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Sunday, April 29, 2012

Parliament sails above expected standards of transparency

Amid all the hubbub about Speaker Slipper, sure not to die down anytime soon despite his decision to step aside for the moment, I've been wondering when the mainstream media would notice that reams of material about his (or any parliamentarians') expenditure of public money seems to be available from the Department of Finance and Deregulation, either in published form or in response to Freedom of Information applications, but nothing from the Parliament itself about payments made to or on his behalf.

Parliament not Finance pays salaries and electorate allowances of parliamentarians, additional salaries of parliamentary office holders, superannuation entitlements, resettlement allowance payments, and services and facilities to support parliamentarians in Parliament House including the cost of office accommodation, computing and other equipment, telephones, newspapers and stationery. And perhaps travel for office holders such as the speaker when on business connected to that office, but who knows, this is murky territory.

But hallelujah, this in an editorial in the Sydney Morning Herald on Saturday:
The case also raises the issue of transparency. Parliament is not covered by freedom-of-information legislation. It should be. It is no breach of Westminster tradition: the British Parliament is covered by it, as was shown by the recent expenses scandal. Given that Parliament has a budget of $180 million to spend on its members, there is significant public interest in ensuring it is spent properly.
I won't go back over years of pointing out that the Australian Law Reform Commission recommended this, ahem, 17 years ago. (Well I will actually.)

Or that no government or parliamentary leader has given a response since. 

Or that I've been ranting on for yonks about gaps in transparency for payments to parliamentarians most recently last week, further back last November or even further back, a year ago.

Or that parliament has been fiddling but not acting to establish the position of parliamentary integrity commissioner?

Has anyone asked minister for integrity issues/parliamentary entitlements, Special Minister of State Gray

Or the presiding officers of parliament?

Wait a minute, one of those is Speaker Slipper  who retains the position despite the fact he has stood aside from chairing parliamentary debate.

Ah you've got to love 'em!

Differences in FOI acts in protecting against harassment or intimidation

Privacy Commissioner Pilgrim in  'I' and Australian National University [2012] AICmr 12  (the first published review decision in which he rather than Professor McMillan or Dr Popple exercised powers under the Freedom of Information Act) set aside a decision to refuse access to emails sent to climate change scientists at the ANU that had been the basis of earlier media reports that death threats had been made against them. (Update: Christian Kerr in The Australian on 3 May provided a racier account, the ANU has since decided against appealing the decison, and Chris Merritt  found scope for some point scoring against Fairfax.)
Of interest is that the Commonwealth act contains no counterpart to provisions found in Queensland,Tasmanian and NSW acts that provide grounds for refusal where, with regard to matters of this kind, the likely effect of disclosure falls short of a reasonable expectation of harm to life and safety. Those state acts throw the risk or likelihood of harassment or intimidation into the harm mix.

Access in this case had been refused by the University on the basis of Section 37(1)(c) of the FOI act, that disclosure would, or could reasonably be expected to endanger the life or physical safety of any person, and Section 47F, the conditional exemption for personal information. The latter claim failed because the applicant was not seeking information that would reveal the identity of the individuals sending or receiving the emails in question.

Commissioner Pilgrim was satisfied that disclosure of the content of the documents could not be expected to endanger life or physical safety of any person. His decision was that edited copies (with information removed that would identify the individuals sending or receiving the emails) should be released to the applicant.

Tuesday, April 24, 2012

Privacy Awareness Week

Privacy Awareness Week kicks off on 30 April at breakfast in Sydney with Privacy Commissioner Timothy Pilgrim leading a panel discussion about data breaches and privacy best practice. Australian Information Commissioner Professor John McMillan will also launch the OAIC's revised Guide to Handling Personal Information Security Breaches at the event. Initiatives such as this and other events scheduled for the week by the OAIC, and the Northern Terrritory, Queensland, NSW and Victorian regulators to raise awareness are to be applauded.

Meanwhile consideration of the case for a legislated requirement for notification of a serious breach of data security presumably grinds on.

Privacy law reform generally, identified by the federal government as long ago as 2006 as an issue, has moved at glacial pace since the government's announced response in October 2009 to the Australian Law Reform Commission report of a year earlier. First stage reform issues such as the proposed new form Australian Privacy Principles are still unfinished business.

Monday, April 23, 2012

Slipper saga reminds of lack of transparency concerning payments to parliamentarians

7 News
Plenty to read about House of Representatives Speaker Peter Slipper, some courtesy of documents obtained under Freedom of Information by News Limited publications from the Department of Finance and Deregulation, which manages most entitlement payments to members and senators.

But details of payments and related information concerning use of entitlements by Mr Slipper for which the parliament itself is responsible haven't featured so far. That sort of information about parliamentarians isn't available. See this post from last November about gaps in the system of accountability and transparency and recommendations for change, yet to be acted upon by parliament or the government, that have been floating around for years.

Long before it became an issue attracting national attention, Bill Hoffman at the Sunshine Coast Daily was on the Peter Slipper expense case. In March he detailed his unsuccessful effort to access information about payments by the parliament while Mr Slipper was Deputy Speaker last year.

Hoffman's article included this response from House of Representatives Serjeant-at-Arms Robyn McClelland which referred for the first time to future consideration of a public reporting regime for such payments, On past form don't expect to hear much from parliamentarians about the subject, or prompt action on much-needed improvements to the system:
Dear Mr Hoffman,
I refer to previous emails. The department has considered your request.
We have not previously had a request to our knowledge for % (sic) release of details of expenditure for services provided to individual members. Such details have not been released previously and we do not propose to make the details that you have requested available to you at this time. We will consider a public reporting regime involving publication of expenditure details. Any development of a reporting regime will involve considering the information available, developing a consistent approach across the parliamentary departments, and consultation with members. We will write to inform you if the information becomes publicly available.

Friday, April 20, 2012

NBN Co FOI performance review won't examine broader exclusion issues

Attorney-General Nicola Roxon announced this week that what has ensued since June 2011 when NBN Co commenced operating under the Commonwealth Freedom of Information Act (albeit with coverage limited to documents that don't concern commercial activities) will be reviewed by a yet to be named eminent person. 

The review stems from an agreement between the government and The Greens reached at the time the amendment was passed to bring NBN Co under FOI law a year ago. The Greens were wary that the government formulation of the NBN Co exemption, along the lines of long standing exemptions enjoyed by other GBEs and similar bodies, left too much room for avoiding disclosure, hence the agreed review of performance in return for their votes. At the time Malcolm Turnbull of the Opposition was convinced The Greens had been conned, and that the legislated formula provided too much hiding room for NBN Co. We'll see what has happened when the review report is tabled in parliament in June. I'm assuming, knowing all along that the review was to happen, that NBN Co has been reasonably well behaved.
Broader issues
The review notwithstanding, the justification for special exemptions afforded to a range of organisations and the inelegant form of words used in s7 and schedule 2 to achieve this will remain matters for another day. Along with the justification for exclusion of an unknown number of government owned corporations similar to NBN Co in structure, such as the National Electronic Health Transition Authority, that carry out important public functions with large allocations of public money.

Similar issues, rarely explored in most instances, also exist at state level.(Tasmania may be an exception because of the broad definition of public authority in s 5.)

Queensland Attorney General showed interest in scope issues in opposition
In Queensland last year  the Supreme Court ruled Special Purpose Vehicles were not subject to the Right to information Act. Then Opposition Member for Kawana, Jarrod Bleijie introduced the Right to Information (Government-related Entities) Amendment Bill into Parliament in September, partly in response to the court decision. Mr Bleijie is now Attorney General, minister responsible for the RTI act.

His 2011 bill, which lapsed when parliament was dissolved prior to the election in March, would extend the RTI act to cover "any corporation supported directly or indirectly by government funds or other assistance, or over which the state, a minister or a department is in a position to exercise control."

The RTI act currently (s 16) provides for extension of the act by regulation to such entities, but Labor made no move in this direction. Mr Bleijie in opposition saw merit in legislating in a job lot for such bodies to be subject to the RTI act but it remains to be seen whether the view from behind a ministerial desk takes on a different hue-as so often is the case. 

Thursday, April 19, 2012

Official: Victorian FOI fails to deliver

The report by the Victorian Auditor General on the extent to which the 11 Victorian public sector (VPS) departments and Victoria Police meet the requirements of the Freedom of Information Act 1982 won't surprise those who work in or have experience in dealing with the system.

 Media reports today grab on to "scathing" and "damning" to describe the report's findings but the report best speaks for itself:
Since FOI legislation was introduced 30 years ago, Victoria has gone from being at the forefront of FOI law and administration to one of the least progressive jurisdictions in Australia. Over time, apathy and resistance to scrutiny have adversely affected the operation of the Act, restricting the amount of information being released. As a result, agencies are not meeting the object of the Act, which is ‘to extend as far as possible the right of the community to access information’. The public’s right to timely, comprehensive and accurate information is consequently being frustrated. The VPS’s systemic failure to support this right is a failure to deliver Parliament’s intent. The prevailing culture and lack of transparent processes allow principal officer —secretaries and chief executive officers of agencies—to avoid fulfilling their responsibilities. Principal officers are not being held to account for their agency’s underperformance and non-compliance. Agencies are routinely disregarding the 45- day statutory time limit for processing requests and the five-day ministerial noting period, and there are serious flaws in record keeping practices and FOI searches in the Department of Human Services and Victoria Police. The Department of Justice has not satisfactorily fulfilled its role as lead agency for FOI. More effective leadership is required to promote an appropriate culture, improve transparency of government information and adequately inform Parliament and the community about FOI.
The Ombudsman has reached similar conclusions in various reports over the years to no avail, as the Auditor General notes citing this example:
None of the 12 audited agencies implemented all of the recommendations made by the Victorian Ombudsman in 2006. This is indicative of a poor, resistant culture and low level of priority placed on FOI, which DOJ has not managed to address effectively.
The report does not reflect on the role ministers have played in all this- ministerial conduct being  beyond the auditor's reach-but ministers in governments of both persuasions set tone at the top and went along happily with nary a word of concern about a system now described as apathetic and resistant to scrutiny.

Premier Baillieu gilds the lily in claiming (as reported in The Age) that government legislation to establish a freedom of information commissioner is the answer to the problem. That act doesn't encompass the more fundamental reform needed to mandate pro-active disclosure or changes to exemption provisions that would bring Victorian law closer to contemporary standards that properly balance confidentiality in the interests of good government and public rights to gain access to government information.

A 45 day response time for requests which, according to the Auditor General, is routinely disregarded in any event, is a bad joke in this day and age. As is the formal practice of "ministerial noting" before an agency decision is notified to the applicant- a practice open to abuse and the cause of long delays in some cases documented in the report.

The FOI commissioner model adopted in Victoria but yet to commence has significant weaknesses apparent well before it takes effect but which were simply shrugged off by the government during parliamentary debate.

While these holes in the bucket remain as they are, as well as serious systemic flaws in record management practices identified by the Auditor General (documented in detail in this 2008 report  and raised also in this recent Ombudsman report Own motion investigation into the management and storage of ward records by the Department of Human Services (256KB) FOI  in Victoria will continue to fail to deliver fully on its promise

Wednesday, April 18, 2012

Australia shuns good company at OGP meeting in Brazil

You are known by the company you keep. For this reason Australia sensibly looks for a seat at the right international tables. But for some reason we weren't in Brazilia yesterday in any official capacity at least, when over 1,000 representatives from 55 member governments  and 200 civil society organisations got together for the first annual high-level meeting of the Open Government Partnership (OGP), an initiative launched in September 2011 by President Obama and Brazilian President Rousseff. 

The meeting was chaired by President Rousseff and U.S. Secretary of State Hillary Clinton who spoke of the opportunity the OGP provided to
"set a new global standard for good governance and to strengthen a global ethos of transparency and accountability... we intend to do all we can to help make the Open Government Partnership a leader in ensuring that the 21st century is an era of openness, transparency, accountability, freedom, democracy, and results for people everywhere."
47 countries have joined the partnership in the last eight months. Apart from President Rousseff and Secretary Clinton, President Kikwete of Tanzania, Prime Minister Gilauri of Georgia, UK Cabinet Minister Frances Maude, and dozens of senior government leaders from around the world thought it important enough to attend the Brazil meeting. Libya was represented. The UK and US are co-chairs for the next 12 months.

The Australian government talks the talk about the importance of open government but either has difficulties with the partnership concept not shared by those who have joined, or other more pressing priorities. Our reasons for not signing up are so far unexplained, although in response to my report that the word recently in Washington was we would not be joining, a spokesperson was quoted by itnews saying we continue to consider and consult- eight months on for heavens sake!

Australian ministers who should have an interest including Attorney General Roxon (on Q&A and elsewhere) and Foreign Minister Carr (on his first visit to Europe) obviously had other pressing matters requiring their attention, but Trade Minister Emerson has been in Latin America for the past week for other reasons, and in Brazilia days ago, but apparently with no time for this sort of stuff, and had moved on to Colombia by the time the meeting began.

More than a pity that we sit out international action on open government in the 21st century while the following participating countries give it a high priority and the cause a shot in the arm by being seen in this sort of good company. Australia and NZ could give the notably light Asia -Pacific region representation a lift:
(* denotes Steering Committee member):

Brazil* Colombia Italy Peru
Indonesia* Costa Rica Jordan Romania
Mexico* Croatia Kenya Russia
Norway* Czech Republic Latvia Serbia
Philippines* Denmark Liberia Slovak Republic
South Africa* Dominican Republic Lithuania South Korea
United Kingdom* El Salvador Macedonia Spain
United States* Estonia Malta Sweden
Albania Georgia Moldova Tanzania
Armenia Ghana Mongolia Trinidad and Tobago
Azerbaijan Greece Montenegro Turkey
Bulgaria Guatemala Netherlands Ukraine
Canada Honduras Panama Uruguay
Chile Israel Paraguay

Friday, April 13, 2012

Overseas FOI travel bug

 I'm not the only Aussie with an FOI interest voyaging forth-according to this post by Alasdair Roberts he and Australian Information Commissioner John McMillan spoke at a forum in Beijing earlier this week entitled "Does Access to Information Really Make Governments More Transparent."  Hopefully the short answer was "yes" but I'm sure there is an interested audience beyond Beijing. Professor McMillan's speech or other details of the discussion are yet to appear on the OAIC website. 

 I'll be back in the middle of next week.