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Tuesday, March 31, 2009

Surveillance questions in Victoria raise issues for us all.

The Victorian Law Reform Commission has released a Discussion Paper on Surveillance in Public Places. Chairperson of the commission, Neil Rees, said “surveillance affects all Victorians whether we are shopping, catching public transport, driving on major roads, or attending a sporting event”.

The paper proposes possible reforms that could better regulate surveillance in Victoria including a new role for an independent regulator, new best practice standards, mandatory codes to govern surveillance in public places with sanctions for non-compliance including civil and criminal penalties, a licensing system for some particularly privacy invasive practices and a new statutory obligation to refrain from committing a serious invasion of privacy, modelled on the statutory cause of action proposed recently by the ALRC.

Surveillance in public places is not just an issue for Victorians-it raises the same concerns everywhere. So strange to recall that in NSW in June 2007 the NSW Attorney General dismissed recommendations from the NSW Law Reform Commission about what should be done about this and related problems posed by surveillance devices.. This from a post at the time:
"Eleven years ago ( the Government) gave the NSW Law Reform Commission a reference on this issue. The Commission released an issues paper in 1997 and undertook further research before releasing an interim report in 2001. The then Attorney General, asked for further work to be done, and a final report was made available to the Attorney General in 2005.There the report sat in the 'in tray' until last week when the new Attorney General tabled it in Parliament, and then said the recommendations in the final report were rejected. The full text of the news release said that issues concerning surveillance in the workplace had already been the subject of specific legislation, and surveillance for law enforcement purposes was being looked at on a national basis."
What happened to the national initiative? I can recall a vague reference in a Standing Committee of Attorneys General communique but can't find anything on the web. If it came to nothing, how come Victoria is the only state where the issue is now commanding attention from our legal policy thinkers?

Monday, March 30, 2009

Turning the switch to transparency.

You may or may not agree with Henry Ergas of Concept Economics in The Australian that the Government is on the road to disaster with half-baked populism involving long term costs. But his list of closed decision-making processes in the economic policy area is a reminder of from where we start with the new proposed object in the draft Freedom of Information Bill of promoting "Australia's representative democracy by contributing towards.....increasing public participation in Government processes with a view to promoting better-informed decision-making" :
"John Faulkner promised full disclosure. In fact, disclosure has been pitifully inadequate. Access to the modelling underpinning FuelWatch: refused. Access to the model used to evaluate the ETS: refused. Access to the cost-benefit studies underpinning the NBN: refused. Access to the Building Australia Fund's project appraisals: refused. Access to the Treasury's assessment of alternative stimulus packages: refused. This makes a mockery of democracy, whose virtue, as the historian and philosopher R.G. Collingwood argued, lies in forcing governments to operate "in the open air, and not as a post office distributing ready-made policies to a passively receptive country".

MPs so-called free trips under the spotlight.

Senator Nick Xenophon Independent South Australia.

Heightened interest in what members of parliament get up to and what they do and do not
tell us, with the Sydney Morning Herald revealing that many benefit from free travel without disclosing who pays, and similar reports elsewhere. As reported in The Age Independent Senator Nick Xenophon wants all MPs to declare sponsored travel to parliament (within 60 days of taking their trip) and to reveal the funding source of any sponsored trips on a public website.(What's surprising about this is that it isn't the case already.) If they fail to declare their travel within time they will have to repay the cost of the trip in full.

Senator Xenophon said the changes will provide a level of scrutiny that the Australian taxpayer expects, and of course he is right, but gifts of travel are just part of the picture as mentioned here last week.

My letter sent yesterday to the editor of the Sydney Morning Herald didn't (weep) make it into print today- I know, one sentence always beats a couple of hundred words:
"The failure of Joel Fitgibbon to declare two gift trips to China, and your follow-up report that almost one in four MPs have accepted free overseas travel (“MPs hooked on Chinese junkets” March 28-29) raise the broader issue of transparency and our parliamentarians. The Register of Interests, updated and search enabled to allow the broader community to look at cross links such as gifts to different members from the same source is not published on Parliament’s website. Parliament has never thought it necessary apparently. That’s just the tip of an iceberg of what we don’t know about members and senators, for example their use of large chunks of our own money paid to them as electoral and other allowances. Some information is publicly released by the Department of Finance and Deregulation twice a year on travel and the use of cars, but it is limited and no, it’s not published on the web either.

Minister Faulkner last week outlined a future where much more government information will be automatically posted on the web and where the Freedom of Information Act in future will encourage, not discourage public participation in government, and increase scrutiny of government activities. The reform package represents action finally on many of the recommendations made by the Australian Law Reform Commission in 1995. One not acted upon was that the parliamentary departments that spend taxpayers money on and for our parliamentarians should be brought under the Act, as is the case for example in the UK, but nowhere in this country. Parliaments in Scotland and New Zealand are just two of those that publish on the web declarations of interests and Scotland in addition includes details of the expenditure of every taxpayers’ dollar by every member. Our government and parliament should deliver transparency to this standard."

Friday, March 27, 2009

Privacy and the media-occassional mistakes or something more?

John Hartigan of News Ltd and Australia's Right to Know acknowledged during his opening comments (speech) at the Free Speech Conference, "the media does make mistakes, as some of our newspapers realised last week ... and more mistakes will happen", but blamed this on human frailty-something we all know about- rather than malice or arrogant disregard. After the Conference Mr Hartigan is reported to have said

".. he hoped the fake Pauline Hanson pictures would not hurt the media freedoms campaign. "The reality is that there were a couple of judgments that had to be made with that story," he told The Sydney Morning Herald online. "One was, was it in the public interest and was it an invasion of her privacy? "Number two, was ... if the image was of her, and regrettably, it failed the test. "Editors make judgments a thousand times a day. "That was a particularly significant judgment. They got it wrong and they copped the opprobrium of the community, and so be it."

It's not clear from this whether Mr Hartigan thought the editors had slipped up on both judgments although one interpretation is that, as a couple of editors themselves acknowledged, the only mistake was that the photos were of someone else.

I agree that one poor judgment should be seen in context, but the record includes more than an isolated incident- a couple of other recent questionable calls (by Fairfax publications as it turns out) were mentioned when I first took issue with the claim everything was rosy in the media privacy garden two weeks ago. A reader has also been in touch about publication last month of the image and first name on television and in the papers of a former girlfriend of a man charged in Victoria with arson during the bushfires and separated from him for over a year, wondering about any conceivable public interest in that one.

Presumably Mr Hartigan-because he hasn't said otherwise- still is of the view that overall, the media-privacy framework is working well and no changes are required.The proposed statutory cause of action clearly would have important implications for the media but it is only one of the proposals from the Australian Law Reform Commission that are relevant. For example that the media exemption from the Privacy Act only be available where there is a commitment, and conduct evidencing that commitment, to standards that deal with privacy adequately in accordance with criteria established by the Privacy Commissioner (more than yes, we signed up to something we all thought was pretty good); and the exemption to only apply to journalism as defined, not entertainment or other such activities of media organisations.

New criteria would almost certainly require some changes to aspects of current arrangements. As Mark Scott of the ABC- who also said the media needs to look closely at the cause of action proposal- told the Conference, the Australian Press Council - the self-regulatory body of the print media - is largely powerless and opaque.

There is a need for some serious discussion and debate- of a more substantive kind than that at the Free Speech Conference- about these issues, including points raised in a just published policy statement from the Australian Privacy Foundation such as

"Appropriate forms of action must be available when complaints are upheld. The primary recourse needs to be published acknowledgement of inappropriate behaviour, and apology. In the case of privacy intrusions that are serious, blatant or repeated, a gradated series of sanctions is necessary, including professional rebuke, and the award of adequate (but not excessive) damages against corporations and against individuals.

Minister's mistake raises broader issue of parliament and transparency.

Defence Minister Joel Fitzgibbon is in the spotlight now over his failure to declare on the Register of Interests that two trips to China years ago were paid for by a long-time friend and well-connected Chinese born Australian businesswoman/property developer who has made substantial donations to the ALP.

The Register of Interests contains information of financial interests, stocks and shares held, gifts received over a certain value, and memberships of Clubs and Associations for Senators and Representatives.It's available for public inspection at Parliament House during business hours if you happen to be in Canberra.

We know courtesy of Open Australia that the Register consists of 1500 pages often handwritten, and is only available now on the web page they have put up for each member and senator because a volunteer
Stephen Thorne at Netbox Blue scanned the lot.There is a caveat on what is on the web that it is not supported or maintained by Parliament and may not be up to date.

It's a great volunteer effort but how to explain Parliament never saw the need for this level of transparency or the need to provide not just the register but search capability (not possible in the format provided to Open Australia) that would enable us to readily ascertain where declared interests and gifts cross and connect?

The issue of access to information about members and senators cropped up at the Free Speech Conference on Tuesday. Minister Faulkner (transcript) responded to a question about parliamentarians from Michael McKinnon:
"The Government does not propose to include MPs within the scope of the FOI Act. This act is about providing access to documents of the executive, and I have announced today very significant far reaching reform in relation to that."
He went on to say, correctly, that some information about parliamentarians and their use of our money is held by the Department of Finance and Deregulation. It's far short of the full picture.

I asked
the Minister about web availability of reports on travel by members of parliament and by chance about that Register of Interests. Here is the minister's response:

"..I do accept also the principle that transparency is important in these areas. I have long argued as persuasively as I can within government and within the Parliament, that certainly in the area of the administration of parliamentary entitlements, more transparency leads to better practice. And I have made any number of statements to that effect. It leads to more accountability and better practice. So I support the princ… not only do I support the principle, I hope you've seen some very tangible indications that I'm putting that into practice wearing my hat as Special Minister of State. You do mention the issue of the Register of Pecuniary Interests. The point may well be well made in relation to it not being available on the web. I'm very loath to trample into areas that are the responsibility of both the Department of the House of Representatives and the Department of the Senate, as you would appreciate. The points are well made, and I can certainly pass that on to my colleagues, the Speaker of the House of Representatives and the President of the Senate."

I'm not holding my breath on the last point. But the question remains why the Government decided not to act on the 1995 Australian Law Reform Commission recommendation (Open Government Report 77 Recommendation 73) that the parliamentary departments be brought within the scope of the Freedom of Information Act.That's the situation in the UK- the Government having retired hurt from a recent proposal to change this- and the Canadian Information Commissioner (Recommendation 7) has just made a recommendation to this effect because

" Canadians expect all publicly funded bodies to be publicly accountable under access to information legislation. Therefore, it is recommended that the administrative records of the Senate, the House of Commons, the Library of Parliament covered by the Act, subject to provisions protecting Parliamentary..privileges"

Australians are likely to share the sentiment, not just concerning the Federal parliament but in respect of each state and territory parliament as well.

Thursday, March 26, 2009

Pro-active publication of information a good move, but we could lift the game.

The Government's Freedom of Information Amendment (Reform) Bill 2009 - PDF will among many other things, impose an obligation on each Federal government agency to develop a plan, and to pro-actively publish on the web a range of information about what it does and how it does it, plus information that is relied upon in making decisions that affect members of the public.

While there is more detail in Schedule 2 Clause 8 than the current Part II of the FOI Act on what is to be published, the only really new aspects are the publication of information routinely provided to Parliament, and information routinely released in response to FOI applications. The agency may publish other information (8(3)), and the Information Commissioner may issue guidelines (93A). If any are issued, each agency must have regard to them and the objects of the Act-which include increasing discussion, comment and review of Government activities- in developing a plan and publishing information on the web (9A).The agency in conjunction with the Information Commissioner must review the scheme after five-yes five-years (9).

Two quibbles-we need to stiffen up the pro-active publication of information requirement and we should start now.

The UK has been doing this for years. Their Information Commissioner's Model Scheme is mandatory for government agencies and lists classes of information required to be published. I guess our Information Commissioner will publish guidelines even though the Bill stops short of an obligation to do so.The Australian draft categories look light on and if the intention was to leave the detail to the Information Commissioner, why not make the issuance of guidelines a duty not a discretion? Otherwise agencies left to themselves to develop a plan to reflect the objects of the Act will result in a dog's breakfast. Requirements in the UK list of particular relevance are highlighted. I would add a few specifics such as policy research papers, expert reports, grants (Minister Tanner instructed that this happen from January), loans and guarantees for starters, and countries such as Canada include senior officer travel and expenses:

Who we are and what we do.
Organisational information, locations and contacts, constitutional and legal governance.

What we spend and how we spend it.
Financial information relating to projected and actual income and expenditure, tendering, procurement and contracts.

What our priorities are and how we are doing.
Strategy and performance information, plans, assessments, inspections and reviews.

How we make decisions.
Policy proposals and decisions. Decision making processes, internal criteria and procedures, consultations.

Our policies and procedures.
Current written protocols for delivering our functions and responsibilities.

Lists and Registers.
Information held in registers required by law and other lists and registers relating to the functions of the authority.

The Services we Offer.

Advice and guidance, booklets and leaflets, transactions and media releases. A description of the services offered.

And why not get cracking now? Government agencies should be instructed with immediate effect to see what additional information consistent with the Government's intentions can be made available on the web readily accessible using publicly available search engines. At the risk of causing a mass heart attack in Canberra, also how about some pro-active publication of information about those cabinet decisions fit for public consumption, in line with this voluntary non-legislated lead from Queensland?

Responses to FOI proposals.

Some citizens speak:
From letters in The Australian:

Faulkner, freedom fighter: Three cheers for John Faulkner, a rare politician with the guts and integrity to put the interests of the whole community ahead of the interests of his party with the drafting of the new freedom of information laws. Mark Pearce Richmond, NSW

Could Special Minister of State John Faulkner please give Communications Minister Stephen Conroy a copy of the proposed FOI legislation with the bit that says "and potential embarrassment will no longer be an excuse for keeping government documents secret" underlined? Maybe then Senator Conroy will come to his senses and give up pushing the unworkable internet filtering proposal he is obsessing about. Stephen Mead Rowville, Vic

And from the Sydney Morning Herald:

A rare political animal: Only a politician with nothing to hide could conceive of and drive the agenda for more transparent freedom of information legislation. John Faulkner: a rare and tireless ethical politician who respects public office above anything else ("Democracy should be the freedom to know", March 25). Robyn Dalziell Castle Hill

A more open society such as the "courageous" Senator Faulkner foreshadows requires that the media play a critical part, yes, but a responsible one. Beat-ups with screaming headlines about unpopular but essential political decisions are likely to make politicians pull their heads in faster than a threatened tortoise and revert to the darkness and safety beneath the shell. Ron Sinclair Bathurst.

As well as some of the usual suspects, with overall positives, as reported by Nicola Berkovic in The Australian.

FOI for Boffins

I mentioned recently that a journalist had asked me where to find FOI for Dummies but if such a publication exists it won't be much help in coming to grips with the fine print of the Government's proposed reforms contained in the Exposure Draft Freedom of Information Amendment (Reform) Bill 2009.The published Companion Guide helps on some of the main points but you wouldn't want to rely on that for the complete picture.

The Draft Bill runs to 130 pages- and that's just the proposed changes. These proposals are in addition to the changes in the Bill currently before the Parliament to abolish conclusive certificates and a few other things beside. To make sense of it all you need to refer back to the current version of the Act to get the gist of seemingly innocuous provisions such as "Repeal the section" or at the end of the paragraph add "and." By way of contrast the Queensland draft Right to Information Bill put on the table in December was 178 pages, but was a complete rewrite, so a lot easier to manage.

What I said at the time was the good news about the Queensland Bill also goes for the Commonwealth's draft:
"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."
Except the last point- basically all the previous exemptions remain in one form or another.

By the way, the nature of the proposals have a lot more in common than this with David Solomon's Queensland recommendations, and in some areas-eg real embrace of access to government information in the digital age- fall short of what he put forward.

However what is on offer here is good, positive change- with some quibbles of varying significance- and when passed will make a big difference. Just one illlustration. The Shadow Attorney General Senator George Brandis said on Tuesday at the Free Speech Conference that the Minister's claims about the significance of changes to spell out relevant and irrelevant public interest considerations regarding disclosure and nondisclosure didn't amount to a row of beans. Now the Senator, like the rest of the panelists only had an hour to absorb the fruit of 16 months work by untold public servants, ministerial advisers and ministers, so could be forgiven for omissions, but he missed a major feature of the proposals.

Up to now the courts have been prepared to interpret the Act as not requiring a pro-disclosure bias because the objects in Section 3 include a reference to a right of access subject to the exemption provisions. Thus "no leaning" in favour of disclosure. However in the new objects there is no mention of exemptions, simply this:
"(2) The Parliament intends, by these objects, to promote Australia’s representative democracy by contributing towards the following:(a) increasing public participation in Government processes, with a view to promoting better-informed decision-making;
(b) increasing scrutiny, discussion, comment and review of the Government’s activities.
(3) The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.
(4) The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.
The reference to Parliament's intention in last sub-clause is not new but the rest is. Read in conjunction with the legislative demise of most of those silly "Howard" factors that favoured non disclosure since 1985, the duty to take into account the following when weighing the public interest (quibble- only relevant to some not all exemptions) will move things strongly in the direction we were trying to go in way back in 1982:
"(3) Factors favouring access to the document in the public interest include whether giving access to the document would do any of the following: (a) promote the objects of this Act (including all the matters set out in sections 3 and 3A); (b) inform debate on a matter of public importance; (c) promote effective oversight of public expenditure;"
More-including some quibbles later.

Wednesday, March 25, 2009

The morning after.

Those reptiles of the press were busy after yesterday's Free Speech conference as you will see through the links in this Google News search. Most are generally positive about the Freedom of Information proposals but cautious and conscious of the task ahead and what is involved, not just in FOI, to turn the secrecy ship around. As to opinion, Jack Waterford Canberra Times, (no link available), Sean Parnell in The Australian, and Matthew Moore and the editorial in the Sydney Morning Herald are all interesting. Perhaps the frostiest view of it all is the editorial in The Australian.

The set of documents released yesterday are all here, so you make up your own mind if you like.

From my quick look the couple of reports that say all the existing exemptions in the FOI Act are to go, to be replaced by a single public interest test are not correct.Exemptions stay, some are rejigged and some will have a public interest component for the first time. Those hoary old public interest chestnuts-confusion, possible misinterpretation, communication by senior officers etc- are to be legislated out of existence, thank goodness. Changes to the objects of the act and the listing of public interest factors that favour disclosure might just mean decision-makers and the courts will in future lean in favour of disclosure in interpreting exemptions.

Tuesday, March 24, 2009

Australia's Right to Know

I'm just back from Australia's Right to Know Free Speech Conference and would say that the day was a highly positive discussion of many issues of interest and concern around the topic. (Some speakers' papers are here).

With one notable exception: the discussion about the media and privacy was pathetic, largely because the issue was framed by News Ltd's lawyer Robert Todd from Blake Dawson around a series of straw men such as the effects of publication of photos of children and UK privacy decisions in the courts concerning photographs of JK Rowling and her kids on the street. And a photo of a child running from a napalm bomb in Vietnam in 1968!! The panel discussion that followed was all over the place but hardly on target.

There was a complete failure for example to address the highly relevant and topical issue raised by News Ltd CEO John Hartigan a week or so ago that the current media- privacy framework works well. But there was plenty of special pleading about why a general and non-media specific statutory cause of action for breach of privacy would be the end of the world as we know it, including from the former editor of the Daily Telegraph David Penberthy who sounded on occasion that he might struggle to spell p..r..i..v..a..c..y.

But all power to ABC boss Mark Scott who had earlier departed from the partyline by saying that the media should seriously consider getting on board to work out a clear statement of the law in this area, and for being the only media speaker on the day to mention the need to match media freedoms with high standards of professional responsibility that must accompany press freedoms. (Correction - John Hartigan also referred to this).

Those of you who weren't there might be staggered to learn that the elephant in the room - the incredible judgment by Penberthy's successor Neil Breen to publish those photos- only received a passing reference from Judge Ron Sackville (in a terrific talk about the philosophical underpinnings of freedom of speech) and a sideswipe from John Hartigan that the media shouldn't let a few people out there decide what was in the public interest. Presumably Hartigan thinks that media editors are perfectly placed and instilled with appropriate wisdom to make this decision, and shouldn't be subject to any second guessing or any penalties for getting this wrong even in the most egregious cases.

What should be the main story of the day were the very positive remarks from Minister of State John Faulkner on the Government's Freedom of Information reform proposals, including the release of an exposure draft of an amendment bill that includes many significant changes- greater pro-active disclosure, clearer relevant public interest considerations and exclusions of some hoary old chestnuts around this issue that the public service has run with for years. And complete removal of application fees and reduction of charges generally. We have heard a lot of this before but Minister Faulkner successfully came across today that he is not only well-intentioned but serious. There were plenty of sceptics on the panels and in the audience , and everyone accepts there is a big anti-disclosure culture to change. But first things first and overall the proposals look good. I need to have a closer look at the detail before saying anything more.

There was lively discussion of the Dreyfus report on whistleblower protection but a large gap in understanding between Mark Dreyfus who presented the findings of his committee report as aimed at improving governance, and media voices who argued that this should be about the right to know just about everything possibly untoward that happens within the government system.

Lots of criticism of the Government's proposed shield laws for journalists and the circumstances in which a judge should exercise a discretion to accept the refusal to answer questions about the source of information.

More comments over the next few days.

All happening in Sydney on Tuesday.

Australia's Right to Know Free Speech Conference on Tuesday 24 March- if you won't be there check the program details. If something- the whole thing- grabs you and you have Foxtel or Austar tune in to live coverage on Channel 607.Otherwise, access the live stream here. I'll be there but I don't twitter.

Here's a warm-up on topics (other than the media-privacy framework) by Caroline Overington in today's Australian.

ABC ranges over media low and high.

Jonathon Holmes on Media Watch on ABC television last night had a go at the full story behind the publication of the Telegraph photos and the weekend apology, describing the whole episode as "one of the most spectacular examples of lousy journalism we've seen in Australia for quite a while."

This followed the Four Corners program "The Dishonouring of Marcus Einfeld" where the former Federal Court judge and a man once listed as a national treasure just couldn't explain consistent lying to avoid paying a $77 traffic fine. He now has a couple of years in the slammer to think about it plenty more.

Couldn't help but wonder if NSW Crown Solicitor Ian Knight was watching. In October 2006 in a spectacular spray Knight spoke to a gathering of government lawyers about the "crisis" arising from excessive demands from Parliament and elsewhere for disclosure of information- FOI was a contributing factor. Knight gave the media a big clip around the ears for what he descibed in his speech as "the disgraceful treatment of former justice Einfeld." Paul Sheehan in the Sydney Morning Herald had this to say at the time:
"The Crown Solicitor's commentary suggests that a misapprehension exists in senior legal circles that the Einfeld controversy is an aberrancy, the latest media blood sport, another beat-up. The opposite is true. The story is bigger than Einfeld. The judiciary was a fertile field for his portentous narcissism. A succession of magistrates failed to check his numerous evasions. It was the media, not the Crown, that finally brought this travesty to light"
In November 2006 Michael Beach and Viva Goldner of the Daily Telegraph received a Walkley Award for the best news report for their original story about Mr. Einfeld and uncovering his attempts to avoid traffic fines. The rest as they say.....

Monday, March 23, 2009

There should be no quibbles about this right to know, but there are.

Not a Melbourne photo as far as I know.

The quaint idea that compliance with safety standards at particular premises in the handling of food for public consumption is a matter of interest only to the food safety inspector and the business concerned is still alive and well in most places around the country. Victoria might be about to join
NSW in telling the public more when a proposal goes to Parliament within months, according to Eleni Hale in the Herald Sun.

In the meantime Hale's Freedom of Information applications have produced the following gems about unnamed premises. Names are presumably not disclosed out of concern for the businesses involved. Heads up Melbourneites, these might be one of your favourites:
"An inner-city restaurant where cutlery was wrapped in blood-stained napkins. Bean curd soup was served with a 2cm cockroach at a central Melbourne restaurant. A northern suburbs cafe served eggs with chilli flakes and live maggots. A mouse walked over the meat display at an inner-city butcher's shop. A man found a cockroach in his dim sim. There were many complaints about broken glass in food in the CBD. In the same area, live maggots were served in butter chicken. A family which ate teriyaki chicken in Melbourne's west said they became violently ill. And at an inner-city restaurant, staff used a bottle labelled weed-killer to spray tables."
It's ridiculous that the name of the premises and other details such as when the incident occurred and the history of inspection results, good- NSW still won't go there, sticking to "name and shame" and failing to recognise the value of transparency as an incentive for continual improvement- and bad, is claimed to be information concerning the business affairs of those involved. The information is about compliance with public health and safety standards. In any event the public interest in the promotion of better public health lies in disclosure of inspection results and any other relevant information, for example a subsequent inspection that revealed rectification of previous shortcomings. Or, even more importantly serial breachers.

Other voices on confusion in the media about the public interest.

From ABC Radio PM, before the weekend apologies:

Professor of Journalism at UTS, Wendy Bacon:I mean, what could possibly - let's assume the photographs were the photographs of the person they're meant to be - what would be the public interest in publishing photos of someone undressed, you know, many years before?
I can't see in this case there's a public interest argument. If you reduce public interest just to whatever titillates people or whatever is of interest, well then the whole notion of some broader concept of what is in the broader interest absolutely dissolves....

The whole idea behind the journalist code of ethics is this very fundamental thing is that you carry out checks and you attempt to ascertain the truth before you publish. And I would have thought that, particularly in the case of something that was a photograph, everybody knows the potential to doctor it, even if in fact it was a different person in this case and not a doctored photograph, but from years before, one would just be absolutely alert to it. And I think it's also a concern that this is not some junior journalist acting under pressure, this is the editor of a newspaper who has got all these other journalists working underneath him.

David Weisbrot President of the Australian Law Reform Commission: We've seen very poor judgement on the part of editors on what's newsworthy or not. They seem to have - some of them have no understanding of what it means to have a public interest. We've shown that many media proprietors don't have any respect for their own codes, which are supposed to protect privacy, and they argue that we don't need greater regulation because they have industry codes that specify respect for personal grief, for personal privacy and so on. And we've seen in some of those cases as well that there's really no recourse for the victims of serious breaches of their privacy, even in the most outrageous circumstances.

News really sorry the photos weren't Pauline, but that was all.

"Pauline Hanson: I've said all week I'd be the first person to apologise to you if it were proven the pictures we published last weekend were not of you. I am now convinced we have the proof they were presented to us as part of an elaborate con. So Pauline, I'm sorry. We should never have published them."

So begins this personally written editorial by Neil Breen the Editor in yesterday's Sunday Telegraph. Breen goes on to explain that the paper was misled by the person they paid $15000 to hand over the photos and by the middleman paparazzo who acted on his behalf. But the only mistake Breen admits to was wrongly concluding the photos were of Hanson. If they were genuine, Breen suggests publication of photos of her undressed, regardless of when, where and the circumstances they were taken, were fair game:
"she was a public figure, running for election in Queensland in a return to front-line politics, who had written a detailed book about her life in which she laid her private life bare" and "(t)he paper believed - and still believes - there is massive public interest in Ms Hanson's life."
I won't repeat my contrary opinion in a post last Friday. There are plenty of opinions out there on the issue. But Breen's comments suggest important different understandings about the nature of the public interest.

In my view, in this context, there is a public interest shared with all other members of the community to know and be informed, and the media's Fourth Estate role to publish to this end. But there are limitations reflecting other public interests.Breen seems to equate the public interest with the publication of any information about someone in public life that he thinks some of us might find interesting.

An apology was offered in similar terms by the Editor of Melbourne's Herald-Sun and presumably by other News Ltd publications that ran the photos, but how do the TV stations and the hundreds of others who ran with the story make amends? The best columnist Robyn Riley who hopped into this with some enthusiasm a week ago could manage was a sorry for "being so tough" on Ms Hanson.

I had been still puzzling yesterday over this editorial in the Telegraph's stablemate The Weekend Australian on Saturday, the day before the deluge of apologies. Even the headline "The threat within" is darkly ominous and after a valid comment about a Victorian Freedom of Information matter, in paragraph four the writer takes a sharp turn in a completely different direction to open fire on those in the media who have chosen to differ with Australia's Right to Know line on the media and privacy, seeing them as some sort of fifth column whiteanting from within:

"Unfortunately, the governments, organisations and individuals who would render free speech increasingly f"ragile through secrecy, control and spin are being aided and abetted by the very people who should be fighting the trend at every turn -- sections of the Australian media. The latest example is the hypocritical push by Media Watch host Jonathan Holmes and Crikey editor Jonathan Green to discredit the Right To Know coalition's campaign against a statutory right of privacy. Holmes's and Green's arguments are so bereft of substance that they have been driven to create a cause celebre out of a woman their respective organisations have vilified for years, Pauline Hanson."
The editorial says Holmes' program is" driven by a potent mix of moral arrogance and corrosive cynicism" and that
"Holmes's and Green's pretence that the photographs published last Sunday discredit an important Right to Know campaign to protect democracy and safeguard free speech is a quantum, illogical leap.It is indicative of a mindset better suited to running a black pencil through real journalists' FOI requests than reporting the news."
Well of course Green and Holmes weren't the only ones who had strong views about the broader implications of the "Hanson" photos for the media.By yesterday The Telegraph and the Herald-Sun in their apology editorials were acknowledging they had heard plenty from readers this week in letters, phone-calls and emails expressing outrage at the publication of the photos, genuine or not. The Herald Sun admitted it had failed in an important public duty that might take years to rectify:
"The trust you place in us to deliver the news fairly and accurately has been seriously breached. Rest assured, we have heard you. Over the coming months and years, the Sunday Herald Sunwill work hard to rebuild that trust. So, to you, the reader, the Sunday Herald Sun also apologises.
My guess is that most letter writers would share the hope of Editor-at-Large of the Canberra Times Jack Waterford that
" big media organisations would have at least the sense to understand that they will get no concessions( on free speech issues) while their house is not in order. Particularly on privacy."
And that whatever support there might have been for the proposition put by
John Hartigan of Australia's Right to Know that the existing media-privacy framework works well might have been eroded by this and other events that suggest some in the media think the right to know slogan justifies publishing just about anything.

With exquisite timing this Tuesday's Free Speech Conference organised by Australia's Right to Know in Sydney includes two sessions on privacy and the media, one a debate on "Private lives versus the public domain- Where should the media draw the line when it comes to respecting the privacy of people in the news?"

Participants are Robert Todd, Partner, Blake Dawson, Gail Hambly, Group General Counsel and Company Secretary, Fairfax Media group, Peter Meakin, Director of News & Current Affairs, Seven Network, David Penberthy, former editor, The Daily Telegraph, Professor Roger Clarke, Chairman, Australian Privacy Foundation and visiting professor at Cyberspace Law & Policy Centre, Faculty of Law, UNSW, and Nigel Waters, Pacific Privacy Consulting.

Too late to substitute Pauline Hanson and Neil Breen I suppose, but that would be a face-off many, to use Breen's terms, would find very interesting.

Friday, March 20, 2009

The inside story on the " publish' decision.

The detail of some of this may be way beyond your level of interest but Chris Merritt Legal Affairs Editor of The Australian today in" When public interest and privacy collide in Pauline Hanson nude photo case" provides a platform for Daily Telegraph Editor Neil Breen to tell us about the decision-making process to publish, what steps were taken to check the legitimacy of the photos and why he felt the public interest justified publication. On the latter point his views are an advance on the "how many papers were sold" test offered by the Deputy Editor earlier in the week. Of course the public interest considerations mentioned pre-suppose that the photos are of Pauline Hanson. Breen concedes there is now "extreme doubt" about this.

I take another view about whether the good order of society and the well-being of its members is advanced by publication of highly personal photographs
taken 30 odd years ago long before any involvement in public life, showing someone said with certainty to be now a political candidate in a state of undress, where the photos raise no issue about character, honesty, credentials for office or any inconsistency with public claims.There are of course other views out there apart from mine and Breen's

Merritt reports:

"Breen's decision to publish has infuriated Ms Hanson - who says the pictures show somebody else - and given her an unlikely supporter in Jonathan Holmes of the ABC's Media Watch.Holmes, like his predecessor Monica Attard, believes the media needs to be subjected to a new privacy law. Along with privacy proponent Peter Timmins, Holmes was quick to use the Hanson pictures in their campaign."

My original foray into this on Monday was in response to what I saw as exaggerated claims by News Ltd boss John Hartigan in an article published on Saturday which seemed to be part of a News Ltd campaign against a statutory cause of action for breach of privacy. "Campaign" seemed the right word to describe what we've seen in News publications last year when the proposal surfaced and when within two days of the Hartigan article Merritt labelled the Australian Law Reform Commission report "outrageous" a word no-one else has used in any of the discussions about the complex pros and cons of the proposal.The"Hanson" photos were one point in my comment in response to Hartigan's claim that the current" media- privacy framework " is working well, and that there is no justification for change.

As to Merritt's description of me as a "privacy proponent" I'll leave it to you to decide in the light of three years of published opinions here and about thirty in and around these issues, whether Merritt or his colleague Nicola Berkovic writing in The Australian on Monday was more accurate when she generously described me as "an expert on FOI and privacy law."

I've never talked to Jonathon Holmes but admire what he does on Media Watch. As to our "joint campaign for an actionable right to privacy, here is what I said on Monday:

"As mentioned here previously the media might be well advised to try to be part of crafting a reasonable statement of a cause of action- there may be room for sensible tweaking of what has been proposed- rather than leave it to the courts over time, as is likely, to incorporate into common law the rights in Article 17 of the Covenant."

Some others such as Clayton Utz share this view.

Thursday, March 19, 2009

"Stick to FOI reform, Rudd urged"

Missed this in The Australian on Monday- but yes, it's what I and others have been saying for a l....o...o...n..g time now. We will be all ears at the Australia's Right to Know Conference in Sydney next Tuesday when Minister Faulkner unveils the Government's second phase Freedom of Information reforms.

Unhappily he won't have much good news to tell us about phase one- Federal Parliament adjourns today or tomorrow with the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill still to get back on the action list, having been tabled last November. No-one on any side of politics seems to be opposed (although all the submissions from outside government suggested changes and enhancements to the Senate Finance and Public Administration Committee, to no avail) and the Committee recommended on 10 March that the Senate pass the Bill. Parliament won't be back now until Budget week in mid-May, and of course there will be many competing priorities, as no doubt the Government would tell us is the explanation for slow progress to date.

This reform should have been low hanging fruit for a government committed to change and elected 16 months ago. Here is how the Parliamentary Library put phase one in perspective in the Bills Digest on 27 February (PDF 441KB):
"The removal of certificates is however a relatively minor and straightforward part of the bigger picture of FOI reform. A much greater challenge is to address the concerns that have been evident since the 1996 ALRC Open Government report which point to the legalistic interpretation of some of the exemption provisions, the time delays and the expense of FOI requests."

Yes, and of course, there is then that even tougher one- the culture change issue.

Queensland election: the meaning of silence?

Queenslanders vote on Saturday- millions of words and thousands of photo opportunities over the last four weeks. But I can't find a word, issue or concern about openness, transparency and accountability on the ALP or LNP campaign websites. (Weren't the activities of lobbyists an issue for example just before the election was called?) Meanwhile the draft Right to Information Bill. sits quietly on the table.Did David Solomon's report and the Government response remove the issue completely from the top order?

As to privacy, there has been a draft Information Privacy Bill ( for the public sector) also sitting on the table, unremarked in the campaign. "Those photos" didn't seem to provoke a wider debate about this topic either.

(Update: it's not much but a reader has sent me this extract from a long interview with LNP leader Springborg by Craig Johnstone in the Courier Mail on 18 March, which I couldn't find on the CM website:

"On Freedom of Information, he says he supports the view that information to do with government should be routinely "pushed out" rather than held back. "Last time in parliament I tabled every single item of Opposition expenditure right down to the milk receipts," he said. "My challenge is to Bligh to do the same sort of thing, get the information out there and the thrill of the chase actually goes."

Well, then, how about revealing the invitation list of the $20,000-a-head dinner Springborg hosted in the middle of the campaign? "Well, no, and the reason that we are not going to have the invitation list is quite simple. The Labor Party actually goes after people that support our side of politics," he said. But if it were Bligh at that dinner, wouldn't he be screaming for the invitation list? "I haven't made a call for Anna Bligh to expose the people that she may have had dinners with during the course of this election campaign and there have probably been heaps of them," Springborg said.

"People will have the chance to be able to judge us in government and the people we might deal with. We deal with a whole range of people who come to us from time to time and might want to talk about policy things. It doesn't necessarily mean that they are expecting particular special deals."

Wednesday, March 18, 2009

The right to know AND the right to privacy.

There are few journalists or media executives in Australia with anything like the 'right to know " credentials of Jack Waterford, earned over 30 odd years with the Canberra Times, a pioneer in the effective use of Freedom of Information law in investigative journalism, and these days Editor-at- Large. When Waterford speaks, as he did today in "The media kicks an own goal," about this week's photo fiasco and the need for the media to get its house in order on privacy, others listen, or at least they should:
"If the photos are fake, Hanson's chances of collecting handsome damages seem fairly good. So, presumably, does the actual subject of the photos. But Hanson stands a reasonable chance of getting damages even if they are genuine, and, frankly, I hope she does. In my opinion she should get damages both for defamation and for invasion of her privacy. The latter tort is in its infancy in Australia (its development being much opposed by media lobbies, particularly by News), but, this could be an ideal case for its expansion. As well as for underlining the fundamental hypocrisy of some of the media opposition....Like Hartigan and his industry-wide Right to Know Coalition, I would like to see a considerable extension of the media's right to know what is going on in public affairs, and to tell the public about it. In general, the practical difficulties of doing so increase each year. They are not helped by the economic downturn, which is making media outlets reduce their costs and capacity to compete against those who want to restrict or control the flow of information.

But big media is deeply compromised by the behaviour of some of their organs. It is the primary reason why politicians, judges and others are able to resist greater scrutiny of government and public institutions and public figures by journalists and citizens. Tabloid television, celebrity journalism and the hypocritical and shameless exposure ''journalism'' exemplified by the Hanson episode sit uneasily alongside claims of acting in, or pursuing the public interest. So, alas, do the profits from it.

The public are not fools. Opinion poll after opinion poll confirms the poor standing of the media, and of cynicism about the nobility of the mission of media enterprises. There are many journalists of standing whose presentations are thought honest and whose opinions, even when unpalatable, command respect. But their work, and their capacity to do their work better, is continually undermined by what also occurs in the media, as often as not, through the same paymasters. It may well suit politicians to respond to this hostility, since it means there is less pressure on them. One would think, however, that big media organisations would have at least the sense to understand that they will get no concessions while their house is not in order. Particularly on privacy."

Crikey meanwhile lobbed a complaint on the Australian Press Council's doorstep, highlighting a few gaps in that media privacy framework that last Saturday was claimed to be effective and working well.

Another hard to beat exemption.

It's also hard to beat an exemption claim that release of information would harm international relations when a foreign government says this will result- as was the case this week when Minister Wong revealed Japan had told the Government this would follow any disclosure of additional footage of Japanese whaling activities in the Southern Ocean. The relevant exemption (Section 33) simply states that it applies where there is a reasonable expectation of damage to international relations-no other criteria applies. If another government says so, that's almost certainly game set and match regardless of any other factors. (It's why we should be pushing for a public interest test for all exemptions).

Minister Penny Wong seemed a bit rattled in answering questions about the Freedom of Information applications for the footage by Senator Bob Brown in the Senate on Monday as you will see here. The Minister returned to the subject yesterday when obviously better briefed and able to clear up some confusion about which agencies had dealt with what applications after she became aware that an application had been transferred from her department to Customs.Thanks to Open Australia for these two Hansard links.

Disappointed applicant but hard to toss this professional reasoning.

A brief comment on a Freedom of Information knock-back in the news over the last few days.

The Department for Broadband, Communications and the Digital Economy refused Tech Wired access to the Panel of Experts Report on the National Broadband Network, primarily on grounds that the document was prepared for submission to cabinet, and in addition that it satisfied the internal working document exemption (some other exemptions were cited as well).There is virtually no chance of getting access to a document like this while, as is the case here, the matter is still under consideration within government and no decision has been made. (After decisions have been taken the cabinet document exemption- which doesn't require consideration of the public interest- would still apply to the Report.)

Thanks to Tech Wired the 17-pagenotice of determination is here. While you might think it goes on a bit, this is as good an example as you will find of a highly professional fully compliant, dot every i, cross every t determination. And why the real costs of the time involved in FOI administration are what they are. With all due respect to Nikki Vajrabukka, Acting Assistant Secretary, Corporate and Coordination Branch, this doesn't look like a document you sit down and reel off the top of the head, without some very skilled input.

One pleasing factor was that the public interest factors considered and relied upon to claim the internal working document exemption [40-45] are much more compelling and realistic than those old, tired highly questionable claims of harm to frankness and candour or public confusion- a hopeful sign that the professionals within government have finally binned them?

Tuesday, March 17, 2009

Clayton Utz calls it straight on privacy and some in the media

Whoever wrote "The right to know..what?" for Clayton Utz law firm knows a thing or two, and not just about the laws on privacy. A couple of extracts:
"One sees more items in the media in defence of "the public's right to know" than items expressing concern about intrusions into the private lives of individuals. Invoking slogans such as the "public's right to know" or the protection of "freedom of speech" tends to obscure the real debate rather than advance it. What precisely is it that the public has a right to know? Surely there are limits? Proposals by law reformers for the introduction of a statutory right of privacy would obviously not shut out the media altogether. The level of protection will vary depending on whether you are a public or private figure and the extent of the intrusion.

It is also alarmist to suggest that the introduction of a right of privacy would prevent reporting on scoundrels, shonky business people or those whose public personae is at odds with the reality of their private lives. It would not. Inevitably were a right of privacy introduced it would lead to legal cases about the extent of such right. Serious journalism has nothing to fear from such cases. Gossip, voyeurism and other light entertainment would likely fair less well."

The article is dated 13 March- before the current controversy over "those photos"- and while the Hanson event might not prove to be the tipping point, this was a prescient conclusion:

"The greatest degree of certainty on this issue would arise from the intervention of government. What might provoke governments into action would be an egregious overstepping of the mark by the media in reporting on a matter which, whilst substantially true, is of an inherently private and personal nature. Pray it isn't you or one of your friends or family members who suffers such intrusion. But when it occurs, we will then likely see limits placed on the "public's right to know".

Someone's old photos and the right to privacy

ABC TV's Media Watch last night also looked at the "Hanson' photos and media standards regarding privacy. This from the transcript was particularly telling:
"So what was the public interest in publishing these photos?
We asked Helen McCabe that question yesterday. She told us:
That's for our readers to tell. That will be determined by the number of people that buy the paper.
— Statement from Helen McCabe, (Deputy Editor, The Sunday Telegraph) to Media Watch, 15th March, 2009
That's not any public interest test I've ever heard of.

Jonathon Holmes concluded with this comment, picking up on John Hartigan's observations referred to here yesterday that there is no place in our system for a cause of action:

"Pauline Hanson has demanded retractions. She might yet sue for defamation. And she might win. But if there were a statutory right to privacy she'd have a lay down misere. This sleazy exercise, Mr Hartigan, makes it all the more likely that very soon, there will be."
I'm with Holmes but some in the media seem to be on the wrong side of this argument.

Monday, March 16, 2009

The Australian resumes war on a cause of action against privacy

Can't disagree with the headline "Democracy demands an informed public" in the Weekend Australian. But that doesn't go for some of the content in the opinion piece by John Hartigan- News Limited Chairman and CEO, and the lead figure of Australia's Right to Know - particularly points he makes about privacy and the media in arguing against the Australian Law Reform Commission (ALRC 108) proposal for a statutory cause of action for breach of privacy.

Just on the subject of the importance of an informed public you wouldn't know from reading the article that the proposal is for a general cause of action and is not specifically aimed at the media; that the cause of action would be framed only to apply to serious breaches; or that a plaintiff would have to satisfy the court before getting to first base that the public interest in privacy outweighs other public interests including the interests in informing the public about matters of public concern and in allowing freedom of expression

As to Hartigan's arguments, the claim that the proposal "ignores the fact that the current media privacy framework is effective and working well" is plain head in the sand stuff. There are many identified gaps and flaws in the framework as pointed out in the ALRC Discussion Paper (DP 72, Chapter 38) in 2007-it's a self-regulatory model with all that goes with that; a media organisation has an exemption from the Privacy Act if publicly committed to observe privacy standards but there are no criteria for or independent assessment of the standards; and different codes apply to the various media sectors with big variations in what they cover, and in enforcability, with some schemes such as the Australian Press Council complaints process for print media having no power to penalise or make an order against a publication.

Broad and positive sounding commitments such as in the Media Entertainment and Arts Alliance Code of Ethics, which only applies in any event to members, to "respect private grief and personal privacy" just don't square with what we see and hear.To take just two recent examples: the publication of a full frontal front page photo of a family taken as they heard the news of death of a family member in the recent bushfires for the first time; or another on Saturday of the two small children of a murderer convicted last week, one wearing a school uniform on the way to school. Media Watch(16 February)
drew attention to other instances of inappropriate media intrusions on victims during the Victorian bush fire coverage but few apart from The Australian's own Gary Hughes who lost everything in the fires and has written about his experiences are likely to complain.

All this is before we even start on commercial television's current affairs programs and their "knock the door down" approach to getting the story, or News Limited papers and the television networks running allegedly false photos claimed to be of perennial political candidate Pauline Hanson nude and taken by an ex boyfriend almost 40 years ago-it's see you in court on that one today.

Hartigan is also off the mark in seeking to support his argument by claiming "there are very few complaints, investigations and breach findings against the media for breaches of privacy" as, if true, there could be all sorts of reasons for this.For example the Australian Communications and Media Authority only considers complaints that have not been satisfactorily resolved by broadcasters and there is no publicly available information about the number and outcome of those first order complaints. And those directly affected will be restrained by the knowledge that complaining about a breach of privacy may compound the invasion that has already occurred. Some might agree with the Australian Privacy Foundation that there are relatively few complaints because there is a widely held public perception that when it comes to privacy the media are effectively above the law.

Today Legal Affairs Editor Chris Merritt follows up the Hartigan article with "Free speech,open government? What a laugh" labelling the ALRC Report, in its entirety apparently, as "outrageous" and scorning the Government for its silence on the cause of action proposal-in fact it's for attention in the second stage of consideration of the recommendations after privacy principles have been settled. (Merritt strangely gives the Government a tick for runs on the board on Freedom of Information reform, most of us wouldn't, but a hopeless score on the few other indicators of free speech mentioned. He dismisses the Dreyfus Report on Whistleblower protection as "flaccid" and says it supports existing secrecy laws, whereas it said nothing on the subject, leaving it to the ALRC's current review of the secrecy statute book.)

The Australian, as it did when the ALRC report was released last August, has pushed way out ahead of most others in the media, with over the top claims and no semblance of balanced analysis, in the same vein as commentary published at that time - see here, here and here. I'm yet to see anyone else use "outrageous" to describe a proposal that our law should recognise a right contained in the International Covenant on Civil and Political Rights, the US Constitution and the laws of most governments in Europe. Hartigan's right in suggesting in an ideal world that we should have a constitutional right to free speech but while we work on that one other necessary changes in our laws shouldn't be put, possibly forever, in the too hard bin.

As mentioned here previously the media might be well advised to try to be part of crafting a reasonable statement of a cause of action- there may be room for sensible tweaking of what has been proposed- rather than leave it to the courts over time, as is likely, to incorporate into common law the rights in Article 17 of the Covenant.

For the record, I was Deputy Chair of the Independent Audit of Free Speech in Australia prepared for Australia's Right to Know but have had no involvement with the coalition since November 2007.