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Thursday, January 31, 2013

PM pre-occupied with governing, but not with the how
The Prime Minister at the National Press Club yesterday frequently referred to "governing" but in the speech and later questions had nothing to say about her governance agenda. So
 "Today, I will outline my approach to this work of governing .........This is the plan for 2013. A plan to govern.....We must get on with the business of governing.....  Governing first, electioneering second..... There’s plenty for this Government to be getting on with – plenty of work to do for our nation. I will devote the days of governing to that work and then, at the time now fixed, to asking the Australian people to endorse my plan to keep building a strong, fair, smart nation.
The PM kept it going during the Q&A that followed:
So for me this is about governing and getting the job done and that's what you will see me doing.
Getting the job done is well and good. In a democracy how, is equally important.

 Plans for improving democratic practices didn't rate a mention.

In response to a question about the low level of public confidence in our institutions, and whether parliamentary reform was part of the agenda, the PM simply blamed the opposition for the chaos and left it to Minister Albanese to deal with Christopher Pyne's new found interest in improving things. Two of many issues still in the in-tray are a Code of Conduct for parliamentarians and action on many Belcher Committee recommendations regarding parliamentary entitlements that have been gathering dust for years.

No grand statement of intention from the PM that "My government will govern in ways that seek to engage and encourage public participation in a new spirit in a tried and true democracy." 

Or lowering the sights just a little, "My government will govern in  accordance with the highest standards of integrity, transparency and accountability" followed by specific references to a national anti corruption plan, a national version of the state corruption investigations bodies, whistleblower protection legislation, electoral funding and lobbying reform. No follow on from her 2010 commitment to "let the sunshine in" or a flicker of interest in lining up with G20 friends in the Open Government Partnership "a global effort to make governments better... (for) more transparent, effective and accountable governments -- with institutions that empower citizens and are responsive to their aspirations."

No mention of that ALRC 2008 recommendation that the exemption enjoyed by political parties from the Privacy Act should be removed. Let alone opening up another front by taking on most media organisations over Finkelstein, the related parts of the Convergence Review, and the privacy cause of action for a serious and unwarranted invasion of privacy. Submissions in response to an issues paper on the latter closed 14 months ago. Not a peep since.)

Every big government decision in 2013 and many smaller ones as well were always going to be made with one eye on the Opposition and the other on the media to see how it might play in voter-land. As a result of yesterday this hasn't changed. Both eyes will be fixed on the calendar at 14 September while counting from here on.

The Opposition are mainly silent or against just about everything mentioned above. Both government and opposition keep saying 'who can you trust' without engendering any.
The Greens and the independents have good government agendas, but what leverage in this long, long year remains to be seen.

Tuesday, January 29, 2013

NSW Parliament still in pre-internet transparency world

Kate McClymont in Saturday's Fairfax Media
"For years before he left New South Wales Parliament in mid-2011, Labor powerbroker Eddie Obeid entered ''not applicable'' in the section of his pecuniary interest declaration asking whether he had received income from a trust. But the accuracy of those declarations are being queried following sensational revelations in a corruption inquiry this week about the millions of dollars that have flowed through six Obeid family trusts, including millions that came to the Obeid family as proceeds from an allegedly corrupt government tender.
If anyone had been looking during those years the "N/A" entries might have been noted then as passing strange. But few would seem to have bothered to trundle down to Macquarie Street on a weekday between 10 and 4 to inspect the register available for public inspection only at those times.(Fact sheet 07 - The register of pecuniary interests - Parliament of NSW pdf)

Publication on-line is a 21st century boost to transparency and accountability that is yet to fully register there.  

There was no mention of it just recently when access to the register was discussed in the NSW Parliament. 

I'm not aware there has ever been a response to this recommendation 10 years ago by the NSW Independent Commission Against Corruption:
"That the register of pecuniary interests be established as an electronic database that can be accessed via the internet by Members of parliament and members of the public."

Access to the register online would be convenient for the public, save staff time dealing with anyone who did bother to ask to see the register, heighten the chances that disclosures would be more accurate and kept up to date, and bring to public attention sometime sooner than years later, obvious gaps or failures to disclose. (Mr Obeid was always said to be among the richest members throughout his time in parliament.)

In a welcome development, the Federal parliament these days publishes the Senate Register and House of Representatives Register online. 

As parliaments do elsewhere in various forms, for example

The NSW registers aren't the only important documents that sit in musty folders in Parliament House waiting for someone to take a look that should be online. In all our state parliaments, so too do documents relating to payment of entitlements, and other details of support for parliamentarians provided at taxpayers expense.

 Let's get with it, folks. 

"New-fangled ideas" about use of the internet for transparency and accountability purposes are here to stay.

(As Sean Nicholls reports today, Labor opposition leader John Robertson didn't get far in proposing to his colleagues that second jobs for parliamentarians should be banned and interest disclosures should extend to spouse interests as well. Really.)

Monday, January 28, 2013

Australia Day Honours

Congratulations to those acknowledged for community service in the Australia Day Honours. No FOI or privacy "names" leapt off the page but let me know of any gongs that warrant recognition here.The Order of Australia relies entirely on community nominations. So if you were wondering...

According to the Federal Court the working manuals, policy guidelines and criteria for awards concern the exercise of "substantive power or function" of the Governor General.  As such they are outside the scope Freedom of Information Act. They are not published or otherwise available.

Democrats (Australian variety) might find this hard to cop. So too Republicans (Australian version) when reminded "The Queen is the Sovereign Head of the Order of Australia." Relax, I'm sure royals don't meddle here. Unlike the UK where on a broader scale the release of papers showing exercise of powers to veto legislation are raising issues concerning lack of transparency over their role in lawmaking. Don't worry about s 59 of our constitution either. The Queen's powers to disallow any law within one year of the Governor‑General's assent have never been exercised.
Back to the Honours, lawyers (all versions) and citizens might be puzzled that "the Governor-General is the Principal Companion and as Chancellor is charged with the administration of the Order" but, as the Federal Court decided, anything to do with the administration of the Order does not relate to matters of an administrative nature.

Enjoy the Australia Day weekend. 

Bring on more transparency about the Honours system.

And the Republic.

(Update: Anne Summers on The Drum kicks off a lively discussion on the whole issue.)

Who chimed in and said what to the Hawke Review?

The webpage for submissions to the Hawke review of the Freedom of Information Act displays a note, "Further submissions will be published on this site shortly." So although the deadline was 7 December, more submissions may be in the wings. And unknown others may have taken the confidential submission route.

Submissions from 56 organisations and individuals have been published. A few submitters lodged more than one. My somewhat arbitrary categorisation is:
  • 24 government agencies (that includes the OAIC, the AAT and the parliamentary departments);
  • 16 individuals (that includes academics such as Rick Snell and Moira Paterson, and for want of a better word, activists, me included, and others with expert credentials such as Megan Carter);
  • 13 interest groups and political parties (that includes the media, librarians, archivists, scientists, lawyers, and The Greens and the Pirate Party)
What to make of the line-up?
Overall it is a pretty disappointing response on an issue of citizen rights concerning a law that seeks "to promote Australia's representative democracy" by "increasing public participation in Government processes." (FOI objects).

The citizenry failed to stir. Busy listening to Les Mis???
(Update-and a sharp contrast to the 240 submissions on proposed consolidation of anti-discrimination laws)

Perhaps this was to be expected given the review's low visibility. A single media release by the AG, no speeches, events or issues paper, sparse mention in the mainstream media. And limited buzz or encouragement for discussion and debate in the terms of reference that are as dry as dust.

And of course November- January is hardly a great time for such stuff, given most of us tend to be otherwise preoccupied.

In one of my "Dear Dr Hawke's" (and in remarks at the National Information Law Conference in Canberra in November) I wondered if any government agency would bring the review to the attention of those with whom they have dealings, particularly those that take a close interest in issues covered by the agency including FOI applicants. Or mention the review on their website. Not any as far as I can see.  

Citizen perspectives, satisfaction, disappointment, how the agency has used FOI to enhance public participation or engagement, or lessons learned about how the law might work better for the public don't rate a mention in agency submissions.

Some agencies with a direct interest because they, or matters of prime concern to them, are specifically mentioned in the terms of reference - Department of Prime Minister and Cabinet (cabinet documents) and the intelligence agencies ( currently a blanket exclusion) aren't anywhere to be seen so far. (Update: a joint intelligence community submission has now been published). PM&C, along with Treasury, another no show, have been long-time close friends of Frank and Candid, who also have a special place in this, thanks to Attorney General Roxon's terms.

Maybe in the confidential file?

Other notable absentees from the debate include big business, maintaining its silence on this important good government issue, much the same as it has for the last 30 years except emerging from time to time to argue why business information needs solid protection. Nothing at all from any business industry association or top end company this time around.

Ditto the union movement, prominently involved in the lobbying for a freedom of information act thirty years ago but rarely sighted since.

Civil society organisations are thin on the ground but the Public Interest Advocacy Center, the Australian Privacy Foundation, the Accountability Roundtable and the Environmental Defenders Network made submissions. Not so other civil liberty and human rights bodies. (This post last year found civil society actors engaged in this territory hard to spot.)

The media coalition Australia's Right to Know, leaders of the reform charge in 2007-2008 didn't manage a submission, but most coalition members subscribed to a joint submission. One member, the Nine Network made an additional submission, while another, SBS made its own own. The ABC and APN didn't bother. (ARTK, hardly visible since 2009 has completely disappeared from its previously hard to find website.)

Open Government/Open Data groups and individuals other than Craig Thomler have stayed outside the discussion.

And a handful of citizens who have tried their hand at FOI recounted something about their experience.

What to make of the submissions?
Most submitters took the Attorney General's bait and limited their contribution to responses on the matters Dr Hawke must consider as listed in the Terms of Reference. As I tried to point out, the statutory terms - which stipulate a review of the operation of the FOI and Australian Information Commissioner acts-can't be limited by the Attorney General's terms. In my view the statutory requirement extends the review to the effectiveness of the law and its provisions in attaining the policy outcomes stated in the objects section of the FOI act,  culture, resources and efficiency issues associated with the implementation of the law, and  the outcomes and results in the light of what the government said it was trying to achieve.

 It isn't just about the reforms of 2010. But that is the focus of most submissions.

Rick Snell, Megan Carter and a few others among us (I'd include the OAIC in this) raise big picture issues including the need for rethinking and redrafting information access to produce law fit for the 21st century, in place of a current act that reeks of pre-internet days, and is turgid complicated stuff, even if some of us revel in it. The reality is such a task is beyond this review that must be completed by 30 April. My submission suggested Recommendation No 1 should be full-scale re-examination probably best passed to the Australian Law Reform Commission.

Submissions from outside government generally argue for changes that broaden access rights, extend coverage, limit charges, streamline the review model.

From the inside on the other hand there is plenty of special pleading for more protection (NHMRC, Superannuation Complaints Tribunal, the parliamentary departments, the Ombudsman, the OAIC (in respect of applications it receives) to name a few), for no weakening in the current protections (for example NBN Co, CSIRO, SBS), and across most agencies, arguments for winding things back through charges and other changes apparently in order to stem the tide of requests for non-personal documents
(Comment: while agency and OAIC resourcing is an issue, other factors should be under the microscope: cultures that pervade agency decision making and what this adds to cost and time; efficiency, another great unknown; estimated cost including the $41 million figure bandied about needs closer examination. And the need to bear in mind that improving rights of access was, and presumably remains the government's objective. Only around 5000 requests of this type were received in 2011-12 across the entire government sector, hardly a staggering number.)

There is a lot of rats and mice stuff in submissions as well.

I'll pick up in other posts on some of the submissions and significant issues raised.

In a telephone conversation with Dr Hawke a week ago, I urged on him the potential value of some kind of roundtable discussion. Hope he has the time and interest.

Wednesday, January 23, 2013

Abuse of process sees FOI applicant declared vexatious

Australian Information Commissioner Professor John McMillan has rushed through a decision, the first of its kind, declaring a Freedom of Information applicant vexatious under powers conferred by Section 89K(1) of the FOI Act. 

In the decision dated 17 January Professor McMillan found that "W" in making applications to the Department of Defence, had repeatedly engaged in access actions that involved an abuse of process by harassing departmental staff, and "not cooperating reasonably with the Department in making access requests that do not contain offensive language and that endeavour to comply with the requirements of the FOI Act."

The Department of Defence lodged the application with the OAIC on 7 December, so this zipped through to decision smartly compared to review requests. The just released OAIC quarterly statistics to December reveal the oldest IC review application was 707 days and the average time to completion was 207 days. But I digress...

"W" made 13 FOI applications to Defence over 17 months, and some others subsequently, hardly at the highest end of the use spectrum, but sufficient to constitute 'repeated access actions', the first criterion.The requests relate mostly to "W's" earlier service as a member of the Australian Defence Force in the late 1960s and unresolved grievances. However the form of the applications, other conduct and the language and tone in communicating with staff [some examples at 30] provided strong grounds for the finding that the requirements of s 89L were satisfied: 
32. After considering the content, tone and language of Mr W's correspondence, I am, on balance, satisfied that his conduct constitutes harassment, and an abuse of process under the FOI Act. Both his written correspondence and oral communication with officers of the Department was insulting and offensive, and could understandably be distressing to those officers. Unnecessarily and without satisfactory explanation he has directly impugned the personal and professional integrity of officers in the FOI section of the Department. This was calculated behaviour that bore no rational connection with the exercise of access rights under the FOI Act. The making of allegations that are defamatory, unsubstantiated and inflammatory is more likely to impede the efficient processing of access requests, as frequently occurred in relation to Mr W.
"W" has a right to AAT review.

There have been two vexatious declarations under the Queensland Right to Information Act. In Underwood, applications before the commissioner were found to be vexatious. In Applicant, a person who made 65 access applications to the University, 10 in a twelve month period was declared a vexatious applicant, the relevant conduct involved summarised as:
  • comprising multiple and continuing applications over a long period of time, sometimes for the same documents
  • comprising unsubstantiated allegations against, and vilification of, the applicant’s staff
  • an abuse of access rights – using documents obtained under the IP Act to purportedly substantiate baseless allegations posted on the respondent’s website and to continue the long standing and ongoing harassment of the applicant’s staff
  • an unreasonable interference with the applicant’s operations; and
  • amounting to a waste of public resources.[23].
This Victorian case involving vexatious litigant issues that went beyond FOI cropped up a few years ago.

(Addition: a South Australian reader draws attention to s18(2a) of the SA FOI act, in effect since July 2002, which provides that an agency may refuse to deal with an application if, in the opinion of the agency the application is part of a pattern of conduct that amounts to an abuse of the right of access or is made for a purpose other than to obtain access to information. One District Court case upholding a decision to rely on the provision is Gabrielson v Nurses Board of SA [2008] SADC 51 (unreported)-available as a pdf from The Box, involving 45 applications in one year, all concerning a grievance matter. No other information available about use of this provision by agencies generally.)

The Australian Information Commissioner has a similar discretion to that exercised by the Queensland commissioner in Underwood, not to undertake or continue a review on the grounds that it is frivolous, vexatious, misconceived, lacking in substance or not made in good faith (s 54W(a)). In its submission to the Hawke review the OAIC said the discretion has been applied in 42 of the 253 IC reviews finalised in 2011–12. No details of the precise grounds relied upon in these instances.

Of course one person's vexatious, or what often appears to be obsessive interest in matters concerning a particular grievance or grievances, is another's pursuit of information for high minded reasons or principle. Public servants have to deal with all types but boundaries need to be in place for applicants who go over and over and over the same ground, and are abusive, harassing, intimidating, or threatening to boot.  

Getting the balance right, and developing an appropriate way of dealing with such matters is complex. Attempting to overreach on this was one reason Victorian FOI reform came unstuck in 2008.

The OAIC thinks there is room for improvement at the Commonwealth level.

In their Hawke review submission the commissioners recommend (No 26) adoption of the Tasmanian approach (Right to Information Act s 20): that the act be amended so as to "permit agencies to decline to handle a repeat or vexatious request or requests that are an abuse of process, without impacting on the applicant's ability to make other requests or remake the request that was not accepted (see paragraphs 209–215)." The decision would be subject to IC review. 

Plenty of room for lively debate on this one. Any agency powers to declare an application  vexatious should be tightly defined. Some information about Tasmanian experience would be useful. As would some reflection on what has happened in the UK where the law contains a similar provision and both an agency and the Information Commissioner on occasion get it wrong.


Monday, January 21, 2013

Transparency on world leaders' agendas

Australia, by actions as well as words, should be giving this a kick along as well. 

But our international voice is somewhat muted because of our disinterest to date in joining the major global initiative on transparent, accountable government, the Open Government Partnership.
We have of course been as pleased as punch to be part of the G20, and since December as the prospective chair and host in 2014, to join Mexico (2012 chair) and Russia (2013 chair) in the troika of past, current and future chairs. As the Prime Minister explained, membership of the troika is a key leadership opportunity:
As part of this group, Australia will play an enhanced role in guiding the G20’s work in the lead-up to our G20 Presidency in 2014.
Other leaders of the G20, and of the other group of the even more powerful and influential, the G8, are talking up transparency in their list of priority global issues. 

Russia, an OGP member, has three priorities for its year in the G20 chair: growth, through quality jobs and investment, trust and transparency and effective regulation. (Somewhat aspirational perhaps, both at home and abroad, but worth encouraging and supporting nonetheless.)

The UK, to host this year's G8 meeting in June, and separately the current lead OGP co-chair has three G8 priority issues in its sights, as outlined in this speech by Prime Minister Cameron - trade, global taxation matters, and
... making our world and making businesses in our world and making governments in our world much more transparent, much more open.  Now there’s a very high-minded objective to this but there’s also a slightly more down-to-earth and national interest objective to this. There is a high-minded interest because when you look around the world you can see some of the poorest countries that find they have mineral wealth – they have oil or they have coal or they have gas – and it turns out to be a complete curse rather than a blessing because the money from that material wealth is taken from the people, not shared by the government, and a more transparent way of dealing with this can make sure these resources are a blessing for those countries and not a curse. But there is a slightly less noble motive in all of this which is that in Britain, in the United Kingdom, we have some of the toughest rules about transparency, about openness, about the way we do business, about not bribing, about not being corrupt.  And we have those rules, and actually, frankly, it’s in our interest if those rules are applied all over the world.
G8 countries apart from the UK that belong to the OGP are the United States, Russia, Italy, and Canada. France (who apparently sent a representative to a December OGP meeting of all members and prospective members), Germany and Japan do not.

G20 member countries that belong are Argentina, Canada, Italy, Indonesia, Mexico, South Africa, United States, Russia, Turkey, Brazil, Republic of Korea and United Kingdom.

G20 members that don't, apart from Australia, are Germany, China, Japan, France, India and Saudi Arabia.  

Given the OGP aims "to secure concrete commitments from governments to promote transparency, empower citizens, fight corruption, and harness new technologies to strengthen governance", you would think it was right up our alley.

So did the Attorney General in May last year who said (to her department at least) "let's propose we join", but the wheels seem to have fallen off somewhere since.

The United States and Brazil initially led the OGP. Currently Indonesia co-chairs with the UK. The UK's lead chair OGP priorities are:

- Show that transparency drives prosperity, by demonstrating the value of open governance, inclusive development and citizen empowerment.

- Secure the foundations of the OGP as a globally recognised and respected international initiative

- Do more to communicate the opportunities that open government provides.

- Build on the unique working relationship between participating governments and CSOs that is a fundamental facet of the OGP .

Presumably the Brits have had a word to us about standing and speaking up? And why the hesitation to stand alongside Indonesia, among other good company, on this governance, pro-democracy, anti-corruption issue? 

Indonesia will become lead chair in September 2013, potentially bringing our non-membership into closer focus. (Mexico will assume co-chairmanship in September 2013, and becomes lead chair in September 2014.)

As to who in Canberra is driving (or responsible for parking) the OGP, who knows?

Attorney General Roxon might usefully do some prodding. Foreign Minister Carr could be asking as well, after Senator Faulkner put the issue on the table recently.

DFAT meanwhile is making a meal of my FOI request for documents that would throw some light on what policy thinkers there think about it all. A decision is now expected on 30 January, about 70 days after the application was lodged.

The G20 Taskforce in the Department of Prime Minister and Cabinet, among others should be up to speed on this, given our enhanced G20 leadership role. If it hasn't done so, someone there might usefully pick up the phone to see if DFAT, AG's, OAIC, AGIMO, and AUSAID and RET (who both have an interest in the related Extractive Industries Transparency Initiative) have anything to say. 

If the taskforce needs a quick summary of the case for Australian membership here are 10 points worth considering.  

PM&C Associate Secretary Dr Gordon de Brouwer (in conversation here, in Moscow in December with Ksenia Yudaeva, Chief of the Russian Presidential Experts’ Directorate) might find a briefing note handy when he heads off as the Prime Minister's special representative at the next G20 'Sherpa' meeting.

An announcement that we are to seek membership would be even better and welcome in many places including Jakarta and Washington. And the start of a government-civil society partnership on the homefront that has been sadly missing to date.

Hat tip to Toby McIntosh of for the heads up on some of these developments.

Friday, January 18, 2013

Notable FOI cases over 30 years

My 30 year anniversary idea of a list of significant Australian Freedom of Information cases has been on the back-burner since, apart from an intended attempt at a bit of humour at the OAIC event in Canberra last November. 

But a list of notable decisions has finally emerged. It's far from comprehensive, mostly about the general approach and public interest, and may not do anything like justice to the topic so comments, suggestions, additions and even quibbles are welcome. 

Thanks to Professor Moira Paterson of Monash University, Carolyn Adams from Macquarie University, Michael McKinnon of the Seven Network, and Sven Bluemmel and Rachel Krute from the WA Information Commissioner's Office for inputs, but they bear no responsibility for what follows.

The cases aren't "leading" necessarily, but in my view had an impact for good or ill (too few of the former, too many of the latter) in moving things along over the last thirty years toward or away from that bright shining object of extending the right of access to government information.

As Carolyn Adams commented, things have moved a long way since R v Southwold Corp; Ex p Wrightson (1907) 97 LT 431 where the court in relation to the common law observed that ‘mere curiosity and desire to see and inspect documents’ was not sufficient to entitle a person to view public records.

Of course perhaps the best known case, the High Court decision in McKinnon v Secretary, Department of the Treasury (2006) 228 CLR 423, is hard to categorise. On the one hand it was disappointing that the majority were prepared to stoke some hoary old public interest against disclosure chesnuts, and that French CJ and Kirby J in the minority didn't grab the opportunity to write pages and pages dispelling such notions and lay a foundation stone for contemporary public interest considerations. On the other it proved to be camel back-breaking in effect, prompting lobbying efforts by media organisations (and a few others) to push for change that were picked up federally by Labor in opposition, and subsequently led to Federal and some state reforms.  Notably the case proved to be the deathknell of conclusive ministerial certificates - except in Victoria and Western Australia where they remain in law but apparently are rarely used.

The Federal Court  in Harris v Australian Broadcasting Corporation [1983] 50 ALR 551 got things off to a promising start by emphasising that the public interest test required both sides-for and against disclosure- not just a focus solely on the reasons not to disclose. There must be
 "a careful balancing of the public interest in citizens being informed of the processes of government against the public interest in the proper functioning of government."[ 561]

On the other hand the AAT in Waterford and Department of Treasury (No 2) [1984] 5 ALD 588 took a broad brush to the meaning of  "deliberative processes" and decided the term covered all the thinking processes of an agency involved in its functions, pushing the envelope some thought.

Then the Federal  Court decisions News Ltd v NCSC (1984) 1 FCR 64  and Searle Australia Pty Ltd v Public Interest Advocacy Centre and Department of Community Services and Health (1992) 36 FCR 111 kicked off and cemented in place the unfortunate "no leaning in favour of disclosure approach" to the objects clause which paved the way for broad interpretation of exemption provisions thereafter. Now less of an issue in 2013 perhaps as a result of the 2010 reforms, but "no leaning" is still lurking when it comes to non-exemption provisions. (Searle deserves other 'notable' mentions: because of the acceptance of a broad interpretation of the expression trade secrets, significant as a trade secret is exempt per se irrespective of demonstration of commercial harm; and because of rejection of possibility of considering identity of applicant in assessing application of exemption.)

Oh what might have been if instead, this emphasis on the objects had been plucked out of the High Court's unanimous judgment in Victorian Public Service Board v Wright [1986 CLR 145], a case involving the Victorian FOI act, and had come to guide decision makers and the courts [16]:
In addition( to the objects section) s.16(1) requires Ministers and agencies to administer the Act with a view to making the maximum amount of government information promptly and inexpensively available to the public. In the light of these sections it is proper to give to the relevant provisions of the Act a construction which would further, rather than hinder, free access to information.
That approach was reflected in some state cases including in Victoria in Accident Compensation Commission v Croom [1991] 2 VR 322  and in Sobh v Police Force of Victoria [1994] VR 41  and in NSW in Commissioner of Police v District Court of NSW (Perrin) (1993) 31 NSWLR 606.

However when it came to the public interest in the deliberative process, administrators, tribunals and courts particularly at the Commonwealth level embraced the wisdom in Re Howard and Treasurer of the Commonwealth (1985) 7 ALD 626 and made good use for years of factors cited by Justice Davies as constituting public interest considerations against disclosure, factors that were inconsistent with the objects of the Act. Disclosure would cause "confusion and unnecessary debate" is an all time favourite. Most including that one were legislated out of existence in the Commonwealth 2009-2010 reforms but 'frank and fearless' have been given renewed life in the Attorney General's Terms of Reference for the Hawke review of the act.)

On scepticism about frank and fearless, the duties of public servants and analysis of every minute detail of these issues, plaudits to Deputy President Forgie's monumental decision in McKinnon and Prime Minister and Cabinet [2007] AATA 1969, which I'm sure Dr Hawke will find interesting. (I haven't checked but from some old notes, arguments for frank and his friend were rejected in other earlier cases including Sunderland, Witherford, Fewster, Murtagh, and Chandra.)

More positive approaches too, to the appropriate standard of transparency and accountability we should expect were evident in Queensland Commissioner Albietz decision in Re Ecclestone and Department of Family Services and Aboriginal and Islander Affairs (1993) 1 QAR 60 and the Full Court of the Supreme Court of NSW decision in WorkCover Authority of New South Wales v the Law Society of New South Wales [2006] NSWCA 84.

The Victorian decision DPP v Smith [1991]1 VR 63 deserves a mention because of the succinct description, oft cited since, of the public interest as
“…a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members…events of interest to the public may or may not be ones which are for the benefit of the public.."
The High Court in Osland v Secretary to the Department of Justice [2010] HCA 24 illustrated the case for a public interest override for all exemption categories, powers only held currently by the Victorian Civil and Administrative Tribunal to a degree (s 50(4) of the Victorian Freedom of Information Act). The court upheld the decision of the President of the Victorian Civil and Administrative Tribunal Justice Morris in August 2005 which held that the differences between the advices from senior counsel to the Victorian Attorney General whether to grant a petition of mercy on behalf of Mrs Osland provided the "powerful reasons" for requiring access to the documents in the public interest. In the circumstances of this case, the Court decided public interest considerations overrode the valid claim of legal professional privilege, and granted access to the 300 pages of advice received by the Attorney General from all sources. There are absolute exemption categories in Federal and all state laws. You can only wonder how many important public interests in disclosure have been ignored, lawfully, as a result. Hopefully governments at some stage will see the light.

Wednesday, January 16, 2013

Tribunal delay, Henry George and other hopeless causes

I'm sure there are plenty of examples of clutching at straws or voids in space with resultant costs to the taxpayer and delay to others.

However those waiting patiently for a Government Information (Public Access) Act review decision from the NSW Administrative Decisions Tribunal (in a matter that I'm involved in, since a hearing in July) won't be amused that part of the long delay results from the tribunal having to deal with cases such as NSW Henry George Foundation v Director General Department of Attorney General and Justice decided by Deputy President Higgins last week. The application for review came before the tribunal member in February and April last year.

Everyone is and should be entitled to their review of course, but it should have been made clear along the way in this case that virtually everything being put on behalf of the third party, a charitable trust objecting to disclosure of three years of filed financial accounts, was fanciful and had no prospect of success. The case was decided on the papers, without a hearing.

But Deputy President Higgins took (seven months and) 72 paragraphs to reject claims regarding various public interest considerations against disclosure that did not arise (one), were not relevant (two) or were not established (three). On one, that disclosure of its annual financial statements could reasonably be expected to prejudice the future supply of information from an informant, Deputy President Higgins said the applicant "clearly has little understanding of the application of this ground of public interest consideration against disclosure." Other public interest arguments in my view, were slightly higher grade.

One claim was remitted to the agency for determination, although Deputy President Higgins seemed dubious, with good reason: whether disclosure of the names of trustees, acknowledged as personal information, could reasonably be expected to 'reveal' their names, in light of the fact they appear on the trust's letterhead used in correspondence, and some in other court proceedings.

None of these arguments appear to have been submitted to the tribunal by a hapless group innocently caught up in a GIPA application and doing its best to deal with unfamiliar legal issues. Dwyer Lawyers, experts in tax, wills, estates etc acted for the trust. You have to wonder whether they opined beforehand that there were reasonable prospects of success.

Henry George is turning in his grave at the cost to the taxpayer of agency and tribunal time spent on this. 

There is no reference in the decision to the agency raising the issue of costs but one ground for an order is the relative strength of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law.

Agencies that concede as soon as a matter hits the ADT - as the Department of Education  and Communities did in this recent case that has been cluttering Deputy President Higgins' decision pending tray - should have done better first time round, and by failing to do so also contribute to delay in the tribunal for others, and unnecessarily to ADT costs. Not to mention the administrative cost in this case that may arise from stuffing up in releasing unrelated personal information about others to the applicant.

It's my second day back. Excuse the grumpiness.

Public broadcasters FOI exemption brought back to where parliament intended

The Administrative Appeals Tribunal decision in Australian Broadcasting Corporation and Herald and Weekly Times [2012] AATA 914 sparked media interest in a slow news period with this headline suggesting the decision could result in a peek into Tony Jones pay packet, among other closely guarded gems held by the ABC.

The Tribunal upheld two decisions of Freedom of Information Commissioner Popple that hardly rated a mention at the time that bring the ABC back closer to the real world in use and application of the exemption the public broadcasters enjoy from the act in respect of  documents in relation to program material and datacasting content.

The ABC argued unsuccessfully that documents relating to the classification of ABC television programs and others relating to salaries and other payments made to program makers engaged on 13 ABC television and radio programs (I don't think Tony Jones was included) were exempt either because they are documents which are “program material” or are documents “in relation to program material.”

President Kerr and Senior Member Britton were faced with Federal Court precedents difficult to reconcile: Bennett J in Australian Broadcasting Corporation v University of Technology, Sydney [2006] FCA 964; (2006) 154 FCR 209  and the Full Court in Bell v Commonwealth Scientific and Industrial Research Organisation [2008] FCAFC 40 but worked their way through to a reasonable and sensible result.

Given the clumsy wording of the relevant provisions in the act and room for argument about what the terms mean that lawyers could seize upon, I imagine the ABC will consider an appeal on error of law grounds despite the fact that the Tribunal decision seems in line with parliament's intentions way back in 1981 in seeking to afford protection to program material. It is a welcome reset of lines of exemption extended by the UTS decision and well utilised by the ABC in the seven years since.

Another bone of potential contentious legal argument, although I think the Tribunal was right again, is the significance attached to the objects section [72-74] in interpreting relevant provisions, somewhat in contrast to the recent Federal Court decision in the Kline case.

Alternatively or in addition the ABC might swing into action arguing for legislative change? 

No submission from the ABC to the Hawke review has been published so far but they along with SBS and APN did not join other media coalition colleagues in their joint submission. SBS which is afforded the same exemption as the ABC lodged a submission obviously prepared before the Tribunal decision was handed down, cutely suggesting they take comfort from the fact that the exemption is not part of the terms of reference ("operation of the act" seems to cover the whole shebang, to me at least), but suggesting in any event the FOI exemption for public broadcasters in Canada might be a better form of words. 

Four years ago ABC Managing Director Mark Scott showed a glimmer of interest in the context of the FOI reforms being floated at that time, in negotiating a modification narrowing the special exemption, but the glimmer hasn't been sighted since. The Tribunal decision if it stands is a workable torchlight.

As to the decision regarding the scope and interpretation and application of the exemption:

Tuesday, January 15, 2013

Information in short supply on O'Farrell era of open government

Back on deck and looking forward to a lively 2013.

Just in time to see the Sydney Morning Herald take a look at performance or non-performance in NSW under the Government Information (Public Access) Act in "It's time for transparency". Sean Nicholls concludes the O'Farrell government has fallen a long way short of ushering in a promised ''new era of open government.''

More specifically Nicholls also reported on the refusal of access to a government commissioned report on the controversial second casino license in "O'Farrell keeping new casino report close to his chest", leading to this editorial yesterday "Transparently, can-do Barry can do better":
"Freedom of information, we are tempted to say, is like the quiet, well-behaved child who parents find easy to ignore. Many a promise is made but many a promise is not kept. It is never a surprise that the ardour of oppositions for greater transparency should cool when they nab themselves the keys to the ministerial suites. Again, we expected better of O'Farrell's team. Myriad problems have been revealed with the Government Information (Public Access) Act, known as GIPA, more than two years after it replaced the old Freedom of Information Act. Among them is an unfulfilled promise to abolish application fees."
Prompting some letters today ("O'Farrell Inc").

I've commented previously on the abolition of application fees commitment. The government's reasons for changing it's mind on this, once elected, were feeble at best.

But the biggest GIPA problem is that apart from the anecdotal, some good, some not good (quite a few frustrated, disappointed and delayed applicants find me one way or another), we just don't have information about how things are going.

I've mentioned a few times previously that a report on the operation of the GIPA act across all agencies for 2010-11 (and another for 2011-2012) required by section 37 of the Government Information (Information Commissioner) Act is yet to appear 18 months later.

The separate commissioner's annual report on the operation of her office is the source of some of the problems referred to in the Nicholls article. However information as follows, not contained in that report, would at least throw a glimmer more light on how the review process itself is operating:
The top five or ten state government agencies the subject of GIPA review applications and complaints, and in each case the number.
The same for local councils.
The same for ministers.
The number/ % of finalised review decisions that substantially affirmed the agency decision.
The number of instances where the OIC did not affirm the decision and recommended reconsideration.
The % of those matters where the agency accepted the OIC recommendation.
The names of agencies that did not act on OIC recommendations in more than one instance.
Anything meaningful on the average cost of an IPC review or of the different categories of matters resolved in various ways.
Anything meaningful on time taken in resolving IPC review and complaint matters and the backlog in terms of time since receipt.