its scope (The Council on Federal Financial Relations, any other committees "as required" that the NC establishes, and any National Cabinet Reform Committees) part of the Federal Government Cabinet will be disappointed by the entry in the Handbook.

There is nothing in the National Cabinet section that adds anything to the Prime Minister's explanation that it's part of the Cabinet because he, presumably supported in this by the Premiers and First Ministers of the states and territories, decided it is, and say so.

According to the entry the "National Cabinet operates according to the longstanding Westminster principles of collective responsibility and solidarity." 

Those principles as explained elsewhere in the Handbook (Page 9) are hard to reconcile with what has been on public display in the operation of the National Cabinet. For example:

  • "(O)nce decisions are arrived at and announced they are supported by all ministers."
  • "(A) decision of the Cabinet is binding on all members of the Government regardless of whether they were present when the decision was taken."
  • "The aim is to reach some form of consensus so that the Prime Minister, as chair of the Cabinet, can summarise what the collective decision is for recording in the Cabinet minute.
  • "Members of the Cabinet must publicly support all Government decisions made in the Cabinet, even if they do not agree with them."
  • "Cabinet ministers cannot dissociate themselves from, or repudiate the decisions of their Cabinet colleagues unless they resign from the Cabinet."
  • "It is the Prime Minister’s role as Chair of the Cabinet, where necessary, to enforce Cabinet solidarity."
  • Observance of the two principles is "entirely dependent on a commitment to three important operational values: consultation; confidentiality; and respect forthe primacy of Cabinet decisions.

Officials from Department of Prime Minister and Cabinet, Australian Government Solicitor and Attorney General's Department were not able to explain more fully in Senate Estimates this week.

PMC 

Senator Siewert .. Has.. the claim that national cabinet has the same provisions as cabinet, been raised by the states and agreed to by the states and territories?

Ms Foster  (Deputy Secretary) : National cabinet was established by agreement of all first ministers, and they agreed that they wished national cabinet to be established as a subcommittee of the federal cabinet with all of the same provisions applying to it.

Senator SIEWERT: Under what legal basis is that? Just them agreeing to it doesn't make it so.

Ms Foster : Senator, as you know, cabinet operates by longstanding convention, and this committee was formed by the agreement of all the members under those provisions.

Prompting Senator Wong to comment

They're out there smashing each other publicly. Ministers generally don't do that. And it's not bound by consensus. Sorry, but I just think you shouldn't give evidence that's not correct. It might be the Prime Minister's line, but you should not give that evidence. 

Later questioning saw officials explain the Australian Health Protection Principal Committee and
the COVID committee in preparing material for national cabinet consideration, are subject to the cabinet confidentiality provisions.

Attorney General's Portfolio 

Answers to questions by the Australian Government Solicitor Mr Kingston bear a close relationship to a Yes Minister script. Those from the Secretary of the Department Mr Moraitis more closely resemble Sergeant Schultz- "I know nothing". Defies summarising. Full text below. 

Next-the Tribunal

Senator Patrick is in the Administrative Appeals Tribunal challenging an FOI refusal of access to documents on the basis that national cabinet is covered by the cabinet document exemption. 

In this post in June I suggested the National Cabinet lacked the essential characteristics of a cabinet that an earlier Tribunal decision described as relevant in deciding whether the exemption applies. 

Senator Carr in estimates cited Constitutional law professor Cheryl Saunders saying, 'It's impossible for a meeting of the first ministers to operate according to the longstanding Westminster principles of collective responsibility as is claimed in the new Cabinet Handbook."

Time will tell. 

Tuesday, September 08, 2020

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....