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Friday, August 31, 2012

Fairfax redundacies include one of the FOI best

Eighty three staff at the Sydney Morning Herald, and others at Fairfax publications The Age and The Canberra Times took redundancy packages this week in what someone at Crikey described as "probably the biggest clear out of talent in the history of Australian journalism."

The departures, David Marr, Adele Horan, Malcolm Brown, Ian Verrender and John Huxley  (and others), to name a few, leave gaping holes in quality, experience and professionalism in journalism at Fairfax. 
None more so than Matthew Moore leaving after 30 years, most recently titled Urban Affairs Editor but still managing an investigative unit and wearing the FOI Editor hat that he donned in 2006 after returning from a spell in Jakarta. Before going there, here as state political reporter and Olympics Editor he became a leading FOI exponent, notably pushing the envelope in seeking disclosures regarding the preparations and financing of the Sydney Olympics in the lead up and aftermath of the games.

Matthew broke many major stories through use of FOI particularly in the period 2006-2009 when already tight resource constraints at Fairfax started to bite harder. During that period and since he also provided invaluable advice to others at the SMH and elsewhere as  access to information laws became a mainstream journalism tool used by those on education, health, police, environment and other rounds.

Among memorable Moore campaigns was exposing food businesses caught breaching health laws. After two years of reports that included turning the public stomach at news of a rat plague in a Sydney sushi factory, the NSW Government decided to begin publishing details of fines imposed. One of his first FOI applications for this sort of information to the City of Sydney Council was (erroneously) knocked back on grounds disclosure would breach the privacy act.

Another long FOI battle resulted in NSW Police releasing a database of 77,000 crimes and other incidents at or near named hotels and clubs and the publication of details ranking the clubs and hotels according to the number and type of incidents of violence and the levels of intoxication of the person concerned. The Police originally refused access on grounds the Alcohol Linking Program would collapse through lack of co-operation from hotels, the information would have an unreasonable adverse effect on commercial interests, they wouldn't be able to investigate incidents or conduct secret audits of named hotels, and the game would be up for the Random Breath Testing program because motorists would twig to likely places where they would encounter a RBT unit. The Police folded on the steps of the Administrative Decisions Tribunal.

Fairfax itself is the one looking battered at the moment. There is pessimism rather than optimism regarding ongoing interest, enthusiasm and capability at the SMH, The Age and The Canberra Times in crusading use of access to information laws to hold the powerful to account.

I hope Matthew Moore isn't lost to the cause entirely. He leaves as a good friend and admired colleague with every best wish for the future.

Paper pile of polly perks Strike Two

Today's Fairfax revelations from that joint project to shine some light on gifts and hospitality given to federal parliamentarians include that 70 have failed to disclose complimentary premium Foxtel or Austar packages to their electorate offices from the Australian Subscription Television and Radio Association (ASTRA), and only 32 disclosed a gift by Commercial Radio Australia of digital radios given to all 226. Micro detail perhaps, but nice to see the UTS journalism students involved take a bow today: Lawrence Bull, Nathan Coates, Paolo Hooke, Frances Mao, Lillian Radulova and Nina Young.

(Update In the Senate on 12 September Senator Faulkner drew attention to a number of errors in the published version of his declaration of interests some of which were said to be errors in transcription and others false entries.)

Those non-disclosures sit alongside yesterday's reports of declared gifts previously hidden in piles of handwritten paper, as summarised in The Age that Israel and Israeli lobby groups wooed politicians with 44 fully or partly funded trips in the past two years, followed by Taiwan (16 trips) and the Tibetan government-in-exile (five). Courtesy of Qantas the leading corporate ''benefactor''
all 226  enjoy free membership of the Chairman's Lounge and Qantas has provided more than 200 free flight upgrades - of 289 recorded in total - worth hundreds of thousands of dollars. Gina Rinehart's Hancock Prospecting was the second-biggest provider of trips at a time when the mining tax was a hot issue. Billionaire Andrew Forrest's Fortescue Metals Group is another ''generous'' miner. Technology company Huawei, which was excluded from National Broadband Network tendering because of security concerns, has taken Coalition frontbenchers Julie Bishop, Andrew Robb and Bronwyn Bishop on tours to China. Two members of a Senate committee considering a white paper that will determine billions in defence spending, Mark Bishop and David Johnston, accepted a charter flight from England and accommodation from French shipbuilder DCNS to inspect its factory. As members of the parliamentary diabetes support group, Judi Moylan and Mal Washer accepted a trip to the World Diabetes Leadership Forum in Copenhagen paid by drug company Novo Nordisk.
In editorials today both The Age and the SMH remind our representatives of the standards we should expect of those in public life. As The Age in MPs should slam the door shut on influence peddling puts it:
Let's be clear about the conflicts of interest here. Were such benefits given to members of a company board, public committee or a councillor at the lowest tier of government, they would have to declare them and excuse themselves from decisions affecting the provider. MPs do not excuse themselves from parliamentary debates, committee deliberations and votes, so must observe a higher standard. They ought not accept travel, accommodation or gifts that create a risk, real or perceived, of compromising their decisions as public representatives. If the givers' intentions are not to influence political decision-makers by undemocratic means, what other motive is there?
And apart from the probity issues, information about who gets to chew an influential ear about what is most times itself a matter of significant public interest but not something our laws require to be made public.

The Sydney Morning Herald in A shadow darkens on one side of the digital divide concludes on a theme familiar to readers here:
The Herald/UTS project should not, in truth, be necessary. Filling in documents of such public importance by hand, and submitting and publishing them only in that form, is no longer adequate. Indeed, it looks like a passive form of obstructionism. They should be filed online, and made available automatically for all to see.

Thursday, August 30, 2012

Digging through paper pile to identify pollies perks

All power to the Sydney Morning Herald and University of Technology Sydney journalism students for the joint effort in compiling, and Fairfax papers for publishing, a searchable database of federal parliamentarians free trips, gifts and donors from the pile of handwritten (!) declarations of interest submitted over the past two years. (Open Australia had a crack at compiling then updating the register but not since 2010.)

(Update In the Senate on 12 September Senator Faulkner drew attention to a number of errors in the published version of his declaration of interests some of which were said to be errors in transcription and others false entries.)

But what to say about the parliamentary authorities who preside over this 19th century attempt at accountability where paper records are available for inspection in Canberra during business hours but handwriting decyphering skills and loads of time are needed to make sense of records that otherwise remain unsearchable?

All this apart from the probity questions raised by Professor Mulgan and Professor Uhr.

As to the state parliaments, don't even ask.

Can anyone explain why something like the Scottish Parliament online publication of details of interests and expenses is beyond us?

Or what has happened to the bulk of the Belcher committee recommendations regarding entitlements?

Guess the status quo suits some in our midst.

Wednesday, August 29, 2012

What thoughts Kerr and the Queen exchanged still safely locked away in Royal Household

AFR Michael Fitzjames
The dismissal of the Whitlam government in 1975 is back in the news with Paul Kelly in The Australian (paywall) today describing new material in Jenny Hocking's biography about the secret talks involving then governor-general Kerr and judges of the High Court as "significant and stunning."

Kelly concludes that all those years ago
"our institutions were undermined in a joint Fraser-Kerr project that deposed the Whitlam government via secret discussions and misuse of the Reserve Powers." Of course there continues to be a range of views about powers.

But as to secret discussions, thirty years is a long time to wait for some of the detail. The wait will be even longer for additional insight into communication between Government House and Buckingham Palace.

As Professor Anne Twomey wrote in the Australian Financial Review earlier this year:
"correspondence between the Queen and her governors-general is regularly packed up (in Canberra) and sent to be archived at Windsor Castle so that neither end of the correspondence is accessible through freedom of information. For example, any correspondence between the governor-general and the Queen about the dismissal of the Whitlam government would not be available in Australian archives. Instead, it would be locked away in Windsor Castle.

The only chink in this armour of secrecy occurs when the Queen’s private secretary, or a governor-general, corresponds with a government official, revealing the actions or wishes of her majesty. For example, while we might not have copies of correspondence between John Kerr and the Queen, we know from British government records that in October,1975 Kerr asked the British high commissioner what sort of disciplinary action would be taken against Queensland governor (from 1972 to 1977), Colin Hannah, who had embroiled himself in political controversy by criticising the Whitlam government. Kerr, who was contemplating embroiling himself in far greater controversy by dismissing the Whitlam government, wanted to know what sort of penalty might be applied. He asked whether British ministers would pressure Hannah into resigning. Kerr was told that they would not (although, in fact, they fully intended to engineer Hannah’s “resignation”). UK records also show that on November 4,1975, Kerr was advising the palace that the most appropriate way of dealing with Hannah was by refusing to extend his term of office. 

So Kerr went into the events of November 11, 1975 believing that the worst penalty he would face for his actions, at the British end, was the failure to extend his term of office. His actions in dismissing the Whitlam government also had the unexpected effect of saving Hannah. A British official wrote to the Queen’s private secretary noting that the Queen would be involved in a major political row if she dismissed Hannah for stepping down from his pedestal into the political arena, when the governor-general had done so in a far more spectacular fashion. So Hannah was instead “rebuked” and the extension of his term refused, as Kerr had suggested.

These British documents, which shed partial light on what occurred, only became accessible because they were held by the government rather than the Royal Household. They were therefore subject to the 30-year rule (now reduced to 20 years) and freedom of information rules.

Even this limited mode of access, however, has now been cut off in the UK. In 2011, a new British law came into effect so that any government documents recording communications with the Queen, the heir to the throne and the second in line to the throne, or anyone acting on their behalf, are absolutely prohibited from release for a minimum of 20 years from the time they are made, and then for the continuing lifetime of the relevant member of the royal family, plus an extra five years after their death. 

No public interest test applies, nor are there any exceptions or qualifications. For example, if Prince William were to live a long life, communications with him today might not be released until around 2080. Equally, any government communications with the Queen that are made today cannot be known for at least 20 years, and then not until five years after her death.

Of course all this apart from the current situation here where a document held by Government House is not subject to the FOI act unless it relates to matters of an administrative nature, interpreted by Deputy President Hack in the AAT earlier this year to mean that any document that relates to any substantive functions of the Governor-General is outside scope. That decision is under appeal to be heard by the Full Court of the Federal Court commencing 23 November, with as I understand, Tom Brennan for the applicant/appellant.

One thing we can be sure of is that what goes on behind the scenes at the highest level in Canberra and London remains firmly behind doors closed for a long, long time.

New NSW open government era ushered in by ICT Strategy 2012

The reference by NSW Premier O'Farrell on 21 August to "shortly" planning to announce a commitment to a new era of open government proved very short indeed-the next day he issued Memorandum 2012-10 linking this to the NSW Government ICT Strategy 2012, which requires directors general of each agency to report to the ICT Board by December 2012 with a plan to:
  • Identify priority datasets for publication at
  • Increase open access information available at

  • Facilitate public participation in the policy development process

  • Make greater use of social media to communicate with staff, customers and industryIncrease online access to government services
The three key Open Government initiatives outlined in the Strategy are:
  • Implementing a whole of government policy that supports the use of social media for enhanced public engagement and service delivery
  • Expanding and promoting Publications NSW as the default and easily searchable repository for published Government information
  • Developing best practice guidelines for the design of government websites, and applications for smartphones and tablets to make government information available in a way that suits the customer.
Progress on delivering open, online government will be reported publicly with stories of best practice that showcase the NSW Government’s commitment to transparency, participation, collaboration and innovation.

As reader "Sigh" points out, no reference in the memorandum to the Government Information (Public Access) Act with its proactive publication emphasis or to the reporting obligations that already exist under that act.  (Another wonders what ever happened to the pre-election commitment to abolish application fees, which hasn't been heard of since?)

So far the "new era" has not  received any public flourish- neither the Premier's speech last week nor the memorandum has warranted a media release or reference on the Premier's website.

But the memorandum urges ministers to ensure "that all agencies within their administration are aware of the contents of this Memorandum."

Pass it on folks.... the Premier says, and you can quote him:
"The NSW Government will be:
  • Open in our work for the people of NSW
  • Open to participation in the policy process
  • Open to collaboration on how we do business
Government faces many challenges and it makes sense to collaborate with our community, industry and research partners to deliver better quality and more convenient services for our customers. We can work well together if we share information and make it easier for NSW citizens to have their say as policies are developed. An open approach also benefits the public service. Agencies need to know what is happening across government so that ideas can be shared and duplication reduced."

Tuesday, August 28, 2012

NSW Premier foreshadows "new era of open government"

NSW Premier O'Farrell in opening the Creating Open Government Conference in Sydney last Tuesday spoke to the notes below regarding the state plan and open government. Always good to have the leader on the public record acknowledging "the right to openness, accountability and transparency when it comes to government decision making and information." And all ears for the announcement shortly of "a new era of open government." (Update).

NSW 2021

  • In coming to office, the NSW Government was determined to put forward a plan, NSW 2021: A Plan to Make NSW Number One, to guide our policy and budget decision making and - in conjunction with the NSW Budget - to deliver on community priorities.
  • Of the 32 goals identified, the important goal exists to “improve government transparency by increasing access to government information.”
  • The community has the right to openness, accountability and transparency when it comes to government decision making and information.
  • Providing people with access to information leads to improved community decision making and greater trust in public institutions.
  • We will – and should - target to increase the public availability of government information; as well as provide up–to–date information about government services. Information belongs to the people – not to the government.
Open Government
  • Shortly I will announce the NSW Government’s commitment to a new era of open government through the principles of transparency, participation, collaboration and innovation
  • To do this, the NSW Government will enhance:
          online access to government services to make them available anywhere, anytime;
          online communications, including social networks, for internal and public   
          online mechanisms for community and industry collaboration on innovative solutions;
  • To implement this strategy we will implement a whole of government policy that:
           supports the use of social media for enhanced public engagement and service 
           expand and promote a single whole-of-government website to publish government 
           information; and         
           develop the best practice guidelines for the design of government websites, as well 
           as applications for smartphones and tablets, to make information available in a way
           that suits the customer.
 NSW Government will be giving back to people a government that lives with you, through opening information to people that is rightfully their information.

Monday, August 27, 2012

Cook Islands a dubitable leader on FOI in the Pacific

With the dateline "Raratonga Cook Islands" to get something of a run this week as Prime Minister Gillard joins the 15 other leaders at the Pacific Islands Forum there, with Secretary of State Hillary Clinton leading a high powered US delegation and another from China both set for a post forum dialogue, among the many things you may not know:
the Cook Islands (population around 11,700, a bit over half that of the year 2000), a self-governing parliamentary democracy in free association with New Zealand, is the only forum country other than New Zealand and Australia with a right to information law. 

The Official Information Act 2008 was largely a direct transplant of the NZ act, plonked into place without much preparation or attention to issues such as the state of record keeping, training, systems, processes and support within the public service, or on the demand side, public awareness. Not surprisingly it hasn't proved a raging success-see one recent assessment below.

Tonga (population around 100,000) the only other country in the region to take a step forward, commenced a process in October 2011 with Australia's Rick Snell (at left) providing advice and assistance, culminating in a government wide administrative policy on access to information announced at the end of June, and seen as a step towards legislated rights. Plenty of consultation and preparation inside and outside government and a Government Open Day to kick things off. The need to address the issue emerged in the context of broader government reform that included the first democratic election in Tonga in 2010. How things work in practice remains to be seen but the measured, step by step winning support approach with more attention to relevance and adaptation to local conditions is a contrast with the Cooks.

"Good governance for development" and a commitment to increased transparency and accountability as an anti-corruption measure have been up in lights in the Pacific Plan adopted by the Forum in various forms since 2005. But it is one of many priorities, even when leaders genuinely mean it.

The Cooks experience warns against simply adopting the bells and whistles developed country approach in countries with limited resources, that are relatively new to democracy and have cultural legacies that don't always fit neatly with the concept that government information belongs to the people, and is simply there for the asking.

Australia and other large donors such as the UNDP have thrown plenty of money into the good governance basket. Another source of increasing assistance in the region, China has not, and steers clear of pushing or nudging on 'internal domestic' matters, simply providing concessional loans and building infrastructure like airports and conference centres that recipients value highly. Australia has signed an aid Transparency Charter. China's program isn't transparent at all.

The big three in the Pacific-Papua New Guinea (7 million), Fiji (around 900,000) and Solomon Islands (around 580,00) aren't near the lead in this area, or well placed to provide leadership to others.

PNG ranks 154 of 182 countries in the Transparency International Corruption Index. The PNG Constitution explicitly recognises the right of reasonable access to official documents, subject only to the need for such secrecy as is reasonably justifiable in a democratic society. However no enabling law has been passed. One positive, the PNG National Anti-Corruption Strategy 2010 2030 - (pdf) includes a commitment signed two years ago by current Prime Minister O'Neil (now talking tough about targeting corruption) to enact comprehensive Freedom of Information legislation, take other measures to promote disclosure, and sign and implement the Extractive IndustriesTransparency Initiative.

(The EITI promotes full disclosure of resource company payments to governments and revenues received by those governments, and may provide other countries in the region an opportunity as well to improve transparency in this respect at least. Australia through AusAID has committed $17.45 million (2007 to 2015) to the World Bank administered Multi-Donor Trust Fund and the EITI Secretariat.) which promotes EITI adoption and provides advice to countries on how to implement EITI compliant reporting processes.)

Fiji continues under military rule at least until 2014 with plenty of constraints on the media and the citizenry, and the Solomons is still a long way short of running its own show having relied on RAMSI for nine years now. In another country in the news, Nauru (population just shy of 10,000) there was reference to a specific right to information during the 2006/7 review of the Constitution but nothing heard since. In 2004 a freedom of information act made it into parliament but did not pass.
-->As to the Cooks, this extract regarding the Official Information Act is from Fragile Freedom, the Inaugural Report on Press Freedom in the Pacific published  in May 2012 by the International Federation of Journalists (IFJ) Asia-Pacific in partnership with the Pacific Freedom Forum:

Friday, August 24, 2012

FOI review delay-what's fair? (See the update- this should have been headed "Here come the lawyers")

I haven't seen the text of the speech to be given today to the Australian Corporate Lawyers Association conference in Canberra by the highly respected Tom Brennan but as reported in The Australian (paywall) he seems to be suggesting that the substantial backlog in review applications at the Office of Australian Information Commissioner may raise issues about fairness:
"(Mr Brennan) believes the Information Commission's appeals function "over its first 19 months has fallen well short of the standard required" under the new laws. "Whatever the causes of the delays of that kind, their existence is incompatible with the object of the FOI Act"....
"The fact that delays of this magnitude or greater appear to be entrenched and structural raises the real risk that a court will not be satisfied the Information Commissioner review, or the Administrative Appeals Tribunal review which can only be accessed following the completion of an Information Commissioner review, provides a convenient or satisfactory remedy."
See this post back in May where the backlog and causes were discussed including the demand and resource issues not entirely within the control of the office. In the briefist of chats with Freedom of Information Commissioner Dr James Popple at the Solomon Lecture in Sydney on Monday he said that new processes had helped reduce the backlog and disposition time for review from those high May levels-but that was all we had time for.

As to what level of delay might raise a possible fairness challenge, Mr Brennan has no doubt dusted off  NAIS v Minister for Immigration and Multicultural and Indigenous Affairs, [2005] HCA 77 summarised here on Findlaw. There may be other relevant authorities and Brennan may have other arguments.

In NAIS the High Court found that the "extraordinary delay" by the Refugee Review Tribunal in dealing with an application made in June 1997 by decision handed down in January 2003 was so substantial as to amount to a breach of procedural fairness. 

Lack of speedy resolution has also been a cause of grumbling in NSW, with some suggestions that 9-12 months is not uncommon. These statistics don't refer to time taken.

Update: the text of the speech has been posted on the ACLA website and is here

Brennan covers broader territory than The Australian considered newsworthy in effect challenging the model of the merits review function conferred on and exercised by the OAIC on a number of grounds, not just delay.  It sounds like the lawyer cavalry coming, arguing the proposition that the old system of merits review by the AAT ticks more legal boxes than OAIC review where lawyers play a smaller role.  He argues the performance of merits review functions under the new FOI requires urgent review. Points, apart from delay, include
  • that the Commissioner’s guidelines function and policy advisory role are incompatible with the merits review function,
  • that the Commissioner's general principle to conclude a matter without a hearing "is quite extraordinary conduct of an independent merits review entity", and
  • that we may soon see some applicants seek to bypass the OAIC by going to the courts for orders "in the nature of mandamus, or otherwise by way of judicial review to directly review decisions of respondent agencies."
It's weighty stuff that deserves discussion and debate, so a bit churlish to point out that the Australian Law Reform Commission Open Government Report cited on several occasions to support his point was dated 1995 and released in 1996 not 2006 as referred to at the bottom of page 4.

ACT whistleblower protections, new best practice standard

The ACT Assembly passed the Public Interest Disclosure Bill 2012 yesterday, to acclaim from the leading expert on such things, Professor A.J. Brown of Griffith University, writing in The Canberra Times:
It is historic legislation, improving on recent reforms in Queensland and NSW, and providing the country's clearest regime for ensuring public agencies listen to their people, take action to protect them, and ''ensure just outcomes … including by preventing and remedying the effect of detrimental action''. It also extends the circumstances where, if systems are not in place to deal with wrongdoing raised via official channels, insiders can go to the media.  So far, in NSW and Queensland, the newer legislation covers whistleblowers who go to the media as a last resort. This, too, is included in the ACT bill, with some helpful new safeguards and thresholds to guide whistleblowers and agencies on when this is acceptable. But as well, the ACT act is the first to make explicit what many Australians expect - that when it comes to serious public interest matters, if there is really no safe official channel available, we would prefer that a whistleblower go public than stay silent. The act provides that if a public servant can't reasonably use any official channels without ''significant risk'' of reprisal, they will still be protected if they go straight to the media.
Highlighting also inaction, and the way forward, for those just over the lake:

The big question for Canberra residents - especially if you are a federal public servant - is when the Commonwealth government is finally going to follow. Every day, it becomes more obvious why effective federal whistleblowing rules are needed..... The newer legislation, especially the ACT act, can help provide solutions to the federal government on how to catch up with other governments, and put in place stronger systems for acting on such information. It is also not enough just for authorities to listen - they have to protect and support those who speak up. A key issue for the ACT remains more effective, low-cost avenues for ensuring that mistreated whistleblowers are properly compensated, and able to get on with their lives and careers - but this is also something only the Commonwealth can help solve, under the Fair Work Act. After two years of inaction, the federal government has everything it needs to forge the solutions needed to deliver on its commitments. It will be another historic day - and another government with rare historic vision - which finally sees federal whistleblower protection rules come to pass.

Thursday, August 23, 2012

The emerging integrity branch of government- so far "more by good luck than good planning"

At the AIAL National Administrative Law Conference in Adelaide last month, Deputy NSW Ombudsman Chris Wheeler spoke to this paper "Review of Administrative Conduct and Decisions in NSW since 1974-an ad hoc and incremental approach to radical change." (Box)

 At 38 pages it's a big but worthwhile and informative read including observations about changing attitudes within government to openness and transparency, and whistleblower protection.

 One of his two main points picks up on a theme advanced by then NSW Chief Justice James Spigelman in 2004, and by the Commonwealth and Victorian Ombudsman and others including NSW Ombudsman Bruce Barbour in this 2010 speech, that it is time to recognise a fourth branch of government – the ‘ Integrity’ branch."The role of the agencies within that Branch would be to ensure proper practice on the part of the organisations within the other branches of government." Wheeler argues for a review, clarification about where review bodies best fit, and some rationalisation and simplification.

Two extracts:

Wednesday, August 22, 2012

Queensland OIC update

Lo and behold, the very day of the post about the Queensland Information Commissioner position, this appears on the Commission's website
Jenny Mead, Right to Information Commissioner is currently the Acting Information Commissioner. The position of Information Commissioner is vacant pending the outcome of a selection process conducted by the Department of Justice and Attorney-General and appointment by the Governor-in-Council under the RTI Act. The position was advertised 12 July 2012.

Treatment of Allan Kessing a low marker for our grand claims

Senator Nick Xenophon in Parliament last week speaking in support of the Aviation Transport Security Amendment (Screening) Bill 2012, noted the earlier statement by the minister on the bill's significance:
This will ensure that Australian travellers are afforded the highest level of protection against aviation terrorism, bringing Australia into line with countries such as the United States of America, Canada, the United Kingdom and the Netherlands. 
But then queried what sort of message is sent by the treatment of Allan Kessing:
We need to encourage and protect whistleblowers who work within Customs and our airports to come forward. Unless we do that, we will not get the full picture. We can only know all the necessary details—all the loopholes and clauses and ins and outs—if we listen to the people on the ground. But these people will never speak out as long as their jobs and futures are in danger, because they will look to what happened to Allan Kessing. They will look at the shameful and disgusting way he was treated by the system.There are great opportunities for us if we care to take them, if we encourage and support those whistleblowers to come forward. We might have to shift our thinking a bit to try new things and come up with new ideas, but the outcomes will be better for us all if we encourage those whistle blowers to come forward.....
This bill and the technology it introduces is an important step in improving our airport security but it is only part of the process. We need to heed what occurred to Mr Kessing. We need to heed his report and the Wheeler review and the fact that it appears those recommendations have not been carried out fully. Just because this is a big and visible step does not mean it is the only one we should take. It is important to be seen to be taking action, but sometimes the small things are the details which can have the biggest impact. The fact that there seem to be some serious problems with airport security cards is a real worry.
I encourage the government to continue its reforms but also call on them to conduct greater consultation with people who work in the industry, to encourage whistleblowers to come forward and to heed the information on the ground, which can be the most valuable in deterring terrorists. If the government wants to be true to its word and true to its 2007 election manifesto, about looking out for Mr Kessing in particular, they can start by giving him a full and absolute pardon for his reports back in 2002 and 2003 and to overturn what many regard as a wrongful conviction.
Successive attorneys general have said nothing publicly about the Kessing pardon application lodged in 2009.

The last mention in Parliament of whistleblower legislation by a minister was in March this year when Minister Gary Gray introduced amendments of little consequence to the Public Service Act. (Update-that bill limped into the Senate on 22 August). The Government response to the 2009 Dreyfus Committee report was tabled in Parliament in March 2010 and was full of promise. Then attorney general McClelland said at the time “The Government supports a pro-disclosure culture in the Australian public sector, underpinned by enhanced whistleblower protection mechanisms, as part of its commitment to integrity in Australian governance.." But no action since.

While injustice to Kessing and this gap in the law exist Australian taxpayers shouldn't be reassured by grandiose claims about the wonders of aviation security, the strength of anti-corruption measures or anything else where insiders know, bosses and the rest of us don't, and speaking up guarantees professional suicide.

NBN Co review leaves broad blanket exemption in creative hands

The Morris review of NBN Co's handling of freedom of information found the agency: 
. complied with its lawful requirements in administering the FOI Act
. used a careful process to identify exempt documents, has clearly articulated the reasons for the  claimed exemptions, and has not been extravagant in claiming exemptions;
. sought to minimise the cost to applicants by actively assisting in identifying possible documents that are the real basis of the request; 
. operated in a timely manner; and
. generally adopted a pro-disclosure attitude.

Mr Morris described the primary purpose of the review as to ascertain whether the provisions of the Freedom of information Act that apply to NBN Co. “have achieved the correct balance in practice between the pro-disclosure requirements of the FOI Act and the protection of commercially sensitive information that NBN Co. may hold." In essence how NBN Co in practice administered its FOI obligations. It came up well, perhaps on best behaviour in the first 12 months knowing all along this review was coming.  Applicants will hope it continues to comply with spirit and intent without too much smart lawyering to test the potential of available exemptions. The broad blanket nature of the exemption that defines what NBN Co. information is excluded from the act would appear to leave scope for that.

Interesting also that NBN Co. commendably links the FOI function with "knowledge management" and that Mr Morris rates its FOI staff well above others in his experience- according to NBN Co's main man he has a "passion for screenwriting' but we won't go there...

Tuesday, August 21, 2012

Time up for Queensland Information Commissioner?

The buzz at last night's Solomon Lecture in Sydney was that Queensland Information Commissioner Julie Kinross finished up on 9 August at the end of her three year contract, apparently wasn't offered a new one and has returned to the Department of Justice. Presumably the position is now to be advertised. I have no idea whether Kinross intends to apply if this proves to be the case. Governments are always free to test the market of course but the Newman government appears to be unconcerned at the prospect of losing a good one here, and the talent pool isn't deep-just ask Victoria.

There is nothing on her departure on the Commision's website where Kinross is still listed as Commissioner (Update-change posted 21 August, Jenny Mead acting) and Lemm Ex as Acting Privacy Commissioner (since December 2011), or in media releases from the Attorney General or the Department. 

Kinross will be a real loss to the information access community, having put Queensland well ahead of the rest in many respects through her leadership role on right to information and privacy reforms. Her recent involvement as a member of the selection panel for the Tasmanian Integrity Commissioner is an indication of regard for her outside the state.

Apart from high standard performance in the conduct of the review and complaint functions, the Commission under Kinross initiated Right to Know Day and the Solomon Lecture, developed quality and comprehensive guidance material for the public and public servants, spoke up forcefully with truth to power when necessary, took action to develop base line data and a framework for performance measurement, and among other things, uniquely this year funded important think pieces about transparency and public policy and public management.

Kinross was up there with two outstanding Queensland OIC appointments in the 90's, Fred Albietz and (as Deputy) Greg Sorensen.

Of course in moving on, ministers such as Lawrence Springborg will have cause to recall controversy about an appointment six years ago.

Crime and Misconduct Commission Report: Queensland Information Commissioner 2005 (pdf)

Observers will be watching hoping for an outstanding choice in the Albietz, Sorensen and Kinross mode-if one is out there.

Monday, August 20, 2012

Progress report on Information Publication Scheme

Commonwealth government agencies that undertook a self-assessment on compliance with the Information Publication Scheme (IPS) requirements of the Freedom of Information Act, perhaps not surprisingly, give themselves generally good marks. A more objective assessment awaits a Desktop Review Program of agency websites to be undertaken by the Office of Australian Information Commissioner to commence this year, and the individual results of review of the IPS by each agency to be conducted in conjunction with the OAIC in the five year period from commencement of the scheme in May 2011.

As to what those who take an interest in particular agencies, and the general public make of the scope, quality, accessibility and searchability of the new world of information published in the various IPS's, for another day perhaps.

With regard to this first survey, Australian Information Commissioner Professor John McMillan in the Foreword to the Report prepared by ORIMA Research comments:
The survey results are pleasing. Seventy-eight per cent of agencies that were contacted (191 of 245 agencies) completed the survey questionnaire (many that did not are small boards or committees that are supported by larger agencies). The results confirm a serious commitment across government to complying with IPS requirements and principles. Nearly all agencies have published an IPS Plan; over 85 per cent publish the required categories of information on their websites; 94 per cent publish operational information that provides guidance on how decisions are made that affect members of the public; and 93 per cent have assigned responsibility for IPS compliance to a senior agency officer."
Some aspects of performance on two criteria, IPS Information Architecture and IPS Governance and Administration, were in the "could do better" category. On the former only just over half of the agencies reported that they had established a range of governance and administrative processes required to support the implementation and maintenance of the IPS. On the latter, while more than three-quarters indicated that they use seven out of 10 of the recommended headings (as referred to in the FOI Guidelines) for presenting IPS Information on their websites, a smaller number use headings - ‘Our priorities' (58 per cent), ‘Our finances' (53 per cent) and ‘Our lists' (51 per cent).

On possibly helpful website features that may assist in ensuring IPS information is easily discoverable and understandable, eighty-one per cent reported that they provide a search function on their website; a smaller proportion indicated they have a mechanism on their website to gather feedback on the ease of finding and understanding their IPS entries (66 per cent) and include the IPS icon on their homepage (59 per cent); and twenty-six per cent of agencies indicated they had an alert service that notifies subscribers of new publications.

The survey showed that 79 per cent of agencies indicated that at least some of the documents published on their websites were not currently compatible with Web Content Accessibility Guidelines (WCAG) 2.0 accessibility requirements:
  • Twenty per cent of agencies indicated that all published documents under the IPS conform to WCAG 2.0 requirements, with 30 per cent indicated that most of their documents comply, 44 per cent indicated that some comply and five per cent indicated that none of their documents comply.
Among the jurisdictions that took the big leap forward 2007-2010, Queensland has set the pace in performance review with this assessment of agency progress on RTI reforms, and these results of a desk top audit on agency compliance with RTI publication requirements. I've yet to see anything from NSW and Tasmania.

Friday, August 17, 2012

Victoria-same old story

Once again the Victorian Ombudsman laments the state of administration of the Freedom of Information Act. He won't be sorry perhaps to see his role, and added responsibilities go off to the yet to be appointed FOI commissioner. It's a big job for someone-but who?
 Annual Report 2012, Part 1.pdf (790KB) -FOI at p 55 with plenty of case studies to support his point:
It is disappointing that, increasingly, FOI is not complied with by departments and agencies in the spirit of the Attorney-General’s guidelines. Departments and agencies seem increasingly to have forgotten that the Freedom of Information Act was intended to be a means of increasing the openness and transparency of government, not a means to justify delay and non-release of information based on technical, tedious and tenuous interpretations of the Act. This trend may explain the increase in complaints to my office. Many of the matters brought to me involve agencies relying on an excuse not to release a document. However, I have not been able to look into the merits of the decision...
Mr Brouwer remains hopeful, at the same time giving a polite ombudsmanlike nudge that the government's much trumpeted big step forward isn't all it's cracked up to be:
 With the creation of the new Freedom of Information Commissioner under the
Freedom of Information Amendment (Freedom of Information Commissioner)
Act 2011, FOI will no longer be within my jurisdiction. The new Act replaces the
internal reviews conducted within agencies with external reviews conducted
by the Commissioner. This change to the administration of FOI should promote
more open, prompt and accurate FOI decision making in agencies. There are,
however, limitations in the new framework which may reduce the effectiveness
of the changes introduced by the new Act. Those limitations, which include the
exclusion of documents claimed to be cabinet documents from the external
review process, and the exclusion of Ministerial offices from that process, may
need to be reviewed by the government in coming years in order to ensure that
the improvements that the new regime could achieve can actually be attained.
Delay was the biggest complaint-and this with 45 days!! Stern letters were sent to the Secretaries of the Departments of Human Services, Justice, Premier and Cabinet, Health and Primary Industries critical of failures to deal with these requests in a timely manner.

NBN Co "high standard" when it comes to FOI

There will be a few interested readers out there sure to give the Stuart Morris QC report tabled yesterday on NBN Co and its first year subject to a degree to the Freedom of Information Act, in light of the conclusion:
Mr Morris QC, found that NBN Co. fulfilled its responsibilities under the FOI Act and is achieving a high standard in its administration of the FOI Act, actively assisting applicants.
(Update- a later comment here.)

Mr Grech makes a full recovery and draws on expertise

Godwin Grech's observations today on good public administration, "competent apolitical public service professionals" and the importance of "creating a more transparent and accountable public sector" make no reference to his own form in the field. And he seems to be in better health these days. The last time I heard anything of Mr Grech was a media release from the Commonwealth Director of Public Prosecutions dated 19 November 2010, and reproduced below (emphasis added) announcing a decision not to proceed to prosecution.

(Readers will recall that others such as Allan Kessing, an outstanding public interested former public servant did not attract the exercise of this discretion not to prosecute. Nothing has been heard for years about his application for a pardon, under consideration since October 2009, and presumably still somewhere in the in-tray of Attorney General Roxon.)

I'm no fan of s 70 of the Commonwealth Crimes Act (neither is the Australian Law Reform Commission which recommended repeal in the current form in 2009)  but on any scale of seriousness the Grech creation of false email, subsequent false testimony to a parliamentary committee, and disclosures to the opposition-without a shred of public interest- was way up there.

Thursday, August 16, 2012

Who carries the flag, advancing and protecting information access rights?

Dr Cassandra Goldie of  the Australian Council of Social Service on Q&A on Monday said Australia has 600,000 civil society organisations out there doing all manner of great things. I'm sure that's true if she says so, and that we are all better for it even if the very term "civil society" still doesn't roll off the tongue easily in these parts.

But you are hard pressed to find CSOs that focus on or attach a high and continuing priority to advocacy for information access rights and related issues. Sure we have bodies such as the Public Interest Access Centre, PILCH, Transparency International and the Accountability Round Table alert to these issues who speak up on occasion along with human rights and civil liberties groups, and from the professional ranks, librarians, archivists, law societies and bar associations. And Open Australia who just gets on delivering Hansard in byte sizes on a plate.

As Craig Thomler observed recently however, we lack a robust public discussion on democracy, government openness, transparency and the role of Gov 2.0 in the mix.

No leadership here from an Article XIX, active in Europe and elsewhere, a Campaign for Freedom of Information as in the UK, or national bodies like the National Freedom of Information Coalition and or the hundreds of groups that belong to them in the US. Not one Australian organisation is listed among the hundreds of worldwide members of the Freedom of Information Advocates Network.

Of course there's the media. The media coalition Australia's Right to Know was formed in 2007 to provide a new stronger profile for FOI and other law reforms, building on the ongoing efforts of media bodies such as the Australian Press Council and the Media Entertainment and Arts Alliance.

But as David Salter writing in Crikey in April (Your right to know whatever happened to the Right to Know) noted, after getting off to a big start in 2007 and through until 2009, it has now all but disappeared. The last published submission was October 2009, the last media release May 2010. Salter observed at the time "the looming extinction-by-neglect of the whole Right to Know campaign reflects a huge cultural shift within the managerial ranks of its main champion, News Limited."

The slide continues. In June The  Australian reported that ARTK's Creina Chapman was leaving News to join Tony Abbott's staff. However the website (described by Salter as looking like an unweeded garden) with a few add-ons to a home page for a 2009 conference still lists her as the contact person. When I rang the given number on Monday this week, the amiable fellow on the other end said he knew nothing about ARTK-"only been here three weeks"- and this was the first ARTK call he had received. He undertook to get someone to contact me, but I'm still waiting.

In early 2008 months after my involvement with ARTK as Deputy Chair of the Independent Audit of Free Speech finished I went to see John Hartigan, then head of News Ltd and ARTK, to make a pitch for the establishment of a permanent, professional and appropriately funded body to research, advocate, educate and lobby on freedom of speech, and the public’s right to be informed. I suggested that the media needed to seek out others who shared these interests, and that it cede some power to them so that the coalition could seek to deliver what its name conveyed-Australia's Right to Know. Voices on these issues were weak, sporadic, divided and underfunded and the coalition was well placed to change this. Hartigan listened politely, nodded at the appropriate time but that was it-and my last contact with ARTK.

So in 2012 only a few of those very active 600,000 CSOs spend much time and effort on advocacy on information access issues, and Australia lacks a high profile co-ordinated representative body focused on community interest in advancing the cause. 

Individuals as much as organisations carry the flag. People inside government who have leadership responsibility such as the information commissioners. And outside government academics such as Rick Snell, Moira Paterson and Johan Lidberg, and journalists including Michael McKinnon of the Seven Network, Sean Parnell of The Australian, Jack Waterford and Markus Mannheim of the Canberra Times, Kelvin Bissett of the Nine Network, Matthew Moore and Linton Besser of the Sydney Morning Herald, and Josh Gordon and Melissa Fyffe of The Age to name just a few. And the occasional blogger has a thing to say as well.
(Update- I'm sure there are other prominent individuals such as Dr Nicholas Gruen who should have been mentioned. I'll add them here as I think or others remind me of them.)

There are also lots of public spirited individuals pushing the envelope on access issues associated with important causes right across the country who might support a public voice if we could find one.

What chance a real "australia's right to know." Takers?

FOI charges remain a barrier to access and a cost to the taxpayer

The Australian reports today on the refusal by the Department of Prime Minister and Cabinet to waive charges for the release under the Freedom of information Act of 80 pages to Senator Abetz concerning appointments to the Levenson media inquiry, on grounds that  the documents would not be of interest to anyone other than "a limited section of the community, namely the media."  A reminder that the complex, resource intensive and time consuming charge regime remains a flaw in the Commonwealth system, even though  application fees have been abolished.

The Australian information Commissioner reported just that in his review released in March: "The charging framework is not easy to administer, the cost of assessing or collecting a charge can be higher than the charge itself, and the scale of charges is outdated and unrealistic," Professor McMillan said.
This report concludes that further change to FOI legislation is needed. A new charges framework could enable the FOI Act to work better in providing public access to government information without impairing the other responsibilities of agencies and ministers....The prevailing theme in all consultation for this report was that the FOI Act is a vital statute that must be supported by government and made to work in an optimal manner. My recommendations for reform are framed in that spirit. I commend them to the Australian Government for close consideration.
Six months on that's the last heard of the reform proposals, in public at least. Professor McMillan did say he was interested in hearing from others, was considering further consultation and possibly a supplementary report to the Attorney General. But in the meantime, apart from a line of applicants frustrated by the charge hurdle in an age where speedy access is the go...

Who knows how much time and cost to the taxpayer continues to be involved in agencies  calculating estimates,keeping track of time, seeking deposits, considering applications for reduction or waiver on financial hardship or public interest grounds, calculating charges and chasing up requests for payment etc, etc? All that before further time and cost absorbing complex guidance on the subject and arguing the toss on matters where the applicant seeks review on grounds a charge has been wrongly assessed or should be reduced or not imposed.

To date, the Office of Australian Information Commissioner has published 20 review decisions in 2012. Ten relate to charges. In three cases-33%- the commissioner set aside the agency decision. 

Many matters don't go to a formal decision so it's not known how large charge issues loom in the overall review workload of the office. But it is clear that time and cost spent on this is too much at every level.

On the "whatever happened" theme:
In NSW, to Premier O'Farrell's commitment while in opposition to abolish application fees? And to the review of fees and charges by the NSW Information Commissioner that kicked off with a consultation paper and a survey in October last year and seems to have dropped off the radar since?

And in Tasmania has anyone had a look at the consequential effects on applicants, and savings in administrative costs as a result of the decision in 2009 to retain a small application fee and abolish other charges?

If access to information law has the worthy public purpose of increasing public participation in government activity, the fees and charges regime, managed at significant cost to the taxpayer, shouldn't block the way.

Monday, August 13, 2012

Barber says cut it, Ted.

Victorian Greens MP Greg Barber takes on the State of Victoria tomorrow in the Supreme Court concerning the failure to table in parliament documents on the Myki ticketing system. See this earlier post on some of the issues.
(Update- the Herald Sun reports the  decision was reserved on an application to dismiss.)

Water and wine, trans tasman comparisons of disclosure of ministerial expenses

Another area of expenditure deeply buried here in the various accounts of Federal and state government agencies or ministers' offices and rarely sees the light of day. Nothing publicly that I'm aware of like New Zealand where credit card transactions for ministers and staff are published in a single quarterly publication on-line, together with supporting documentation for purchases.

Ministers McCully and Carr
NZ blogger No Right Turn finds the prospect of disclosure seems to impact behaviour... with the occassional exception. So might we, if we tried it, even if our Foreign Minister Bob Carr, a teetotaller, simply watches what he spends on mineral water:
"I've spent the last hour or so going through the credit card statements, and I'm impressed. The picture that emerges is one of Ministers spending money reasonably and appropriately. There's a few amusing bits - Steven Joyce's lonely snickers bar habit (is he not satisfied?) - but very little really outrageous. Compare this with the pattern of a few years ago when these releases started, and it seems that Ministerial abuse of expenses has decreased significantly. Which both shows the value of such proactive releases, and builds trust in government. The exception, of course, continues to be (Foreign Minister) Murray McCully. He seems incapable of checking into a hotel room without several substantial charges marked "beverage" appearing on the bill (note: this is not drinks with dinner, it is drinks alone). Now, he may have a $50 a night coffee habit. But it reads like he's spending a lot of time in hotel bars drinking our money. Then of course there's the big dinner habit - this time round, an NZ$1200 dinner for 7 in Bali, including NZ$600 for four bottles of wine (and its Australian wine, at that). He hasn't beaten his NZ$233 record for a single bottle, but the average price of those is still well beyond what is reasonable, even given his role.
Proactive release of expenses relies on Ministers having a sense of shame to improve behaviour. But McCully doesn't. He's an uncorrectable recidivist, and its time we dispensed with his services."