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Wednesday, December 22, 2010

All the best...

Wiki Commons-Hai Linh Truong, Sydney
I'll be around for the next few weeks, spending more time than usual enjoying the view, but expect many, most, or all of you will soon be a million miles from caring about the usual fare found here. So best wishes for Christmas, the season, summer or winter solstice or whatever you are celebrating, and a safe, healthy and rewarding 2011. Thanks to readers, casual and dedicated, near and far, for your interest and feedback.

US and Australian law regarding publication of government secrets

Attorney General McClelland on 17 December announced the Australian Federal Police had not identified any criminal offences regarding WikiLeaks "where Australia has jurisdiction" and added:
“The Government remains extremely concerned about the unauthorised and irresponsible distribution of classified material.”
We are likely to see that concern flavour discussion and debate next year on a range of issues: open government in all its dimensions, the Government's response to the ALRC report on secrecy provisions in Commonwealth laws, shield laws for journalists, whistleblower protection, and perhaps even government copyright.

The leaks of course were of US government documents although the content of some reveal information passed on to US embassy officers in Canberra by public servants in government agencies including intelligence agencies. Whether WikiLeaks/Assange or anyone else has committed an offence under US law by publishing classified materials remains to be seen.  Secrecy News has facilitated access to this Congressional Research Service memo on the Wikileaks controversy, “Criminal Prohibitions on the Publication of Classified Defense Information” dated December 6. The summary states:
This report identifies some criminal statutes that may apply [to dissemination of classified documents], but notes that these have been used almost exclusively to prosecute individuals with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents, or to foreign agents who obtain classified information unlawfully while present in the United States. Leaks of classified information to the press have only rarely been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it. There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship.
There is a good discussion about the US legal issues in this NPR On the Media interview with University of Chicago law professor Geoffrey Stone including Senator Lieberman's move to introduce the SHIELD Act- Securing Human Intelligence and Enforcing Lawful Dissemination.

If the leak had been here and of Australian documents covering ground similar to some of that published, s 79 of the Crimes Act and s 91.1 of the Criminal Code (Cth) (espionage) might apply to publication if it occurred within Australian jurisdiction. Philip Dorling who is doing the hard slog for Fairfax papers on the released cables relevant to Australia is familiar with the law. Two years ago he had the police knocking on the door  after he wrote an article in the Canberra Times about the Defence Intelligence Organisation.

Monday, December 20, 2010

Kessing's plight, and notorious secrecy law both deserve government attention

Chris Merritt in The Australian puts it to Andrew Wilkie to push for an inquiry into the Kessing affair, a process that might allow the truth to come out and, if so, a conviction to be quashed. Or at least provide a bookend for a pardon for Kessing that the Attorney General's Department regarded as a "Hot Topic" just a few months ago. Any full inquiry would need to be able to consider the whole box and dice including the decision to charge Kessing with a breach of s 70 of the Crimes Act over the report on security at Sydney airport ending up with journalists at The Australian when the Commonwealth DPP had a discretion to not prosecute on public interest grounds; the strength of the conviction on the basis of circumstantial evidence in a trial in which neither Kessing nor the journalists Martin Chulov and Jonathon Porter testified; Kessing's later admission of contact about the report with the office of now Minister Albanese and members of his staff employed while in opposition, and what they did with the information. The Canberra Times reports Senator Xenophon saying it was lawful for Mr Kessing to share his concerns with his MP, but the former Customs officer's lawyer had advised him not to raise the issue at his trial. 

Merritt described section 70 as "the notorious heart of the federal fixation with secrecy" a point picked up by Dr Johan Lidberg in Fairfax papers today in a comment on WikiLeaks.The ALRC report on this and other aspects of hundreds of secrecy laws has been with the Government without response for nine months.

Friday, December 17, 2010

Red book 9:Human Services brief published-not even a whistle

Another release with not the slightest attempt to draw attention, this time the Department of Human Services incoming government brief surfaces. Thanks to the eagle eyed reader who noticed this in responses to Estimates questions taken on notice. No mention on the Department's home page, no media release. The Department's search results for "incoming government brief" identified two irrelevant pages but not the Red book.The Government's cross agency search facility didn't pick it up either, or several other agency briefs that have come to light.

Ah you've got to love 'em.

WikiLeaks early report card sees mix of bad, good and unchanged consequences

There is an interesting discussion thread on the Lowy Institute Interpreter about the implications of the WikiLeaks disclosures from a foreign affairs perspective, commencing with Rory Medcalf and his "preliminary and highly speculative judgments" that he hopes might be proved wrong in many respects. The headings say it all: Bad for diplomacy and international cooperation; Bad for the US and its allies, good for China and Russia; Bad for cohesion in the democratic world; Bad for freedom of information; Bad for diplomats and good for spooks; Bad for peacemakers; Bad for journalism; Bad for Obama and those who put faith in him; and Bad for Australia's Gillard Government.

The follow on contributions include Stephen Collins, Sam Roggeveen and Scott Burchill who see more good than bad at least potentially, and Michael Fullilove who says that while some materials are genuinely interesting and enlightening, overall WikiLeaks' conduct has been reckless.

Pre the cablegate deluge but as recently as 25 November I wrote about the necessity to move towards more openness in foreign policy and the conduct of international relations, but five days later ventured the view that the random nature and scope of the Wikileaks cable dump had changed the environment for the worse for discussion here of open government generally, whistleblower protection, and the reconsideration of our messy statute book with 500 plus secrecy provisions in Federal laws, particularly s 70 of the Crimes Act.You can add journalists' shield laws, already slowed in passage through parliament by discussion of who is a journalist, to the list. Perhaps even government copyright.

Medcalf's "Bad for freedom of information" comments are on the likely tightening effect on  information sharing within government but he adds that restrictions on providing sensitive information to the media and the public could well be tightened. Collins on this topic acknowledges there is a culture of over-classification among many Western governments, including our own, but ventures some positives from FOI act and Gov 2.0 developments:
"Yet the wholesale changes wrought on our FoI system, the introduction of the Information Commissioner and the powerful push for open licensing of public sector information will make unnecessary classification progressively more difficult. No doubt, there will be abuses, but if those seeking information and those administering it play fair, we will end up in a measurably better position than we were before. With more a more open view of the way government works, citizen satisfaction with how informed they are could act as a deterrent to unwanted information exposures."

 Things have been looking up, but...

Wednesday, December 15, 2010

Red book 8: Veterans' Affairs brief published-but no song and dance

The Department of Veterans' Affairs, like Attorney General's has provided copies of the redacted Red and Blue book incoming government briefs in a follow on from questions during Senate Estimates, but you also wouldn't know this from the Department's website. 
C'mon this is something worth telling the world about.
Thanks to one of our anonymouses for the lead. 
Relying on Estimates junkies to keep an eye out for other off centre stage disclosures like this.

NSW Information Commissioner review functions

The Office of NSW Information Commissioner has had a busy first six months since the commencement of the GIPA act, and the lead up to integration of that office and Privacy NSW. Not much has been published about what's been happening with the resolution of external review applications that can now be sought from the Commissioner (powers on review are recommendatory not determinative), the NSW Administrative Decisions Tribunal or both. Nether the Commission nor the Tribunal have published statistics for this period. Of interest  are the number of applications, and how many reaffirm the original decision (an indicator of the quality of primary decisions), how quickly matters are being resolved or determined in the OIC, and what agencies and users of the act can learn from Commissioner decisions.

I put these questions to the office on 1 December:

How many review applications have been received?

How many have been resolved, and how many by formal determination?

Presumably an initial attempt is made to resolve a matter to the satisfaction of the applicant. But will there be a time limit-weeks, months- on how long is spent on this ?

Can the applicant initially or at a later time insist a matter be subject to determination by the Commissioner?  In other words is agreement to mediation mandatory or optional?

Is there a time target for disposal of review applications? (The Privacy Commissioner in the past used 12 months as a measure which hardly seems an acceptable standard in most cases. The ADT reports against 6 and 12 month time frames from memory.)

Will decisions or summaries be published, in what form and frequency?

On 14 December the response, as below that around 17 of 105 review requests have been completed. (The Queensland Commissioner received 439 review requests in the first full year of the operation of the new act there- the lower comparative number in NSW may be  a positive or negative indicator of public awareness, quality of agency decisions or other factors.) Nothing has been published to date about what agencies are involved, the outcomes, issues that have been considered, or the Commissioner's application of the law  particularly in weighing public interest considerations. The target turn around time for a review is three months
As at 10 December 2010, the OIC has received 141 requests for assistance: 105 were for reviews of decisions made by agencies under the Government Information (Public Access) Act 2009 (GIPA Act). The remainder were complaints about agency GIPA-related processes or procedures.Thirty three of these issues have been closed (about 50% in each category.)  All have been resolved by the OIC providing recommendations. Generally agencies have accepted the OIC recommendations which have primarily been around the format and content of decision records.

At the moment, we are working towards an average processing time of 60 working days.

The OIC is still determining our policies around publicising decisions and / or summaries - when this policy is finalised, it will be available on our website.  We are also currently developing a reporting template on key measures that will be available on the web in the first quarter of 2011..."

Monday, December 13, 2010

Red book No 7: AGs incoming government brief released but hardly visible

Thanks for the tip from a reader, perhaps alerted by this AAP report today, that the Attorney General's Department incoming government brief (heavily redacted) has been published and located. Not up on the Department's website along with a statement about how the Department is glad of the opportunity to inform public discussion of matters of great moment, but buried away in a pile of documents requested by senators during the estimates hearings. You'll find it here in response to Question 106 in five separate downloads. The disclosure breaks new ground in that a redacted version of the brief prepared in the event of an opposition election victory has also been released.

There is a lot here on a wide range of topics despite the deletions.Of particular interest- in Section 3 Hot Topics:
Page 48, on a pardon for Allan Kessing, the Department comments generally that a pardon would not be recommended unless the person was morally and technically innocent of the offence, and there is no remaining avenue of appeal against conviction." But adds The Australian has suggested that Minister Albanese's then office was the source of the leak to the media. (Perhaps Minister Albanese might help here.)
Page 57 on consultation with industry on ISP data retention and FOI requests for the consultation materials mostly denied because disclosure may lead to unnecessary concern and reveal law enforcement procedures for investigating breaches of the law
Page 60-what's left on the Haneef cases.

As to the low key approach to disclosure????

Walkley award winner found prize in Defence contract documents

Congratulations to all the Walkley Award 2010 winners for excellence in journalism, particularly to Linton Besser of the Sydney Morning Herald who showed the errors in the information age of that old journalistic notion that there's no story in it if its publicly available. The citation reads:

All Media:Investigative Journalism
"The Department of Defence is Australia’s biggest-spending agency. So where does all the money go? In the four years to 2009, Linton Besser discovered, more than $1.4 billion was spent on travel, accommodation and conferences, almost $48 million had been spent on rental cars, $20 million on corporate coaching, and hundreds of thousands of dollars’ worth of cosmetic surgery and fertility treatments had been subsidised by Defence.

Besser spent months downloading more than 700,000 contracts, and reading the 80,000 which were issued between 2006 and 2009 – some $48 billion worth of spending. Oil paintings, custom-designed chesterfields, games of skirmish, horse-back trail rides and yachting adventures were among the 80,000 contracts Besser scrutinised. Peppers Blue On Blue resort at Magnetic Island and the Lake Crackenback ski resort near Thredbo had been hired out for internal management meetings. More than $18,000 had been spent on “incidentals” for an employee rugby trip to Europe, and taxpayers spent another $11,000 for someone’s membership fees at Singapore’s exclusive Sembawang Country Club. Another find: “Army Cadet Exchange Program – flights to the Cayman Islands – $47,000.”

Defence Minister, John Faulkner, endorsed the Herald’s investigation in an interview which landed on page one the following day: “If you need more evidence of why the [government’s] strategic reform program is required, then you have provided it.”

For the past 18 months, Linton Besser has been stationed in The Sydney Morning Herald’s investigative unit. In this time, he has written reports on corruption and poor accountability within both the NSW and Commonwealth public service, leading to the removal of officials and prompting several high-level inquiries."

The judges commented:
"An outstanding piece of investigative journalism, based on thousands of Australian Defence Department documents. Besser’s incisive analysis, combined with multiplatform publication of the raw documents on which his stories were based, produced a valuable public service. "
See Besser's The wrong stuff published in March this year, and this comment at the time about the need to further improve contract disclosure.

FOI "burden" the price of democracy in Ken Henry's awful year

Treasury Secretary Ken Henry was reported in The Australian last week talking to a "private audience" about his department under stress and the awful year 2010 had been. He returned to a familiar theme, the downside of FOI:
The growing burden of the Freedom of Information process had only compounded the stresses on the department, Dr Henry told the gathering. He expressed concern that the exposure of documents under the FOI laws undermined the prospects for good public policy and frank advice from the bureaucracy. Dr Henry acknowledged that the Red Book drafted by Treasury for the incoming government had been prepared on the basis that it could be subject to FOI requests.But he said that Treasury had made the decision not to waste more resources by appealing to the Freedom of Information Commissioner. 
The last bit is rich (as well as confused but that might not be Dr Henry's doing) given Treasury's willingness to spend plenty over the years arguing against FOI disclosure to applicants, and defending decisions in the courts and tribunals that might have been arguable on technical grounds but seemed to run counter to spirit and intent.

Treasury has a knack of looking on the gloomy side when it comes to FOI. Its incoming government brief in 2010 (special commendation for publishing at least in part and informing public debate) advised the minister that the Department provides 'advice and management of risks associated with Freedom of Information (FOI) ... in accordance with legislative requirements."

The "growing burden" referred to in the speech might be an increase in use of the act over the last six weeks as a result of the government's public commitment to more open government and the abolition of application fees and some charges. Or Dr Henry might be suggesting that "the prospects for good public policy and frank advice" are even bleaker because the act since 1 November is a little more pro-disclosure. It now includes provisions that recognise explicitly and give some weight to the public interest in disclosure  that would increase discussion and review of the Government's activities, or inform debate on a matter of public importance. Except in respect of a cabinet document, or release of a document that could be expected to harm international relations or national security, or a raft of other absolute exemptions that have no public interest element.

More use of the act and more disclosure of Treasury's views might be a 'burden" that Treasury has to carry in the interests of a more vibrant democracy.

But maybe its not the recent changes that prompted these comments. It may simply be the continuation of a long running argument by Dr Henry and others that the confidentiality of public service advice should be sacrosanct, although there have been exceptions.

Friday, December 10, 2010

WikiLeaks and the implications at home and abroad

Here's Professor A.J Brown and me with Carson Scott  On the Record on Sky Business today talking about WikiLeaks, whistleblowers, the right to know, and comparisons between the US and Australia.

And in this segment with James White talking about transparency in China and Australia  and what governments know- and we should know-about the performance of the economy. Including comment on the Federal Treasury's special pleading about the need for confidentiality of advice to ministers.

Thursday, December 09, 2010

Leaking and publishing are two different things

Australia's leading academic on whistleblower protection Professor A J Brown of Griffith University Law School,gave the keynote address to the Annual General Meeting of Transparency International Australia, in Sydney tonight.

 Professor Brown said:
"Trying to target and control Julian Assange is not likely to be an effective response to these leaks, in either the short or long term... “The conflict over Wikileaks is at risk of turning into a war between a naive but powerful vision of global cyber-liberty, and the “1984” nightmare of an internet subject to massive government regulation and control.” “This is not a war that either side can ever win.”

Professor Brown said there was a need for a more considered response from governments about how they will improve their whistleblowing systems so that genuine wrongdoing can be disclosed when needed by government insiders – including through the media and internet. 
“Creating a martyr out of Julian Assange – as advocated by a range of politicians – is unfortunately typical of the ‘shoot the messenger’ attitude that has often prevented decisionmakers from appreciating how best to respond to whistleblowing.” “It also distracts from the very important issue of developing effective regimes for regulating the responsibilities of publishers and journalists in respect of both ‘leaks’ and public interest disclosures.”
As I see it Assange is not a whistleblower as far as we know the story so far. He publishes,with relish, material leaked to him. Few suggest he's done anything more, although Prime Minister Gillard initially described the WikiLeaks website as "illegal" and subsequently toned this down to "grossly irresponsible." And Attorney General McClelland is still going on about possible breaches of someone's law.

Wednesday, December 08, 2010

Mr Assange regrets...

Timing is everything. US State Department announcement yesterday:
"The United States is pleased to announce that it will host UNESCO’s World Press Freedom Day event in 2011, from May 1 - May 3 in Washington, D.C. UNESCO is the only UN agency with the mandate to promote freedom of expression and its corollary, freedom of the press.The theme for next year’s commemoration will be 21st Century Media: New Frontiers, New Barriers. The United States places technology and innovation at the forefront of its diplomatic and development efforts. New media has empowered citizens around the world to report on their circumstances, express opinions on world events, and exchange information in environments sometimes hostile to such exercises of individuals’ right to freedom of expression. At the same time, we are concerned about the determination of some governments to censor and silence individuals, and to restrict the free flow of information. We mark events such as World Press Freedom Day in the context of our enduring commitment to support and expand press freedom and the free flow of information in this digital age."

Tuesday, December 07, 2010

Neither secrecy nor openness in international affairs should be absolutes.

My Administration is committed to creating an unprecedented level of openness in government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration."
—President Barack Obama, January 21, 2009

This statement appears at the top of the US State Department web page headed "Open Government Initiative." The page outlines steps taken or planned in accordance with President Obama's Open Government Directive, issued coincidentally, a year ago this week.

The publication of a selection of state department cables apparently leaked by an army private who made the call on what he thought should be known more widely wasn't what President Obama had in mind. The leak, the posting of cables on Wikileaks, and the associated media coverage has changed the atmospherics of discussion about more openness in the foreign affairs field around the world, including here. "Need to know" and secrecy, on the way out for a brief moment, are coming back into the discourse as claimed vital prerequisites to the conduct of international affairs.

Friday, December 03, 2010

Red book 6: Health and Ageing incoming government brief published

The Department of Health and Ageing has published a redacted version of its incoming government brief (four volumes) with this interesting first- hopefully the second version will be marked up so the changes resulting from the 1 November changes to exemption provisions are readily apparent, providing useful  learning all round:
Given the interest in the brief, the Department has decided to publish on its website the brief with redactions based on exemptions that apply to FOI requests made before 1 November 2010. The Department will publish a second version of the brief with redactions based on exemptions that apply on or after 1 November 2010 in the near future.
In taking this decision the Department joins the following earlier movers:

As to the many late movers yet to contribute to informing public understanding and debate of issues that preoccupy them, impact on us, and consume large amounts of our resources..

what's your story?

As Heath and Ageing explains:
The four volumes will no doubt prove extremely useful for lobbyists as well as journalists and others seeking to understand health policy, how the department works, and who are the key contacts for the various areas of policy.

Thursday, December 02, 2010

Senate consideration of journalists' shield law slips to 2011

I've laboured over a long piece on this but ****!!! its disappeared into the ethernet. The short version:

The Wilkie bill didn't come on for consideration in the final week of sittings after the Senate Legal and Constitutional Affairs Committee reported and recommended the bill. Liberal senators on the committee in a dissenting report favour the Brandis bill. Senator Ludlam in additional comments foreshadows amendments to the definition of journalist and journalism that seem sensible to me.

The committee hearing transcript is worth a look for the discussion of issues about the definition of a journalist and questions about whether Julian Assange would qualify (mixed opinions).  Police powers unaffected by the proposed law also get a mention. These allow for access to telephone records of a journalist or anyone else where necessary in an investigation of a criminal offence (submission and evidence of Ken Parish, and evidence of officers of AGs department).

The precedent value of a 2002 NSW Supreme Court decision (NRMA v John Fairfax [2002] NSWSC 563) referred to in evidence by Matthew Minogue of AGs on the test for determining who is a journalist is questionable. The issue in that case was whether a confidant, a journalist was a member of a "profession" and acting in a "professional capacity," the words used in the NSW Evidence Act.This required the court to consider the attributes of carrying on a profession against standards tightly drawn by the law [145-157].These words aren't used in the Wilkie bill. The issue as the bill stands will be whether a person in the normal course of work involved in dissemination of news is given information after providing an assurance of confidentiality. Compliance with the standards expected of a person as a professional won't arise. What constitutes the normal course of work may. Senator Ludlam sensibily suggests avoiding this, the paid /unpaid issue, whether a person is employed (as mentioned in the Wilkie EM but not the bill) and the old/new media divide by amending the definitions as follows
journalism means the reporting in a news medium of facts which are, to the best knowledge of the person reporting those facts, fair, true and accurate, and includes incidental processes such as the gathering of information for that purpose; journalist means a person who engages in journalism, no matter who the person is nor the medium in which the person publishes his or her material
There was more- in my head if anyone wants to talk about it. Or read at your leisure if you can track down the reams that may be floating around somewhere out there. ****!!!

Shield laws and whistleblower protection will both be back on the agenda in 2011.

Wednesday, December 01, 2010

State of Service report opaque about culture of transparency

The annual State of the Service report issued by the Australian Public Service Commission and the accompanying State of the Service Employee Survey  2009-2010 provide useful insights into attitudes and approaches of our public servants. Overall the Commission concludes "that APS performance compares well with that of its peers. Yet there is always room for improvement .." The Commission is to be commended for publishing these details. Some relevant issues addressed include:

Baillieu declares new era of no spin, no secrecy

Victorian Premier Elect Ted Baillieu yesterday with words worth recording even though there has to be some hyperbole in the "no secrecy" commitment:
Under a Baillieu Government, what you see is what you will get. There will be no hidden agendas, there will be no spin, there will be no secrecy. Accountability and transparency will be the principles that underpin our Government. And the Government that we lead will be driven by integrity and governed with dignity and decency.

Tuesday, November 30, 2010

Wikileaks likely set back to open government cause

Regardless of whether you agree with US Secretary of State Hillary Clinton that the latest Wikileaks document dump is "an attack on the international community," Foreign Minister Rudd's expression of extreme concern" or Attorney General McClelland calling in the police to investigate whether Julian Assange has committed a crime, the release of cables sent by US missions abroad won't help advance the cause of more openness in the foreign policy field. Random transparency of this kind will likely boost the "told you so" arguments of those who advocate more not less secrecy, making a sensible debate about the legitimate issue of the balance between those needs and openness and accountability more difficult. To date secrecy has too often trumped those other values.(Update:This AFP article canvasses these issues. Martin Dart - an "IM manager working in government in Perth"-also sees lots on the downside.)

Coincidentially (?) The Australian today reports that the Attorney General has written to media organisations proposing a national security protocol for reporting sensitive information.

Other views on the Wikileaks disclosures include Praveen Swami in The (UK) Telegraph who sees some potential for embarrassment but concludes there's "a lot more to be learned about the world around us from nothing more secret than old newspapers than from the treasures Julian Assange has brought up from the beast’s lair." And James Mann in The New Republic who observes "Wikileaks has taken us well beyond the types of disclosures that the Freedom of Information Act, for the past several decades, has provided to journalists and historians" but nevertheless confidently predicts the survival of secret diplomacy.

Information gathering in legitimate ways is a large part of what diplomats do, not evidence of spying, although you have to wonder about the instruction to US embassy officers to collect among other things credit card account numbers as part of the biographical information gathered on notables around the world.

Monday, November 29, 2010

Experienced FOI hand set to be Vic Minister for FOI

With the Coalition to take office after Saturday's election in Victoria, The Age reports on the likely cabinet line up. In Andrew McIntosh Victoria will have a Minister for Corrections, Crime Prevention, Freedom of Information, and Integrity, if he retains the same responsibilities he carried in opposition.

Victorian public servants might want to brush up on Mr McIntosh's letter of 17 November to the Accountability Round Table Vic election 2010 Liberal Coalition response.pdf that sets out integrity commitments including:
Overhauling Freedom of Information legislation. The first step will be the establishment of a FOI Commissioner. This will have the effect of preventing Government from suppressing information for political reasons. The FOI Commissioner will take the final decision-making about FOI requests away from government departments and agencies and will set enforceable standards for departmental FOI officers to meet. The FOI Commissioner will be independent of government. The second step will be a review by the FOI Commissioner of the working of the legislation in the light of Queensland's FOI legislation. The Coalition is determined to change the culture of secrecy in government in Victoria by ensuring that the onus is put on Government to provide information about government decision-making in the public interest rather than on those seeking information to wrest it from the grip of government departments and agencies, motivated to conceal the workings of government."
A quick refresher on the 10 reported VCAT and Supreme Court FOI decisions on review applications by Mr McIntosh might also be warranted. The first  was way back in 2000, the latest for police rosters (still before the Tribunal) involved Supreme Court consideration of "substantial and unreasonable diversion of resources."

Friday, November 26, 2010

Disclosure of payments to pollies- improving, could do even better

Reports on entitlements paid by the Department of Finance and Deregulation during the period January-June 2010 for and of behalf of Federal parliamentarians and former parliamentarians, and overseas travel reports by parliamentarians were tabled yesterday and are available here. In the case of each individual, supporting data underpinning payments for all categories of expenditure except for office facilities are provided for the first time, extending even to the newspapers and magazines they're reading and supplies of photocopy paper. The Government is moving in the right direction on this, although it's been a slow journey and still has a way to go

Payments made by the parliament to and for parliamentarians, for example are outside the loop.

There is no mention of whether each parliamentarian signed off that expenditure was properly incurred. The last time the issue surfaced the monthly sign off rate was between 60-90 per cent and there were murmurings that recalcitrants would (sometime) be named. Not so far.

The Belcher report on entitlements and administration of the system that the Government has had since April has just gone off to a cabinet subcommittee- watch those press gallery boxes on Christmas eve.

We still are a long way short of a single site monthly online publication system for details of all payments and expenditure. Perhaps such a thing is only for Scotland the Brave- see the Scottish Parliament system.

As for public disclosure of payments to NSW state parliamentarians, and perhaps others, don't even ask...

From a quick browse of the overseas travel reports, a moment please for Barry Haase, the Member for Kalgoorlie as he headed for Singapore, China, Korea and Japan in April:
My original visit included a visit to Hanoi.The visit was cancelled on departure from Perth due to not having a visa to enter Vietnam.I had received advice that a prearranged visa was not required. Unfortunately I learnt on departing Perth from Singapore Airlines that a visa was required for North Vietnam (sic). The Vietnamese Embassy in Australia had proved impossible to contact, exacerbating the problem. I changed the hotel in Tokyo that had been booked after one night. This change was made due to the accommodation booked by the travel agent being grossly inadequate. The question of whether a refund will be available is yet to be answered. 
Things did get better after that...

Ponemon in Sydney next week

From the organisers:
The third annual iappANZ Australiasian Privacy Conference, to be held 30 November in Sydney, will focus on a key topic for privacy and IT professionals, "Silver Lining: The Privacy Umbrella of Cloud Computing." This one-day event will feature opportunities for debate, information sharing and discussion among professionals dealing with or exploring the "cloud" with keynote speakers, including Larry Ponemon, CIPP, and expert-led forums. Registration details here.

Accountability Roundtable digs out some answers in Victoria

Things moved during the week from one side talking in the Victorian election about accountability and transparency to all the parties being prepared to say something-when asked. Tim Smith QC chairman of the Accountability Roundtable, writing in The Age today said there is cause for hope about improvement regardless of who wins the election on Saturday, in the light of answers to questions posed to the parties. Hmm, on Freedom of Information reform the ALP is "open to further legislative reform and .. more than ready to examine the models adopted in Queensland and Tasmania." The other parties are more specific about changes that would bring Victoria closer to the emerging national standard. Other aspects are addressed in the responses including the Parliamentary Integrity Commissioner already proposed by the Government and ministerial codes of conduct.

Update: for an FOI-election story, or just due process, see Louise Milligan "FOI stonewall smells like political cover up."

Thursday, November 25, 2010

Foreign affairs and the challenge of open government

The Lowy Institute Policy brief on E-diplomacy by Fergus Hanson points out how the Department of Foreign Affairs and Trade could and should embrace internet technology in pursuing diplomatic objectives by improving internal debate, communication with stakeholders and public diplomacy through web presence, social media, blogs and wikis. Here's Hanson's three minute summary.

However this isn't simply a matter of getting with the digital revolution. The possibilities flagged raise issues that challenge culture and practice in an area where secrecy or at least caution about disclosure is close to the default position, and concern for foreign government sensibilities sometimes prevails over any public interest in our right to know.

The brief doesn't mention this cultural problem. Or the chilling effect on disclosure of Australia's hundreds of secrecy laws including s 70 of the Crimes Act which creates an offence to release information without authorisation.(There has been no government response to the ALRC report on this subject released in March.) It repeats a recommendation made in Lowy's ‘Australia’s Diplomatic Deficit’ last year that DFAT review "restrictive media guidelines with a view to making it much easier for staff to engage online." The necessary culture change will need more than that.

While it uses international peer comparisons with the US, UK and Canada to make the case that Australia needs to act or be left behind in this area, the brief also omits mention of the Australian context, which includes developments that promote the ideas it advances. For example the Government's Open Government Declaration, the embrace of Gov 2.0 generally, the Prime Minister's "let the sun shine in" promise, and changes to the Freedom of Information Act that require a more open attitude, government information to be managed as a national resource, and from May next year, more proactive publication.

Another factor that will challenge traditional attitudes is the more lively interest in Parliament in transparency generally. The Government has agreed to establish a mechanism for independent assessment of claims of public interest immunity. The Greens, Andrew Wilkie and Senator Trood for starters are all very familiar with bald, and usually uncontested claims that disclosure of information could be expected to harm international relations or national security.

The release of the Lowy brief followed on the heels of a speech by Minister for Foreign Affairs Kevin Rudd last week to diplomats past and present about the centrality of foreign policy to the pursuit of our national interests and the role and challenges for the foreign service in responding to changing times. E-diplomacy wasn't mentioned, although public engagement made it into the Minister's calls to arms: for DFAT to be:
"even better at looking beyond the horizon to identify new threats and new opportunities"...; to be able "increasingly to think outside the traditional foreign policy square"..; to cultivate "an institutional culture that embraces new ideas, that engages with the nation’s and the world’s best think tanks, with our leading universities and with both the business and NGO community"...; to be good at "sucking in the best ideas from around the world"..; and finally "both at home and abroad (engaging) in the great policy debates at home where the global dimension to these debates is both clear and critical."
Managing foreign policy and the conduct of international relations against the backdrop of changing attitudes to openness and transparency here and in the world around us (well not including North Korea, Burma and the like), will require a significant shift for DFAT, not to mention Defence, intelligence agencies and others with a stake in this.

Tone at the top, leadership, example, the ability to get the balance right between the need for secrecy, the maintenance of our relations with others and the demands for openness,  principlined consistency, and the capacity to explain actions satisfactorily all need to go hand in hand with the embrace of technology.

Hanson has given DFAT an insight into what might be. Creating the right environment is an essential first step.

Views expressed on this topic owe something to 14 years experience with the then Department of External Affairs, an ongoing interest in international affairs, and in open government.

Privacy issues when the police come calling

The report by Queensland Privacy Commissioner Linda Mathews following an own-motion investigation into police access to go-card data in the electronic ticketing system used in South East Queensland by Translink discovered no evidence of wrongdoing. Under the Information Privacy Act Translink had a discretion to respond by disclosing personal information to a law enforcement authority.  However when a request was made Translink had simply taken the police at their word. Although the Commissioner found all police requests were for legitimate purposes, Translink failed to satisfy itself on reasonable grounds as required by the act, that the disclosure was necessary:
• for the prevention, detection, investigation, prosecution or punishment of criminal offences or other breaches of the law, or
• to lessen or prevent a serious threat to the life, health, safety or welfare of an individual or to public health, safety or welfare.

Translink and Queensland Police have already made changes to procedures. The Commissioner makes a number of recommendations (Chapter 10) for further improving Police and Translink privacy practices.

I have a sneaking suspicion Translink is not unique in Queensland or elsewhere where similar laws apply for that matter. There may be a tendency in some agencies to be overly responsive to requests for information by the police that don't involve the use of their coercive powers, without adequate internal processes overseen by someone familiar with privacy law requirements.

Penchant for darting and weaving over secrecy

The issue of parliament's powers and the resolution of disputes over production of documents remains for another day, but the release of this summary of the NBN business case overcame the immediate hurdle to progressing relevant legislation through the Senate.  Michelle Grattan in The Age wonders whether the failure to do this days ago was government's natural penchant for secrecy or just plain arrogance.

ABC News
Minister Conroy on Lateline reiterated cabinet confidentiality, commercial in confidence and decisions still to be taken by the ACCC as the reasons. And as to any penchant for secrecy:

"TONY JONES: But who dreamt up the idea that minority MPs and senator would have to sign a seven-year confidentiality agreement to just get a briefing on this? This was like a comedy of errors. I mean, it started as seven years, it went down to three years, eventually it went down to two weeks. I mean, who was running this?

STEPHEN CONROY: I think there was some very eager officials in one of the departments that were very keen to ensure we had maximum confidentiality and once - and this was all happening over the weekend - once we were able to see what was being put forward, we agreed with the proposition that they were a little over-eager in terms of the time that they were seeking when the majority of this information would be available within a few weeks' time in December, as Julia Gillard made clear over a week ago: That we would be releasing as much as was not commercially sensitive and we've said this consistently: we would release this document, but the Cabinet has to consider it. But we've always said that we would release as much information as we could."

Wednesday, November 24, 2010

No worries, no hurry, on privacy reform

The Age has had a scoop over the last two days with reports about voter profiles held by the ALP in its Victorian campaign data base, which once revealed came as a surprise to those affected, although information about the systems and processes has been around for years

These systems to collect and use personal information in campaigns and other activities continue because the Privacy Act does not apply to registered political parties or to political representatives engaged in certain activities "in the political process."

The Australian Law Reform Commission 2008 privacy report recommended the exemption be removed:
41.54 In the interests of promoting public confidence in the political process, those who exercise or seek power in government should adhere to the principles and practices that are required of the wider community.
But don't hold your breath about a government response to this, or to other recommendations for the removal of the exemption enjoyed by businesses with turnover of less than $3 million ( relevant to this week's report about workplace spying), the changes to the conditions for continuation of the media exemption from the act, for a data breach notification requirement (relevant to this report of Telstra's woes), or a raft of other important issues that the government has had for over two years. All these are for a second or third phase response to the report somewhere down the track. We're only up to phase one, the referral of a set of uniform privacy principles to a parliamentary committee in June this year, after some tweaking of those proposed by the ALRC. The Committee is to report on this aspect by the end of the second sitting week in 2011.

The Minister for Privacy and Freedom of Information Brendan O'Connor was quoted by The Australian on the workplace spying issue as saying due to the complexity and sensitivity" of relevant ALRC recommendations, the government wanted to "consult extensively." 

Last month the Minister said privacy reform won't be rushed, outlining a timetable for finalising legislative action on privacy by the middle of 2012- six and a half years after the ALRC was asked to review the law.

One of these days....

Tuesday, November 23, 2010

One side talking about transparency in Victorian election

From this distance at least transparency and accountability and related issues don't appear to have been at the centre of things in the Victorian state election campaign, to finish with elections this Saturday. The ALP after 11 years in office seems content to say nothing about governance-the record to speak for itself, so to speak. Draw what you will from that.

The Opposition attracted attention this week with plans for an independent commission against corruption, but has been on about this since 2007.(Baillieu calls for anti-corruption commission.)

The party's policies include other integrity commitments for example regarding lobbying and plans to strengthen FOI with an independent commissioner. The commissioner's role would include all first stage reviews, to replace agency internal review, a step further than other jurisdictions such as the Commonwealth and NSW that have this optional prior to an application to the Information Commissioner. The policy announcement made a year ago doesn't refer to a long overdue comprehensive review of the act but hopefully if the Opposition gets there on Saturday the good sense in looking again at a 1983 act based on the now much amended Commonwealth act and labelled 'horse and buggy' will be obvious.

And while the Greens have these sort of issues nailed prominently to the mast in campaigns elsewhere, not a word on the subject in their published policy collection.


Monday, November 22, 2010

The Senate pursues the PM's "let the sun shine in" promise

 Thadius856 & Parutakupiu via Wikimedia Commons
We can expect more on public interest immunity as the week progresses, but there are three issues in play in disputes over the production of documents in response to senate orders:

. the Australian Information Commissioner's opinion that without legislative amendment he has no powers to investigate or report on a government refusal to produce documents in parliament. His letter in response to a senate resolution requiring action by him was tabled on 15 November- but is not online. The legislation  certainly doesn't envision such a role. Senator Cormann in debate on 15 November, and perhaps the Clerk of the Senate have another view;

. the government failure to date to produce the NBN Co business plan- see last Thursday's debate; 

. and going back a little, the Government's failure to produce documents concerning the mining tax. Senator Cormann last week summarised the outstanding matters:
"The Senate passed three orders of the Senate on two occasions. They were broadly around three issues. They were around the issue of assumptions that were used by the government to estimate the revenue from the original mining tax, the RSPT, and from the revised mining tax, the minerals resource rent tax. In a separate order we sought details on the secret negotiations and deal entered into between the government and BHP, Rio and Xstrata. In a third motion we sought information about how much of the mining tax revenue would come from individual states and territories and how much would come from respective commodities. It is important to note here that Treasury took questions in relation to this on notice on 5 July at a hearing of the Senate Select Committee on Fuel and Energy and to this day these questions remain unanswered."

There are also references to failure to disclose documents concerning the Building the Education Revolution program, although it's unclear whether this was the subject of a senate resolution.

UpdateThe Senate on 22 November passed  a motion by Senator Cormann ordering the Australian Information Commissioner to reconsider his position to not report to the Senate on the Government's failure to produce documents relating to the mining tax.The Government opposed the motion. Senator Ludwig said the Prime Minister had asked her department
"to examine the issue and advise on possible options for implementing the agreements (with The Greens that the Commissioner be given such a role.) Once that advice is received, the government will progress this initiative. If the Australian Information Commissioner is to have this function, it is necessary and appropriate for the functions, powers and protections that would accompany it to be stipulated in legislation."
Thanks to Open Australia for the Hansard links.

Friday, November 19, 2010

Dispute over tabling NBN document a harbinger of things to come

The stand off between the Government and the Senate (and one narrowly avoided in the House of Representatives) over the tabling of the NBN business case isn't the first and won't be the last where claims of public interest immunity arise in this parliament. In this case the Opposition has had an easy run in making the refusal to date sound hollow, given the drip feed approach to disclosure of detail since the proposal was announced many moons ago, and disputes since. However a refusal to table a document prepared for submission to cabinet is a well established public interest ground for refusal, in contrast to broad, claims that lack specificity concerning the public interest involved. While the need for proper cabinet consideration has been thrown around as the reason for refusal this week, it remains to be seen whether the Government responds along that line or resorts to the much less precise "highly sensitive and commercial in confidence" claim by the NBN CEO.

If the Government claims public interest immunity, regardless of the grounds that's the end of it under existing arrangements unless the Senate itself takes action to deal with a contempt by a senator/minister.

The prospects of a scheme to deal with a refusal to table documents in response to an order of the Senate, or to deal with disputed claims, by reference to an independent arbiter were dashed in February when the Government and the Opposition voted against. Back in those pre "new paradigm" days Senators Xenophon and Ludlam were left to champion the cause in a dissenting report, to little effect.They have more clout these days, even more in the next Senate from 1 July next year.The issue didn't get a mention in the post election Government-Greens agreement or the agreement with the House independents.(Correction: clause 3(e) of the agreement with The Greens states:"Refer issues of public interest disclosure, where the Senate or House votes on the floor against the decision of a Minister, to the Information Commissioner who will arbitrate on the release of relevant documents and report to both Houses.) It was raised in the Senate this week where Senator Ludlam said: "We will be moving very, very shortly to make sure that that agreement is put into effect.."

Wednesday, November 17, 2010


There is now a subscribe by email option on the sidebar to add to the existing RSS feed choices. And talking of readers (well, looking for an excuse for a little skiting really) the National Library of Australia contacted me yesterday seeking permission to include Open and Shut in the PANDORA Archive that provides long-term access to online Australian publications.

Tuesday, November 16, 2010

Norfolk islanders still waiting

Plans to do wonders for the governance of Norfolk Island have been kicking around since May last year, when there were suggestions the territory was bordering on "failed state" status. Debate on the Territories Law Reform Bill to achieve change resumed in the House of Representatives yesterday. The Opposition points out that a local administration geared for a community of 1500 or so could get by with something a bit simpler than the full force of federal freedom of information and privacy laws. Wait for it-debate was adjourned. (Update: the House passed the bill without amendment.)

Shield law for quick Senate committee inquiry

The Senate yesterday referred the shield law bills to the Legal and Constitutional Affairs Committee for inquiry and report by 23 November. The hope is still to get this through before the parliament rises. Senator Brandis hopes it will facilitate passage of both bills in a harmonised form. On the definition issue, The Greens Senator Ludlam said "journalists who work on a voluntary basis—the citizen journalists, the bloggers, the independent media collectives and so on—also need the protections afforded by this bill." The privilege "should not rest on whether or not your work is paid... The test that we are looking for is whether or not it is in the public interest for the source to be protected.... My reading of the bill is that it would extend the protection in this way, but we are seeking to lay that ambiguity to rest." Senator Xenophon said "the reference in the definition to that person’s work does not seek to define a journalist as someone who is paid; rather it is to distinguish those who are making one passing comment, from someone who is engaged and active in the publication of news. I think there is a clear distinction between the two. (The Wilkie bill Explanatory Memorandum was the source of the problem as pointed out here.)

Apart from this, other issues raised in that bills digest weren't mentioned- but the Committee has a couple of days to reflect.

NSW ICAC proposes more transparency for lobbying activity

With the NSW Government in something approaching pre-election clean up mode the wide ranging changes proposed to lobbying regulation in this report from the Independent Commission Against Corruption may strike a chord. SBS reported the Premier as saying she will seek advice on the report, Opposition leader O'Farrell welcoming support for his plan to abolish success fees, the Greens in favour and-no surprise- one of the main business lobbies against.

The report stands in contrast to the weak proposals floated in June by then Federal Minister of State Ludwig for lobbyist reform that kicked off, after a round table with lobbyists, with the idea that lobbyists needed a professional association, proposals overtaken to some extent by the post-election agreement with the independents, but yet to crystallise. I imagine lobbyists are meeting as we speak to advance that idea, with arguing the toss about these ICAC proposals a high priority.

An unusual feature of the report that a lobbyist would be quick to point out is that it makes much of the potential for corruption and the need to manage risk, but its own inquiry did not seek to examine or in fact uncover any instances in NSW, and refers only to Western Australian, US and UK examples.

The Commission finds that "lobbying is not only an essential part of the democratic process but that it can positively enhance government decision-making." However a lack of transparency in the current lobbying regulatory system "is a major corruption risk, and contributes significantly to public distrust. Those who lobby may be entitled to private communications with the people that they lobby, but they are not entitled to secret communications," the report says. "The public is entitled to know that lobbying is occurring, to ascertain who is involved and, in the absence of any overriding public interest against disclosure, to know what occurred during the lobbying activity.

Other corruption risks cited are inadequate record keeping, involvement with political fund raising, gifts and benefits, difficulty of access, former public officials acting as lobbyists, exploitation of privileged access and payment of success fees.

The shake up recommended involves widening the registration requirement to cover all third party lobbyists (but not in house staff) and "Lobbying Entities" including industry associations, trade unions, employer groups, religious and charitable organisations, and corporations that employ staff or have board members who lobby on their behalf; making information about lobbying activity "open access information" under the GIPA act, and a new role for an independent government entity, such as the NSW Information Commissioner to monitor the scheme and impose sanctions where necessary. 

These principal features of the proposed scheme are from the Executive Summary:

Monday, November 15, 2010

Journalists run rings around the professions to protect confidential relationships

It will be interesting to see if debate in the Senate on a shield law for journalists picks up on the detailed analysis of the Wilkie and Brandis bills by Kirsty Magarey of the Parliamentary Library in this Bills Digest published last week. (PDF 338KB). The paper provides the background to these initiatives and notes:
"The Wilkie Bill continues successive governments' failures to attend to the needs of  professionals other than journalists. There would seem to be no justification given as to why doctors/ counsellors/social workers et cetera are not having their need for a protected confidential relationship recognised. There have now been four Bills attending to journalists' privilege but only one, the Brandis Bill, has given the general professionals' need for confidentiality any attention."
The Wilkie bill has passed the House of Representatives. The Brandis bill has not been debated (but there was a second reading speech on 29 September.)

The paper points out that the bills are identical in their effect with respect to a rebuttable presumption of journalists' privilege, but notes neither "offers a particularly rigorous definition of journalism" and would extend privilege to "all employed journalists working in all forms of news media, a definition that would encompass the efforts both of investigative journalists and gossip columnists."  While the bills provide for a person to seek an order that the identity of an informant be revealed in certain circumstances the paper says the heavy onus involved "will apply whether the piece is a less edifying article or whether it is an investigative piece making the weighty contributions to our democratic system which journalists can make."

It also notes
"The repeal of provisions recognising the significance of illegality/misconduct leaves the Courts  with less guidance in exercising their reserve discretion to prevent the presumptive exercise of the privilege."
The Brandis bill broadens privilege (at a lower level than that afforded to journalists) to   (undefined) professionals who are in a position to accept and keep their clients confidences, in line with recommendations in law reform commission reports in 1985 and 2006, and Federal-state agreement on uniformity in evidence acts. The paper says that taking the step to address this issue " would also provide evidence that despite the fact Parliamentarians and journalists necessarily have a close relationship, legislators interests are broader than simply addressing the need to protect journalists."

Update: later developments here

Many NSW disclosure logs yet to disclose anything at all

 Some journalists are concerned about losing the exclusive right, even for a brief period, to information obtained through the hard slog of a Freedom of Information application. The concerns arise as a result of the (coming in May 2011) Commonwealth requirement for an agency to post on the web within 10 working days documents released in response to a formal application under the Freedom of information Act-see here for an earlier comment. Australian Information Commissioner Professor John McMillan told Peter Mares on ABC National Interest this week that he understood the point that FOI works best when active journalists use the act. It was a difficult issue to resolve but the 10 day stipulation provided a way to work around the problem.

Experience in NSW, four months into the NSW GIPA act, has resulted in no apparent fuss about the way a similar but narrower requirement is working. The act states that an agency must publish on the web a disclosure log containing information about access applications where what is provided to the access applicant is "information that the agency considers may be of interest to other members of the public" (s 25).

As there is no reference to a time requirement in the NSW act perhaps information isn't being posted until well after it has been made available to the applicant, thus removing the potential  problem for journalists. Something of consolation to hard working scribes, or their employers at least, is that the applicant is entitled to full waiver of processing charges if information is made publicly available three working days before or after access is given to the applicant- s 67.

Other reasons may be that use of the act is low, or what has been requested and released isn't of interest to other members of the public, at least in the agency's judgment. Or heaven forbid, some agencies aren't compliant.

A quick survey of major state government agencies shows as at 12 November that it's very slim pickings out there, with the disclosure log in many key agencies containing no information at all.