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Tuesday, December 23, 2008

Ho, ho, ho and happy holidays.

I had all sorts of things worth saying this week, but alas the moments passed, and Australia is off on holidays, so.......

Best wishes to all readers, thanks to those who have provided feedback, news and comment, and good luck to all- yes, including Sarah and particularly Rudolph and his friends- for 2009.

I'll be back early in the new year.

Friday, December 19, 2008

Mostly good cheer from Minister Tanner.

Some end-of-year cheer from Minister for Finance Lindsay Tanner who has announced a series of reforms to improve transparency in the budget process and in financial management generally, following a review of the Government's Operation Sunlight project by former Australian Democrats Senator Andrew Murray.The report and the Government response (I had trouble opening this and told the Department, but no progress at the time of writing) are here.

The Minister's media statement is as dry as chips but there is plenty of good news about more useful and readable information to be included in the budget papers. The Canberra Times reported on Sunday that the Minister said he would take up most of Mr Murray's 45 recommendations, either in their entirety or by ''incorporating the underlying themes into other initiatives''. He accepted 17 in full and four in part, noted 20 and disagreed with four. The Times reported Mr Murray was encouraged by the response, because he said most of the changes would give Parliament, particularly the Opposition, ''stronger mechanisms for attack, and governments don't necessarily enjoy that''. ''Budgetary transparency is fundamental to Australia's parliamentary democracy,'' he said. ''Without budgetary transparency, governments are able to deny the Parliament effective oversight of government expenditure and effective and efficient administration is able to be subverted.''

There is additional good news from the Minister in this release about reforms to the administration of Federal grants including the following:
"There will also be a legal requirement for Ministers and officials to record the basis on which they are satisfied that approving particular grants is an efficient and effective use of public money. This decision also responds to a key recommendation in the ANAO’s audit of the Regional Partnerships Program, released in November 2007. Ministers will also be required to advise the Minister for Finance and Deregulation whenever they approve individual grants to organisations in their own electorates. The third key element of the reforms establishes mandatory public reporting requirements in the interest of greater transparency. This means from 1 January 2009, agencies will be required to publish the details of individual grants on their website."
All good, but on the last point, not good enough- how about ensuring that the information about grants is searchable across all government agencies by electorate, post-code, purpose and recipient?Agency specific reporting is important- so is the complete picture of where our money goes, who gets it, and for what purpose.

The state governments also need to move into the 21st century on this sort of thing, particularly regarding the big dollars paid to business in the form of industry support and incentives to invest.

Thursday, December 18, 2008

ACT FOI reform two-step.

The new ACT Legislative Assembly sat for three days last week, the first substantive sittings since the election that resulted in the return of the ALP Stanhope Government, formed only through the support of The Greens who hold the balance of power.Three days produced two Freedom of Information Amendment bills-one from the Liberals Vicki Dunne, the other on behalf of the Government from Attorney General Simon Corbell. Both managed a second reading speech from the proponent but no further debate and the Assembly has now adjourned until February. The bills themselves are not up on the Assembly website. Dunne's speech contained little detail (Hansard 10 December 161-162) except it is largely a re-run of an earlier unsuccessful attempt at reform.

The Government's Bill (Hansard 11 December 285-287) would abolish conclusive certificates for cabinet documents and internal working documents (but not for documents that could attract the national security exemption). The reference in an Attorney General media release at the time that "the Freedom of Information Amendment Bill 2008 also proposes additional amendments to protect certain documents that ensure Ministers can fully exercise their responsibilities to the Assembly and its committees" turns out to be new proposed exclusions from the Act for question time briefings, incoming government briefings, annual estimates briefs and cabinet notebooks. The Attorney General used the Queensland Solomon Report and that government's plans to do the same thing as justification, arguing
"that to preserve and promote individual ministerial responsibility, to ensure free, fearless and frank advice, certain communications between government and its public service advisers must be protected. This reinforces the personal, individual responsibility of ministers and their ability to govern effectively and to account to parliament and its committees appropriately. It is in the public interest to preserve the confidentiality of this kind of advice. We all know when in government that the effectiveness of these documents is compromised by the knowledge that such documents may be disclosed under the legislation as it currently stands."
Do we? Are blanket exceptions of this kind vital to enable ministers "to govern effectively and to account to parliament and its committees appropriately."Don't current exemptions work satisfactorily to ensure sensitive information (of the cabinet-notebook variety, for example) is protected from disclosure? And no explanation for acting on these issues in advance of the comprehensive review planned for next year.

The Greens who get to call the shots might have some interesting issues to weigh when the Assembly resumes.

Accountability suffers if records are a shambles

The NSW Independent Commission Against Corruption has released the eighth and final report on its inquiry into Railcorp, commenting that the investigation had exposed an "extraordinary extent of public sector corruption. Corrupt employees appeared to be confident that they would not be caught or if they were, that not much would happen to them."

One of many reasons for all this was that despite the State Records Act, and RailCorp’s Code of Conduct imposing a duty on employees to “create and maintain full and accurate records of work performed, including reasons for your decision making,” record-keeping appears to have been optional - "shambolic" - according to ICAC :
" People in a position to monitor the veracity or completeness of records, including both managers and support staff certifying aspects of documents, do not do so. Many records contain inaccuracies. Poor record-keeping is a major hindrance to RailCorp’s ability to audit the activities and performance of employees and contractors, and managers who tolerated poor record-keeping created opportunities for corruption. Poor records can also make it difficult to prove corrupt conduct. The list of documents that were routinely found to be incomplete, never created and/or inadequately stored included timesheets, work order dockets, invoices, weld returns, purchase orders, scopes of work, tender documents, requests for quotation, and pre-work brief forms."
ICAC said this and previous investigations, had shown that RailCorp "records are unreliable sources of information for any kind of systematic monitoring."

That would go for public accountability as well. No wonder the difficulties in combating scepticism about the Freedom of Information Act in these circumstances or that the Premier, perhaps with this in mind, told Railcorp to release reports that it was fighting to withhold recently.

Some holiday reading on electoral reform

Cabinet Secretary and Special Minister of State, Senator Faulkner has released the Electoral Reform Green Paper for public comment- submissions invited by 23 February and the Government will also ask the Joint Standing Committee on Electoral Matters to consider the issues raised. Senator Faulkner said the Paper needed to be considered against the background of increasing campaign costs, the need for political parties to raise ever increasing amounts of funds, and the need to address perceptions of undue influence. Another paper canvassing other election related issues will be released in 2009.

Chapter 3 covers current disclosure requirements under Federal, state and territory laws. What a mixed bag but with plenty of reform initiatives on the table in most places, as there needs to be- two states Victoria and South Australia do not have annual or election based disclosure schemes.

Chapter 6 raises the options for change with timeliness one of the key issues [6.65]:
"The effect of the current timeframes is a lag between transactions being entered into and their disclosure which raises a question over their transparency. The public release dates for disclosures relating to the 24 November 2007 federal election are 12 May 2008 for election returns (for candidates, Senate groups and donors) and 2 February 2009 for annual returns (which cover political parties, associated entities, third parties and donors). Clearly the major point of public disclosure, particularly in the absence of comprehensive regulation through bans or caps on financial activities, is to allow the public to form judgements about political parties and candidates and to apply that knowledge in exercising their franchise at the ballot box. However, these considerable time lags do not allow the voting public to be informed of election campaign finances at the end point of those campaigns when casting their vote."

Tuesday, December 16, 2008

Fishing expedition turns up bill for $200,000 and some fishy business

There is nothing wrong with using the Freedom of Information laws for a fishing expedition but it can turn out to be an expensive business. The Australian reported at the weekend on an application for all documents held by the Department of Defence about Mamdouh Habib and his rendition from the time he was arrested in Pakistan in 2001 until now:
"The Defence Department came back with a preliminary assessment of $107,145.55 that includes 1038 hours and 15 minutes to identify the documents and decision-making time examining 85,418 pages of documents that "fall within the terms of the request". It also estimated it would cost $85,603.80 to examine 82,838 pages of documents generally relating to the US rendition program."
But then there's the fishy bit:
"The revelation about the amount of information Defence has appears to be at odds with evidence given to the Senate estimates committee earlier this year when officials said: "Defence has no record of involvement through meetings or through the provision of advice in the matter of the rendition of Mr Mamdouh Habib." The disclosure has prompted calls from NSW Labor backbencher Daryl Melham for the federal Government to reveal what it knows about the rendition. "There is a public interest matter in this ... This should not have to be like extracting teeth." Greens senator Scott Ludlam has put questions on notice, asking Defence Minister Joel Fitzgibbon to explain to parliament. "There appears to be a roomful of documents about a subject which they told parliament they know nothing about ... Something is a bit fishy here."

Que is the word on publication of hospital waiting times.

"Que?"-Manuel in Fawlty Towers

From"Longer wait for elective surgery" in today's Sydney Morning Herald:

"The Minister for Health, John Della Bosca, said: "Elective surgery waiting times have decreased substantially, with 91 per cent of patients treated within the recommended time frame of either 30, 90 or 365 days, up 4 per cent on the previous quarter." However, the full data, made public this month after the Opposition health spokeswoman, Jillian Skinner, submitted a freedom of information request, shows the average waiting time has increased by 5 per cent, to more than 2½ months, since September last year. It was the first time in 13 years of Labor Government that elective surgery waiting times and data on emergency department performance had not been made publicly available."

All this two weeks after the Government received the Garling Report including its recommendations for the publication of meaningful data on performance in the hospital system.

The power of the "FOI exclusive"

It's not all bad news,however.

Peter Meakin director of news and current affairs at Seven Network in yesterday's Australian, on how Freedom of Information can help to build a reputation in the news business:

"To establish a reputation in this business you have to rock the boat occasionally. Our viewers need to know that we care about our society and those who threaten its stability. Governments pay lip service to freedom of information laws, but most bureaucrats seem to have modelled themselves on the secret service. Nevertheless, a dogged investigator like our freedom of information editor, Mike McKinnon, can prise some remarkable secrets from their tightly clenched fists. It's not just a case of the public's right to know, it's good journalism. Agenda-setting "exclusives" such as our recent reports on dodgy search warrants in Queensland and hospital deaths in NSW reinforce any news provider's credentials. Now that Gold Walkley winner Ross Coulthart has joined our ranks, we intend to make even more mischief."

Monday, December 15, 2008

Fisse case shows "business as usual" in Canberra.

A couple of other comments on what to make of the Fisse case and on how the Freedom of Information Act is travelling in delivering those worthy objectives of increased accountability and improved democracy through access to information to inform debate on issues, and assist to better understand government processes. The short answer on this last point is not well, if this case is any guide.

The Administrative Appeals Tribunal decision showed smart lawyering can get a government agency by even when there is only the thinnest straw to hang on to, and the Federal Court decision illustrated the court is powerless in circumstances where the majority thinks the Tribunal’s findings of fact showed a desperate attempt to grasp at that strand of straw. It looks like a classic case of an agency, Treasury in this instance, starting from the position of wanting to refuse access, then coming up with reasons to support the decision. The agency then moved the goal posts (as the law unfairly permits) in the AAT when someone seems to have discovered ambiguous correspondence that gave new hope to argue an exemption (cabinet documents) that hadn't been argued previously.

You have to wonder what public servants and other members of the Tribunal take from the "generous” reading of the facts to favour non-disclosure by the deputy president of the Tribunal- I imagine there will be a fair bit of “wink-wink, nod-nod" around the water cooler in some Canberra circles this week, regardless of the fact that the public debate about criminal penalties for serious cartel conduct remains uninformed about the detail of what the Government's experts thought on the subject four years ago. The case will be seen as a victory in Treasury and other agencies, even a useful precedent, on reasons to knock back applications for documents put together by any working group of public officials where there is the slightest hint that what the officials discussed could have ended up on the cabinet table- even if it didn't.It all seems a far cry from the legitimate need for confidentiality of what is actually discussed in the cabinet room.

This case of course is a one-off but how many decisions like it by Treasury and other agencies pass unnoticed because the applicant, unlike Professor Fisse, chooses not to, or can't for financial or other reasons, seek external review? Or the matter never makes it into the media? No-one except the agency and the applicant in each of these instances knows what transpires.Is it a reasonable to assume it's more of the same of what we see in this case?

Even more significantly how many applications for documents concerning important aspects of public policy are not made by those discouraged by the message from this, and similar FOI exercises: “why bother?”

The answer isn’t a change in the law except for a provision in the act for a pro-disclosure bias in interpretation that public servants and the courts take seriously and apply. The problem is the cultural one of an attachment to excessive secrecy in some government agencies, long recognised at the heart of the problem. The Minister, Senator Faulkner has told us for a year now that this government is different and culture change is on the agenda, but it's so far still out there in the future. In the meantime, on the basis of silence from the top about cases like this, its business as usual. And an award of costs in the Federal Court against Professor Fisse for his trouble!

The original Treasury decision on this application was made in April 2007, and on internal review in June 2007- in the Howard government era so strongly criticised by the Rudd-led opposition.The AAT heard the review in February 2008, and handed down its decision in April 2008; the Federal Court hearing was in September 2008 and the decision in December 2008- all in the "new era" of open government.

Friday, December 12, 2008

Federal Court enables Treasury to maintain its reputation as a closed shop.

Professor Brent Fisse, one of Australia's experts on competition law, is a determined fellow but his attempts to use the Freedom of Information Act to find out what the Government's public service experts thought and recommended four years ago about criminal penalties for serious cartel conduct have come to nought.

The Full Court of the Federal Court of Australia yesterday unanimously dismissed his appeal from a decision of the Deputy President of the Administrative Appeals Tribunal who found in favour of The Treasury, that the executive summary of a working group report prepared in April 2004 was exempt as a cabinet document, and the rest of the report exempt as an internal working document. Fisse's lawyers made submissions after the decision was handed down seeking variation of the unanimous decision also that he should pay the Treasury's costs.

Fisse lost because the Court only had jurisdiction to consider an appeal on a question of law and the Court couldn't find any errors in this respect, although comments by two of the three judges suggest they thought the Deputy President of the Tribunal had drawn a long bow on findings of fact on the question whether the summary had been prepared for the purpose of submission to cabinet- a key issue in the claim for exemptions. They accepted that vague and ambiguous words in correspondence between the Treasurer (Costello) and Prime Minister (Howard) were capable of meaning that it was intended that the summary, when later drafted, would be attached to a cabinet submission.However Justice Buchanan observed[76](emphasis added):
"The AAT was entitled to come to a view about whether (the letters) suggested the purpose for which the respondent contended. Although, in my view, the interpretation placed on the correspondence is too strained to be accepted as correct, and although it did not, contrary to the AAT’s statement, receive support from Ms Croke, that interpretation may not be dismissed as one incapable of being reached. Although, in my view, the AAT’s conclusion about its meaning was erroneous I could not say that it was an inference so unreasonable that it could not be drawn or that the correspondence necessitated the opposite conclusion. As a result, slender though in my view the support was, there was some support for the AAT’s conclusion that the executive summary was prepared for the purpose of consideration by Cabinet. "

Justice Buchanan earlier [65-71] commented that evidence by an assistant secretary of the Department of Prime Minister and Cabinet about "normal practice" did not support a conclusion that the summary was prepared for submission to cabinet in this instance.

Justice Flick [121-130] considered there were legitimate grounds for misgivings about aspects of the Tribunal's findings and conclusions that the summary had been prepared for submission to cabinet.While no inference that went to an error of law could be drawn, he wondered why no-one with direct knowledge of what happened at the time, such as a member of the working party, had given evidence to the Tribunal about what was thought to be the purpose of the summary at the time it was prepared.

In the only judgment that considered issues concerning the internal working document exemption found by the Tribunal to apply to the main body of the report, Justice Flick [145] found no error in the weighing of various public interest factors for and against disclosure,
including the public interest in preserving the confidentiality of Cabinet submissions and deliberations. It was not for the Court to go further:
"146 But the weight to be given to those competing factors relevant to an assessment of the "public interest" remains a matter for the Tribunal -- not this Court. The reasons of the Tribunal do not disclose that it gave such weight to one particular "factor" to the exclusion of others. It expressly referred to -- and took into account -- the "three factors" in favour of disclosure, but concluded that those factors did not prevail."
In conclusion Justice Flick summarised:

"152 Each of the findings of the Tribunal -- namely its finding as to the "purpose" for which the Executive Summary was prepared under s 34(1)(a) and its finding as to the public interest under s 36(1)(b) of the 1982 Act -- were findings of fact open to it upon the evidence. Although the evidence upon which the finding as to "purpose" was reached may be the subject of considerable reservation, for this Court itself to reach a different conclusion would involve the Court trespassing beyond the "question of law" raised on appeal and would involve this Court in impermissibly reviewing a finding of fact open to the Tribunal on the evidence. 153 It is not for this Court to express its own conclusion as to whether it would have been satisfied that the "purpose" for which the Executive Summary was prepared was for the "purpose of submission for consideration by the Cabinet", nor to express its own conclusion as to whether disclosure of the Working Party Report "would be contrary to the public interest". Given the findings of fact as made by the Tribunal, the upholding of the claims for exemption cannot be said to be an "unwarranted withholding of disclosure" of the documents to which access was sought. 154 The Tribunal concluded that the first respondent had discharged the onus imposed by s 61 of the Freedom of Information Act by establishing the exemptions claimed pursuant to s 34(1)(a) and (c) and s 36(1)(b) of that Act. In the present proceeding, it is not open to this Court to disagree."
Here is what I said about the Tribunal decision at the time (April 2008) under the heading "Treasury proves it's still a closed shop". I'm still of the same view:

On the summary-
"The executive summary had been attached to a cabinet submission, but for the exemption to apply it had to be established that submission to cabinet was the purpose, understood at the time, for which it was prepared.The evidence on this(at 69 )was equivocal. Cabinet had asked the Treasurer to come back with recommendations after the working party had completed its report, but it was clear the report was for the Treasurer and was submitted to him. On one reading it was open to ( the Tribunal) to conclude that the document was a preliminary document of a kind not covered by the Cabinet exemption , but he attached weight to other evidence including the views of a senior officer in the Prime Minister's Department that everyone understood the document would end up going to cabinet even though no-one actually said this(at 84)."

On the report as a whole-
"(The Tribunal) in essence accepted the argument that the product of consideration of the issues by a group of senior public servants should be accorded the same degree of confidentiality as the deliberations of ministers in the cabinet room because cabinet subsequently looked at a submission from the Treasurer on the same subject that may or may not have reflected their views or recommendations.It was irrelevant that the report was not provided to cabinet, considered by it or adopted by it (at115);that no deliberations of cabinet would be directly disclosed (at117); that there was no inherent sensitivity of the subject matter (at119); that four years had elapsed since the report was prepared(at121); or that there had been a change of government in the meantime(at122)."

And on the Government's position as evidenced by the Treasury approach to the case-
"All this my be "good law "in the sense there are precedents that support this interpretation of the Act and conclusions drawn from the evidence ..But if the Rudd Government is really interested in striking the right balance between the right to know and the confidentiality necessary for the operations of government, and encouraging public participation in government decision making (an underlying rationale of the FOI Act for 25 years), it needs to do something about an act that contemplates decisions like this, and about the attitudes to disclosure by agencies such as Treasury that seem inclined to grab onto an exemption claim just because they can."

Thursday, December 11, 2008

Privacy and the DNA of the innocent.

The police practice in England and Wales of keeping indefinitely a database of fingerprints and DNA, including information on persons acquitted of any crime, has fallen foul of the European Charter of Rights on privacy grounds, with the European Court finding last week that Britain had "overstepped any acceptable margin of appreciation" in striking a balance between individual rights and public interests."

Media reports here (like this from the Sydney Morning Herald) were based on wire service reports and didn't draw any connections with the situation in Australia. As the Federal Government kicks off a national consultation on whether we should have a bill or charter of rights there are questions about practices here regarding the collection and retention of this type of information.

The Crim Track Agency website doesn't say much about the National Criminal Investigation DNA database so who knows whether DNA samples from people found not guilty is retained.

And a dig around doesn't throw much light on what the situation is with the states.We know that in June 2006 South Australian Premier Rann was very gung ho about police retaining all DNA samples. So was NSW Police Commissioner Ken Moroney in July 2007. The Victorian Police followed suit in September last year.

In July this year, according to 9 News "under current (WA) laws, people suspected of an offence can request their DNA be destroyed if after two years they have not been charged or are found not guilty."

That's about all I can find. A story here somewhere for an intrepid reporter.

60th anniversary of Universal Declaration

The two articles in the Universal Declaration of Human Rights that deal with privacy and freedom of information follow- the latter, while oft-quoted in the access to government information debate, doesn't quite amount to a right to know what government knows, but promotes a wider principle.

Article 12.

    No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Article 19.

    Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Wednesday, December 10, 2008

Solomon in Tassie

The Tasmanian Government is looking to David Solomon to help identify issues with stakeholders and will use his Queensland report as the starting point for review of the Freedom of Information Act .

ACT to abolish most conclusive certificates.

The ACT Government will introduce legislation in the Assembly on Thursday to amend the Freedom of Information Act to abolish conclusive certificates except in respect of documents claimed exempt on national security grounds.This stops short of the total abolition proposed by the Federal and Queensland governments, although in both those cases the national security exemption will remain tight.

All will be revealed on Thursday about this additional point in the ACT announcement :"The Freedom of Information Amendment Bill 2008 also proposes additional amendments to protect certain documents that ensure Ministers can fully exercise their responsibilities to the Assembly and its committees."

Parliament, transparency and accountability.

No jurisdiction in Australia has yet acted to bring parliament as an institution under the Freedom of Information umbrella. The latest best practice model, Queensland's draft Right to Information bill, specifically excludes the Legislative Assembly.

The Australian Law Reform Commission 1995 Open Government report recommended the Commonwealth houses of parliament be subject to FOI. So as we have been led to believe, we can expect to see something from the Government in 2009 about the recommendations in that long ignored report, maybe we will see a breakthrough soon.

To take things one step further, just imagine the jump into the 21st Century if things like the register of members interests was up on line!

In New Zealand the issue of transparency and parliament has cropped up again recently.The Dominion Post in this editorial about the problems of access to government information, says "the new Government should break with.. cynical tradition and agree to subject Parliament to the (Official Information) act, too, something even the prickly previous Speaker, Margaret Wilson, cautiously advocated last year."

Thanks to Rick Snell for the lead.

By the way, the register of interests of members of parliament in New Zealand is on-line and accessible here.

Tuesday, December 09, 2008

No laws in place to limit disclosure of personal information by NSW government agencies across state borders.

Should people in NSW be surprised to learn there are no legal restrictions on any NSW Government agency passing personal information about them (other than health information) to anyone in another state or territory, to a Commonwealth agency, or sending it offshore? This despite the fact that Parliament passed legislation 10 years ago in the form of the NSW Privacy and Personal Information Act, in theory to protect privacy?

Buried away on page 124 of the Consultation Paper issued in June by the NSW Law Reform Commission as part of its review of the NSW Privacy Act, is a note to the effect that the NSW Crown Solicitor is of the opinion that the relevant section (19(2)) of the Act, that would only permit disclosure to someone in another jurisdiction where a similar law applies to the handling of personal information, had not come into force, because it was only enlivened by the making of a privacy code of practice by the Attorney General.In essence it was for the Attorney General to decide where other jurisdictions had laws in place that were up to scratch.

The Attorney General hadn't got around to issuing the code for..... 10 years!

So the complainant in this case before the Administrative Decisions Tribunal was no doubt surprised to find that despite the fact that the Department of Education and Training had, before the matter got to the Tribunal, admitted a breach of the PPIPA Act as a result of passing personal information about her to a school in Victoria, the Tribunal, in response to a submission from the defender of privacy interests, the NSW Privacy Commissioner, ruled there was no breach of the Act. As there had been no privacy code of practice issued by the minister to which the Office reports, the limitation on disclosure interstate was not in force, and because of a rule of statutory interpretation, the provision limiting disclosure generally, did not apply. There had been no breach of the Act.

If you think this sounds like Alice in Wonderland you're right.There is no explanation about why the code of practice hasn't been made, why the authorities who have known about the Crown Solicitor's opinion since June 2007 haven't otherwise fixed the problem, or why the Privacy Commissioner's office thought that alone pushing this point against the interests of the privacy complainant was worth the time and public money involved.

I'm afraid it's all consistent with a long track record of disinterest in privacy issues by the NSW Government.

State secrecy laws should be under scrutiny as well

Secrecy provisions in state laws were outside the terms of reference of the ALRC review. I'm unclear what has happened in other states where there may have been an examination of the statute book, but in NSW review has been long promised- never delivered. In the new Right to Information era in Queensland, where there may have been a clean-out, Schedule 3 of the draft bill put on the table last week lists 16 acts with secrecy provisions that take precedence, including the wonderfully named Maintenance Act.

The Independent Audit of Free Speech Report last year (at 5.10) only managed to find 80 Federal acts and regulations with secrecy provisions against the ALRC's 166 and still counting, so it may have been also wide of the mark regarding the states where Western Australia (52), NSW and Victoria (both 45) and the ACT (33) topped the list.

All those with the glimmer of Freedom of Information reform in the eye should be following the Federal Government/ALRC lead to question why some secrecy dinosaurs from another age are necessary in an open society.

No wonder we have a culture of secrecy

Professor David Weisbrot AM
What happens when for more than 100 years (starting with the Post and Telegraph Act of 1901) you put secrecy provisions in various acts and regulations without regard to principle, clarity or consistency? One hell of a mess according to the consultation paper released today by the Australian Law Reform Commission( Review of Secrecy Laws).

In releasing the paper, ALRC President, Professor David Weisbrot said “The federal statute book has become riddled with secrecy provisions, which make unauthorised disclosure of government information a criminal offence. So far the ALRC has identified over 370 distinct secrecy provisions scattered across 166 pieces of legislation—many more than we expected to find."

The provisions range from the draconian Section 70 of the Crimes Act (two years in jail for disclosure of information without authorisation regardless of triviality or significance), to specific secrecy provisions in laws relating to national security, and then there's the Dairy Produce Act and the Port Statistics Act and plenty more where they came from.For many years it seems to have been fashionable to include a secrecy provision in legislation, almost as a matter of course.

Standing almost singularly on the other side of the equation we have the Freedom of Information Act 1982, its promise of open government, and the object of extending as far as possible the public right to access government information.Professor Weisbrot said “We seem to be caught in a time warp, between an old culture of secrecy in government and more modern ideas about the fundamental importance to democracy of ensuring openness and accountability.”

Perhaps no wonder public servants err on the side of caution, and that the culture of secrecy is firmly entrenched.The Commissioner in charge of the inquiry, Professor Rosalind Croucher said "a wrong call could lead to heavy fines and severe penalties,including a jail term."

Submissions close on 19 February.

I'm a member of the ALRC advisory committee that has had a little input into the research and analysis on this issue.

Say it isn't so, Minister Faulkner.

Peter van Onselen of Edith Cowan University had a long opinion piece in The Sunday Telegraph this week ( no link available) "Why party databases should concern us all", about the extraordinary detail held about us by the major political parties that might throw light on our voting intentions, concluding with the comment about how the laws made by political leaders suit their own purposes:
"So, party databases operate outside the law and there is nothing we, as citizens, can do about it. We're not allowed to access our files and parties can write anything they want about us in those files -- defamation laws are not applicable, either."
Van Onselen lamented that the databases were outside the scope of the Freedom of Information Act, but didn't mention that the Australian Law Reform Commission has recommended removal of the exemption for political parties from the Privacy Act, which would result in a right to access and correct personal information held. Or that Senator Faulkner has said this recommendation is to be considered in the second tranche of reforms- the first of the 295 recommendations will be acted upon in 12-18 months-with the rest to follow sometime in the unspecified future.So any consideration of reform is a long way down the track.

But van Onselen speaks for many in saying "I suspect self-interest will prevent Labor reviewing the rules by which such database software operates."

Say it isn't so Senator Faulkner.

Monday, December 08, 2008

Just say it isn't so, Malcolm

Malcolm Turnbull
In The Spycatcher Trial (Heinemann Australia 1988) a young Sydney barrister, Malcolm Turnbull, fresh from a notable court victory to allow publication of the memoirs of the late Peter Wright formerly of MI5, says " this book chronicles the greatest adventure of my life." The dust jacket says at the time Turnbull took on the case, the UK Government, and the Official Secrets Act, "he had a one percent chance of winning", and that his "brilliant cross-examination of British Cabinet Secretary Sir Robert Armstrong.. turned the trial in favour of Wright and made Spycatcher an international bestseller." Turnbull successfully argued the case on several grounds including that no injunction should restrain disclosure of information that the public interest required to be revealed, such as the illegal activities of British intelligence agencies.In the final chapter Turnbull says "Britain's absolute doctrine of official secrecy and its cynically inconsistent application has much more in common with the practices of the Soviet Union (RIP) than with those of its intelligence partners among Western democracies."

Turnbull, now Leader of the Opposition, could be expected to have strong views about excessive secrecy closer to home (how comfortable was he as a minister in the Howard Government?) and to support Senator Faulkner's bill to abolish conclusive certificates. But according to Matthew Moore in the Sydney Morning Herald on Saturday, the Opposition played a key role in ensuring the bill was wheeled off to a Senate Committee for four months, and remains uncertain about its position on abolition:

"So does the Opposition support scrapping conclusive certificates? Apparently, it doesn't yet know. George Brandis is the Opposition member with responsibility for FoI. His adviser, James Lambie, says the Opposition policy position on the proposal is "to await the Senate committee's report". He said while the Opposition doesn't have any "in principle objections to removal of conclusive certificates", it can't say it supports the move. Given that state governments have by and large got rid of conclusive certificates from their FoI laws, it's hard to imagine which stakeholders want them retained in the federal law and why the Opposition wants an inquiry - unless some members are concerned about the immediate impact the change might have.

One effect of the bill is that certificates issued previously will be revoked if and when a new FoI request for documents covered by a certificate is received. That retrospective revocation of certificates could see the release of bundles of sensitive documents, including Treasury documents, that members of the Howard Government assumed would be secret forever. If there is any such sensitivity, expect to see it in the face of Mitch Fifield, deputy chair of the committee investigating the bill and the former senior political adviser to Peter Costello until 2003 at just the time the former Treasurer was busy issuing conclusive certificates."

Can someone make sure The Spycatcher Trial is in the stocking for those opposition senators looking for a little reading over the christmas break?

The tale of two parties committed to change

In response to my comment that we are still in the dark ages regarding transparency of information about MPs travel and the register of members' interests, because while disclosed, they are not up on the web for all to see, a reader drew attention to the latest from the US- an invitation to the American people to take a seat at the table as the Obama team prepares to take charge on 20 January:
"Obama-Biden Transition Project Co-chair John D. Podesta announced that all policy documents from official meetings with outside organizations will be publicly available for review and discussion on This means we're inviting the American public to take a seat at the table and engage in a dialogue about these important issues and ideas -- at the same time members of our team review these documents themselves."
The memorandum to staff is here. A comment from the Huffington Post:
"It is a bold move on Obama's part. Down the road, when his proposals are turned into actual policy, it will be easy to see which groups won out and which ones lost in the process. That transparency could lead to accusations of favoritism and quid-pro-quos as well as hurt feelings among certain industries that felt they were stepped over or ignored. For good-government folks, meanwhile, this is potentially a very big deal. Obama is opening up his governing process to the public, which, for politicians, is hardly convenient. He is encouraging, in a way, a public competition between organizations to see who can produce the sharpest policy takes. And inevitably, he will be challenged to defend his work based on its merits, as observers will get an even keener sense of what kind of policy choices he had at hand."
Obama was elected on a platform for change and a commitment to open and transparent government. So was the Rudd Government. Six weeks before Obama takes office he has started to deliver.The Rudd Government a year after election it is still to make a bold move-introducing a requirement for a register of lobbyists and a bill to abolish conclusive certificates hardly qualify- with no new instructions or guidance to staff that mark the start of the promised new era. And still working on the basis that tabling documents in Parliament about MPs travel and declaration of interests is all that transparency requires. Plus ca change.....

Friday, December 05, 2008

Disclosures about ministers and MPs still in the dark ages

Senator Faulkner had a busy day yesterday- his ministerial statement on integrity in government touched off this debate with barbs flying in both directions- and he also tabled three documents concerning travel by ministers and members of parliament.The register of member interests also surfaced in Canberra - The Age thought this was the most interesting entry and this report on others bobbed up in Fairfax papers.

Here is where there is a disconnect between rhetoric about openness, and day- to- day reality. None of the documents containing details about MPs travel or interests are posted on the web (other than a few totals for travel costs by ministers and ministerial staff attached to Senator Faulkner's media release).

So access is limited to those who find their way to the Table Office in Parliament House in Canberra during business hours and ask to see the tabled documents, or to what the media find interesting enough to include in the paper. So those couple of reports on members interests referred to above and this Sydney Morning Herald report on ministerial travel containing a few tidbits (there may be others).

A modern system of open government worthy of the name would provide all of the travel information and the register of interests on-line so everyone potentially interested could see what any or all MPs have been doing at our expense, and what interests they have declared.

Senator Faulkner should know after a year in office that public servants left to their own devices are unlikely to suggest or act on these matters without some strong direction from the top.

Thanks to Open Australia for the lead on the debate in Parliament- this small group are doing a fantastic job

Faulkner on the record as Parliament packs up for the year.

Cabinet Secretary and Special Minister of State Senator John Faulkner made this ministerial statement " Restoring Integrity in Government" in Parliament yesterday, as the parliamentary year draws to a close.

Much of the ground was similar to that covered in his speech to Transparency International at the end of October, with a couple of new references to recent initiatives such as the plan to provide assistance to public servants on ethical issues, and a fresh commitment to respond to reports to government within three months.

As stated previously, the Government is to be commended for its overall record in this area, though something closer to real time public reporting of political donations, something more stringent than a published register of lobbyists, and something much faster than the snail-paced approach to Freedom of Information reform would have boosted our assessment of performance.

On FOI after referring to the bill to abolish conclusive certificates Senator Faulkner said
"This is a first and significant step towards meeting our commitment to greater openness and transparency. Early in 2009 an exposure draft of legislation covering other pre-election commitments on FOI, including the proposal to establish an Information Commissioner to champion FOI across Government, will be released. The Government is determined to make access to information an easier process for members of the community. Naturally we accept, as I know those opposite have in the past, that there is some information which, for the protection of Australian interests, will not be made public. My goal is to ensure that information is withheld only when there are sound reasons. As part of the Government’s determination to strengthen integrity in governance, the Australian Government is committed to a pro-disclosure culture within the public sector."
He concluded:
"..the challenge to achieve and maintain integrity, transparency, responsiveness and accountability in government is never really over. The Government will continue to work towards even better outcomes. The start that has been made, however, is I believe impressive. It amply demonstrates the strength of our commitment to these principles."

First reactions to Queensland's Right to Information draft

A quick look through the 178(!) pages of the Queensland draft Right to Information bill is heartening in many respects, somewhat disheartening in others.

Heartening in particular that the drafting style is straightforward, relatively plain english; in the emphasis on proactive disclosure and agency publishing schemes; to find a great preamble that captures the democratic principles that underpin the legislation; the clear statement of objects to provide a right of access to information unless disclosure on balance is contrary to the public interest; and at least a slimmed down list of exemptions.

Disheartening to see how much detail is needed to list those agencies not covered, types of documents of some agencies excluded, other acts that take precedence, and the long list of public interest factors that may weigh against disclosure. It might be our best effort yet at a modern access to information law, and necessary to spell things out, but page after page of what you can't get and potential arguments to be used to deny access makes for depressing reading.

Here is some of today's media coverage: The Australian's Queensland based FOI Editor Sean Parnell says the "final reforms are far from clear" and points out a couple of instances where the Solomon recommendations haven't been followed.

Thursday, December 04, 2008

FOI reform process-Queensland first then daylight second.

The Queensland Government, good to its word that this step would be taken before year-end, has launched the Right to Information era, and its general acceptance of recommendations in the Solomon Review of the Freedom of Information Act, by:
Yet to have a look at the drafts, but on sticking to process commitments, a gold star for Premier Anna Bligh.

FOI procedural complexities- keep on trucking.

In an unusual Freedom of Information matter before the NSW Administrative Decisions Tribunal, the issue of the Tribunal's powers to refer a matter to the Ombudsman has again emerged.In this case the agency decided to release requested documents; a third party who unsuccessfully argued to the agency they should not be released on business affairs grounds, and applied for review by the Tribunal, then sought to stay those proceedings while it asked the Ombudsman to investigate the conduct of the agency officers involved; and the agency argued that taking it off to the Ombudsman meant the matter couldn't come back to the Tribunal. All clear on that?

The Tribunal in Damorange Pty Ltd v Roads and Traffic Authority [2008] NSWADT 309 decided there was no barrier to referring the matter to the Ombudsman, and ordered the parties back to a round-table to work out what to do next.

The substantive issues in the case are yet to be addressed.The applicant, Michael McKinnon, FOI Editor of 7 Network, sought documents from the RTA "relating to Safe T Cam produced in the last three years showing, for each year:

1. The number of (a) cars and (b) trucks caught travelling at excessive speeds including the highest speeds recorded each year.

2. The number of trucks travelling beyond prescribed hours. I am also interested in any documents showing repeat offenders in relation to exceeding prescribed hours and documents showing whether drivers from any particular company or firm are consistently breaching prescribed hour limitations,

3. The number of (a) unregistered cars and (b) unregistered trucks.

4. Incidences where drivers have attempted to avoid detection by Safe-T-Cam."

Just how any of the documents contain information "concerning"-that is "about' or "regarding"- the business affairs of Damorange, or involve disclosure of information that would have an unreasonable adverse effect on those affairs, remains to be seen. A search on the web shows Damorange is a trucking company. The rest is left to the imagination until the Ombudsman or the ADT in a subsequent decision reveals more, or Network 7 runs the story.

Procedural and jurisdictional issues take up an inordinate amount of ADT time and resources.There have to be better answers in the interests of those involved and the poor old taxpayer.

Has the new era of openness entered the FOI training room?

With the Federal, NSW, Tasmanian and Queensland governments all committed to greater transparency and to changing the culture within government regarding access to government information (with major changes to the law to follow sometime), you have to wonder what if any new messages are being given to new and old FOI hands in training programs in these jurisdictions? A thought prompted by indications in the Canberra Times Diary that the year is ending with a bang with the following Freedom of Information programs scheduled for next week. Do they kick off with an appearance by Senator Faulkner, a video of the Prime Minister talking about the new era of openness, or is this still premature?

"December 9 : Australian Government Solicitor Introduction to Freedom of Information for new or recently appointed FOI coordinators or contact officers; employees at all levels who are responsible for dealing with FOI requests or just need to be aware of FOI in the course of their duties should attend this full day training session. Inquiries to 62537126 or 62537436 or email

December 10: Australian Government Solicitor Key Exemptions in Practice This full day training is designed to significantly advance the knowledge and skills of FOI decision makers and practitioners in assessing whether documents ought to be exempt from release and is an advanced module of the Introduction to FOI training. Inquiries to 62537126 or 62537436 or email

December 11: Australian Government Solicitor Internal Working Documents For employees who have attended our Introduction to FOI course. FOI decision-makers, in particular, will benefit from attending this full day course which explores the coverage of section 36 of the FOI Act. Inquiries to 62537126 or 62537436 or email"

AFR joins in on "too slow on FOI reform"

Regular readers have seen it here before and in the Sydney Morning Herald, but it's good to welcome the Fin on board.

From the editorial "Secrecy still haunts corridors of power" in yesterday's Australian Financial Review (still so tight with their on-line material that this is all they let the world see for free about the opinion they hold):
"The rhetoric of Special Minister of State John Faulkner is to boost government transparency and accountability.......What we have seen has been slow and piecemeal, and not necessarily accompanied by attempts to challenge the culture of secrecy that permeates government and its agencies.Some progress appears to be emerging. But the political will on such issues tends to wane rapidly...Last week the government introduced legislation that will scrap..conclusive certificates... Broader reforms have been delayed which is concerning.... There is much work to do. Creating a pro-disclosure culture will require unequivocal messages from ministers about the importance of a receptive approach to FOI requests.An independent statutory officer..which the government has mooted would assist in championing greater public disclosure...The plethora of secrecy laws in hundreds of statutes should be simplified and many abolished.But the delays in meaningful reform are a worrying sign."
The Fin editorial came after comments along the same lines last Saturday by Matthew Moore in the Herald:
"The fact that the Government is doing anything in this vexed area is welcome; the shame is the timetable for more substantial reform has slipped into next year at the earliest....The lack of urgency means departments are behaving just as they were under the previous government......The Rudd Government insists it is committed to "a pro-disclosure culture within the public sector" but, on the evidence so far, the task is all ahead of them."

Monday, December 01, 2008

Fine line on leaks in the UK

Frenzy of protest and indignation in the UK media over the arrest of Conservative MP Damian Green in connection with a series of leaks of information about immigration matters, for the common law offence of (depending on who you read) aiding and abetting a person, or conspiring to have a person commit misconduct in a public office. Apparently in the home of the Official Secrets Act, that didn't get rolled out on this occassion.

Nick Robinson of the BBC suggests the line between receiving leaks (fine) and inducing them (maybe criminal) may have been crossed. All will no doubt be revealed in due course,and an update today with the floating of a public interest defence by the source of the leaks.

Apparently the last time a member of parliament in the UK was arrested on these grounds was 70 years ago. Has it ever happened here?

Child protection in NSW hampered by BOTPA

Former Justice James Wood has also given the NSW Government a report in three volumes, concluding his inquiry into child protection services.There are lots of very serious issues here for urgent attention, including in Chapter 24 ( Volume 3 page 958), problems arising from our patchy and complex privacy laws which have created an environment that constrains sharing of information about children in need.

BOTPA- Because of the Privacy Act strikes again.

The Report suggests that some of these problems may be more imagined than real on close legal analysis, but perceptions colour everything, and the public servants and others involved are convinced they can't do what should be done.

Wood came across a Department of Community Services draft document developed this year as a guide to staff on privacy issues- at around 80 pages and counting, it was a work in progress that he suggests should stop.More detailed information might make things even worse.The Report recommends legislative change to ensure appropriate information sharing between government agencies, and between them and NGOs, that may be involved in the safety and well-being of young persons.

The big picture privacy issues, and hopefully how to simplify the law, are still under consideration by the NSW Law Reform Commission whose Consultation Paper in June also identified information- sharing barriers in the name of privacy protection as a problem in child protection.( Wood is also Chairman of the Commission)

Some of the references in Chapter 24 to "codes of practice" suggest confusion even among Wood and his team between a code of practice (which has legal status as an instrument approved by the Attorney General to permit departure from the current act by an agency in the public interest) and a code of practice so described which amounts to an agency approved guideline for staff which has no legal force.

The Executive Summary and Recommendations provides the essentials for those daunted by two three volume reports in the same week..

Sun set to shine on performance that matters in NSW Health.

Just to follow on from COAG's Communique on the publication of health and education performance information,the Report of the Special Commission of Inquiry into Acute Care Services in NSW Public Hospitals by Peter Garling S.C was released on 27 November.

The Report runs to three volumes and over a 1000 pages - The Executive Summary and Recommendations is a little easier to navigate.

Garling proposes four pillars of reform to require NSW Health to change and adapt to the new, with a four year IT plan for up-to-date technology, and the publication of meaningful information on performance in the provision of quality safe care at the top of the list.

(It's wonderfully ironic that on the same day the report was released Ross Coulthart and Nick Farrow won the Gold Walkley for Journalism for uncovering earlier this year the deeds of "The Butcher of Bega" through "weeks of painstaking work ( that) uncovered dozens of victims, including fatalities, and the failure of the NSW health system to stop it." And that we had headlines like this " Butcher review kept secret" just last May.

On health information (Summary 1.53-1.60), Garling says:
"All of the leading world experts to whom I spoke, told me that understanding, analysing and publishing sensibly health information will lead to big improvements in health care. They are right. Information is the basis for knowing where health care in hospitals is at, where it has to go,and when it has arrived."
The current regime only measures how quickly people are seen in the Emergency Department or have their surgery. Garling recommends the establishment within three months of an independent Bureau of Health Information to identify, develop and publish patient care measurements on seven criteria designed to show whether patients were treated safely and properly. After a year, he recommends publication of quarterly reports on these criteria regarding performance of each unit or ward, hospital, area health service and NSW Health as a whole.

Sunday, November 30, 2008

COAG on performance in health and education sectors

Here are extracts from the COAG Communique released after yesterday's meeting 0n agreement reached between the Prime Minister and the premiers regarding increased transparency and accountability in the school and health systems. I'll be interested to see what experts in these fields make of what the PM and others involved say are big steps forward.


All jurisdictions agreed to a new performance reporting framework. COAG agreed that high‑quality accountability and reporting is important for students, parents, carers and the community. It is also important for tracking the achievement of the COAG targets.

The reporting agreed by all governments includes:

  • streamlined and consistent reports on national progress, including an annual national report on the outcomes of schooling in Australia;
  • national reporting on performance of individual schools to inform parents and carers and for evaluation by governments of school performance; and
  • provision by schools of plain language student reports to parents and carers and an annual report made publicly available to their school community on the school’s achievements and other contextual information.

COAG agreed to a set of performance indicators to indicate progress towards achieving the agreed outcomes, with particular reporting on outcomes for Indigenous students and students from low socio-economic status communities.

COAG noted that funding for the non-government school sector is being appropriated through separate Commonwealth legislation – the Schools Assistance Bill 2008 and that the accountability framework for non-government schools and school systems will be consistent with that of the new National Education Agreement.

COAG agreed that the new Australian Curriculum, Assessment and Reporting Authority will be supplied with the information necessary to enable it to publish relevant, nationally‑comparable information on all schools to support accountability, school evaluation, collaborative policy development and resource allocation. The Authority will provide the public with information on each school in Australia that includes data on each school’s performance, including national testing results and school attainment rates, the indicators relevant to the needs of the student population and the school’s capacity including the numbers and qualifications of its teaching staff and its resources. The publication of this information will allow comparison of like schools (that is, schools with similar student populations across the nation) and comparison of a school with other schools in their local community.


The Commonwealth and the States have also agreed to the following objectives and outcomes for the health and hospital system. These are:

  • children are born and remain healthy;
  • Australians manage the key risk factors that contribute to ill health;
  • Australians have access to the support, care and education they need to make healthy choices;
  • the primary health care needs of all Australians are met effectively through timely and quality care in the community;
  • people with complex care needs can access comprehensive, integrated and coordinated services;
  • Australians receive high-quality hospital and hospital related care;
  • older Australians receive high-quality, affordable health and aged care services that are appropriate to their needs and enable choice and seamless, timely transitions within and across sectors;
  • patient experience: Australians have positive health and aged care experiences which take account of individual circumstances and care needs;
  • social inclusion and Indigenous health: Australia’s health system promotes social inclusion and reduces disadvantage, especially for Indigenous Australians; and
  • sustainability: Australians have a sustainable health system.

The Commonwealth and the States have also agreed to report against a number of performance measures to address these outcomes including: preventable disease and injuries; timely access to GPs, dental and other primary health care professionals; life expectancy, including the gap between Indigenous and non-Indigenous Australians; waiting times for services; and net growth in the health workforce. The COAG Reform Council will report progress against these performance measures annually, commencing in 2009-10.

In addition, the COAG Reform Council will report performance against a range of measures, including:

  • reduced incidence and prevalence of sexually-transmitted infections and sentinel blood borne viruses (for example, Hepatitis C, HIV) for Indigenous and non-Indigenous Australians;
  • increased immunisation rates for vaccines in the national schedule;
  • reduced waiting times for selected public hospital services;
  • a reduction in selected adverse events in acute and sub-acute care settings compared to 2008-09 levels;
  • a reduction in unplanned/unexpected readmissions within 28 days of selected surgical admissions compared to 2008-09 levels;
  • increased rates of services provided by public hospitals per 1,000 weighted population by patient-type compared to 2008-09 levels;
  • timely access to GPs, dental and primary health care professionals; and
  • a reduction in selected potentially avoidable GP type presentations to emergency departments.

The Commonwealth and the States have also agreed to provide a basis for more efficient use of taxpayer funding of hospitals, and for increased transparency in the use of those funds through the introduction of Activity Based Funding. It will also allow comparisons of efficiency across public hospitals.

Friday, November 28, 2008

FOI simple for ABC

Matthew Moore in the Sydney Morning Herald last Saturday commented on the Australian Broadcasting Corporation's exemption from the Freedom of Information Act in relation to program material, and the generous interpretation of the provision to deny access to an application for correspondence with Malcolm Turnbull about a profile screened on him.

The ABC was successful in the Federal Court two years ago in convincing the Court to take a broader view of the meaning of the exemption than the protection of ABC's commercial interests, apparently what was originally intended. Here is a post about that case from August 2006 and the decision that "with respect to documents in relation to its program material" covered anything that had a direct or indirect relationship to program material.

The Corporation's latest Annual Report (Appendix 18, page 201) records that only nine FOI applications were received in the year to 30 June. But eight were refused entirely, and one resulted in partial release of requested documents. I haven't checked but I'd be surprised if any agency subject to the Act could beat that rejection rate. Maybe the program material exemption proved to be handy in all or some of these cases-the report doesn't elaborate on what exemptions were claimed.

All a far cry from Canada this week where the ABC's counterpart CBC is crying foul over "distorted attacks" through 150 FOI applications this year, most from two media organisations, leading to a spate of stories based on released documents about travel, hospitality and corporate expenses. Apparently no generous exemptions of any kind have been of much help in dealing with those kind of requests.

Thursday, November 27, 2008

Seriously, make that "even more slowly," progressing FOI reform

The reason why the Bill to amend the Freedom of Information Act to abolish conclusive certificates won't sail through Parliament straight away is that on the recommendation of the Selection of Bills Committee (PDF 55KB), the Senate has referred it to the Finance and Public Administration Committee for report in March 2009.

The only reason given by the Committee for this recommendation is "to allow all stakeholders an opportunity to review the final Bill and ensure the efficacy and transparency of the mechanisms applicable to a decision to exempt material; review of appropriate regime for such decisions, etc."

Hard to see any external stakeholders coming forward to suggest certificates should be retained, that the review mechanism for certificates that will be abolished needs any further discussion, or that the minor technical add-ons to the exemptions proposed are worth worrying too much about. At this rate really substantive FOI reform will be lucky to go from gleam in the Government's eye to implementation much before the start of 2010.The Government is in the driver's seat on all this although it needs help in getting legislation through the Senate.Must either be an indication of reality bites on that front, or suit someone's sense of priorities.

Here is Senator Faulkner's Second Reading Speech, and the discussion in the Senate on the Selection of Bills Committee recommendations, courtesy of Open Australia.Not a word or query from anyone about why the referral was necessary except from Senator Bob Brown who thought it was important. Senator Brown also managed to get the bank deposit guarantee bill sent off to another committee but on that one the report back is due next week on 4 December.

Mere mortals are left scratching heads about a process Senator Faulkner described a month ago "as seriously progressing a high priority reform."

Documents held by former councillor still within FOI reach, maybe.

John Lightowlers

The Acting WA Information Commissioner, John Lightowlers, has ruled that any documents, including emails and other digital information held by a former member of the council of a local authority, are documents of the council for the purposes of the Western Australian Freedom of Information Act if they relate to the performance of the councillor's role as a member of the council, and were created or received by the councillor in his or her official capacity while an elected representative. Ross William Leighton and Shire of Kalamunda [2008] WAICmr 52.

The Acting Commissioner [ 56-57] based his decision on the definition in the Act of documents of an agency, which encompasses documents to which an agency is entitled to access, even where the documents are not in the actual possession or custody of the agency, and provisions of the Local Government Act and the State Records Act regarding duties to maintain and recover government records.

This seems like a first where an FOI application has been found to extend to documents currently held by a person no longer serving as a councillor.On the basis of the reasons outlined by the Acting Commissioner it would likely be the same result under FOI legislation in other states, and probably applies also to documents held by former ministers and public servants.

The NSW Ombudsman ( Joint Premier's/Ombudsman FOI Manual 2007 at 3.5.4) hasn't had any doubts that documents held by current councillors in their elected capacity and which concern their civic or council duties under any act are documents held by the council for the purposes of the FOI Act.The WA decision takes one more logical step.

Unfortunately for the WA applicant, the Acting Commissioner was satisfied that the former councillor had destroyed all relevant documents and purged her computer of records after she ceased being a member of the council, so the victory on the scope of the application turned out to be rather academic.

Wednesday, November 26, 2008

The public interest and the cabinet room.

Serious students of the Westminster system of government might be surprised to learn that in the UK, the home of the system, information about the goings-on in the cabinet room are not subject to a specific exemption under the Freedom of Information Act, as is the case here where inputs into cabinet decision making, deliberations and decisions are exempt without the need to demonstrate harm or satisfy any public interest test. In the UK, cabinet documents are only exempt to the extent that any requested documents, if disclosed, would reveal information relating to “formulation of government policy” or “ministerial communications” but subject to a public interest test to assess whether the need for confidentiality trumped the public interest in disclosure.

So a lot of interest this week as Sir Gus O’Donnell, the head of the Civil Service, leads a last-ditch attempt to block the release of minutes of Cabinet meetings in the run-up to the war in Iraq.Richard Thomas, the Information Commissioner had ordered the Prime Minister's Office to release copies of Cabinet minutes and records relating to meetings held between March 7 and 17, 2003.Details of the meetings would reveal the Attorney-General’s legal advice on the war and the positions of individual Cabinet ministers as well as the strength of internal opposition within the Government to the March 20 invasion.(Update:according to this summary of what Sir Gus said in evidence yesterday views are not attributed to individuals in the minutes other than the PM summing up. "That’s not to say someone wouldn’t be able to work out who said what." The summary provides some interesting insights.)

Mr Thomas had ruled that “a decision on whether to take military action against another country is so important that accountability for such decision-making is paramount” and that the public interest in disclosure outweighed other factors.Sir Gus is appealing the decision.

This Timesonline report gives further details.

Would never happen here- there is no public interest test in any of our FOI acts when it comes to cabinet documents. The only way to learn how big decisions are made by some governments is not through the Freedom of Information Act, but to tune into ABC TV's The Howard Years where former Foreign Minister Downer told us last Monday( Episode 2) that he and Howard used to often just get together to sort out the big foreign policy issues without bothering to run them by the cabinet. You can see why we need an absolute barrier to knowing what goes in the Cabinet room, at least for 30 years after decisions are taken.

Federal Government gets to first base on FOI reforms-conclusive certificates to go next year.

The Rudd Government has started to deliver on one element of its Freedom of Information reform commitments with the introduction into Parliament today of legislation to abolish entirely conclusive ministerial certificates.It's a welcome move, and goes further than recommended 13 years ago by the Australian Law Reform Commission, but took a year to eventuate and is nowhere near the top of most lists of urgently needed changes. On that front we are now told the Government "will release exposure draft legislation for public comment addressing broader reform measures aimed at promoting a pro-disclosure culture, as early as practicable in 2009." This culture change model, talked about for 12 months so far, should be something to behold when it is finally unveiled.

Senator Faulkner said the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008 was "a very important step towards achieving greater accountability in government decision making. It strengthens the right to obtain documents under the FOI Act and the Archives Act, and is yet another measure in the Government’s wider transparency and accountability reforms." In the Second Reading speech Senator Faulkner told the Senate the Bill includes provisions that mean "certificates issued previously will be revoked if and when a new request for access to documents covered by a certificate is received. In effect, revocation will be deemed to have taken effect at the time any new request is received. A decision will then be made under the established processes on whether or not an exemption should be claimed for any document formerly covered by a certificate."

The Bill contains a couple of other measures that tighten the FOI Act in some relatively minor ways, perhaps just demonstrating that some parts of the public service still have a wishlist that has ended up in Senator Faulkner's intray of what should be done to fill gaps in existing protections :
"To assist the AAT in reviewing an exemption claim to protect from disclosure national security documents and other sensitive information, the AAT will be required to call the Inspector-General of Intelligence and Security to provide expert evidence if it is not satisfied as to the merit of an exemption claim of this type.

The Bill also addresses an anomaly affecting rights of access to documents relating to intelligence matters where they are held by a Minister rather than an agency. Under the current Act, a document held by an agency is excluded from the FOI Act if it has originated with, or has been received from, an intelligence agency or the Inspector-General of Intelligence and Security, but the same document would not be excluded if it happens to be held instead by a Minister. The Bill remedies this anomaly."

A final comment on conclusive certificates:we assume that none have been issued in the 12 months since the Rudd Government took office but as there is no reporting requirement on use of the powers by ministers and heads of government departments, it's simply an assumption. As best anyone could work out something like 14 were issued in the later years of the Howard government.There is still no great urgency in dispatching the dreaded things: the Minister's office says it is anticipated the Bill to abolish them will be debated in the next session of Parliament-presumably February next year.

Sunday, November 23, 2008

Overall positives for Rudd after one year, but stiil some biggies to deliver.

Plenty of assessments- universally overall positive- on the occassion of the first anniversary tomorrow of the election of the Rudd Government. The thrust of many is that the Government has successfully avoided major disasters, and after many months of looking very cautious and obsessed with process and inquiries, has been transformed into action-oriented by quick(maybe too quick in some respects) responses to the economic and financial markets crises.A couple of examples from Paul Kelly and Michelle Grattan.

The Weekend Australian included a scorecard for many ministers ranging from 9/10 for Julia Gillard and Lindsay Tanner to 5/10 for Steve Conroy but didn't even bother to assess John Faulkner the minister responsible for integrity issues.We've said it before Faulkner has some runs on the board, but no there is no excuse for the pathetically slow pace of Freedom of Information reform which is still to get to first base. Even if we accept the proposed two stage reform process, just what is the hard part associated with abolishing conclusive certificates that means 12 months on, no legislation to achieve this has found its way into Parliament? As to the "changing the culture" intentions, don't start me....

My assessment for Faulkner overall would be 7/10 but on the FOI front nothing to justify a pass and "needs to do much better."

There have been a couple of observations in the media about form regarding openness and transparency, generally along the lines of an opinion piece in the Australian Financial Review last Thursday by Sophie Morris(no link available) who commented that" The Rudd Government is an avid practitioner of the dark art of managing the news, despite its commitment to end the practices of its predecessor." Morris said "Faulkner's efforts to remove some of the systemic barriers to transparency have been thwarted by a media strategy that seems designed to manage the message so closely that public oversight suffers."

Morris quoted John Warhurst of ANU saying the Rudd Government ' is not any more open than the previous mob for all their efforts to say they would be." On the money for mine.