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Friday, August 29, 2008
Medicare Australia won the Grand Award. And you can relax about personal information when next in the dentist's chair- the Australian Dental Association won the Community and NGO award.
Thursday, August 28, 2008
"The document sought by Senator Milne contains material that is preliminary and based on a number of assumptions. The document was not commissioned by any person and has not been peer reviewed or validated by field data. Dr Herzfeld states in the document that the modelling undertaken is unverified for accuracy. There is a strong likelihood that the material in the document could erroneously be interpreted or presented as final rather than preliminary or as based on fact rather than assumptions. The discussion based on such an interpretation or presentation could mislead the public and create uncertainty, pressure and complexity for Gunns Ltd in its dealings with its stakeholders, including the general public."Thanks to OpenAustralia.org for the great new alerts on activity in the Parliament
"I appreciate there can be debate about the most reliable indicators of school effectiveness. But I cannot understand why public institutions such as schools should not be accountable to the community that funds their salaries and their running costs. Right now, we do not have accurate, comprehensive information to allow rigorous analysis of what schools and students are achieving. This must change.Parents have a right to information to inform their family’s decision making about school enrolment. It is important, too, that this information gives parents the full picture. Simplistic league tables don’t really tell us how well a school is performing. They don’t tell us about the student population that the school started with – and its level of educational advantage.Everyone understands why a private school on Sydney’s north shore might do better than a comprehensive government high school in the outer suburbs. But it is not unreasonable to expect that schools with a similar mix of students and similar starting points should do equally well. What parents most want to know is what difference a school is going to make – in other words, the extent to which it is adding value to the results of their students. Parents overseas can get this information. Australian parents – and students – deserve the same. That is why today I announce that we will be making agreement on individual school performance reporting a condition of the new national education agreement to come into effect from 1 January 2009.Within a year, we want to see increased information available to Australian parents. And within three years, a report that shows not just how their child is doing, but how their child’s school is performing compared to similar schools.Knowing where there is underperformance will help us to target additional resources."The PM recognised there will be plenty of argy-bargy over this. As The Australian reports today
"For years, state Labor administrations have sided with unions to reject transparency and have aggressively fought media attempts to use Freedom of Information laws to secure information on the relative performance of schools."
He's right to push hard on this one.
Tuesday, August 26, 2008
Then there's the question about why disclosure comes only after a long drawn out and expensive battle for the applicant, and for the taxpayer who has funded the time of those resisting disclosure for all this time.
Increased transparency would contribute to improved performance and provide a much needed incentive for all in the system to do better.
Monday, August 25, 2008
I don't think Greens MLC Lee Rhiannon has any problem with the concept or the involvement of the office of the NSW Privacy Commissioner, but as she points out in this media release it all rings a bit hollow, given the state government's record on privacy protection:
"This Privacy Awareness Week there is little to celebrate when it comes to the NSW government's support individual's privacy...Poor privacy protection in NSW comes at a time when technological and administrative advancements and increased police powers pose significant threats to individual rights. In this internet age, NSW now has outdated privacy legislation overseen by a part-time Privacy Commissioner. Privacy NSW had its funding and staff slashed in 2003 and has never recovered, becoming little more than an answering phone. In the meantime the NSW government has introduced legislation that rings alarm bells for privacy, for example establishing a photo ID card, electronic health records and very weak workplace surveillance laws."An illustration of Rhiannon's point perhaps is the lack of excitement about the week, or events for privacy awareness, on the NSW Privacy Commissioner's website
Sunday, August 24, 2008
"Their plight, hinted at in public well before now, became common knowledge this week when Parliament's Joint Committee of Public Accounts and Audit held public hearings in Canberra as part of its inquiry into the effect of the efficiency dividend on small agencies. On Wednesday, Commonwealth Ombudsman John McMillan told the committee that the cuts risked ''diminishing our effectiveness as an accountability institution''. Auditor-General Ian McPhee said the funding cuts meant the Australian National Audit Office would have to cut back on the number of audits it conducted this year, from 50 to 45. McPhee said, ''The efficiency dividend is no longer coming out of efficiencies but is impacting directly on the programs that we are delivering. At least five other bodies the High Court, the Federal Magistrates Court, the Australian Law Reform Commission, the Office of the Inspector General of Intelligence and Security, and the Insolvency and Trustee Service of Australia have registered similar complaints, suggesting this is more a cri de coeur than any orchestrated exercise to pressure the Government into reconsidering its budgetary edicts."What amounts to an across the board 3.5% cut in operating expenditure this year would seem certain to impact on many administrative functions including freedom of information to some degree. The usual means of achieving cuts, to reduce staff, could exacerbate already poor and unsatisfactory performance in this area in some agencies, partly the result of consistent underfunding over the years.
A bit of lateral thinking might identify some non-staff savings in the FOI and related fields that could come from more routine disclosure of information; no more silly battles over documents the release of which would result in no real harm to important public and other interests; not engaging high cost lawyers to run cases in the Administrative Appeals Tribunal, etc,etc.
But reduced costs in this area of government, and a squeeze on agencies such as the Ombudsman don't sound consistent with the claims things are moving in the direction of more open, transparent and accountable government. And a properly resourced Information or Freedom of Information Commissioner is still just a twinkle in Senator Faulkner's eye.
Friday, August 22, 2008
I was the other speaker in the session "The climate of disclosure:the public service and the right to know" so can tell you first hand that she made it clear she sees benefit from maximum disclosure.In addition to a serve at the media she also had some important things to say about improving transparency through more routine disclosure of policy research and other initiatives that would represent significant and positive change in access generally, and FOI performance in particular.The full text of her remarks is here
"...while she supported the principle of disclosure,(Ms Briggs said) sensationalised reporting of documents obtained under freedom-of-information laws was not helping a national campaign by journalists and their employers to free up the system.
"The media should accept some responsibility for the current state of FoI," Ms Briggs told a Canberra conference.
"The extensive use of FoI editors has contributed significantly to the current impasse by flooding government with deliberate fishing expeditions and requests designed specifically to embarrass ministers," the commissioner said. "I'd like to see more sensible - and less sensationalised - reporting of the information released within an accurate context."
My comments at the conference were along the lines that the climate of disclosure within the public service, historically, has been on the cold to cool side, not assisted by over 100 secrecy and confidentiality laws, and an enduring culture of secrecy in some agencies that has not been adequately addressed by successive governments over the years. While there have been claims the climate is warming and a couple of examples, there is also evidence that old habits of excessive secrecy continue. These are my notes for those interested.
On the vexed question of access to policy advice, and responsible reporting, that the Commissioner raised, this is from a post here in early June following the leak of the views of four departments on a proposal that went to cabinet:
"We should be entitled to know through designated procedures(not leaks at the whim of someone in the system) what government knows unless some harm to essential public interests would result. Governments need thinking space to weigh advice and make a decision, then choose to act on the advice of this expert or that, or not at all, and to explain itself. However a government serious about transparency should not be trying to limit what we know about the views of its experts by locking the papers up for 30 years when they will be released into open access. Disclosure of the assessments of government advisers, no matter how this occurs, should not endanger the prospect of frank and candid advice in future. The Government should be demanding this sort of advice from its public servants on an ongoing basis."
Thursday, August 21, 2008
One of many such issues has been whether the Tribunal has powers to consider an application for review of a Freedom of Information application received later than 60 days after an internal review determination, or the completion of consideration of a complaint by the Ombudsman. While some decisions have taken the contrary position, the prevailing view has been that the provision in the FOI Act stipulating the 60 day deadline is absolute, and that a late application must fail on jurisdictional grounds.
The Appeal Panel, chaired by Tribunal President Judge O'Connor, has now decided this is wrong and that the Tribunal can consider a late application, but is only likely to exercise discretion to hear such a matter if there is a reasonable explanation for the applicant not acting within the already generous time allowed for review applications. The Appeal Panel acknowledges there is still doubt about the law, and that it would be far better if this was addressed by clear legislation, as is the case in Federal and Victorian law[61-62].
Bad luck for those who missed the boat previously, where being late in lodging an application with the Tribunal was held to be a fatal flaw. The Appeal Panel noted  the situation had worked unfairly against applicants in a number of instances.
And what ever happened to the statutory review of the Administrative Decisions Tribunal Act which the Act required to be tabled in Parliament in 2003 and which may have identified some of these problems and possible solutions? Or to the Government response to a Parliamentary Committee report on Tribunal jurisdiction released in November 2002? In the Tribunal's annual report last year President O'Connor expressed the hope both might appear before the end of 2007. Any sightings?
Wednesday, August 20, 2008
A whole of government information policy to increase proactive release of information, with CEOs to be told to get cracking now to see what can be done straight away; a new simplified act to be called the Right to Information Act with a strong objects clause to ensure disclosure considerations don't get waylaid by "exemption creep"; clear governance responsibilities for making all this work assigned to the Premier and the Director General of her department.This is seriously good stuff.
Congratulations to the Premier and the many others involved who have brought the reform package to this stage, particularly David Solomon and his small crew who crafted ideas about best practice in the information age into a workable set of measures.
Not surprisingly there is room for a few quibbles but not today. For the moment at least, Queensland has set the standard for the rest of the country, where reform is still in the air. Some such as the Federal Minister John Faulkner, the ACT and Tasmanian governments have shown real interest in what's been happening in Queensland. Who knows some of the sentiment may waft over borders to effect even those who have shown no interest (South Australia) or who can manage only a polite nod when someone else- the Ombudsman- starts to do some work on the subject (NSW).
Here is the Government response and the Solomon Review
Tuesday, August 19, 2008
The Premier's media release and fact sheets give more detail. On FOI:
"An immediate review of the Freedom of Information Act, with a view to improving, if necessary, access to information for all Tasmanians, as well as of the administration of the act.
This will include a thorough look at the recommendations of the reviews already conducted of both the Commonwealth legislation and the recent Queensland act review.
In fact, the Solomon Review of the Queensland FOI system will be the starting point for this review.
Secondly, we will significantly strengthen the implementation of the act by providing additional resources in the training, salary and staff numbers of FOI officers and units, as well as the development of rigorous manuals and guidelines for use by people working in this area across government agencies.
The Department of Justice will oversee this review, but it will be conducted with the use of independent FOI experts from outside of our government and outside of Tasmania.
The make up of this panel of experts and the Terms of Reference will be released publicly in the coming weeks.
This is something which we will commence now."
Good to see the reform movement is now on the agenda in all but a few of our jurisdictions, although we are yet to see the colour of any government's money.
While there is a basis for concern that we don't have freedom of speech firmly established in the law, and that Australian courts have not shown much interest in examining in a defamation case whether a publisher acted responsibly in the circumstances, is there a basis for this claim by Sam North, the Managing Editor of the Sydney Morning Herald that judges can't be trusted to interpret a statute in a manner consistent with Parliament's intentions :
Jonathan Holmes: In your experience how much weight do judges in this country give to freedom of expression to the media's right to free speech?
Sam North: Very little... They have an antipathy towards the media and freedom of expression and freedom of speech doesn't rate very highly.
Jonathan Holmes: So if it was up to individual judges to weigh the right of privacy on the one hand and the right of media to free speech on the other, how do you think you'd go?
Sam North: I think we would go badly.
We are all entitled to "think" whatever we like about the future and to express our view. My five cents worth is that we might all be better off with something on the statute book that defines the broad parameters of a cause of action, balancing as best we can the interests involved.The alternatives are to proscribe such a cause of action ( courageous in the Sir Humphrey sense), or leave it to the courts to respond or not, to changing community attitudes to new threats to privacy, both here and internationally.
Friday, August 15, 2008
"Extraordinarily, there is no defence of public interest, something which had been in the earlier discussion paper. Instead the court is to take such considerations "into account" in a balancing exercise. Surely, if we are going to have a new cause of action, proof of public interest should be the end of the matter."The public interest isn't something you pick up off the shelf and say "Eureka!" In all sorts of areas a balancing of various interests is involved.The proposal is that this issue is one for the plaintiff, right up front.The action could fail at the first hurdle- on public interest/freedom of expression grounds-even before a defence is required .
David Weisbrot and Les McCrimmon of the Australian Law Reform Commission who have spent the last two years listening, pondering and analysing the options have this to say in The Sydney Morning Herald :
"The commission's final recommendation is that a legal action should be available to remedy a serious invasion of personal privacy, where the individual (a) had a reasonable expectation of privacy and (b) the conduct complained about would be regarded as highly offensive to a reasonable person. Further, the plaintiff would have to satisfy the court in each case that (c) the public interest in privacy outweighs other matters of public interest - including the interests in informing the public about matters of public concern and in allowing freedom of expression.By including the public interest test, covering only highly offensive conduct, and placing the onus of proof squarely on the person complaining of the breach, the commission has set a very high bar - taking into account the concerns of artists and media organisations about respecting freedom of the press and freedom of expression. Indeed, some privacy advocates and civil libertarians argue that we have set the bar much too high."
Elsewhere Chris Merritt writing in The Australian ("Tort reform") also doesn't attach much significance to the requirement that the plaintiff would have to address this issue to found a cause of action.
"Even if the cause of action had credible defences for the media -- which is not the case -- the mere fact of its existence would transform privacy law into one of the hottest practice areas."
And money for jam for lawyers? Maybe, maybe not- Weisbrot and McCrimmon point out it hasn't done much to line the pockets of lawyers in those Canadian provinces where something similar has been on the statute book for some years.
"The people of Western Australia deserve to know the truth. They don't deserve over after over of political spin."Leading to this retort from the Treasurer, something Mr Buswell is sure to hear often in the next weeks:
Mr Ripper returned fire, saying he took "great exception" to be called a liar by Mr Buswell, who he said had not told the truth over the chair-sniffing incident and support for former leader Matt Birney in a leadership spill.The Premier denies any cover up.
Thursday, August 14, 2008
Mark Day in The Australian, suggests there is time and scope for a debate about all this, and little need for concern that the proposal will impede reasonable media activity .
The following is by Eric Beecher, a former editor of the Sydney Morning Herald and appeared in yesterday's Crikey:
"It's an article of faith for journalists and most others in the media industry: privacy laws are bad and therefore, implicitly, bad for freedom of the press.
Which is why the chorus of media industry response to this week's Australian Law Reform Commission's recommendations for new laws that would give people the right to sue for invasion of privacy all comes from the same well-worn hymn sheet.
A chorus led by The Right to Know Coalition, an organisation made up of media groups like Fairfax, News and the ABC -- lustily supported by battle-weary protaganists like media lawyer Peter Bartlett (who also happens to advise Crikey on litigious matters) -- today argued in The Age that "the recommendation to introduce a tort of privacy could be likened to hitting a nut with a sledgehammer".
But at the risk of questioning a venerated sacred cow -- and at the risk of muddying one's own patch -- isn't it legitimate to ask whether the media is on solid ground when it continues to rage against all and any kind of privacy limitations?
Of course, most sensible people would oppose privacy laws that could stifle exposure of corruption or improper behaviour by politicians, public officials and others who affect the viability of the democratic process. But do most sensible people also support the right of photographers to stalk celebrities, of reporters to expose the s-x lives of non-entities or of News of The World journalists to plant a video camera in a pr-stitute's bra in order to film the s-xual habits of a sports entrepreneur.
The problem here is of context and proportionality. In the Watergate context, any restraint on media investigation is appalling. In the News of the World context, it is difficult to defend either the media's behaviour, its ethics or its arguments for legal protection to invade privacy.
A completely responsible media would have no trouble eliciting widespread support for conducting its fourth estate role with vigour. In the absence of such a beast, it's getting much harder to reject the alternate view -- as articulated today by the president of the Australian Council for Civil Liberties, Terry O'Gorman -- that the "so-called right to know" has been "elevated in some quarters into the right to do anything".
The following observations are relevant to government leaders throughout the country:
"What is needed, 26 years after my government introduced the FOI law, is to have it truly respected by politicians and public servants......The real problem here is public service culture. In some parts it still rejects the notion of FOI. The secrecy and "we know best" syndrome that is cherished in the public sector is alive and well. In these times of the internet, a more enquiring and better educated community, it just does not wash. People want to know things - and so they should...In 1982-3 we sought to "educate" public servants to "live with" FOI. This should be done again.. Community acceptance of public policy is enhanced by full disclosure. If FOI worked properly, it would create a climate where the need for a Crime Commission was diminished. "Has any Victorian Government leader said a word on the subject since the FOI Amendment Bill failed to pass the upper house earlier in the year?
Wednesday, August 13, 2008
"In the course of his reasons, Basten JA noted that the Commonwealth Freedom of Information Act 1982 is drafted differently. In particular, s24A of the Commonwealth Act specifically confers power on an agency to refuse a request for access to a document if all reasonable steps have been taken to find the document, and the agency is satisfied that the document is in the agency’s possession but cannot be found, or does not exist. A decision to refuse access on that basis is reviewable by the Commonwealth Administrative Appeals Tribunal under s55(1)(a), as “a decision refusing to grant access to a document in accordance with a request”.The Court of Appeal decision is of course binding on the Tribunal, and is clear. The Tribunal has no jurisdiction to go behind an agency’s determination that it has provided access to all the documents it holds that fall within the terms of a request for access. The applicant’s reliance on the Federal Court decision in Chu v Telstra Corporation Ltd  FCA 1730 is misplaced, given the differences in drafting between the Commonwealth Act and the New South Wales FOI Act. In this matter the applicant requested access to the “file” referred to in Sergeant Weston’s report dated 28 February 2006. The respondent has provided access to what it says is the only document that falls within the scope of that request, namely Senior Sergeant Fitzjohn's fax dated 10 February 2006. The applicant's contention that there must be more documents is not a determination reviewable under s53. In the absence of jurisdiction, the appropriate course is to dismiss the application."[20-21]
"I would like to see performance information for schools available in the public domain and available most particularly to parents. And the reason we want to do that is to not create simplistic league tables that tell you nothing. We want there to be rich performance information available. We want to understand who is studying in each school, the number of children in each school who may face some form of educational disadvantage and need extra help. And we want to understand how schools are attaining so we can compare schools in like positions and if one’s doing better than the other, find out why and then spread that best practice. It’s in everybody’s interest, and certainly the interest of every Australian child studying at school today, for the maximum amount of information about our education system and their school to be available publicly and we will be pressing for that."
Mark Coultan offers some lessons on this from personal experience in New York, where the Minister recently saw first hand the performance benefits from greater transparency. As Coultan (and this editorial) in the Sydney Morning Herald points out " it is this sort of information that the entire education establishment, including teachers' unions and state governments, is determined to suppress."Here is a prime example from Western Australia:
"WA Council of State School Organisations president Robert Fry said data about school performance and demographics should be kept secret because it would invite unfair comparisons between schools."
"In the weeks leading up to the release of the Australian Law Reform Commission's massive report on privacy, the Right to Know coalition has been sounding the alarm at the prospect of a new law against invasion of privacy.''Privacy threat to celebrity coverage'' was the headline in the Media supplement of The Australian on July 31 for its lead story, which began: ''The celebrity media industry could be thrown into turmoil by moves to restrict reporting on public figures''. Am I the only person who thinks this reads rather like an item in the satirical American newspaper The Onion or an out-take from The Chaser?"The short answer is no.Ricketson goes on to acknowledge that there may be some validity to the concerns expressed about the proposed cause of action, but as public cynicism about the media is widespread, by focusing on the proposed law's impact on the media, the coalition risks narrowing the debate unduly.He suggests some other issues, for example, the privacy threats from the embrace of new technology should be attracting media interest.
The Canberra Times( "Mixed reaction to privacy proposals") seems to have picked up Ricketson's message in a broad assessment of the report, and Jack Waterford in the same paper( "What we can't know hurts you") has a thoughtful analysis of legitimate claims to privacy, the rise of BOTPA ("Because of the Privacy Act") and government accountability, including this:
"BOTPA is one, if only one, of the reasons for general media cynicism and suspicion about proposals for new privacy laws. Another one, about which the public ought to be quite cynical, is the fact that some sections of the commercial media thrive and profit from invading the privacy of celebrities, starlets, models and sometimes ordinary non-consenting members of the public who have stumbled into a public spotlight. Trivial gossip has become bigger and bigger business in most cases with the implicit consent of most of the ''victims'' but has very little to do with the public interest, or with reasons why the media can, or ought to be able to, claim that in respect of its monitoring of the exercise of public power it is acting in the public interest."Elsewhere( including in The Age) the headlines are enough to disappoint Ricketson:
"Overkill in defence of privacy"- The Age, but at least the other side in "Civil liberties group for media reform"
"Privacy laws shield malfeasance"- The Australian. The editorial sets up a straw man with this warning: "..it would be a serious mistake to remake the rules governing the operation of the media by enshrining privacy as an inalienable right which, at all times and in all circumstances, trumps all other considerations."
"If you've nothing to hide"- The Australian.
"New law to hide behind"- Herald Sun.
And a less outraged "Right to know(2):privacy- Sydney Morning Herald.
Tuesday, August 12, 2008
It started yesterday with"Privacy laws to protect celebrities": One of the 295 recommendations is for "the Government (to) legislate to introduce a privacy law for the first time."Correction:Australia has had a privacy act since 1988 .
" Privacy overhaul a win for those with most to hide"includes this from the producer of 60 Minutes:"The tentacles of this run to the very core of an investigative journalist's role in the community, which is why the public interest provisions have to be enshrined if they go ahead with this." And this in "Media fight looms on privacy laws" from a spokesperson for Australia's Right to Know : "Protection of privacy needs to be balanced against the public interest in allowing the free flow of information and upholding freedom of speech," . Correction:that is exactly what is proposed.
"Real news will be at risk"includes this "When the Australian Law Reform Commission unveiled its push for a new way to sue the media, it had a problem. The most it could do was point to the actions of judges, not journalists."Correction: the proposal is for a cause of action for breach of privacy and is not aimed specifically at the media. As for complaints, most people affected haven't complained because that would draw further attention to what is being complained about- an alleged breach of privacy. Given the absence of meaningful compensation who would want to go through the process. As to numbers of complaints, there has been a steady stream of complainants to the Australian Press Council over the years.
All media organisations and journalists (MEAA menbers at least) can point to codes of conduct that include respect for privacy-but none define the term, or provide meaningful redress.Some including the MEAA do not publish information about complaints.
While there is plenty of room for debate about the details, the proposal sensibly suggests some meat on the bone, sets a high hurdle for action, isn't aimed specifically at the media, and is balanced by the public interest and the right to freedom of expression.
And guess what? On other related issues" Debate rages on privacy legal reforms" The Australian reported that business and government agencies don't think much of the idea that they should tell us when serious breaches of security affect personal information they hold about us. Unfortunately the release of the report coincided with "Ticketek bungle prompts privacy debate", but it could have been worse-only email addresses were involved. Political parties can't be far behind in telling us that bringing them under privacy laws will surely be the end of the world as we know it.
I have a sneaking suspicion there is a fair degree of support out there for the views of 2SM's Leon Delaney:
"Among the more vocal critics of the report is a group calling itself the “Right To Know Coalition”, a collection of powerful media companies led by News Ltd, who are concerned about the possible impact that the proposed changes would have on journalism. In particular, it is suggested that investigative journalism would become much more difficult, and that journalists and their publishers could be subject to new forms of legal action.Elsewhere in the Blogosphere I liked North Coast Voices suggestion that the Commission deserves a medal:
While it is important to protect the freedom of the press, and freedom of speech itself, I wonder if the Coalition is more worried about the massive revenue derived from tabloid reporting of the private lives of celebrities. Genuine investigative reporting will continue to be protected because of the public benefit. However, what passes for investigative reporting these days often amounts to Today Tonight or A Current Affair pursuing nickel and dime panhandlers and trailer trash welfare cheats and making a spectacle, rather than tackling serious issues with broader significance.
There seems to be an unhealthy obsession with the private lives of movie actors and pop stars driving a massive celebrity trivia industry. If these so called news outlets really want to do something about preserving the freedom of the press it would be a good idea if they did something a little more worthwhile with that freedom."
"You've got to admire the guts shown by the Australian Law Reform Commission.With the Rudd Government still dragging its heels on implementing the very moderate reforms to sedition laws recommended by the commission two years ago and within a week of the Iemma Government giving NSW Police carte blanche to bug our phones and read our emails without first getting a warrant; the ALRC presents its report on privacy. I'll be blowed if I know why it hopes that pollies will be bothered to even read the executive summary, public servants be moved to do anything but buttress their 'right' to supadupa unsafe data bases or business curtail that endless quest for more and more information it can crunch into digital form and on sell - but I appreciate the incurable optimism displayed."
Monday, August 11, 2008
Harmonisation, simplification, consistency and the need to modernise our thinking about privacy in the light of technological change are key concepts that will have plenty of support.But there will be different opinions about much of the detail, including the proposed mandatory notification of serious breaches of security of personal information, and the proposed cause of action for serious invasions of privacy. On the latter, the media is certain to run a strong campaign suggesting this would constrain freedom of expression, but the Commission's proposal is not specifically aimed at the media; establishes a high hurdle for plaintiffs ( a reasonable expectation of privacy, the act or conduct complained of is highly offensive to a reasonable person, and was reckless or intentional); and provides for balancing considerations including whether the public interest in maintaining the claimant’s privacy outweighs other matters of public interest (including the interest in informing the public about matters of public concern and the interest in allowing freedom of expression).
The briefing notes are helpful. I have struck out so far on the Commission's link to the report Summary - probably in melt-down this afternoon. ( If you are looking for the short cut try instead this summary of recommendations from the Commission's media release and the speeches by the Attorney General and President of the Commission at the launch)
Simplifying and harmonising privacy law and practice
Technology-neutral privacy principles should govern rapidly developing ICT
New cross-border privacy laws-greater certainty for all Australians
Rationalisation and clarification of exemptions to the Privacy Act
Improved complaint handling and enforcement
Introducing a mandatory data breach notification scheme.
Reform of the credit reporting system
Children, young people and privacy
Protecting Health Information in the Digital Age
A statutory clause of action for serious invasions of privacy: getting the balance right
Justice Gray rejected the view that only documents that contain general information about matters of administration such as those relating to the number of sitting days, the number of cases determined, the number of cases withdrawn, the number of cases subsequently appealed and criminal cases in which bail was awarded, were subject to the Act.He said it was an error to to interpret the Act to mean that all documents relating to a specific matter in court files were excluded from the right of access.The objective of the provision was to protect from disclosure documents that would endanger the independence of the judiciary.
"What emerges from the context of s5 as well as from the extrinsic materials, is a concern that documents the revelation of which would impinge upon the independence essential to the exercise of the judicial function, or the decision-making process, should not be made available. It follows that, while the words "relates to matters of an administrative nature" in s5 (and also in s6) should be interpreted as including documents that bear upon the exercise of the judicial, or decision-making, functions, only those documents the availability of which would not impinge upon the necessary independence should be regarded as documents relating to matters of an administrative nature. The test will not necessarily be easy to apply. Its application will depend upon the terms of the request for a document, and may require an examination of the circumstances in which the document was produced and is retained. In the application of the test, however, it is necessary not to take too strict a view of what is necessary to be kept confidential in the interests of preserving the independence of the judicial and administrative decision-making functions.".
Justice Gray found that in failing to apply the proper test, the Administrative Appeals Tribunal had erred in law.
"...(I)n enacting s5 of the FOI Act Parliament intended that some of the documents held by courts would be the subject of access by those applying under the FOI Act. In providing for the making available of any document that "relates to matters of an administrative nature", Parliament was intending to draw a distinction, within the overall category of documents relating to the exercise of the judicial function, between those that were part of the exercise of that function, or so closely related to it that their confidentiality is essential to the exercise of the judicial function, and other documents held by a court.".
The matter, now in its sixth year, has been referred back to the Tribunal to undertake the proper assessment. By the way the Family Court had been prepared to settle the case by providing the applicant with the requested documents, but she was apparently having none of this until the point of principle about the interpretation of the Act was cleared up. An experienced FOI applicant who was self-represented, she at least will have out of pocket expenses paid, as the result of a cost order.
The decision comes a week after the NSW Attorney General released a draft paper with new proposals for access to NSW court documents. Matthew Moore pointed out some shortcomings in the draft in his "What they won't tell you" column in the Sydney Morning Herald a week ago.The general issue of improved public access to court documents is also on the national agenda and harmonisation of rules received a mention in this recent communique from the Standing Committee of Attorney Generals
Apparently the issue isn't just one for the Territory :
"Executive director of the South Australian Centre for Economic Studies Michael O'Neil said the problem was the same in South Australia, with BHP Billiton's Roxby Downs uranium, copper and gold project. "There's been no public discussion of what is going to come back into Treasury,'' he said. "The end point is the community doesn't know whether it is getting value for money.''
Thursday, August 07, 2008
Readers of the fine print will be interested to see that the joint judgment of four judges in the majority was that waiver of privilege required " a judgment that the conduct of the party entitled to the privilege is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. Such a judgment is to be made in the context and circumstances of the case, and in the light of any considerations of fairness arising from that context or those circumstances.".
In this case:
"The evident purpose of what was said in the(Attorney General's) press release was to satisfy the public that due process had been followed in the consideration of the petition, and that the decision was not based on political considerations. The three eminent lawyers who gave the advice were appointed following consultation with the State Opposition. They were external to the Department. Their advice covered all the grounds upon which the petition was based. They recommended denial of the petition. Their advice was carefully considered, and the petition was denied. The Attorney-General was seeking to give the fullest information as to the process that had been followed, no doubt in order to deflect any criticism, while at the same time following the long-standing practice of not giving the reasons for the decision. This did not involve inconsistency; and it involved no unfairness to the appellant. If she had a legal right to reasons for the decision, then she still has it. If she had no such right, the press release did not deprive her of anything to which she was entitled. What the Attorney-General said did not prevent the appellant from making public her petition, or any part of it, as and when she desired."
Justice Kirby, in a separate judgment in which he agreed with the majority used strong words on the importance of the objects of the Act, the "new"realities concerning disclosure of documents that arise as a result, and areas of significant disagreement on some of these issues with the sole dissenter, Justice Hayne:
"Repeated disparagement of the expression "transparency in government suggests an approach to the FOI Act that I cannot share. In so far as the Tribunal made reference to considerations of transparency, it was correct to do so. As the short title of the FOI Act suggests, as its long title affirms, and as its stated objects demonstrate, the public purpose of the FOI is precisely to enhance transparency in government to the extent provided. That object is critical given the oft-repeated instruction of this Court that statutes should be read, so far as their language permits, so as to fulfil their evident purposes. The Tribunal and the courts must bear in mind the distinctive and radical purposes of the FOI Act and take particular care when reaching conclusions that appear to frustrate them."
There is more, including reasons why "producing controversy is legitimate", not contrary to the public interest[121-123], something government leaders and public servants everywhere might reflect upon.
This is what was said by the minister managing the matter in Parliament during debate on Clause 12 0f Schedule 1 of the Bill,which exempts a document where disclosure would constitute an offence against another act:
"The Premier has indicated that consideration will be given to reviewing the secrecy provisions of the individual legislation. We will do that. Legislation will be assessed to ascertain whether it is appropriate to remove secrecy provisions from specific Acts, rather than have a freedom of information bill which would eliminate all secrecy in one fell swoop." (Legislative Council, Parliamentary Debates (8 December 1988) 4687).The relationship between the Freedom of Information Act and other legislation that prohibits disclosure of information, absolutely or subject to qualifications, is an ongoing problem in the administration of the Act. This is what the Administrative Decisions Tribunal Appeal Panel,chaired by the President Judge O'Connor said in a decision in March 2007:
"(T)he Government of the day in 1988 promised the Parliament and the community of New South Wales that the secrecy provisions exemption would be reviewed. The Premier of the day committed the Government to ensuring that all legislation containing secrecy provisions would be assessed to ascertain whether it is appropriate to remove secrecy provisions from specific Acts. The Premier of that time failed to implement the promise, and no action has been taken since.There has been no visible sign of a Government response in the 18 months since.
We repeat the concern previously expressed that active reliance by agencies on secrecy provisions in their statutes could mean that the FOI Act will cease to have any application to many parts of the New South Wales public service thus undermining the very purpose of that legislation. Secrecy provisions are a commonplace of agency statutes in New South Wales. The result is an unsatisfactory one".[40-41]
Wednesday, August 06, 2008
Rick Snell of the University of Tasmania:"For an outstanding capacity to inspire and encourage student learning across the undergraduate law degree from first-year to final year students"
Professor Rick Sarre of the University of South Australia:"For sustained excellence in course development and presentation that continues to motivate and inspire students of law and which has successfully integrated research with teaching"
Associate Professor Stephen Lamble ( and Ms Gillian Cowden) of the University of the Sunshine Coast: "For creating innovative curricula and developing research informed teaching resources that enhance graduate employment opportunities in the profession of journalism"
“I have asked the ALRC to develop options for ensuring a consistent approach across government to the protection of Commonwealth information,” said Attorney‑General Robert McClelland. There are currently more than one hundred secrecy and confidentiality provisions in Commonwealth legislation. The interaction of these provisions with one another, and with other legislation, is overly complex.” “We are committed to open and accountable government and want to ensure that Commonwealth information is only protected where there is a legitimate reason for doing so.Where there are legitimate reasons for protecting Commonwealth information – such as information relating to national security – we need to ensure that our laws provide sufficient protection against unauthorised disclosure."
The terms of reference are broad and include "the way in which secrecy laws in the Crimes Act interact with other laws and practices, including those relating to secrecy, privacy, freedom of information, archiving, whistle‑blowing, and data-matching."
It's a bit much to be critical of this move, as the whole area is a hell of a mess. But reform is a long way off . The Commision will not report until the end of October 2009. And some, most, a lot of the territory, is well trodden.
For example Section 70 of the Crimes Act criminalises all unauthorised disclosures, and excludes any public interest or other defence. In 1991 the Review of Commonwealth Criminal Law chaired by former Chief Justice of the High Court, Sir Harry Gibbs recommended among other things, repeal and replacement with a provision limited to specific categories of information "no more widely stated than is required for the effective functioning of government."
In 1995, the Australian Law Reform Commission Open Government Report recommended (12):
" The recommendations of the Gibbs Committee should be implemented as soon as possible."Nothing happened, at least in respect of Section 70, except that it continued to be used to prosecute, most notably against Allan Kessing arising from publication of a report about deficiencies in security at Sydney Airport.
And a deja vu moment for the Commission, now about to commence an examination of Federal secrecy laws.Recommendation 13 in the 1995 Report:
"A thorough review of all federal legislative provisions that prohibit disclosure by public servants of government held information should be conducted as soon as possible to ensure that they do not prevent the disclosure of information that would not be exempt under the FOI Act."
There was some tidying up of the FOI Act subsequently, but almost 13 years later, and four years after the Commission again recommended it have another crack, the parcel is back with the Commission.
Understandably, the Commission is enthusiastic about the task, given its previous work in this area:
"ALRC President Professor David Weisbrot noted that the Commission has been actively involved in this general area for some time.“Over the last decade or so, the ALRC has provided reports and recommendations to government about improving freedom of information laws, privacy laws and practices, the protection of classified and security sensitive information, the preservation of archival resources, and client legal privilege in federal investigations."
"Name and shame" rolls off the ministerial tongue easily these days in NSW- first in connection with a website to list penalty notices issued for serious non-compliance with food safety standards; this week, the Premier used these words in announcing a website to publish details of successful prosecutions for breach of regulations by pre-schools and child care centres.
Maybe it's some sort of hang over from the state's early days as a penal colony?
In both instances the Government stopped short of embracing transparency as a tool to be used to promote public policy and regulatory objectives.Publishing details of penalty notices is one thing, but compliance with food handling standards would improve generally if inspection reports were published, providing an incentive as well for those that do satisfactorily to do even better. The same goes for compliance with regulation of centres that look after kids. Successful prosecutions are in any event a matter of public record, so publication on a website might be of assistance to those interested but no big deal.When it commences the Premier expects ten centers will be listed as a result of 3300 inspected since 2004.
You don't have to search far on the web to find examples of highly transparent regulatory models. In the UK, Ofsted, the Office for Standards in Education,Children's Services and Skills publishes inspection reports on all centres involved in safeguarding children- 162 childminders and 73 daycare providers just last week. Regulators do the same in many other places, including Alaska .
As for NSW moving from nothing to something is the best we can manage....,for the moment at least
Monday, August 04, 2008
"This legislation abolishing conclusive certificates will also include some additional measures relating to the AAT's procedures for handling FOI reviews including having the Inspector-General of intelligence and security provide evidence to the AAT in relation to national security documents.This represents movement since April when Deputy Prime Minister Julia Gillard spoke to the Maritime Services Union on this subject.The Union has a special interest in documents concerning what the Deputy PM then described as the Howard Government cover up over the 1998 waterfront dispute, complete with conclusive certificate to block access to a Freedom of Information application for documents about government involvement.
In terms of existing certificates, they will be revoked if and when new applications are made for those documents which have been the subject of those certificates.I do stress, however, that the revocation of existing certificates will not affect the ability of decision-makers to claim exemptions under the FOI act where it is legitimate for them to do so. The abolition of conclusive certificates is the first stage of our proposed FOI reforms."
"No decisions have yet been made on how our changes to the FOI laws, which will prevent conclusive certificates being issued in the future, should deal with conclusive certificates issued in the past. That issue needs to be considered as part of our changes to the legal framework."
You can almost hear the keyboards clicking as those who have been on the receiving end of certificates in the past, such as the Union, Michael McKinnon of the 7 Network, and other journalists, dust off some of those applications to give it another shot.While technically the power to issue certificates remains until legislation is changed, Senator Faulkner was proud of the Government's record in this area:
"the critical thing here is that no conclusive certificates have been issued during the life of the Rudd Government and to my knowledge none have been proposed."
Friday, August 01, 2008
One of the side issues raised by some content of the paper is how the NSW Government views statutory obligations and transparency.There must be something deep in the psyche that explains a cavalier approach to the former and a disinterest in the latter.
Way back in November 2003, the Attorney General Bob Debus, now occupying high office in Canberra, had a duty under the law to review the Privacy and Personal Information Protection Act, and to table the report in Parliament by November 2004. Submissions were invited, but that was the last heard until the Minister sent things off to the Law Reform Commission in April 2006. This didn't remove the statutory duty to undertake and table the review. As far as anyone (well me and others who work in the field, at least) knew the silence continued, right to the present.
However readers of this week's discussion paper who get to paragraph 3.8, learn the review was tabled on 25 September 2007.To say this was without fanfare is an understatement. Buried away in footnote 40 they will find reference to the Government's response.Ditto. Missed them- thought they might get a word of elaboration? Both were tabled along with 178 other papers that day .
In between in the discussion paper, there are references to 22 recommendations and 70 submissions the Government has been sitting on for four years.None of this has surfaced publicly anywhere previously- nothing from the Attorney General, nothing on the Department's website or that of the Privacy Commissioner. I take it that it's never received a mention in the regular meetings since September last year of those who are responsible for privacy and freedom of information matters in NSW government agencies. So reforms that were suggested four years ago-we're yet to see the full list-are now part of another review process that has taken over two years to get to the discussion paper stage. And presumably Parliament didn't give a toss that a report was tabled three years late,without any explanation.
According to this report in today's Australian "(no) other government -- state or federal -- comes close to matching Victoria's commitment to disclosing data about its spending on legal services."Chris Merritt adds the transparency " helps the Government focus on problem areas and gives the wider community a good idea of how it is spending millions of dollars in public money.That cannot be said of any other state or territory government. Because of that, nobody can blame voters in other states for suspecting the worst."