No rush on FOI reform in Victoria

In his report on six months in office Premier Ted Baillieu said Victorians are not expecting quick fixes or spin, just steady progress as the government gets on with the job in a responsible manner. They're certainly not seeing any rush by his government to deliver on commitments to improve integrity, accountability and transparency. The failure to insist on, and act to impose new high standards and to get the message across early on means that this important first phase of the term in office passes with the status quo ante firmly in place. Change might still be coming but the first six months in office is the best time to get the message out that things are going to be done differently.

In his own six month report card the Premier listed these relevant achievements:

Integrity in government
Improved Ministerial standards in Parliament by amending standing orders to require Ministers to answer questions and limit answers to four minutes; announced amendments requiring MPs to be financially penalised for poor behaviour in Parliament 

Transparency
Released details of the cost of Labor's desalination plant, which Labor refused to do in government, showing the plant will cost Melbourne water users more than $23 billion over the next 30 years; released new data sets to improve transparency of Victoria's health system, including comparing median waiting times with national median times by procedure and hospital and patients waiting longer than 365 days by procedure and hospital; and successfully sought an Ombudsman investigation into the Northern Victorian Irrigation Renewal Project.

Modest by any standard, but something at least.When Minister for Police and Emergency Services Ryan spoke to his own motion in parliament  last month congratulating the government on six months of achievements-"a wonderful first six months" to use the minister's words-even these didn't rate a mention.

The Age state political correspondent Josh Gordon gives the government points for easing off on the spin, but still sees too much secrecy, citing some examples.

Gordon also reports that Opposition Scrutiny of government spokesman Martin Pakula said extracting information from the government had become next to impossible, accusing the Coalition of breaking key pledges to set up an independent freedom of information commissioner, a government advertising review panel, an independent broad-based anti-corruption commission, and reform parliamentary question time. (Of course Treasurer Kim Wells had a point when he said Labor was hypocritical, given it had run a highly secretive government heavy on spin.)

All in the fullness of time the government might say, although it's slow speed ahead. When asked in the Legislative Council on 16 June for information about the establishment of a freedom of information commissioner, Assistant Treasurer Rich-Phillips was unable to provide any. (This earlier post reported that $1 million was allocated in the budget for the office in 2011-2012 rather than the larger four year allocation the government bandied about at the time.)

The government hasn't bothered to respond, correct or defend the practice referred to by the opposition since April that a senior adviser in the Premier's office has responsibility for making decisions on FOI applications received by the Department of Premier and Cabinet, an issue raised again by Mr Pakula in the Legislative Council  on 1 June.

Mr Pakula also received some publicity regarding a Freedom of Information request for documents about proposed protective service officers for public transport, rejected on the grounds that disclosure was contrary to the public interest. The Freedom of Information Officer for the department involved said the release of the documents "may cause confusion, mischief, and false expectations and this is not in the public interest in that it would undermine the project".

In Australia's FOI reform jurisdictions (basically everywhere except Victoria, South Australia,  and Western Australia) claims that documents should not be released in the public interest because to do so would be “misleading” and “capable of confusion” (or that disclosure would reveal internal communication at high levels within government, inhibit frankness and candour, or lead to confusion and unnecessary debate) don't cut much ice as the law has moved, or is moving to require consideration only of public interest considerations that better reflect the proper balance of public rights of access and government needs for confidentiality.

But not in Victoria where these sort of reasons still hold sway in the courts and tribunals-see this recent VCAT decision at [30] and [50] for example. Frankness and candour are also given significant weight in the balancing test in this VCAT decision [at 18] on the exercise of the public interest override. Victoria should follow suit to legislate against reliance on factors of this kind in weighing the public interest.

For a whole variety of reasons the Premier's long term goal of the highest standards of transparency will require more than just the creation of an FOI commissioner position somewhere down the track. The Victorian act is outdated closely reflecting the original Commonwealth act of 1982, and barely amended since, and needs to be brought into line with emerging national best practice, or subject to even bolder change. Time standards in Victoria-45 days-and charges are significant weaknesses. And well established Victorian practices like giving the minister's office departmental FOI decisions for five days before finalisation are not in keeping with proper standards of administration.

As pointed out here there are plenty of things that could be done to start Victoria moving in the right FOI direction. All it needs is leadership and insistence from the top.

The first six months were the best time to get moving. But it's never too late.

As to real reform regarding lobbyists, political donations, government advertising, whistleblower protection, ministerial and parliamentarians code of conduct and post office employment, and the anti corrupyion body-all in good time I imagine.