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Saturday, October 31, 2009

Senate Committee to open up Government claims of commercial in confidence

An impasse was broken on Thursday over the Federal Government's legislation bill on telecommunications regulatory reform, previously stuck in the Senate as a result of the Government's refusal to comply with an order to produce documents and information on commercial-in-confidence grounds concerning the National Broadband Network. According to AAP in The Australian, the Government won 30-29 on a motion to debate the bill with the support of all the crossbenchers. The clincher, according to Senator Xenophon's office was the Government's agreement to a Senate Committee inquiry into the use of commercial in confidence by government to report back in the first sitting week of next year, ahead of a debate on the draft laws to set up the National Broadband Network. In an earlier debate in the Senate last week Senator Brown (Australian Greens), on the subject of commercial in confidence generally observed:
"In all of my parliamentary life one bane that has been consistent is governments of both persuasions resorting to commercial-in-confidence excuses for blocking from going to parliament information that is required for proper decisions to be made."

Senator Brown went on to say
"Freedom of information ought to have been legislated long ago for the private sector as well as for the public sector because the private sector—as we have just witnessed from the global financial crisis and the need to put its way billions of dollars from the public sector as with the stimulus packages, which are getting up towards $100 billion of taxpayers’ money—is very, very dependent upon the largesse of taxpayers. It cannot resort to secrecy then when taxpayers’ representatives in the form of senators want to look at information which is critical to making decisions."
Thanks to
Open Australia for the Hansard link.

Perhaps in the course of the Senate inquiry someone will raise the silence since about the Government intention announced in March by Minister Faulkner, that the Australian Law Reform Commission be asked to look at FOI or alternative access and disclosure law for the private sector?

Friday, October 30, 2009

Kessing and s70 of the Crimes Act

Good to to see The Australian Legal Affairs extensive coverage today of new twists in the Allan Kessing case in articles by Chris Merritt. The headlines say it all:
Kessing's conviction 'tainted';
Whistleblower rolled by jugernaut; and
A pardon for Kessing is not enough.

Thursday, October 29, 2009

Auditor General calls for more transparency from Queensland GOCs

The Queensland Auditor General in Report 7/2009 on Government Owned Corporations (GOCS) tabled in Parliament this week is critical of transparency levels. This from the Executive Summary:
"My Auditor-General Report No. 2 for 2006, concluded that the average level of maturity of performance measurement and reporting systems at GOCs was higher than the average level of maturity in the budget sector. Three years on, the GOC sector has made limited progress in implementing the 2006 recommendations. Of the original nine recommendations made to the Treasury Department, only one has been fully implemented and six only partially implemented. In my view, Parliament and other stakeholders do not receive an adequate standard of information on GOC performance in a number of areas, which include a lack of disclosure on forward plans and longer term performance targets. This makes it difficult to determine how GOCs have performed over time and whether longer term performance objectives have been achieved.

I also have concern over the amount of information related to GOC performance that is deemed to be commercial-in-confidence and therefore not published, or not published on a timely basis. The Right to Information Act 2009 is part of a broader ‘push’ model of proactive and routine release of information by the government. Non-disclosure of information on the basis of commercial confidentiality needs to be balanced against the prime consideration for transparent performance reporting and accountability to Parliament for the use of public funds."
The Queensland Right to Information Act does not apply to all GOCs. The Solomon Review proposed that all Government Business Enterprises (primarily GOCs) should be subject to the Right To Information Act but acknowledged that many documents might not be accessible once the public interest test was applied. The Government response was to bring some within the scope of the Act but to continue to exclude others such as electricity generation companies (CS Energy,Tarong Energy and Stanwell Corporation), the trading activities of Ergon Energy
Queensland; and Queensland Investment Corporation; and Queensland Rail’s competitive commercial activities, such as coal, bulk and general freight services.

The Auditor General however was making a general point picking up on this paragraph in the Government's response to the Solomon Report:
"These legislative changes (The Right to Information Act) will be supplemented by increased publication of information relating to GOCs as part of the government’s move to a ‘push’ model of information sharing, which will be coordinated through the Office of Government Owned Corporations in Queensland Treasury."
The Treasury response to the Auditor General's draft report was that it is getting on with the job and that standards for some GOCs need to be in line with the private rather than the public sector.

The last word-so far- goes to the Auditor General:
"...the relatively large amount of information contained in a number of the Statements of Corporate Intent which is currently released at the end of the reporting period raises questions as to the level of commercial confidentiality which existed at the beginning of the period.

The Right to Information Act 2009 is part of a broader ‘push’ model of proactive and routine release of information by the government. When considering the preamble and the objectives of the Act, the Parliament’s intention to emphasise and promote the right to government information is clear. A number of reasons are spelt out in the Act as to why government information is to be made available. Schedule 4 of the Act provides factors for determining the public interest and include: to promote open discussion of public affairs and enhance the government’s accountability; to contribute to positive and informed debate on important issues or matters of serious interest; to inform the community of the Government’s operations; to ensure effective oversight of expenditure of public funds; to assist inquiry into possible deficiencies in the conduct or administration of an agency or official; to provide the reason for a government decision and any background or contextual information that informed the decision.

These matters promote openness in government and increase the participation of members of the community in democratic processes leading to better informed decision-making and improved public administration and the quality of government decision-making. Although the Act provides exemptions to allow the non-release of certain GOC information, the exemptions should be applied within the context of the overall intentions of the legislation for the release of information in the public interest."

Tuesday, October 27, 2009

Federal Court foray into public interest immunity

(Update: A reader-thanks James- says the Full Court allowed an appeal by the State against this decision last Friday, that reasons have not been published yet, but the orders are available online. They relate only to parts of the decision by Justice Jagot concerning some documents claimed to be subject to legal professional privilege and do not refer to the public interest immunity aspects of the decision. As at 2 November no written judgments have been published but will flag any observations relevant to that issue when they appear. This in the Sydney Morning Herald on 13 November, and today 17 November an analysis of the Full Court decision, particularly relevant to the point in the post below, about privilege and instructions to Parliamentary Counsel.)

An unusual intervention in civil proceedings between other parties by the State of NSW/ Attorney General saw Justice Jagot of the
Federal Court of Australia give relatively rare consideration to claims of public interest immunity. The decision is of interest also in the context of the NSW Freedom of Information Act, and the Government Information (Public Access) Act to commence next year, and the requirement in both instances, similar to the test in this case, to balance public interest considerations for and against disclosure of deliberative documents.

The substantive matter has been brought by Betfair against a statutory authority, Racing NSW, which is independent of the government and not subject to ministerial direction. Betfair contends that conditions imposed by Racing NSW on its approvals to publish NSW race field information and requiring it to pay 1.5% of turnover are invalid because they contravene the guarantee of free trade between States in s 92 of the Constitution. According to Betfair the standard turnover conditions are discriminatory against an inter-State trader (Betfair) and protectionist in favour of an intra-State trader (TAB Limited).

The documents in dispute in these discovery proceedings concerned matters leading up to the drafting of legislative amendments for these conditions.

Justice Jagot stated [2-5] the general rule that a court will not order the production of a document in legal proceedings, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it; that the public interest has two aspects: the protection of government from the harm which may be caused by disclosure and the interest in ensuring that justice can be effectively administered; that the court must weigh the competing elements of the public interest; and that a claim for immunity for a class of documents as opposed to a claim in relation to individual documents will be upheld only if it is really necessary in the public interest or the proper functioning of the public service.

The documents in question held by Racing NSW related to matters considered and discussed in a working group that included officers of the government agency, the Office of Liquor Gaming and Racing (OLGR ) and representatives of each of the four racing bodies in NSW, convened by OLGR for the purpose of assisting it in developing legislative drafting instructions to be provided to Parliamentary Counsel concerning amendments to the Racing Administration Act and the promulgation of the Racing Administration Amendment (Publication of Race Fields) Regulation.

Some documents were drafts of the Regulation
with drafting notes ensuring that Parliamentary Counsel had correctly understood the drafting instructions; a considerable number were reports to board meetings of Racing NSW identifying Racing NSW’s perception of the position of the NSW Government and its own position; some comprised the provision of statistical and other information by Racing NSW to the OLGR; others involved legal advice and communications about legal advice for which there were separate claims for legal professional privilege; none were papers prepared for Cabinet although one document prepared by Racing NSW and submitted to its Board recorded the contents of a proposed minute to Cabinet which must have been disclosed to Racing NSW. There was evidence that the proceedings of the Working Group were confidential.

Justice Jagot rejected the argument, on behalf of Betfair that the immunity claim failed at first instance because it was for a novel class of documents that were not Cabinet documents. She accepted submissions on behalf of the Attorney General that the classes of documents attracting the immunity at least on a prima facie basis involve a spectrum from those at the highest level (Cabinet documents) to those at lower levels (such as reports of junior Departmental officials). The strength or weakness of the public interest protected (or the harm that might result from disclosure) does not affect the existence of the immunity. It affects the balancing exercise between that public interest and the interest of the party seeking access in order to litigate its claim. In any event, it is well-recognised that the classes of immunity are not closed (authorities deleted). She also accepted the doctrine involved three considerations: - (i) the harm that might flow from disclosure, (ii) the material assistance that disclosure might provide to the party seeking access, and (iii) weighing those conflicting interests. [19-20]

The evidence brought to support the claim by an officer of OLGR was that disclosure of documents concerning the deliberation, advice and discussions of the working group could undermine willingness of people and entities to be involved in similar processes in the future and their confidence that they could give frank and fearless advice to government. The officer stated that disclosure of drafting instructions to Parliamentary Counsel and draft legislation, as well as related documents concerning discussions and deliberations of public servants about those matters, could be harmful to the public interest for much the same reasons.[21]

Justice Jagot stated [24]
"Consistent with the submissions of the Attorney-General, I consider that there is a public interest in ensuring that those involved in advising governments about policy issues proposed to be embodied in legislation feel able to give frank and fearless advice uninhibited by concerns about future disclosure. The fact that this interest in candour or lack of inhibition has been subject to a certain degree of judicial scepticism over more recent years does not mean that this aspect of the public interest may be dismissed outright.
However the key issue was the balancing test which involved an assessment of the nature and extent of the harm to the public interest in the proper functioning of the executive and legislative branches of government by reason of disclosure, compared to the nature and extent of the harm to the public interest in the proper functioning of the judicial branch by ensuring that all relevant documents are available to a party seeking to litigate a claim.[24]

After considering the issues and examining the documents Justice Jagot concluded [43]
(1) The public interest affected by disclosure (that is, future candour and lack of inhibition in those advising the NSW Government) exists. Yet, on the facts of this particular case, this is a relatively weak factor. The documents concern legislative amendments to racing legislation discovered by statutory bodies independent of the NSW Government. The bodies in question are bound by their enabling legislation to provide independent advice. Their interests cannot be inferred to be aligned consistently with those of the NSW Government. The nature of their functions makes it inherently unlikely that they will be anything less than candid and uninhibited in their advice. Insofar as the documents disclose drafting queries by Parliamentary Counsel, the nature of that office also indicates that there is no real basis for a concern about future inhibition or lack of candour. Accordingly, the public interest affected by disclosure is a factor of relatively insignificant weight in the present case.

(2) The decision-making process disclosed by the documents is complete. The public interest in question protected by non-disclosure is limited to cases in the future the same as or sufficiently similar to the present case to justify its consideration. In weighing this factor regard must also be had to the bodies in question – Racing NSW and Parliamentary Counsel’s Office – and my satisfaction that their functions are incompatible with any acceptance of a real risk of a future lack of candour or inhibition in their advice to government. Accordingly, this factor is also of relatively insignificant weight in the present case.

(3) The issue in relation to which production is sought does not involve the freedom of an individual from potentially wrongful conviction. But it does involve an alleged breach of a fundamental constitutional guarantee by the bodies which discovered the documents. Accordingly, this is a material factor entitled to weight in the present case.

(4) Given the nature of the issues in dispute in the principal case, there is a real likelihood that production of the documents will affect the outcome. Accordingly, this is a material factor entitled to weight in the present case.

(5) There is a real likelihood of injustice to Betfair if the documents are not produced for a number of reasons. The documents are centrally relevant to its case. The documents are in the possession of the respondents and not sought on subpoena from the State of NSW. As Betfair said, Racing NSW, at least in respect of part of its function, is the industry representative for the NSW racing lobby. The interests of Racing NSW cannot be inferred to align consistently with that of the NSW Government. They certainly cannot be inferred to be consistent with the interests of Betfair. The legislative amendments the subject of the documents enabled Racing NSW to impose the very conditions that Betfair says infringes the constitutional guarantee to its detriment. The fact that the discussions were expressed to be confidential does not alter the significance of these circumstances. All of these circumstances indicate that there would be a substantial injustice to Betfair by reason of non-production.

At law, therefore, frank and candour are alive and well as a public interest consideration, although a claim for nondisclosure of documents or information on this ground will be weak where decisions have been taken, don't disclose information concerning Cabinet deliberations broadly defined, and are outweighed by the public interest considerations that favour disclosure. Other than the administration of justice considerations relevant to this decision, the GIPA Act lists various factors to be taken into account in favour of disclosure including where disclosure could be expected to promote open discussion of public affairs, enhance accountability, or contribute to positive and informed debate

The Attorney Generals intervention seeking to prevent discovery of documents on grounds of legal professional privilege also produced mixed results. While some claims succeeded, those relating to drafting instructions to Parliamentary Counsel were rejected in all but one instance.. Justice Jagot said she did not accept

"that the drafting of legislation pursuant to an instruction to do so, in and of itself, involves a retainer the dominant purpose of which is the giving of legal advice. More is required to attract legal advice privilege than a mere instruction to Parliamentary Counsel to draft legislation and the provision by Parliamentary Counsel of draft legislation (even if clarification is thereafter sought as to the intent of the instructions). In short, there must be some express or implied request for legal advice. In common with the cases referred to by Betfair where questions arose as to whether wills and the legal transaction documents were subject to legal professional privilege, an instruction to draft legislation does not necessarily carry with it an implied request for legal advice. The provision by Parliamentary Counsel of draft legislation is also not necessarily the provision of legal advice. Whether or not legal advice is involved largely depends on the nature and terms of the retainer (in this case, the drafting instructions).[50]

51. I have read the drafting instructions to Parliamentary Counsel. They are pure drafting instructions. They seek the preparation of an exposure draft of legislation for the purpose of consultation with the industry. They do not contain any request for legal advice. I have also considered the draft legislation discovered. Other than in one case, it is simply draft legislation with certain drafting notes and does not contain anything that purports to be legal advice. I am satisfied that, other than in one case explained below, the discovered documents comprising draft instructions to Parliamentary Counsel (both draft and final) and draft legislation were not brought into existence for the dominant purpose of obtaining legal advice. Accordingly, those documents cannot attract legal professional privilege."

Monday, October 26, 2009

Business sighs of relief as reference to ALRC slips below the radar

Then Special Minister of State John Faulkner in March 2009, releasing the Freedom of Information Reform Exposure Draft, and speaking of the Government's broader agenda:
"the Government will (later this year) provide the Australian Law Reform Commission with a reference to consider whether FOI should be extended to, or another disclosure regime provided for the private sector."
While this extension had been considered but not recommended in the Australian Law Reform Commission's 1995 Open Government Report, Senator Faulkner said in March "the Government considers it timely to re-examine this issue in the context of the general reforms to freedom of information and developments on disclosure regimes in both public and private sectors."

The Minister didn't explain or mount the argument for the initiative then, and neither he nor his successor Senator Ludwig mentioned it publicly thereafter. Nor within government it seems.

ALRC President Professor David Weisbrot told the Legal and Constitutional Estimates Committee on 19 October ( at 25) that he had not heard a word
from the Government since. Still, it's still only 26 October....

Breaking down the barriers to open government

At the CeBIT Gov 2.0 Conference in Canberra last week Minister for Finance Lindsay Tanner spoke about the Gov 2.0 Task Force, and the current state of play.

The Minister referred amongst other things to the need to encourage
more use of Creative Commons to move on from the copyright limitation on reuse of much government information, and announced the winners of the Gov 2.0 Task Force Brainstorm competition, the first of several: the ‘Government Gazette 2.0' to make the Government Gazette available in machine readable format, to improve its accessibility and open the possibility of mashing-up the Gazette with other types of data (don't mention this to the NSW Liberals and Greens who insist it be a criminal offence for a newspaper or magazine to play around with published data about school performance); and the suggestion to improve the preservation of government data published on websites by setting up dedicated and simple URLs for archived websites – a sort of retirement home for old data – to guarantee the ongoing availability of archived government information for citizens.

The Taskforce recently commissioned its first six projects to provide research and advice on areas of key importance:
  • Enhancing the discoverability and accessibility of government information;
  • Investigating the barriers within agencies to adopting Government 2.0;
  • Reviewing and advising on Australian Government Web 2.0 practices;
  • Reviewing copyright and intellectual property barriers to open data sharing;
  • The Semantic Web – tagging datasets to enable sharing and re-use of data; and
  • Analysing the value of open access to public sector information held in cultural institutions.
Chairman Nicholas Gruen is encouraging the consultants involved to use the Task Force blog to seek input and canvass ideas. Gruen's notes of his speech (doc) to the Conference include a welcome link to the FOI Reform Exposure Draft object that states government information is to be managed for public purposes and as a national resource.

On the culture change challenge the Minister said:

"To make government more open and responsive the public service must be empowered and encouraged to proactively disseminate information and participate in public discussion. The difficulty and importance of this challenge is often overlooked. Yet there are few more important steps for achieving the objectives of Government 2.0 than equipping public servants with the skills, tools and permission to engage. It would be a mistake for Government 2.0 advocates to see the public service as simply an organisation in need of an upgrade. Public service culture cannot be wiped and reprogrammed – and nor should it be. It must be remembered the Australian Public Service delivers enormous value for taxpayers. It is comprised of thousands of talented, dedicated public policy experts, who collectively produce most of the policies and services delivered by government. It is no wonder that many of the leading voices within the government 2.0 community come from the public service. But the success of government 2.0 will not be assured unless the principles and practices of the agenda are embraced by public servants as central to how they do business.....

While no one is suggesting that we allow public servants to simply tell reporters what is on their mind, they should feel free and encouraged to engage in robust professional discussion online....

We need to provide the public service with access to the tools to deliver greater access to information, innovation and collaboration. We need to reward innovation in the public service as much as we do in other areas of society. To change public service culture we must accept that some of what we do will not work perfectly every time. But as Clay Shirky says, the great power of the internet is that it has enabled us to experiment with new ways of doing things at very low cost. This is the nature of empowerment. Public servants trusted to make the right decisions and also, within reasonable limits, the latitude to make mistakes in the pursuit of open, responsive, and innovative government."

Amen to all that. The chilling effect of secrecy laws and other factors that contribute to the prevailing culture, mentioned most recently here, don't get much of a mention in all this.

Friday, October 23, 2009

The Oz, human rights horror stories from the UK, and some exploded myths for good measure.

UK DPP Keir Starmer QC- read on.

Chris Merritt in The Australian today returns to a familiar theme for the paper- the horrors that await us if the Federal Government goes ahead with a Human Rights Charter . This time its about the perils particularly for those of religious belief, based on the views of a British barrister, Paul Diamond, heading our way to join, among others that font of wisdom on the subject, former NSW Premier Bob Carr, at a " public meeting on the dangers of a charter of rights" in Sydney next week.

While acknowledging "(t)here are substantial differences between Britain's Human Rights Act and the scheme that has been drawn up for this country by Frank Brennan's committee," Merritt says, to justify telling us how bad things are in the UK, that " there are enough similarities to ensure Diamond's grim assessment of the British experience might cause some charter supporters to reconsider."

Diamond's "grim assessment" , according to Merritt, arises from involvement with clients who "are religious people whose beliefs, he says, have come under attack because of Britain's charter: an airport worker who refused to stop wearing a crucifix, a teacher who was dismissed when she objected to the promotion of a homosexual lifestyle to children, a nurse who was suspended for offering to pray for a patient."

Shocking isn't it? But a pity also that readers of the Oz and those attending the meeting probably won't hear about the speech yesterday in London by another UK barrister the Director of Public Prosecutions, Keir Starmer QC, one of many I expect who has rather different views. An extract follows- have a look at the myths towards the end.

"A brief look back into history shows that all of the defining documents recognise that human rights are universal, inalienable and perpetual. They are not triggered or defined by any one individual's status at any given time. They are not to be applied or disapplied depending on the situation one finds oneself in. And they are not discriminatory.

Our texts in this area are, of course, the Human Rights Act 1998 and the European Convention on Human Rights and Fundamental Freedoms. As I am sure we all know, Articles 2 - 12 and Article 14 of the Convention are adopted in the Human Rights Act 1998 and so have been with us for over a decade now. However, one cannot escape, particularly in recent months, the debate that has emerged around the extent to which it is appropriate - and these are my words here - to repatriate the Human Rights Act and make it "more British."

I do not think it unreasonable to conclude that those who advance such a view somehow propose to replace the Human Rights Act, or at least those articles in it which are taken from the European Convention, with other human rights which they consider to be more appropriately geared to "British" society.

Pausing only to recall the fact that the United Kingdom played a major role in the design and drafting of the European Convention itself back in 1951, let me just take you through those rights which have been adopted through the Westminster legislation.

  • Everyone's right to life shall be protected by law.
  • No one shall be subjected to torture or degrading treatment or punishment.
  • No one shall be held in slavery.
  • Everyone has the right to liberty and security of person.
  • Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
  • No one should be held guilty retrospectively of a criminal offence.
  • Everyone has the right to respect for his private and family life, his home and his correspondence.
  • Everyone has the right to freedom of thought, conscience and religion.
  • Everyone has the right to freedom of expression.
  • Everyone has the right to freedom of peaceful assembly and to freedom of association.
  • Men and women have the right to marry.

And Article 14:

  • The enjoyment of these rights and freedoms shall be secured without discrimination on any ground.

For my part, I am proud to be part of a society that regards these rights as part of my entitlement as a member of that society. They are basic; they are fundamental; and I venture to suggest that, for the majority of us, they are so much part of our way of life that we take them for granted.

I cannot think of any way in which such basic human rights are either so foreign to England and Wales that they do not reflect those principles that we hold dear, or which for some other unspecified reason, are thought not to be relevant and of direct applicability to each and every member of our communities.

The idea that these human rights should somehow stop in the English Channel is odd and, frankly, impossible to defend.

Let me pause there simply to guard against complacency: everyone of us, I am sure, knows of instances where these rights have been ignored by someone in authority; where they have been deliberately set aside ostensibly to secure some greater goal; where they have been wilfully abused in the pursuit of prejudice and discrimination. So, whilst I recognise that for most they are a part of our way of life, for others, they are vital shields and defences to the abuse, prejudice; and discrimination to which they are subjected.

If there are perceived problems with these human rights under the Human Rights Act, I venture to suggest that they are more borne out of their misapplication and misunderstanding rather than any perception that they lack intrinsic value.

And following that theme, let me dispel some myths about the Human Rights Act and the European Convention:

A police force unable to circulate a photo of a wanted, dangerous and violent criminal because it might breach his Article 8 rights to privacy? My advice - go ahead - it is essential to protect the public.

Unelected judges can now tell Parliament that their laws need not be enforced? No - judges cannot strike down legislation.

Human Rights mean that school teachers cannot enforce discipline at school? No - it is domestic legislation - section 548 of the Education Act 1996 - passed 2 years before the Human Rights Act - that banned corporal punishment in schools. Interestingly enough, it is section 93 of the Education and Inspections Act 2006 - passed 8 years after the Human Rights Act - that now allows school teachers to use reasonable force to prevent a pupil from committing an offence."

It is often in the interests of those who want to debase a principle to chip away at it by citing examples of its occasional misapplication. We should all take care to examine critically the so-called restrictions brought about by the Human Rights Act and consider where the misunderstanding truly lies before condemning a constitutional instrument that has provided legitimate comfort to so many."

Good advice for those in the UK, and here as well.

NSW Ombudsman sees a glimmer, but big job ahead.

The Annual Report of the NSW Ombudsman released yesterday has plenty to say about the public service, including a concern that "(t)oo many public servants think integrity is an old-fashioned, optional concept." The report on the Ombudsman's work on Freedom of Information starts at page 95. Not all grim news. Complaints about FOI matters down about 10% including a decrease of 50% in July 2009.
" In our view, this trend may be attributable to greater openness by agencies following the Premier’s statements of support for a review of the FOI Act and issuing of a memorandum in October 2008 encouraging proactive release of information by government agencies. Another likely reason for the decrease is that the NSW Police Force has substantially reduced their backlog of FOI applications, which has in turn reduced the number of complaints we received about delays in determining FOI applications."
However complaints from third parties objecting to disclosure of documents were up, and the shift in gears appears to mostly be with respect to matters that are more straightforward.
"The largest drop in complaints has been mainly those about delays and less contentious or clear cut merit decisions. We are still finding that agencies are reluctant to release documents which may be embarrassing or reveal matters of maladministration or failure to take appropriate action. Consequently, complaints which disclose broader issues of maladministration have increased in both number and complexity and have taken up considerable resources."
The report provides detail of investigations into the Roads and Traffic Authority, open disclosure practices in two Area Health Services, the Board of Studies and the University of Newcastle that illustrate failure to fully and properly implement the law.

With this report The Ombudsman is moving out of direct involvement after 20 years of dealing with FOI complaints, with the Information Commissioner to take over as the Government Information (Public Access) Act comes into force in 2010. The Ombudsman says the Office will be watching what flows in practice from its important catalyst for change, the own-motion review of the FOI Act in February this year, and for broader instances of maladministration.

The Ombudsman Bruce Barbour and his predecessors since 1989 all deserve congratulations for standing up for the right to know when few others did during much of this time, and long-time staff members Deputy Ombudsman Chris Wheeler and Wayne Kosh who have been working on these matters for all that time deserve a special mention.

The Ombudsman also had a few words yesterday to say about a "don't give it to me in writing" request for advice that surfaced in a parliamentary inquiry into the Department of Planning.

On with the culture change.

Thursday, October 22, 2009

Last minute rush on secrecy laws.

Professor David Weisbrot told Senate Estimates (Legal and Constitutional 19 October at 25) the Australian Law Reform Commission has asked the Attorney General for six weeks extension, beyond the end of October, to submit the final report on the reference to review secrecy provisions in Commonwealth acts. The Commission had received 24 late submissions, including from major stakeholders, mostly major government departments whose advice was needed to complete the review.

Battlelines for public interest immunity established again in Senate Estimates

Senate Estimates committee hearings have been underway in Canberra since Monday, with the usual myriad micro Q and (mostly, and in a fashion) A about aspects of government administration.The chair of each committee has tabled at the commencement of hearings this text of the Senate resolution of 13 May 2009, now part of Senate Standing Orders, on public interest immunity claims, and the procedure to be followed in the event of refusal to answer. Paragraph (1) is the nub of it all, and (7) relates to the usual issue of contention.
"Public interest immunity claims

That the Senate— (a) notes that ministers and officers have continued to refuse to provide information to Senate committees without properly raising claims of public interest immunity as required by past resolutions of the Senate; (b) reaffirms the principles of past resolutions of the Senate by this order, to provide ministers and officers with guidance as to the proper process for raising public interest immunity claims and to consolidate those past resolutions of the Senate; (c) orders that the following operate as an order of continuing effect:

(1) If: (a) a Senate committee, or a senator in the course of proceedings of a committee, requests information or a document from a Commonwealth department or agency; and (b) an officer of the department or agency to whom the request is directed believes that it may not be in the public interest to disclose the information or document to the committee, the officer shall state to the committee the ground on which the officer believes that it may not be in the public interest to disclose the information or document to the committee, and specify the harm to the public interest that could result from the disclosure of the information or document.

(2) If, after receiving the officer’s statement under paragraph (1), the committee or the senator requests the officer to refer the question of the disclosure of the information or document to a responsible minister, the officer shall refer that question to the minister.

(3) If a minister, on a reference by an officer under paragraph (2), concludes that it would not be in the public interest to disclose the information or document to the committee, the minister shall provide to the committee a statement of the ground for that conclusion, specifying the harm to the public interest that could result from the disclosure of the information or document.

(4) A minister, in a statement under paragraph (3), shall indicate whether the harm to the public interest that could result from the disclosure of the information or document to the committee could result only from the publication of the information or document by the committee, or could result, equally or in part, from the disclosure of the information or document to the committee as in camera evidence.

(5) If, after considering a statement by a minister provided under paragraph (3), the committee concludes that the statement does not sufficiently justify the withholding of the information or document from the committee, the committee shall report the matter to the Senate.

(6) A decision by a committee not to report a matter to the Senate under paragraph (5) does not prevent a senator from raising the matter in the Senate in accordance with other procedures of the Senate.

(7) A statement that information or a document is not published, or is confidential, or consists of advice to, or internal deliberations of, government, in the absence of specification of the harm to the public interest that could result from the disclosure of the information or document, is not a statement that meets the requirements of paragraph (I) or (4).

(8) If a minister concludes that a statement under paragraph (3) should more appropriately be made by the head of an agency, by reason of the independence of that agency from ministerial direction or control, the minister shall inform the committee of that conclusion and the reason for that conclusion, and shall refer the matter to the head of the agency, who shall then be required to provide a statement in accordance with paragraph (3)."
Special Minister of State Joe Ludwig, representing the Prime Minister in hearings concerning that portfolio told the Finance and Public Administration Committee on 19 October (F&P 43) that
" the minister and the department officials appearing as witnesses before the committee will fully comply with the order. You will be aware that it is ultimately the responsibility of the relevant minister to make a claim of public interest immunity. To avoid any risk of inadvertently damaging the public interest by disclosing information that, in the government’s view, should remain confidential, officials and ministers, including the Prime Minister, are likely to require time to consider whether the disclosure of particular information or documents might damage the public interest. In effect, I am simply reminding senators that it will be entirely appropriate for witnesses to take certain questions on notice in order to give proper consideration to possible public interest immunity claims. So where they are referred to me I will endeavour, as always, to provide responses to the committee. If it is an issue that will cross public interest immunity then it may very well be an issue that I have to take on notice for proper consideration of whether that should be claimed and the reasons for claiming public interest immunity in respect of that."
This led to some inconclusive argy-bargy between Senator Ronaldson and the Minister about whether the procedures required an official citing public interest immunity to spell out the reason immediately, or contemplated that the matter could be referred to the responsible minister.

Tuesday, October 20, 2009

Victorian FOI precedents support sticking to "confusion" line

The framework for consideration of public interest issues regarding disclosure of deliberative documents under the Freedom of Information Act in Victoria continues to be constrained by precedents that sound out of line with the discussion of open government elsewhere, as evident in this decision by Deputy President Coghlan of the Victorian Civil and Administrative Tribunal in Peter Ryan MP v Melbourne Water [2009] VCAT 2079.

The documents in dispute were an email and attachments relating to the possible entitlement Melbourne Water will hold to water from the Goulburn River.They canvassed potential scenarios about possible water supply and were sent by a junior officer of the Department
of Sustainability and Environment to an officer at Melbourne Water. It was clear that the documents were support tools used by the Department, were subject to updating, didn't contain the full story, and were not at the time intended for public release.

Despite weighty arguments [21] about the public interest in disclosure put forward by Mr Ryan, Leader of the National Party in Victoria, those argued against disclosure [22] persuaded Deputy President Coughlan [23-36] to find disclosure would be contrary to the public interest
. The decision was underpinned by the acknowledgment of precedent that " where a document does not of itself accurately or fully reflect the reasons for a particular action or decisions made by an agency, disclosure is contrary to the public interest (see Hulls v Victorian Casino and Gaming Authority ((1997) 12 VAR 483 at 488)"[19]; and that it is contrary to the public interest to disclose a document "which would potentially mislead and confuse any debate about a general topic where it deals only with a narrow range of specific issues. If it is susceptible to misinterpretation or mischievous interpretation, disclosure is contrary to the public interest (see Hulls v Victorian Casino and Gaming Authority ((1997) 12 VAR 483 at 488)."[20]

Whether the documents would be released elsewhere is hard to say. However the possibility of misinterpretation or misunderstanding a document by the applicant is an irrelevant public interest consideration that must not be taken into account in the Queensland RTI Act and in the Commonwealth Exposure Draft of March 2009. The NSW GIPA Act even more sensibly extends this to misunderstanding or misinterpretation of released information by any person.

Mr Ryan couldn't get anywhere either in arguing the Tribunal should exercise its limited override discretion to release the documents, even though found to be exempt. Deputy President Coughlan said the grounds he had put forward were
"abstract grounds such as the desirability of accountability and greater transparency, which as the Court of Appeal in Secretary, Department of Justice v Osland [2009] VSCA 69 has said have no role in the consideration and application of s 50(4). The public interest must require release, it is not enough that release might advance or promote such matters."[39]
Override discretions to one side, the object provisions in the Queensland and NSW Acts, and the Commonwealth Exposure Draft might make it more generally hard where those laws apply or will apply, to dismiss arguments for disclosure because of "such abstract grounds as the desirability of accountability and greater transparency."

There is no sign of government interest in broad FOI reform in Victoria, as pointed out by David Rood of The Age in the Law Report today.

The Law Report

The Law Report program on Freedom of Information reforms on ABC Radio National is worth a listen ( but I would say that wouldn't I?).

Estimates questions and answers.

With another round of Senate Estimates committee hearings underway in Canberra this week, the answers to questions taken on notice during hearings in May provide plenty for those interested in the fine detail the accountability system reveals. Something is there from just about every agency, The issues of possible interest to us were raised in the Finance and Public Administration Committee so didn't get far past those.There are 120 or so answers to questions alone from the Prime Minister's Department, nothing earth -shattering, but tidbits such as the cost of each community cabinet meetung (PM 29); that providing a list of official gifts to Prime Ministers Hawke and Keating would involve too much work given the information is stored on obsolete software (PM111); and the listing of contents of the Prime Minister's wine cellar which includes nothing over $100, mostly modest price stuff, including plenty under $20.(PDF 15KB) Nothing much for Senator Trood either in response to his questions (PM 63-65) concerning the views of intelligence agencies about issues canvassed in the Defence White Paper- one of the dust-ups last time when questions were asked about advice.The Treasury portfolio index includes some interesting subjects.

Monday, October 19, 2009

FOI on the airwaves tomorrow

Radio National's The Law Report tomorrow (Tuesday) at 8:30 am on 576 AM is about Freedom of Information and the current state of play. I did an interview for the program, so interested to see what makes the cut. If you miss the broadcast, it will be available here.

Ministers not so high on the hog

I like this from Rex Jory in The Advertiser in Adelaide today (no link) following reports based on Freedom of Information disclosures about ministers' spending on entertainment. Although I'd part company with Jory's "so what" about Grange at taxpayers expense. And the best way to avoid "shock-horror' reporting is to make this information available routinely, on the web. The public can distinguish dull from too flash, when it comes to use of our money.

"It was one of those elegant Sydney restaurants set high above the city with views of the Harbour Bridge and the Opera House. The menu was expensive as well as expansive - the sort of place folk like me only go for a special celebration.Nearly every table was occupied but in the prime window position a table set for 12 was empty. Suddenly billionaire businessman Kerry Packer swept in with a group of businessmen and took over the empty table. Mr Packer was obviously the host. Other diners were abandoned as a waiter stood behind every chair at the Packer table. French champagne and Penfolds Grange flowed. When we left, the dinner was still in full swing. It is hard to imagine Mr Packer would have got any change out of $10,000. It's the way the complex world of business works. Spend big to entertain clients and, who knows, perhaps clinch a major business arrangement.

One night at a silver service Adelaide restaurant I happened to sit quite close to the then Prime Minister, Malcolm Fraser, who was entertaining a local businessman. They were drinking Grange which, at today's prices, would probably cost around $800. I can only presume the Prime Minister was paying. So what! It's part of the necessary cost of running a government, or a business.

These dinners make the disclosure by the State Opposition recently of the entertainment expenses of some State Government ministers look paltry and small town. On this evidence, to accuse ministers of lavish expenditure is narrow thinking. Pay peanuts and get monkeys. I'm not blaming the Opposition for pursuing, through documents obtained under Freedom of Information laws, the Government's entertainment bills. That's what oppositions are about - keeping governments honest and accountable. But let's keep the entertainment spending in perspective.

A random example. The Health Minister, John Hill, ran up a bill for $219 at a lunch for four people at Chesser Cellars. He should be congratulated. I've spent that much at a table for two with the great lunch-time legend, Des Colquhoun. I scanned the fine print in the Opposition's disclosures, reported in the Sunday Mail, to find even the sniff of a scandal, a hint of financial indiscretion. It quickly became evident that Cabinet ministers are a boring lot. I'd be surprised if some of them don't take beef and pickle sandwiches to work to help the Government save money.

The Treasurer, Kevin Foley, spent $29 on a glass of Moet champagne while entertaining the Philippines trade ambassador. On a good night, I've spilled that much. The Premier, Mike Rann, spent $275 on a meal with an undisclosed number of representatives from the Carnegie Mellon University. That's hardly excessive. The blunt truth is governments cannot function effectively without entertaining real or potential investors and other people who can help make the running of government more efficient.

It's not always convenient or productive to talk to potential clients across a business desk. A mutual venue, like a restaurant, with a meal and some fine wine makes guests feel more important and more relaxed. In some cases the investment in a meal and a bottle of wine can reap enormous dividends for the state.

It is like criticising politicians for travelling overseas. Certainly in the case of Cabinet ministers, discussions with world business and political leaders and first-hand experience with emerging technology developments can have huge long-term benefits.

I'm not encouraging governments to abandon spending caution and toss around the credit cards. The figures so far revealed suggest the present Government is prudent, even dull. The Government should do what it has to, without fear of criticism, to attract new investment, new jobs and increased economic security to South Australia.

If that means the Deputy Premier has to spend $29 on Moet, it's a price we all have to pay."

New chairs at the seat of power

Michael Cooley Senior Adviser to the Cabinet Secretary and Special Minister of State, takes up the position of Senior Adviser - Governance and Probity in the Prime Minister’s office today. Now it's a good thing the PM has someone nearby with that title and another good thing it's someone like Cooley. But the team that came in with background, experience and commitment to Freedom of Information reform (and the whole raft of other promised integity reforms) when the Government came to office - Senator Faulkner ( the first ministerial appointee and now Minister for Defence), Kate Harrison as Chief of Staff to the Minister (who followed Faulkner to Defence) and now Cooley - have all moved on, while we are yet to get the reform bill into Parliament, let alone up and running. After close to two years. High priority reform? Queensland, NSW and (soon) Tasmania have shown Canberra a clean pair of heels on this one.

Good luck and best wishes to Cooley and to Cecelia Burgman, an adviser to Senator Ludwig, who will take responsibility in the Minister's office, for Privacy, Freedom of Information and Archives. And to those of us still waiting for change.

Friday, October 16, 2009

Tasmanian FOI replacement bill through lower house

The Tasmanian House of Assembly passed the Right to Information Bill and related legislation yesterday. Some changes from the Draft are evident and interested to see any close analysis of the differences.The promise of greater proactive disclosure has been given more credibility by a provision requiring the Ombudsman to issue guidelines on all means of access and disclosure, including publication, informal and formal requests. Still room for quibbles ( "impecunious" even survived) but overall significant, positive change.

The House also passed the Personal Information Protection Amendment Bill.

Both bills now go to the Legislative Council.

NSW court information problematic, so too reform measures.

Over three years ago the NSW Government issued a discussion paper on proposed changes in the law regarding access to court information, and I for one had heard little since. So interesting to read in Court review shows nobody was listening by Susannah Moran in today's Legal Affairs in The Australian that a consultation draft Court Information Bill has been released for comment. According to Moran, Australia's Right to Know "is very disappointed with a bill which purports to further the principle of open justice but in fact will be more restrictive than previous practice in NSW and less liberal than in a number of other Australian jurisdictions." A search of the Legislation and Policy Branch of the Department of Justice and Attorney General's website turned up an Access to Court Information Paper dated 2008 but no sign there of the Consultation Draft Bill, or any update since. Update: it's here on Lawlink's Latest- thanks to an alert reader on 20 October.

The slow grinding wheels of justice, or at least policy reform......

Wednesday, October 14, 2009

Federal FOI and privacy law changes

If you are interested in more information than in the previous post about the interplay between the proposed new Federal privacy law and the Freedom of Information Act as it now stands, and might become in the light of the Government's FOI reform proposals, particularly access and correction issues, see the response and narrative regarding Recommendation 29 starting on page 64 of the First Stage Response pdf 805kb

A related issue for policy makers, given recent Queensland and NSW access to government information laws that adopt the existing Federal Privacy Act definition of personal information, is this recommendation and response:
"Recommendation 6–1 The Privacy Act should define ‘personal information’ as ‘information or an opinion, whether true or not, and whether recorded in a material form or not, about an identified or reasonably identifiable individual’.
Response: Accept
The Government agrees it is important for the definition of personal information to be sufficiently flexible and technology-neutral to encompass changes in the way that information that identifies an individual is collected and handled. The ALRC’s recommended definition continues to allow this approach and also brings the definition in line with international standards and precedents. The proposed definition does not significantly change the scope of what is considered to be personal information. The application of ‘reasonably identifiable’ ensures the definition continues to be based on factors which are relevant to the context and circumstances in which the information is collected and held. The Government proposes that this element of the definition will be informed by whether it would be reasonable and practicable to identify the individual from both the information itself and other reasonably accessible information."

Rewrite of privacy law for 21st century

The Federal Government has announced its stage one response to the Australian Law Reform Commission's Report 108, For Your Information: Australian Privacy Law and Practice.

In a
speech to the International Association of Privacy Professionals in Melbourne, Special Minister of State Senator Joe Ludwig said the Government’s intention was to effectively rewrite the Commonwealth Privacy Act 1988 for the 21st Century. Full details of the response are contained in this 144 page response released at the same time. The response sets the foundation for a revamped privacy framework, addressing 197 of the 295 recommendations in the ALRC’s Report. Key features, as outlined in the Minister's speech and in the detailed response are to
  • provide for one set of Privacy Principles for Commonwealth agencies and relevant businesses alike. Senator Ludwig said the Government was all too aware of the flaws of regulatory duplication, unnecessary complexity of obligations and rights, and the impediments to information-flow inherent in the current situation of treating the Government and private sector separately. New Government proposals for the Privacy Principles include: a requirement to take reasonable steps to implement compliance with the Privacy Principles, under the ‘openness’ principle; a ‘missing persons’ exception under the ‘use and disclosure’ principle; greater accountability for entities that transfer information overseas under the ‘cross-border data flows’ principle; and specific permission to handle Commonwealth, state and territory government identifiers for identity verification purposes under the ‘identifiers’ principle.
  • deal with developing technology by ensuring the Privacy Act will be technology neutral. Various parts of the response will further protect against emerging threats and privacy pitfalls by empowering the Privacy Commissioner to undertake research, and provide guidance and education on technologies that enhance or impact on privacy. Biometric information will be included in the definition of ‘sensitive information’ (reflecting its unique nature and heightened risks of misuse)
  • strengthen the Privacy Commissioner’s powers of investigation, compliance and enforcement of the Act. The Commissioner will be able to handle complaints and gather information more effectively, compel appearances or production of documents, accept enforceable undertakings, and seek civil penalties for serious or repeated breaches of the Act. A new development will be a three-tiered scheme for binding Privacy Codes. Binding codes can be developed by organisations or agencies voluntarily, but the Commissioner will also be able to request a group of organisations or agencies to develop one where it would serve the public interest. If they fail to comply, the Commissioner can impose a mandatory code on the group. The Commissioner will be able to direct an agency to provide a Privacy Impact Statement. For the private sector, the Commissioner will be empowered to conduct Privacy Performance Assessments of personal information records to see if they are abiding by the Privacy Principles.
  • provide for the enhanced use of data for the purpose of credit reporting while including additional specific protections to ensure such data is used appropriately. In order to allow credit providers to undertake a more robust assessment of an individual’s credit risk, the Government will make changes which allow five positive datasets - the type of each active credit account, date of opening and closure of account, account credit limits and credit repayment history- to be included on an individual’s credit report.
  • improve health sector information flows and provide additional guidance for the use of health information; enact new rights to request transfer of records and to be told what will happen to health records if a provider closes down or changes hands
  • support and facilitate research in the public interest by simplifying regulation,while protecting community expectations of personal privacy. A harmonised set of rules for Government and private sector researchers will replace the two sets of binding guidelines on non-consensual handling of personal information; and the research provisions will be expanded to allow such handling for any research in the public interest, not just for health and medical research. Two important parameters of the current regime will also be maintained: the public interest in research must ‘substantially outweigh’ the protection of privacy – requiring a clear choice in favour of the research; and the National Health & Medical Research Council and the Privacy Commissioner will retain primary responsibility for issuing and approving the research rules.
  • new and consistent provisions on cross-border data flows. Agencies and organisations will remain accountable for personal information which is transferred overseas unless there is: informed consent of the individual; a legal requirement or authorisation for the transfer; strong public interest grounds; or, the other country has a law or a binding scheme, similar to the Privacy Principles, that will protect the information. Such a law or scheme must be enforceable by the individual. A mere contract binding the overseas party would not be enough to remove accountability for the information if it is offshore and there is no viable remedy for the individual.
  • through guidance and legislative amendment make clear that the Privacy Act (not the FOI Act as is the case at present) is the primary avenue for access to, and correction of, an individual’s own personal information. The Privacy Act will be the key Commonwealth law for the collection, handling, disclosure and accessing of personal information. The focus of the FOI Act is intended to be on access to documents held by government other than an individual’s own personal information. However, in recognition that there will be circumstances where documents held by agencies contain a mixture of: (a) an individual’s personal information; (b) the personal information of third parties; and (c) non-personal information, in such a way as to make it difficult to release only the individual’s personal information, or that individuals may make access requests for files that contain such a mixture of information, the Government agrees that rights to access some personal information should be retained under the FOI Act. Agencies will need to establish administrative processes for dealing with the different access and correction requests that will arise under the Privacy and FOI Acts, having regard to the types of records and information they hold. Guidance on the interaction between the two Acts will be critical for agencies.
  • work with the states and territories to harmonise privacy law across the nation. The first stage response will create a platform from which the Government can pursue national harmonisation through discussion with the states and territories. Ultimately, the aim will be a consistent set of privacy standards for the Commonwealth, state and territory public sectors, as well as the private sector. The Federal Government will be looking to the states and territories to repeal privacy laws including health privacy laws that apply to the private sector. Additional national consistency issues will be considered in the second stage response.
Of the 197 recommendations addressed in this first stage, the Government
  • accepted 141, either in full or in principle;
  • accepted 34 with qualification; and
  • noted 2 recommendations.

20 recommendations were not accepted. While opinions will differ, only two struck me as noteworthy: rejection of the recommendation to extend privacy protection to personal information held about a deceased individual dead for 30 years or less; and rejection as unnecessary of action to ensure that federal legislative instruments establishing public registers containing personal information set out clearly any restrictions on the electronic publication of that information.

The Australian Law Reform Commission was pleased with the "giant tick" for its recommendations.

Next steps: the Government intends to release an exposure draft bill reflecting these changes to be sent to a Parliamentary Committee for consultation early in 2010, before returning to Parliament with a final bill. Once the first stage has progressed, the Government will then begin considering the ‘second stage response’ to the ALRC’s remaining 98 recommendations. ‘Second stage’ issues include proposals to clarify or remove exemptions; data-breach notification; a statutory cause of action for serious invasions of privacy; telecommunications privacy; decision making issues (such as authorised representatives and children’s privacy); and further national harmonisation.

Tuesday, October 13, 2009

NSWADT override discretion limited where legal privilege applies

The background and complex detail of a five year battle (and numerous Tribunal and court decisions) arising from a Freedom of Information application for access to legal advice about responsibilities of the University Council provided to the University of NSW will only be of interest to those very serious about their NSW FOI. The culmination, in the Court of Appeal in McGuirk v University of NSW [2009] NSWCA321 involved a draw for the parties on legal points as the two issues for consideration went one each way but Mr McGuirk will end up with his document if this is the end of the ride, and with a limited order for costs for part of the proceedings.

Of broader significance however was
that in the course of the decision the Court unanimously declared [92] the NSW Administrative Decisions Tribunal has no power under s 63(2) of the Administrative Decisions Tribunal Act 1987 to grant access to a document which is found to be exempt by virtue of Schedule 1, cl 10 ( the legal professional privilege exemption) of the Freedom of Information Act 1989 (NSW). As explained below (with all due respect etc) the reasoning for the decision seems questionable.Mr McGuirk gets to prevail for reasons that are too complicated to explain here [41-87 if interested].

There is nothing in the relevant NSW laws (unlike Federal legislation) that states the Tribunal cannot order the release of an otherwise exempt document. But no provision (unlike Victoria) either that confers an override discretion. The
issue of the Tribunal's powers on review of Freedom of Information decisions has been long contested.The Supreme Court (Nicholas J) in another case involving the same parties, University of New South Wales v McGuirk [2006] NSWSC 1362 at [102] ended years of uncertainty and differing decisions by tribunal members when it decided that the Tribunal had the same discretion as the original decision-maker where a document has been found to be exempt: that is to consider whether disclosure or non disclosure was the correct and preferable decision, consistent with the objects of the Act. The reasoning was that Section 25 of the NSW FOI Act provides that in determining an application an agency may (not shall) refuse access to an exempt document. Section 63 of the Administrative Decisions Tribunal Act provides:
(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.”

Justice Nicholas cited the following passage from the Tribunal decision in Mangoplah as correctly stating the position:

“85 Consistent with this jurisprudence, absent any special limitation on the Tribunal’s review function in applications under the FOI Act, it has the function by reason of s 63 of the ADT Act – indeed the duty – when reviewing a determination under ss 24 and 25 of the FOI Act to consider all issues arising in the case in relation to whether a document should be released. As indicated above, once a ground for refusal of access arises under s 25(1)(a) the issue arises whether to exercise the discretion to release an exempt document which is not a restricted document the subject of a Ministerial certificate. The decision under review must have, or must be taken to have, addressed this discretion before determining to refuse access on the ground of an exemption. The Tribunal must also address it”.

In the Court of Appeal, the only ground of appeal by the University against a decision of the Tribunal Appeal Panel considered [26] was that the Panel had erred in proceeding on the basis that it had power to grant access to a document exempt by operation of legal professional privilege. The University submitted [31] that any power a relevant officer of the University may have had to grant access to a document subject to legal professional privilege arose under the general law and not under any enactment. Justice Basten (with whom Justices Ipp and Macfarlan agreed) said:
32 Because s 63(2) is limited to the exercise of functions conferred or imposed “by any relevant enactment” the power to waive legal professional privilege is not a power enjoyed by the Tribunal..... A relevant enactment must be an Act, regulation, by-law, rule or ordinance.. Where the University obtains advice from lawyers, its rights with respect to that advice will depend upon the general law, even if it is obtained for the exercise of its statutory functions....

33 In the present case, there was no relevant grant of statutory authority. The power to waive privilege did not arise under any enactment. Accordingly, at least in respect of the exempt document in question, no power was conferred on the Tribunal by s 63(2) of the ADT Act to waive any legal professional privilege as might remain extant.

The problem with this is that while there is strong legal precedent for the general proposition, the FOI Act contains a clear additional statutory provision regarding release of documents, including any containing legal advice.The decision completely ignores the FOI Act- clearly an enactment for the purposes of Section 63(2) of the ADT Act- and Section 25 which contains a provision of the kind contemplated by Section 63(2): the exercise of functions by the administrator who made the decision, that is to release an otherwise exempt document.This isn't waiver but a statutory discretion. Parliament didn't put legal privilege documents outside the scope of the discretion. Section 25 formed a key element in Justice Nicholas' reasoning, but doesn't get a mention anywhere in Justice Basten's consideration [29-40] of the relevance of other provisions of the ADT and FOI acts. Section 63(2) provides the Tribunal with the same functions as were available to the determining officer.

Justice Nicholas' decision about ADT powers had for different (and more understandable) reasons been qualified by the Appeal Panel in IPART v Services Sydney [2008] NSWADTAP 79. Although not the central point in the case, the Appeal Panel decided [46] that the discretion did not extend to documents found to be exempt under clauses 1, 2 and 4- "restricted documents" in the language of the NSW Act.

This issue of ADT override discretion will not be relevant when the NSW FOI Act is replaced by the Government Information (Public Access) Act early in 2010. The issue in any ADT review of refusal of access under GIPA (except those concerning Cabinet and Executive Council documents where review is to be limited to whether there are reasonable grounds for the claim) will be whether there is an overriding public interest against disclosure of the information. Those with FOI cases before the Tribunal concerning legal professional privilege claims however can forget arguing that the Tribunal should exercise its discretion to grant access- unless there are any takers for another Court of Appeal challenge?

Monday, October 12, 2009

Public money between us and the tax office, says Acting Premier

Acting Premier Paul Lucas

In a
recent post we commended the Queensland Information Commissioner's submission on the Government's Green Paper on Integrity and Accountability, which included the suggestion that the push agenda of Right to Information reforms (transparency) should be applied to the expenditure of all public monies, including Ministerial and Parliamentary allowances unless it can be shown to be clearly contrary to the public interest. Well how about this from AAP in The Australian today when the Acting Premier commented on the idea:
"Acting Premier Paul Lucas said on the Gold Coast that MPs were already accountable to the tax office. "I don't want to see an army of bureaucrats - who are taxpayer funded - being employed to check expense claims," Mr Lucas said."
Has anyone told Mr Lucas the Commissioner's suggestions also included "make work" ideas that gifts and hospitality received by Ministers, Members of Parliament and public sector employees and their travel and entertainment expenses should be published online? He'll be starting to wonder what you have a tax office for.

More public access to information about child care centres catching

This report for the Department of Community Services on NSW childcare centres wouldn't give parents great confidence in childrens' safety in the system, but a tick in any event for those who decided the report should be publicly available. The report made other recommendations but none about how more transparency might promote better compliance with the law and standards. Minister for Community Services Linda Burney however told Andrew Clennell of the Sydney Morning Herald about new legislation to be introduced that will toughen up the compliance regime including powers "to name and shame centres that do the wrong thing.'' Queensland and NSW are now both on the job on this one.

Hyperbole and the human rights debate

The Sydney Morning Herald in its editorial was sceptical about actions recommended in the Brennan Report to protect human rights. But the Weekend Australian was in a class of its own slamming the report in two front page leads, this by Paul Kelly and another by Kelly and Chris Merritt. Kelly labelled "hyperbole" the claim by Opposition Attorney General that the report threatened "the most important de facto alteration to Australia's system of government in our history. " I sent a letter to the editor on Saturday, but no dear reader it's not published today. However to the editor's credit the one letter that made it, written by a manager of a legal service for the homeless, rightly took issue with another claim that a Human Rights Act would be a triumph for elites, arguing instead it would be "a victory for the most marginalised and disadvantaged members of our community."My unpublished contribution:
"George Brandis wasn’t the only one resorting to hyperbole.Your reports of mixed fact and opinion under headlines featuring” enormous problems,” “chaos,” and “poisoned chalice” on the “human rights lobby”, its alleged political agenda to obliterate the Howard cultural legacy and its plans to change our system of government, were over the top.The Australian’s “Right to Know” banner only makes sporadic appearances these days but its interest in rights clearly stops short of any meaningful embrace of broader internationally accepted rights and ways to best protect them. Victoria and the ACT don’t seem to be on another planet despite adopting comparable schemes to the dastardly proposals put forward by Brennan. By the way 16 of the 31 proposals were for protections other than by way of a Human Rights Act. What’s the problem again with initiatives that Paul Kelly acknowledges would bring Australia “into line with international human rights norms”? You give little hope to those of us who are confident we can better define and protect rights and sort out the wrinkles and problems on the way through."