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Friday, December 17, 2010

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...

The Freedom of information Act exemptions of most relevance in this field remain unchanged despite the positives referred to in legislation that came into effect on 1 November. A blanket exemption applies to information communicated in confidence by a foreign government, or that would or could be expected to cause damage to security, defence or international relations. (s 33) There is no public interest balancing or any other test required.

The first mentioned means that any information communicated to an Australian official by anyone in any foreign government, including the time of day according to such paranoid secret keepers as Burma and North Korea, will under our law be exempt from disclosure where the parties agree to or imply confidentiality. A recent Federal Court decision suggested any official discussion between an Australian official and a foreign government representative would be protected from disclosure "based upon the understandings of the parties participating in the conversation, rather than the subject matter. Of course it is possible that some conversations may be clearly “unofficial" in subject matter..." That might apply to an invite to dinner or a game of golf but that could be the extent of it.

The protection extends to information that at the time sought is in the public domain in Australia or elsewhere, and regardless of whether the foreign  government concerned still regards it as sensitive. No public interest, including justice to an individual as might arguably be relevant in several cases brought by Dr Haneef, trumps the fact that the parties involved agreed it was information communicated in confidence.

We haven't got the balance right on this one, or on the other elements of s 33 where any expectation of damage no matter how trivial prevails over any public interest no matter how significant.

Apart from these exemption issues, Australian intelligence agencies are exempt from the FOI act in all respects, something countries such as the US and NZ haven't thought necessary (up to now at least).

There are some FOI positives resulting from changes from 1 November to the public interest test that should mean more public access to internal consideration of matters of foreign policy and international relations interest-as long as the thresholds referred to above aren't breached-and depending on how DFAT interprets and applies the law.

The mood and appetite for further necessary change, for the moment at least, ain't what it was.

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