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Monday, May 31, 2010

Trust me with your details, I'm a politician
Liberals' battle plan to win key marginal seats in The Advertiser last week reported that Liberal South Australian Senator Alan Ferguson had sought "personal profiling information" from up to seven local councils in Adelaide's north. One council helpfully passed news of the application to the former mayor who happens to be the Labor Federal Member for the area, who appears to have passed it on to the paper. Senator Ferguson is said to have used freedom of information laws to request details of all businesses in the area, including names, postal and physical addresses; lists of all citizens naturalised since January 2006; copies of all petitions lodged with council; names of all registered volunteers; data on all council buildings used for community activities and the people or groups who use them; and all committees connected to the council.

I agree with many of the comments that much of this is or should be in the public domain, available to anyone interested in knowing about local happenings.

But politicians "trawling" the record raises a broader issue - and no one is holding breath expecting action on this before the Federal election later this year, or ever - concerning the large hole in privacy laws for political parties and those engaged in politics. The gap permits collection of personal information not just from the public domain but from wherever they can find it, subject to little scrutiny, with no citizen rights to know or correct what is held, or limitations on subsequent use and disclosure.

Legal privilege should not stand in Ombudsman's way

NSW Ombudsman Bruce Barbour
Sean Nichols cracked the front page with "Labor shuts off access to secrets" in the Sydney Morning Herald on Friday and the paper follows today with an editorial "The watchdog barks back" about an issue the NSW Ombudsman has raised with the government for years without success: the limitation in the Ombudsman's general powers of investigation on access to an agency's documents that are claimed subject to legal privilege. The Ombudsman and the Parliamentary Committee that oversights the office have got nowhere on this with the Ombudsman citing a series of unhelpful fob offs from the Department of Premier and Cabinet, over the last two and a half years. 

The Ombudsman has a point about what is a unique NSW limitation on ombudsman powers (section 21 of the Ombudsman Act)  and the lack of consistency in NSW where such a limitation does not apply to other investigatory bodies such as the Police Integrity Commission and the Independent Commission Against Corruption. However NSW is not the only jurisdiction with a consistency problem.This was a key element in an Australian Law Reform Commission 2008 Report on privilege and investigations. The report, which lends support to the NSW Ombudsman's argument, is yet to be acted upon by the Federal Government.

Wednesday, May 26, 2010

Note to PM: "FOI=administrative chaos"

16 May. Note for Prime Minister from Secretary of PM&C:
Freedom of Information legislation  would result in administrative chaos.. departments keeping dual filing cabinets."

20 May. Handwritten note to Prime Minister from Secretary PM&C marked "not for file": "Were I not under threat of my advice being made public I would be questioning with you this whole legislation. It is a can of worms, political commitments notwithstanding."

The heads of Defence and Treasury are opposed to the legislation. Broader and in some cases blanket exemptions are necessary.

More delay, reconsideration and advice is needed.

"What we've got here would go further than any other country with a similar system of government and is an "experimental step of major dimensions.. Whatever the politics of the decision it is certainly a gamble in the administrative sense."

Something this week off the back of a truck? No, just some extracts from "Malcolm Fraser The Political Memoirs" by Malcolm Fraser and Margaret Simons (The Megunyah Press $60) pages 404-405 about events in 1977-the last paragraph 1980, after three more years delay- in the lead up to enactment and commencement of the Commonwealth Freedom of Information Act in 1982, ten years after the initial commitment. The notes to the Prime Minister were from then Secretary Geoff Yeend and the material is sourced to documents available in the National Archives- even the handwritten "not for file" note made it onto the files and survives.

What public service players in these positions had to say to the PM or ministers about the 2008-2010 reform process might make an interesting FOI application- or become clear in 20 years (following a shift from 30 to 20 years in the FOI Reform legislation) when records come into open access.

Reports today are that Fraser resigned from the Liberal Party in December, concerned at its direction. He told Jack Waterford three years ago that FOI was his most important legacy.

Monday, May 24, 2010

Open government job no state secret

I have had a couple of exchanges with people who heard that the Federal Freedom of Information and Privacy commissioner jobs-part of the new system yet to commence with the Information Commissioner at the top- had been advertised recently but couldn't locate the ads. After a bit of searching and some help, it seems they were advertised in the Australian Financial Review on 14 May, but that appears to be it as far as media advertising goes.(Correction: also in the Weekend Australian 15 May page 5).The positions are also listed at Executive Intelligence Group #167(Privacy) and #168 (FOI). I haven't come across the Office of Information Commissioner website if it's up and running. No mention of the jobs on PM&C  (Correction: see here) and Privacy Commissioner websites. (Update:also at Seek Online.) Don't know where this leaves incumbent Privacy Commissioner Karen Curtis. Leadership baton, and the rest in your kitbag? Applications close 8 June. The AFR ad was as follows:

Campbell and a cause of action for breach of privacy

I imagine racing off to court is the last thing on David Campbell's mind at the moment.The current uncertain state of the law wouldn't suggest any clear claim of action for breach of privacy. There's nothing defamatory about any allegations I've seen, and truth is a defence in any event. The proposals on the table, but so far not acted upon by government, for a statutory cause of action for breach of privacy ( broadly framed and not just aimed at the media) would if acted upon, raise additional questions in any subsequent legal proceedings than the one currently getting media attention: whether there is public interest that justifies publication of information about a person's personal or private affairs.

Premier Keneally gives the word on opening up

A good and strong message from NSW Premier Keneally to ministers, ministerial,staff and public servants about what's expected come 1 July with the commencement of the Government Information (Public Access) Act in this memorandum dated 14 May, and given wider circulation in Matthew Moore's article in today's Sydney Morning Herald.

The Premier says::

Central to the new Act is the presumption that all Government–held information should be accessible to the public and that information should only be withheld if it is necessary to do so in the public interest...

The cultural shift that is necessary to realise the full promise of the new legislation will require leadership. Ministers and heads of agencies need to set the tone and cultural expectations which support the release of Government information. It is important that agency staff be given the confidence and support they need to make decisions that further the objects and intentions of the new Act...

There will, of course, continue to be certain types of information that it will be inappropriate to release. Information revealing Cabinet deliberations, sensitive personal or commercial-in-confidence information, and information that could jeopardise public safety, law enforcement or the fair trial of a person are examples. In all cases, however, public interest is the relevant touchstone. Political considerations must not come into play.

Leading by example will be crucial, and Ministers are asked to emphasise the need for all agencies (including Ministers’ own offices) to comply both with the letter and spirit of the new Act..

Ministers should also be aware that the new Act expressly provides that, in dealing with a particular access application, agencies are not subject to the direction and control of Ministers.

"Right to know" about Campbell has Channel 7 making news

Plenty of opinion and even some social analysis out there arising from the decision by Seven Network News to out now former NSW Transport Minister David Campbell and plenty more to follow, I'm sure. Politicians differ on the question, so too do senior journalists who have opined so far. Public sentiment is strongly against. Debate about the framework within which the media deals with matters that have a private dimension, and the way it works in practice is necessary and welcome. An issue for 7 is whether what happened here constitutes a breach of standards that underpin the licensing system. Another for any MEAA journalist member involved is how it sits with their code of ethics.

NSW Premier Keneally left the question of propriety in publishing hanging:
 “I do think it’s a matter for debate whether or not a person’s sexuality is of relevance to their role as a minister or their role as a member of Parliament.”
Deputy Federal Opposition Leader Julie Bishop on The Insiders  surprisingly was prepared to accept virtually any media intrusion:
BARRIE CASSIDY: How do you feel about the way the media handled it?
JULIE BISHOP: Well that's a matter for the media to judge. I think that politicians know that they are fair game. We know that going into politics means that you don't have any private life and so the media is doing its job. But it's a sorry incident in Australian politics.
It will be a sorry day for politicians and others if we have reached the point where "they don't have any private life" although this might have been one of those Tony Abbott "not considered, not on paper" comments.( Graham Richardson shares her view according to this report : 'There is no privacy. Politicians don't have a right to any sort of private life any more,'' he told Channel Nine. ''And I don't think they've had that right for 20 years; it's been eroded steadily over time but now anything goes.'')

77% of more than 50000 votes on a poll on the Herald website are critical of 7's decision. So is David Marr whose opinion piece appears on the same link, who categorically dismissed any "right to know" argument.  Marr at the Sydney Writers' Festival responded to an assertion that any media organisation worth its salt would have published, by saying Herald journalists had known about Campbell for some time but had decided not to publish. Mark Day in The Australian says "by today's standards, an individual's sxxual preference is considered to be of no consequence." Day says news like this should have provoked a "so what" response and that Campbell could have chosen quite properly to hold his ground and dismiss a report about a private matter. However Day attaches weight to Campbell's statement in resigning and his admission of wrongdoing in some respects. On the question of whether politicians should be treated differently to the rest of us, Day says:
"Broadly, I'd say .. the answer is yes. When politicians stand for election they say, in effect, "Here I am; this is what I stand for; these are my values - vote for me." Therefore, if the truth is revealed to be something other than the intended projection, and if that truth is known to the highest echelons of those who govern us, but is kept secret from us, then the public is entitled to know it, too.
Dr Simon Longstaff of the St James Ethics Centre, taking the opposite view, said a key point was that Mr Campbell did not make his political career campaigning on moral issues.
"It doesn't seem to be true that it holds for David Campbell, who ... has done nothing more than be truthful about the fact that he has a family," he said. "I mean, you might think that using one's family to promote a political career has all sorts of problems. "But as far as I know, David Campbell is married, he does have a family and he has indicated that in his Christmas card because that is part of who he is. "I mean he is obviously a complex person. But to say that he has engaged in some kind of gross act of political hypocrisy is to make too great a statement in relation to this particular case."
On the rules that apply, the Seven Network is a member of the industry body Free TV Australia. The 2010 Code of Practice forms part of a regulatory framework that operates under the Broadcasting Services Act and comes within the purview of the Australian Communications and Media Authority. The Code states:
In broadcasting news and current affairs programs, licensees:
4.3.5 must not use material relating to a person’s personal or private affairs, or which invades an individual’s privacy, other than where there is an identifiable public interest reason for the material to be broadcast.
As reported by Matthew Moore in the Sydney Morning Herald Channel Seven dropped the principal claim of the public interest justification, that Mr Campbell used a ''taxpayer-funded car'' to visit the club, conceding that driving a car provided as part of a salary package to and from the club was not an issue of impropriety. News Director Peter Meakin said there were two other  justifications for  running the story - Mr Campbell was leading a double life unknown to his family, and had campaigned for election as a family man. These and the fact that Mr Campbell had served as police minister for 18 months up until September 2008 tipped the balance in favour of publication.
''If it's someone's private life and it does not impact on his job or potentially impact on his job, it's a private life, but if it impacts on his portfolio or potentially on the execution of his duties, I think it's a matter of public interest.''
Apart from the industry code if those involved in running the story at Seven are members of the MEAA, its code of ethics requires a journalist to "respect..personal privacy," a provision suitably vague and deserving closer examination of what it means in practice.

John Hartigan of News Limited observed in March last year that " the current media privacy framework is effective and working well." I think incidents since raise serious questions about this,. The Australian Law Reform Commission has recommended significant changes to the current system that gives media organisations an exemption from privacy legislation in favour of self regulatory schemes. The Commission has drawn attention to gaps, inconsistencies and weak enforcement provisions in these arrangements.

I'll have something to say about the separate issue of the Campbell outing and the proposed cause of action for breach of privacy in another post.

FOI awareness and alphabet soup

Twenty eight years on since our first law arrived, and even among the 400 interested enough to show up on a wet Saturday in Sydney to a discussion on Press Freedom and the Public Right to Know, its still a puzzle.

Before the session started at the Sydney Writers' Festival on Saturday I was amused to hear two people sitting behind me puzzling over the meaning of the program description of Michael McKinnon as "FOI Editor, Seven Network." One suggested it was probably a misprint of Folio Editor, whatever that meant. Mike Carlton in introducing the panel cleared that mystery up. More lie ahead with new acronyms RTI, GIPA and who knows what might still come in jurisdictions beyond NSW and Queensland.

Lively interest in right to know

At the session on Saturday on Press Freedom and the Public's Right to Know (packed, with over 400 people), excessive secrecy and government attitudes and barriers to disclosure came in for the inevitable serve. Mike Carlton suggested things are getting worse not better, citing suppression orders in the courts as a particular trend in the wrong direction. The point was hammered home by David Marr who cited a "barmy" court order (I haven't seen this mentioned anywhere else) that prevented publication of The Weekend Australian Magazine in Victoria on Saturday because it contained an article about the murder of a child in Western Australia that a judge decided may have influenced jurors in a completely unrelated trial in that state of a man charged over the death of his three children; orders that prevent the publication of the names of many involved in court proceedings including names of rxxpists serving life sentences for acts committed when they were underage; the difficulties of accessing court documents in NSW while proceedings are underway and a reform process that is "going nowhere"; and the $8 per page cost of transcripts that poses a "horrendous" obstacle to digging into what has happened in open court if you didn't happen to be there. 

Anne Davies, recently returned from Washington, spoke of the "startling contrast" between her experiences there-even under the Bush administration, and things have improved since - in terms of access to government information and what she encounters here, using examples about the premier's appointments diary ( technical hoops here, versus 300,000 entries online at the White House website), and the release of political donation details (180 days after the end of the financial year here, versus something closer to real time there.) 

Michael McKinnon claimed government secrecy is about protecting policy failures (it's a bit more nuanced than that); gave some examples that readers here will be familiar with of the need for constant vigilance as quiet steps backward often accompany big announcements of moves in a positive direction; and was particularly critical of delay tactics in the Freedom of Information arena that have the effect of turning important information concerning accountability into unusable stuff because of the lapse of time. It won't be news for public servants who deal with McKinnon's FOI applications to hear his stated modus operandi: proceed with obsessive bloodymindedness and demonstrate you will never give up. 

This led to some questions about the media giving up on some topics, first from a small number of 9/11 conspiracy theorists, encouraged by the session title, who tried to put the panel on the spot about the media's complicity in an alleged cover up- no one was having that - and another about the truth behind the AWB Iraq scandal. Marr was critical of the Rudd Government's timidity in office on the issue given what was said when in opposition , and indicated the matter still has a way to run-watch this space.

"Privacy laws", said to be misused to protect important information that should be released,  received a general caning- more about the media, privacy and the Campbell episode in another post.

Friday, May 21, 2010

NSW ministers-even the standards are opaque

We might be hearing more than we need to know about former NSW Minister for Transport David Campbell but there are large gaps in our knowledge about the standards of conduct and integrity of ministers in the NSW Government.  This extract, with emphasis added to the last sentence, is from an Issues Paper on lobbying (page 22) released last week by the Independent Commission Against Corruption (more about lobbying in another post.)
In NSW there are currently no restrictions on former MPs or staffers becoming lobbyists, although ministers must consult the Parliamentary Ethics Advisor should they consider such a position within 12 months of leaving office. This is similar to the UK and Scotland although both those jurisdictions are in the process of developing restrictions (and, my comment, NSW is unique in Australia in not having legislative or other restrictions on such post office employment.) As the current NSW Ministerial Code of Conduct is not a public document it is not known to what extent, if any, it addresses this issue.
That issue or anything else to do with what is expected in the conduct of duties as a minister.

Then there's this provision in the soon to commence Government Information (Public Access) Act (Schedule 1, Clause 11) the need for which has never been explained, and represents a new departure in the direction of non-disclosure in that the Register of Minister's Interests is not given specific exemption in the Freedom of Information Act that has been in operation since 1989. The provision attracted virtually no attention when the legislation went through Parliament last year.

 Ministerial Code of Conduct
It is to be conclusively presumed that there is an overriding public interest against disclosure of information the disclosure of which would disclose information contained in the Register of Interests kept by or on behalf of the Premier pursuant to the Code of Conduct for Ministers of the Crown adopted by Cabinet.
That is an absolute protection against disclosure, with no public interest or other factors to be weighed in the balance.In my submission  to the Department of Premier and Cabinet on the Exposure Draft dated 3 June 2009 (page 11) I commented:
Ministerial code of conduct: why the Register of Interests kept by the Premier should have the status of an exempt document in all circumstances is hard to reconcile with the need for accountability and transparency in the conduct of public duties. 
And then there's the matter of members of parliament and the decision to not extend the access to information law to the parliament, rejected by the Government after the Speaker and President ran up arguments that don't hold water including their assertion that sufficient public scrutiny comes from publication of the annual reports of the Department of Parliamentary Services that include aggregate data about expenditure on members' entitlements. Last year the Department spent a total of $123 million. There is a single line item in the accounts of expenditure of $29 million on members salary and allowances plus superannuation plus tax. What allowances are included isn't mentioned in the report. There is no break down of other expenditure on members electoral offices and staff. 

Part of the argument was that no Australian jurisdiction has done this- Tasmania since has. Another was that the separation of powers meant that the parliament had to have the same rules as the courts to preserve independence. Yes, but the courts are covered by the Freedom of Information Act and the new law in respect of information other than that relating to the exercise of judicial functions, ie matters of an administrative nature. 

The open government promise rings a bit hollow when these gaps in transparency and accountability of ministers and parliamentarians remain.

Testing the limits of privacy and public office

The resignation of NSW Minister for Transport David Campbell after revelations about aspects of his private life once again raises the issue of what if any right to privacy those in public life can expect. The answer appears to be very little. Campbell is accused of no wrong doing, but having presented himself as one type of person presumably for political advantage, the argument is that the media have a responsibility to test such claims and to publish in the public interest information that shows deceit. Evidence of deceit by a politician raises broader issues of character and fitness to hold office. Even Campbell seemed to accept this, apologising in his resignation statement to his family and the community for letting them down.

However politics probably trumped all else when it came to Campbell's future. The  reality was that with the government already a basket case, the Premier couldn't afford to keep him  in the light of these developments. As a former Police Minister  who appears to have led something of a double life and with plenty of controversy about the Transport  portfolio during his term of office the Premier and Campbell obviously judged nothing to be gained and a lot lost by him staying on. Another name to add to the list of NSW ministers to come a spectacular cropper in recent years.

Further debate on privacy, public life and the media (hopefully the issue of journalistic standards as well-on this score Andrew Crook in Crikey raises some relevant points about the Seven Network and its report on Campbell ) is sure to follow- starting with that Sydney Writers Festival session tomorrow on Press Freedom and the Public Right to Know where David Marr who has been on the air today decrying media reporting on Campbell as an unjustified invasion of privacy gets a chance to elaborate.

Update: on journalism standards see also Andrew Bartlett drawing on his own experience in politics and Bernard Keane (subscription) both in Crikey. Keane comments:

Thursday, May 20, 2010

Gadens Lawyers on FOI Reform legislation

This summary from Gadens Lawyers of the Federal Freedom of Information Reform legislation isn't bad, and the table of exemption provisions is helpful, although the article doesn't cover much beyond changes to exemption provisions.

McKinnon's Open Queensland picture not so pretty after all

Michael McKinnon FOI Editor, Seven Network might be taking back some of those fine words of praise for Premier Bligh and Queensland's approach to open government. In an article in yesterday's Courier Mail under the headline "Sordid deal makes a mockery of open government" (no link- the CM didn't post in online) McKinnon picks up from an article earlier in the week that had raised concern about a cabinet style exemption for the Brisbane City Council. I think giving the Executive Committee of a local council cabinet status and similar protections from disclosure would be a first for local authorities in Australia, but have a vague recollection of something similar in the UK. An extract from the article and the proposal follows.

Wednesday, May 19, 2010

Hansard mix up on FOI Reform bills leads some (one?) of us astray

We all know you shouldn't believe everything you read, but news that a speech in Hansard-the record of parliamentary debate- was the wrong speech comes as a surprise. I had a phone call yesterday from the Department of Prime Minister and Cabinet that my posts ( here, here  and here) about what was "said" or "not said" in the Second Reading speeches on the Freedom of Information Amendment (Reform) bills in the Senate last week had sounded some alarm bells in Canberra (well, at least among those managing this legislative process.)

My points didn't gel with what the speeches were supposed to say. PM&C told me "Hansard had made an error by including in the first published version the wrong Second reading speeches"- those that had been made when the bills were introduced into the House of Representatives last November. The error had now been rectified and the record now is of what was tabled (or, my comment, intended to be tabled?) as the Second reading speeches. 

Seeing as how the speeches were not read aloud but simply incorporated in the record, no one present in the Senate would have known anything had gone amiss (won't ask who was paying attention), but readers like your scribe had (understandably) gone off on the wrong track on the basis of what Hansard originally reported. ( How often does this happen, you have to wonder, and what gets missed in the wash?)

What was meant to be said by Senator Sherry on behalf of Minister Ludwig now appears as the Second Reading speeches on the bills in the Proof Senate Hansard for 13 May pages 17 -21. You wouldn't know of the error in reading this. Open Australia still has the original.

Where the correct version parts company with what I reported based on Hansard Version 1 includes these points:

Rather than not saying a word about capitulation by the Government on the onus in the AAT issue, the speech includes a defence of the Senate Committee recommendation, and the decision to backdown:
The Committee’s recommendation to amend the Freedom of Information Amendment (Reform) Bill to remove the concept of onus in both review proceedings by the Australian Information Commissioner and the Administrative Appeals Tribunal (AAT) is not supported by Coalition Senators, nor by some stakeholders who use the FOI Act. The Government does not accept that the Committee’s recommendation to remove the onus would have disadvantaged applicants. The removal of the onus was recommended to ensure that FOI applications were not treated as adversarial court processes. Notwithstanding this view, the Government has decided to retain the concept of onus in FOI proceedings, making it clear that the Bill is designed to make access to documents easier for applicants, with the agency or Minister under an obligation to justify why non-disclosure is necessary. Under an existing obligation in the AAT, an agency or Minister is required to use their best endeavours to assist the AAT to make a decision on an FOI review application. That obligation will also be applied to a review by the Australian Information Commissioner."
Rather than reiteration of the intention to provide a reference to the Australian Law Reform Commission concerning FOI for the private sector, as stated last November, the speech says nothing about this. I understand from PM&C that it remains on a list of possible references- sounds like a little backsliding to me.

Rather than indicating draft privacy legislation would be released early in 2010 the speech says release will be later in the year.

There is also this specific reference to attention to Senator Ludlam's concerns about blanket exclusion of intelligence agencies, obviously part of the deal to move the bills into the noncontroversial category:
To ensure the reform package delivers effective change, provision is made in the Bill for the Act to be reviewed two years after the commencement of the reforms. The review will be comprehensive, and will necessarily cover all aspects of FOI, including how well the two-tier review system is working, how the Office of the Australian Information Commissioner is operating, the exemptions in the Act, and agencies’ implementation of the new information publicationscheme. In order to address the concerns raised by the Australian Greens, the review will also need to include a consideration of whether the exclusion of agencies, including intelligence agencies, from the application of the Act is still appropriate and necessary. Naturally, such a consideration would require reference to international practice and consideration of what is in the Australian public’s interest. and that the review of exclusions from the act for intelligence agencies would be a matter to be examined in the comprehensive review of the act in two years time. 
On this issue Andrew in a comment on this post says Senator Ludlam was incorrect in claiming the UK's MI5 and MI6 are covered by the FOI Act. I commented last year that the US CIA and New Zealand Intelligence Service are covered by relevant legislation in those countries.

Tuesday, May 18, 2010

Press Freedom and the Public's Right to Know

Mike Carlton
One of the many offerings at the Sydney Writers Festival this week. Saturday, May 22 10:00 - 11:00 Sydney Dance Company, Studio 2/3 Pier 4/5, Hickson Road Walsh Bay. Mike Carlton moderates a discussion with David Marr, 2009 Walkley Award winning Seven Network FoI editor Michael McKinnon and former Washington correspondent Anne Davies about freedom of expression and freedom of the press in Australia. It's free, no bookings. I'll be there-say hello if you are.

WA review of FOI processes

The Western Australian Information Commissioner is conducting a review into the manner in which Western Australian State and local government agencies administer the freedom of information (FOI) process. Submissions closed on 30 April and the review is expected to be completed by August 2010. Presumably submissions will be published although there is nothing to indicate one way or the other.(Correction thanks to a reader. The website states- "All submissions received will be treated confidentially and not attributed to individuals or organisations." Just why this is the default position you have to wonder. ) The Australian today reports the WA branch of the Media Entertainment and Arts Alliance( obviously happy to let others know what they think) has criticised the "limited scope" of the review's terms of reference to examine administration of the FOI Act, but not the content of the legislation. "The system was too slow and costly and government agencies lacked a culture of active disclosure, the union argued..", calling for a quantum leap out of the dark ages and the adoption of the Queensland Right to Information model.

Government repeats commitment to "private sector FOI" inquiry

It's been mentioned twice before by Government speakers going all the way back to Senator Faulkner in March last year. The mention of acting on this by the end of 2009 has long faded. There hasn't been a skerrick of detail. But it popped up again in the Second Reading Speech in the Senate on the Freedom of Information Reform bills last week.
"The Government will also consider further improvements and will ask the Australian Law Reform Commission to inquire into whether the FOI Act or another disclosure regime should apply to the private sector."
Thanks to Open Australia for the link.

(Update and Correction: see this later post as to why this wasn't the case.)

Monday, May 17, 2010

Draft privacy reform legislation due "early in 2010"

Also in the Second Reading speech on the Freedom of Information Reform bills in the Senate last week, this indication of intention to proceed with legislation to shift personal information applications from FOI to privacy legislation, and to release draft privacy reform legislation "early in 2010". Time is passing.
While the Privacy Act 1988 largely regulates the handling of personal information by Commonwealth agencies, access to and correction of a person’s own information is currently enforced through the FOI Act. Around 85-90 percent of FOI requests annually are for personal information. The Government proposes to amend the Privacy Act so that it is the principal legislation which provides for an enforceable right of access to, and correction of, an individual’s own information. That proposal will be addressed in draft legislation covering broader reforms to the Privacy Act expected to be released for public comment early in 2010.
 Thanks to Open Australia for the link.

(Update and Correction: see this later post as to why it will now be later in the year.)

Intelligence agencies remain out of FOI focus

The Greens Senator Ludlam in speaking in the Senate last Thursday to his unsuccessful motion for removal of the blanket  exemption of intelligence agencies from the Federal Freedom of Information Act, asked the Minister several times but failed to get a response:
What is it about Australian security agencies that should render them entirely immune to freedom of information that does not apply, for example, to the CIA, to United States intelligence agencies and to intelligence agencies like MI5 or MI6 in Britain which are subject to freedom of information laws?"
He could have added New Zealand there as well. Good questions that deserve a considered answer. As Senator Ludlam said there are plenty of exemptions that would always cover those aspects of intelligence agency operations that legitimately deserve protection, but the blanket exemptions remove scrutiny even of how many paper clips they buy-should you be interested. 

All Senator Ludlam managed was an acknowledgment from the Minister Senator Ludwig that exclusions from the act should be looked at in the proposed comprehensive review of the act two years after these changes commence.

Thanks to Open Australia for the link.

The 2010-2011 Budget for PM&C included money for an independent review of Australia's intelligence agencies. Will the terms of reference extend to issues of transparency and accountability? Tim Lester's report in the Sydney Morning Herald doesn't raise hopes.

NSW Information Commissioner set to lead the revolution

Ben Rushton SMH
Best wishes for an exciting journey. NSW Information Commissioner Deirdre O' Donnell, a week into the job, told Matthew Moore of the Sydney Morning Herald  she is ready for the challenge of leading from the front on implementation of the GIPA act, to commence on 1 July.
'The role of champion is really what most excites me. This is a revolution and it needs a champion, someone visibly proactive, engaged and engaging who will be out there to show this thing really matters and things will change....O'Donnell ...... concedes that, as part of the revolution she is planning, it is inevitable some people may get hurt as they are forced to change well-established patterns of behaviour. Her fundamental challenge, she says, is to change the culture of the public service, to make it far more open. To help do that she is drawn to the idea of varying the performance agreements of the heads of department to include compliance with the new laws as one of the measures by which they are judged. ''It focuses the mind wonderfully, you really internalise it, you really give it your attention,'' she says of the proposal."
Shades of former Premier Nathan Rees who pushed the legislation through and now watches from the backbench, who told Parliament  almost a year ago the new legislation would
"turn the freedom of information regime on its head. The bills establish a framework to actively promote the release of Government information and they offer the opportunity for a fresh start...These bills constitute a fundamental freedom of information revolution... New South Wales will gain the nation's best freedom of information laws. The public's right to know must come first. As well as comprehensively responding to the Ombudsman's report, they pick up reforms arising from the Solomon review in Queensland and recently proposed changes to Commonwealth legislation. The bills mark a paradigm shift. Our public sector must embrace openness and transparency and governments must forever relinquish their habitual instinct to control information. This is generational change and reform that is long overdue."
 All aboard...

How Federal FOI Reform bills became noncontroversial

The easy passage for the Federal Freedom of Information Amendment (Reform) Bill and the Australian Information Commissioner Bill through the Senate last Thursday - all done in 30 minutes flat, without a division -came from agreement behind the scenes that the legislation would go through as noncontroversial.

This resulted when the Government backed down on the onus of proof  issue in AAT review processes that had become the main issue of contention. The Opposition despite some earlier huffing and puffing and talk of amendments then didn't pursue other concerns raised in the dissenting report of the Senate Finance and Public Administration Committee by Coalition Senators Brandis and Ryan. With Opposition support, and The Greens also happy with this result, the bills as introduced ( with a new section 61 and some minor other Government amendments to the FOI bill  and IC bill agreed in the House on Wednesday) passed the Senate on the voices.

There was no support from the major parties for the only other amendment moved in the Senate -  by The Greens Senator Ludlam - to repeal the blanket exclusions from the FOI act for documents concerning intelligence agencies. Senator Ludlam the only senator to do so, at least gave voice to continuing interest in a couple of other aspects of the law that should be looked at closely - fees and charges, and the application of freedom of information to parliamentary departments- but can count, and didn't take these issues further.

Given the fuss in the lead up, a feature of debate was that Government speakers managed a "don't mention the war" moment avoiding any mention of capitulation on the onus issue. The original proposal  would have required an FOI applicant to carry the onus in the AAT in seeking review of an Information Commissioner decision that a document was exempt. The Government's first compromise in March would have removed the concept of onus in line with a recommendation from the Senate Committee. The final version -urged by Australia's Right to Know, the Law Council, the Opposition and others - in effect retains the status quo.

Neither Parliamentary Secretary Byrne in introducing the new section and other minor amendments, or other speakers for that matter, referred to it during House debate on Tuesday or Wednesday.

Senator Sherry in introducing the legislation in the Senate on Thursday tabled three revised explanatory memoranda and incorporated the second reading speeches in Hansard. The speeches contain no reference to the change to Section 61. (Update and Correction: see this later post for the explanation about how the speech did refer to this but Hansard initially got it wrong.) The Minister responsible for the legislation Senator Ludwig spoke three times for a total of six minutes during the Second reading debate and the committee stage and managed to avoid any mention of section 61 or the change.

The only indication of what had happened (other than in the fine print in the tabled documents) came in remarks by Senator Brandis who relished recounting the history and took the long handle to the Government when observing that the original proposal- an
"extremely significant and deleterious change to section 61 of the act—was in fact included in a schedule presented to the Senate committee as a miscellaneous technical amendment. Just think about that. Dwell and reflect for a moment on the supreme irony that, in a bill which falsely claimed to be expanding and reforming the freedom of information regime, an amendment which would have set back the regime to make it practically unworkable was itself concealed from the Senate committee by being treated as a technical minor amendment. That is hardly freedom of information; a conspiracy to conceal highly material information from the Senate committee would be a better description."
So that was it. There had been plenty of suggestions over the last 14 months about how these bills, welcome as they are, could have been further improved but the onus issue dominated all else during parliament's consideration of the bills.  I thought the original proposal was a backward step but other issues also warranted consideration. Unfortunately it ended up dominating to the extent other aspects of the bills didn't get noticed at all.

The focus now shifts to when the new era is to commence, and how it all will work in practice.

Thanks to Open Australia for the Hansard links.

Friday, May 14, 2010

FOI onus in AAT-status quo preserved

On what became something of a controversial issue following tabling of the Freedom of Information Reform bills in Parliament last November the Government quietly backed off before final debate on the legislation on the proposal to change the onus of proof so that a party seeking review in the Administrative Appeals Tribunal would carry the burden of making its case. It also gave way on its second bite that would have removed the concept of onus but placed an evidentiary burden on the government agency. Tthe staus quo that the government agency carries the burden remains. Here is the relevant extract from the revised Explanatory Memorandum:

Civil liberties rate in UK Coalition accord

Thanks to Bob Burton for a reference to the UK Coalition Government agreement  which includes:

10. Civil liberties

The parties agree to implement a full programme of measures to reverse the substantial erosion of civil liberties under the Labour Government and roll back state intrusion.

This will include:

- A Freedom or Great Repeal Bill.

- The scrapping of ID card scheme, the National Identity register, the next generation of biometric passports and the Contact Point Database.

- Outlawing the finger-printing of children at school without parental permission.

- The extension of the scope of the Freedom of Information Act to provide greater transparency.

- Adopting the protections of the Scottish model for the DNA database.

- The protection of historic freedoms through the defence of trial by jury.

- The restoration of rights to non-violent protest.

- The review of libel laws to protect freedom of speech.

- Safeguards against the misuse of anti-terrorism legislation.

- Further regulation of CCTV.

- Ending of storage of internet and email records without good reason.

- A new mechanism to prevent the proliferation of unnecessary new criminal offences.

Mark Bollard comments about the FOI and privacy related issues, and Media Spy  has this to say about likely defamation law reform:
Both parties agree that Britain’s libel laws are in need of an overhaul, with concerns that corporations and wealthy individuals have disproportionate power to use the courts to sue publishers and media outlets on the grounds of defamation, placing an undue burden of proof on the defendants. The laws led to what has been termed “libel tourism”, where foreign individuals and companies took advantage of Britain’s pro-claimant laws to sue the media. The coalition agreement pledges to initiate a “review of libel laws to protect freedom of speech”. The Conservatives’ election manifesto declared that the party would “review and reform libel laws to protect freedom of speech, reduce costs and discourage libel tourism”, while the Liberal Democrats went further by proposing the implementation of the so-called “Reynolds defence“, giving journalists the ability to use the public interest to justify investigations even if they are unable to prove conclusively that their findings are true.

Federal Information Commissioner cashed up

The Federal Government's Budget Papers for 2010-2011 (PM&C Portfolio Budget  Statement- Program1. 4) include an entry for the Office of Information Commissioner allocating $1.5 million in the revised budget for 2009-2010 (last year's papers included $2.961 million, obviously a little ambitious about the start date), $5.4 million for each of  the next two years  and $5.5 million in 2013-2014. Around $7 million is separately allocated to the Office of the Privacy Commissioner which will become part of the OIC, a separate statutory agency operating within the Prime Minister's portfolio, when the Office is established.

Thursday, May 13, 2010

Federal FOI reform: Australia's Right to Know loves it.

You know my "good, welcome, but.." reaction to the FOI reform bills and the "opportunity missed" list I've run up at various points since the Exposure Draft appeared in March last year. Then there's the "proof of the pudding" and all that.

Australia’s Right to Know thinks its excellent - not a gap or weakness in sight today.

Federal FOI reforms through Parliament in a flash in the end

I haven't checked what amendments were made in the end but Parliament has passed the FOI Reform legislation. The following message just in from PM&C. It's good and welcome change. Commencement is still some months down the track: 
The Government’s FOI reform legislation, the Australian Information Commissioner Bill 2010 and the Freedom of Information Amendment (Reform) Bill 2010, passed through the Parliament today.
The Government moved amendments to both Bills in the House of Representatives yesterday, which were agreed.  Details of those amendments and the final Bills as passed by both Houses are available from the Parliament of Australia ParlInfo website: see Australian Information Commissioner Bill 2010  and Freedom of Information Amendment (Reform) Bill 2010
Following Royal Assent of the Bills, the majority of the measures (including the establishment of the new Office of the Australian Information Commissioner) will commence on a day to be fixed by proclamation, or six months after Royal Assent.  The Government will make an announcement on this matter.
As you may be aware, the Government announced on 26 February this year the engagement of Professor John McMillan AO as the Information Commissioner Designate.  Preparations for the establishment of the Office of the Australian Information Commissioner are continuing. This includes work on new FOI guidelines so that they are ready in sufficient time for commencement of the changes to the FOI request regime.  The new Information Publication Scheme will commence six months later than the other reform measures.

The Media Release from Cabinet Secretary and Special Minister of State, Senator Joe Ludwig says:

“These bills constitute the biggest overhaul of the FOI Act since its inception and are directed to providing a stronger foundation for openness in government.” “I am proud to facilitate the passage of this legislation, which is a key component of the Government’s drive to restore trust and integrity in government” Senator Ludwig said.
The centrepiece of these reforms is the establishment of the Office of the Australian Information Commissioner and two new independent office holders, the Australian Information Commissioner and the FOI Commissioner. The Commissioners will have wide ranging FOI functions to promote openness and transparency as intended by the Government’s reforms.

Other changes include a new framework for agency-driven proactive publication of government information; a single public interest test for many exemptions, which favours disclosure; abolition of application fees and reduced charges; and reducing the open access period under the Archives Act from 30 years to 20 years for most records.
“The Rudd Government recognises we are responsible and accountable to the people we serve. That’s why in opposition we committed to overhauling FOI and today we have delivered on that promise in full” Senator Ludwig said.

E-health-more money, some confusion

The Budget announcement of a $466.7 million investment over the next two years in the national e-Health records system saw a lot of emphasis on benefits to come, secure access, and rigorous governance and oversight to maintain privacy, .PDF printable version of Personally Controlled Electronic Health Records for All Australians (PDF 24 KB)
Dr David More at the Australian Health Information Technonogy blog raises  questions about how the money is to be spent, and by whom.  Answers to follow?

Wednesday, May 12, 2010

The state of things in Queensland

In debate on the Federal Freedom of Information Reform bills in Canberra yesterday Opposition backbencher Peter Lindsay (from Queensland) likened the proposals to changes adopted in Queensland last year. He's right, in a fashion. But he went on to criticise developments there drawing on a media release by the state opposition leader last November headed ‘Accountability a joke under Bligh 'and stating 'Premier Bligh is living in a fool’s paradise if she thinks her government is setting the national agenda for accountability.' Mr Lindsay wasn't exactly using an objective source here. And his remarks don't square with the experience of one of Australia's most experienced journalists in the field.

It wasn't all the Budget in Canberra yesterday.

Those Federal Freedom of Information reform bills did get a run in the House of Representatives yesterday when the Second Reading debate resumed following introduction of the bills last November. The Government has the numbers in the House so the bills can sail through there at any time of its choosing, but the Senate is a different matter: Opposition support or the votes of all third party and independent senators will be needed to assure passage there. Shadow Minister for Justice Michael Keenan outlined the current situation:
I understand that discussions are underway between the opposition and the government regarding the onus of proof provision. Whilst the coalition supports these bills in principle, further amendments will be made in the Senate. I trust that the government and the opposition, with a bit of goodwill on both sides, will be able to find common ground on these two bills. As mentioned in the Bills Digest regarding the FOI Amendment (Reform) Bill 2009, there is an argument that in a number of areas the reforms do not go far enough. A common theme in submissions to the Senate inquiry was that, while the bill repeals a small number of exemptions, it retains an almost entirely untouched list of excluded agencies and documents held by certain agencies listed in schedule 2 of the FOI Act.
The debate (four speakers, then adjourned) generally was set piece stuff, with plenty of barbs back and forward about action (or inaction) on open government promises by the Howard and Rudd governments when they have had the chance. Mark Dreyfus, widely experienced in FOI in his previous life at the Bar, highlighted the positives, but in having a crack at the Opposition for ignoring the Australian Law Reform Commission's Open Government Report of 1995 failed to mention those ALRC recommendations that the Government has simply ignored without explanation, including that the parliamentary departments should be made subject to the FOI Act (31).These recommendations and weaknesses and gaps in the bills that quite a few of us see escaped other speakers as well. Next time maybe.

Thanks to Open Australia for the links.

Tuesday, May 11, 2010

NSW new era from 1 July; but as to Canberra...?

Deidre O'Donnell the inaugural NSW Information Commissioner took up her position yesterday and Government has announced the Government Information (Public Access) Act will commence on 1 July 2010, replacing the Freedom of Information Act from that date. Everyone will be pleased at that- Parliament passed the legislation last June. 

The Office of Information Commissioner has published some additional guidance material but leadership including selling the need for change to those at the top of the tree, and encouraging agency wide re-examination of information handling, publication and access policy and practices in line with the spirit, intent and provisions of the act have to be priorities. As does public awareness, which seems scant at present.

It's not just a job for the commissioner either. As The Greens Lee Rhiannon said in welcoming the new laws, "their strength will be largely determined by how well they are championed from on high."
"One of the strengths of this new legislation is its potential to change the culture of secrecy in state and local government agencies by requiring the proactive release of information. Premier Keneally must play a key role in driving this reform, or the public will suffer the same frustration as it did under NSW's shoddy old laws. A strong public awareness campaign is critical to educate people about how to use the new system... While former Premier Nathan Rees drove these changes to NSW's freedom of information regime, Kristina Keneally has been silent on the issue since taking office. Premier Keneally could garner a lot of good will in the eyes of the public by putting her energies into championing openness and accountability.
Meanwhile in Canberra, Federal Parliament resumes today for the Budget session with a long list of bills on the table and two uncertainties about the Freedom of Information Reform legislation - whether it gets a slot in what is now a crowded pre-election agenda, and the extent of support in the Senate for what the Government is prepared to accept in a final version of the bill.

Monday, May 10, 2010

FOI front and center at Press Freedom Day

The World Press Freedom Day Conference in Brisbane last week on the theme of Freedom of Information, the Right to Know, included a Masterclass involving (as Part 1) Queensland Information Commissioner Julie Kinross, Rick Snell of the University of Tasmania, Toby Mendell from Canada and Michael McKinnon of Seven Network. Snell spoke about the importance of a system wide approach to information access issues, rather than a focus on an act which may or may not deliver much. Mendell outlined the considerable progress around the world on FOI since 1990 with laws now in place in more than 70 countries.The Conference Brisbane Declaration may be a further prompt to action by the laggards on what is now an accepted part of the international law on rights.

Kinross reaffirmed the Queensland Government's ambition to be the most open and accountable government in Australia- others prepared to take the challenge please step forward- with the Right to Information Act just one of a range of means designed to deliver on the promise. She made some interesting comments about measures designed to promote open government including a relevant provision, now included in the performance agreement of the chief executive of each government agency to advance the objects of the act, and oversight of performance in this respect by a committee including the head of the Premier's department and Treasury; the policy context established by the Government's Information Management Policy that forms part of a government wide Strategic Framework that probably has a 10 year time frame; standards for agency performance, and current collection of baseline data for future comparative purposes; report cards required by the Right to Information Act to be submitted to a parliamentary committee; and the offence provisions in the act and how they promote independence in decision making.
McKinnon while supportive of the "push" model said he thought he would be waiting a long time for government to proactively publish potentially embarrassing information, so the "pull" method would continue to be part of journalists' modus operandi. McKinnon said the media coalition Australia's Right to Know was about to seek to engage the to date uninterested South Australian Government on the topic of broad Freedom of Information reform.  That's a good thing- Victoria and Western Australia could do with pressure to act as well.

Thursday, May 06, 2010

MEAA report on press freedom

The Media Entertainment and Arts Alliance report on the state of press freedom in Australia released on 30 April is a comprehensive and useful survey of the field, and developments over the last 12 months including secrecy in government, Freedom of Information, whistleblower protection, shield laws, defamation and SLAPP, copyright, spin, anti terror restrictions-the lot. There is even a sane contribution  (rare in most media circles) on privacy by Media Watch's Jonathon Holmes suggesting (as ABC's Mark Scott did in March last year) that media organisations should be trying to negotiate a sensible statutory cause of action for gross unwarranted breaches rather than leave this to common law development by the courts. Other contributions include Michael McKinnon on FOI developments and me on how transparency issues featured differently in the recent Tasmanian and South Australian elections.

Chris Warren's overall assessment in the introduction properly stops short of a positive rating for the Rudd government on results to date, but is optimistic about changes still to come. There is plenty of room for debate about his comment about privacy and the profession: that "Australia's journalists-compared to some comparable markets- have a pretty good record of respecting this right to privacy and on occasions when we do step over the mark we are quick to recognise this as well." The rider about "comparable markets" gives this otherwise unqualified defence of standards a suitably vague and uncertain character.

Wednesday, May 05, 2010

Sunshine the best detergent

From the Sydney Morning Herald tonight under the headline MP admits deliberately misleading parliament over signing blank forms:
Penrith Labor MP Karyn Paluzzano (who resigned earlier in the week as a parliamentary secretary) admitted at a corruption inquiry today she misled parliament by signing either blank or partly completed staff payment forms....Asked at this afternoon's hearing whether she had knowingly signed false and misleading forms, Ms Paluzzano answered: "That is correct."....Asked if she had signed either partly filled-in, or blank, forms Ms Palazzano gave the same response, and when asked whether she had deliberately misled parliament, she answered: "I accept that."...During today's hearing, it was also alleged that she rorted her electoral mail account by sending out mail that had not been approved by the clerk of the Legislative Assembly as is required.
The ICAC hearing continues.

From a post  here on 19 June 2009:

When asked in the Legislative Council yesterday about why the NSW Parliament would not be subject to the Government Information (Public Access) Bill the Attorney General John Hazistergos said it was a silly question and that the President of the Legislative Council and the Speaker of the Legislative Assembly had explained the reasons for the decision. He said citing examples of where this had occurred elsewhere, like the UK, was inappropriate "cherry picking" because " how we do business in this Parliament, the checks and balances that exist in New South Wales are not replicated in every other jurisdiction" and "freedom of information legislation in this State and throughout Australia is about keeping the Executive accountable. There are other means for keeping the Parliament accountable."
Just what those means are is not apparent. And-if applying the law to the legislature poses a problem- why the Government has not asked Parliament itself to consider embracing higher standards of accountability and transparency has not been explained. The Attorney General has been a vociferous opponent of a Human Rights Bill or Charter for Australia on the basis that parliament, not unelected judges should strike the right balance in protecting rights. Yet when it comes to a system to ensure the right to know about the day to day operations of Parliament in spending the $123 million allocated in this week's state budget, it is not even a topic worth discussing.

So no more pesky questions please about the $100 million in the Budget for "Members' Support" or how much each member is paid in entitlements or how travel, electoral or other allowances are spent. Just look forward with anticipation to next year's annual report for a few high level details.
Trust us, we're the NSW Parliament.
Perhaps time for more questions and reconsideration, Attorney General, or can we be confident Ms Palazzano is a one off, and no repeats are likely?

Tasmania is the only Australian jurisdiction to properly address this issue extending the Right to Information Act to commence on 1 July to the parliament in respect of matters of an administrative nature.