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Monday, September 30, 2013

High Court hearing scheduled in FOI test for Governor General's Office

The just published latest edition of Anne Summers Reports includes (page 6) my brief summary of the arguments advanced in the successful leave application to the High Court in Kline v Official Secretary to the Governor General, the long running battle over access to information about administration of the Honours system

The issue is the scope of the Freedom of information Act and the meaning of the words "relate to matter of an administrative nature" in the context of the powers and functions of  the Governor General in administering the Order of Australia. 

The appeal will be heard in Canberra on 30 October. 

The written submission on behalf of the Appellant by Ron Merkel QC was not available when I wrote the ASR piece about a month ago.

By the by, I understand that the government's costs in fighting this case through its long journey to the steps of the High Court are well north of $130000, not $30000 as mentioned in the article.

Sunday, September 29, 2013

Right to Know Day

Flikr-Eric the Fish
Dancing in the street on 28 September to celebrate the annual International Right to Know Day isn't quite the go hereabouts - and those in the picture were busy celebrating some other occasion in any event.

But the Office of Australian Information Commissioner supported it, the Information and Privacy Commission (NSW) updated a factsheet (hey, every little helps) and the Office of the Information Commissioner (Queensland) again organised the annual Solomon Lecture, this year by Griffith University’s Professor Anna Stewart, 'Finding Gold in Mountains of Administrative Data' introduced by Police Commissioner Ian Stewart with some remarks about the Queensland Crime Map.

Dancing- one of these years!

Friday, September 27, 2013

Abbott Government on civil society and the right to speak out

Getting the ducks in a row - as in policy co-ordination - is a constant challenge. 

Where you stand on freedoms, civil society, engagement, and ensuring consistency across government even more so.

Government voice
The Prime Minister on ABC PM 26 September speaking about new ministers getting ahead of the game:
 TONY ABBOTT: It's very important that the Government speaks with a united voice. In opposition, before my senior colleagues did media they normally called in with my office. It was a very good arrangement in opposition. It's a very good arrangement in Government and it's one that my colleagues have always been happy to comply with.
 Campaigners to be reined in?
Protest groups that stymie major infrastructure projects will be targeted as the Coalition seeks to speed up an $11.5 billion roads program ... The moves challenge 'not-in-my-backyard' protesters." -- The Australian, September 25
"Environmental groups have hit out at a Federal Government proposal to silence organisations from campaigning in overseas markets. Tasmanian senator and Parliamentary secretary for agriculture Richard Colbeck has floated the idea of amendments to consumer law aimed at stopping campaigns against Australian products" -- Hobart Mercury, September 24.
While no one in authority has said so, might aid groups have their activist reins pulled - former Coalition Senator Trood suggests it is a 'Coalition disposition'.
Government statement on civil society and the right to speak out
Joint statement issued in Washington on 23 September on behalf of the United States, Australia, Canada and 21 other governments after meeting with civil society and other groups in New York:
We affirmed that the strength and vibrancy of nations depend on an active civil society and robust engagement between governments and civil society to advance shared goals of peace, prosperity, and the well-being of all people.  We noted our deep concern that many governments are restricting civil society and the rights of freedom of association and expression, both online and offline. 
To combat this alarming trend, our governments committed to work together to respond to growing restrictions on civil society that undermine its ability to perform its crucial role....  We will lead by example to promote laws, policy decisions, and practices that foster a positive space for civil society in accordance with international law, and oppose legislation and administrative measures that impede efforts of civil society.  We will undertake joint diplomatic action whenever necessary to support civil society in countries where it is under threat, and to defend the fundamental freedoms of association and peaceful assembly. We will also work to develop new and innovative ways of providing technical, financial, and logistical support to promote and protect the right of citizens and civil society to freely associate, meaningfully engage with government, and constructively participate in processes to improve the well-being of their countries.  Throughout all of these efforts, our nations will continue to engage with representatives of civil society to help us understand and respond to the challenges they confront. 
We commit to gather again at the opening of the 69th United Nations General Assembly to review our progress toward these objectives.  We will work in concert over the coming year to ensure a robust, effective international response to the proliferation of restrictions being placed on civil society. We call on representatives of civil society, the philanthropic community, the private sector, and other governments to partner with us in supporting and defending civil society.
 Australia on joining the Open Government Partnership
The OGP was referred to in the Joint Statement and in the meeting in New York as part of the commitment to protect and promote civil society. Australia had announced in May its intention to join. On joining it will adopt the Open Government Declaration which includes these commitments:
"We commit to making policy formulation and decision making more transparent, creating and using channels to solicit public feedback, and deepening public participation in developing, monitoring and evaluating government activities. We commit to protecting the ability of not-for-profit and civil society organizations to operate in ways consistent with our commitment to freedom of expression, association, and opinion. We commit to creating mechanisms to enable greater collaboration between governments and civil society organizations and businesses."
Interesting times.

Wednesday, September 25, 2013

Australia stands up for Civil Society, and the OGP

My uneasiness about silence from the Abbott Government regarding the Open Government Partnership is put to rest by this statement issued by the White House after the High Level Forum in support of civil society, chaired by President Obama in New York this week (emphasis added):
We, the governments of the United States, Australia, Canada, Chile, Croatia, Czech Republic, Denmark, Estonia, Georgia, Ireland, Japan, Libya, Lithuania, Mexico, Mongolia, the Netherlands, Norway, Poland, Slovakia, South Korea, Sweden, Switzerland, Tunisia, and the United Kingdom, taking note of the important work of the Community of Democracies, the Open Government Partnership, and the Lifeline Fund, met on September 23 along with representatives of civil society, the philanthropic community, the private sector, and the United Nations on the margins of the United Nations General Assembly in New York.  Our purpose was to reinforce the central role of civil society in working with governments to address common challenges and to coordinate action to promote and protect civil society in the face of ongoing assault around the world.  We affirmed that the strength and vibrancy of nations depend on an active civil society and robust engagement between governments and civil society to advance shared goals of peace, prosperity, and the well-being of all people.  We noted our deep concern that many governments are restricting civil society and the rights of freedom of association and expression, both online and offline.
To combat this alarming trend, our governments committed to work together to respond to growing restrictions on civil society that undermine its ability to perform its crucial role.  We will ensure effective coordination of the multiple efforts already underway toward this end, including through the U.N. system, the Community of Democracies, the Open Government Partnership, and Lifeline, and commit to strengthen our support for these existing mechanisms.  We will enhance our support for the work of the U.N. Special Rapporteur on the rights to freedom of peaceful assembly and of association.  We will lead by example to promote laws, policy decisions, and practices that foster a positive space for civil society in accordance with international law, and oppose legislation and administrative measures that impede efforts of civil society.  We will undertake joint diplomatic action whenever necessary to support civil society in countries where it is under threat, and to defend the fundamental freedoms of association and peaceful assembly.
We will also work to develop new and innovative ways of providing technical, financial, and logistical support to promote and protect the right of citizens and civil society to freely associate, meaningfully engage with government, and constructively participate in processes to improve the well-being of their countries.  Throughout all of these efforts, our nations will continue to engage with representatives of civil society to help us understand and respond to the challenges they confront.
We commit to gather again at the opening of the 69th United Nations General Assembly to review our progress toward these objectives.  We will work in concert over the coming year to ensure a robust, effective international response to the proliferation of restrictions being placed on civil society. We call on representatives of civil society, the philanthropic community, the private sector, and other governments to partner with us in supporting and defending civil society.
Watch the hour long Forum and note the summary of references to the OGP. This is the transcript of President Obama's remarks.

Australia on the international stage, with OGP notes in the bag?

 With Foreign Minister Bishop in New York meeting lots of friends and others and sitting briefly in the chair as President of the Security Council and then to join Prime Minister Abbott for a visit to Jakarta later in the week, somewhere in all the briefing books there must be an item "Australia and the Open Government Partnership"?

Just in case someone asks our intentions, as David Cameron did of Prime Minister Key in London last week. Or better still, because we wish to get in ahead with an assurance that Australia's commitment to join remains despite the change of government, and that the Coalition's silence on the subject to date is of no significance.

Particularly in meetings with the Indonesians given the fact that Indonesia is a co-chair of the OGP with the UK, and will become the lead co-chair after the Steering Committee and Summit meetings in London at the end of the month. And that the issue is managed in Jakarta from the president's office, suggesting it has a high priority there.

The ten foreign policy and other reasons for getting on board with the OGP suggested last December still make sense. 

An eleventh is that explaining an about turn on Labor's announcement in May of intention to join won't go down well in Jakarta, London or Washington, where it is described as President Obama's 'signature governance initiative,' and will lead to head scratching in 56 other capitals as well. 

A twelfth is walking away on an initiative that sees members commit to more transparent, effective and accountable governments with institutions that empower citizens and are responsive to their aspirations would be difficult to square with the Prime Minister's intention to restore trust.

And because as chair of the G20 from December we wouldn't want to be outside the loop on the transparency issues that have been and remain high on that agenda.

So here's hoping that the briefing notes are in the bag and that a strong robust public commitment to stand firm with the OGP is forthcoming.
(Update-seems so)

To be followed by a meaningful partnership with civil society here at home to identify and get cracking on concrete goals that improve the way our democracy works. 


Queensland information Commissioner

I didn't see any media release but a reader noticed the First Assistant Information Commissioner has been appointed Information Commissioner in Queensland:
Rachael Rangihaeata has "extensive experience and expertise to the position having held senior leadership positions across all functions of the Office of the Information Commissioner since 2005, including Acting Information Commissioner.  Rachael led the OIC Implementation team responsible for establishing new OIC functions and providing extensive information and training resources for public sector agencies when the Right to Information Act 2009 and the Information Privacy Act 2009 were introduced. Rachael has also worked in various roles within the Queensland State and Commonwealth public service, primarily in strategic and legislative policy. Prior to her appointment Rachael held the position of First Assistant Information Commissioner since 2006, and most recently led the Assistance and Monitoring functions of the Office.
It took 13 months to fill the position. 

Best wishes to the commissioner and Queenslanders all.

Tuesday, September 24, 2013

Transparency and 'tone at the top'

You don't create a culture of secrecy in a week, but tone at the top is shaped from Day One.

Immigration is a case study in motion.

The brand name attached to dealing with boat arrivals 'Operation Sovereign Borders' is a message in itself. The details are now 'border security operational' or 'tactical' matters.

Asylum seeker boat arrivals, under Labor announced as they occurred, are now to be announced in a weekly briefing by Minister Morrison. Accompanied by Lieutenant-General Angus Campbell.

Any boat turn arounds are likely to be kept secret.

The Minister for Immigration has made it clear who is managing the information flows:
"There's one spokesperson for the portfolio of immigration and border protection and you're looking at him. And I'll be the one fronting things, not public servants.''
Of course the Department of Immigration and Citizenship is not known for openness and transparency.

Last year former head of the Attorney General's Department Robert Cornall after a review concluded that at a time when pro-disclosure was required "the Department presently appears to have more of an attitude of resistance to disclosure."

I gave DIAC the booby prize for what appears to be classic gaming the system in dealing with applications lodged as part of the Behind the Wire project on the Righttoknow platform

Nick Olle this week in the Global Mail detailed an associated run around with DIAC maintaining its decisions fully comply with the provisions of the law. Hmm..

Presumably the past practice continues in DIAC (and Prime Minister and Cabinet and other agencies) of providing the minister's office with time to comment on decisions regarding FOI applications. A meeting of minds may not take long.

Given the indicators of tone at the top in Week One you wonder who is up for speaking truth to power about the public right to know, the public interest in scrutiny, discussion, comment and review of government activity, and in disclosure of information that would inform discussion and public debate on matters of public importance? Months or a year away and up to the Office of Australian information Commissioner in an FOI review decision perhaps?

Then there's the trust issue so important to the PM.

Quite apart from the administrative cost of forcing formal FOI applications for information unlikely to be exempt but that could be provided promptly and efficiently at a fraction of the cost. 

This editorial in The Canberra Times Abbott stops the transparency boat - that has 'Jack Waterford' written all over it in invisible ink - is well worth a read. Excessive secrecy begets  deception and worse if the past is a guide.

None of the Immigration 'tone' is offset by other indicators of the Abbott Government approach to open, transparent government. When given the opportunity in a media conference last week to say something about transparency, for example a briefing after cabinet meets, Prime Minister Abbott didn't grab it, tending in the other direction
 ''I am not going to commit to talking unless I've got something to say. I think that there's been far too much empty talk from people who should know better at senior levels of government over the last few years. I really do want to begin as I mean to continue.''

Monday, September 23, 2013

FOI consultant raking it in

No, not me. But according to the Herald Sun, Melbourne lawyer Mick Batskos
who is a consultant to all levels of government on FoI, has pocketed $972,386 since the (Victorian) Coalition took office in December 2010. Mr Batskos is regarded in government circles as a "guru" with an encyclopedic knowledge of how best to use exemptions in the Act. Mr Batskos, through his companies FOI Support and FOI Solutions, was paid to advise government departments on handling potentially embarrassing or sensitive FoI requests from the public, the Opposition and the media...Each government department has a number of staff whose responsibility it is to process FoI requests, but on top of this, the (Victorian) Government forked out large sums of money for Mr Batskos' special expertise. A Herald Sun FoI application to all departments found FoI Support and FoI Solutions charged the Government $972,448 from December 1, 2010, to May this year. And the figure could be higher because Mr Batskos also represents agencies and authorities which did not form part of the Herald Sun's request.The Department of Justice spent almost $370,000, while the Department of Primary Industries (now DEPI) paid more than $250,000 for Mr Batskos' expertise.

Thursday, September 19, 2013

New Zealand to join OGP

In London following a meeting with Prime Minister Cameron, New Zealand Prime Minister John Key announced
At the request of the UK, New Zealand will formally express its intention to join the Open Government Partnership (OGP) later this year. The UK is the current lead co‑chair of the OGP – a grouping of 58 countries and nine civil society organisations committed to transparent and open government, combatting corruption, and harnessing new technologies. “The OGP’s goals are consistent with New Zealand values and with our goals for international economic and social development, and I was pleased the UK invited us to join,” Mr Key says.

Hopefully, any day soon the new government here will reiterate Australia's intention to join as announced by the previous government in May. Like NZ:
”Australia shares the values of the Open Government Partnership and we have a wealth of knowledge and experience to share with other nations in the partnership,” Mr Dreyfus said. “We believe that greater openness and accountability in government promotes public participation in government processes and leads to better informed decision-making.
 The UK and Indonesia are the current co-chairs of the OGP.

Wednesday, September 18, 2013

Democracy more than a ballot in the box

International Day of Democracy, 15 September, passed peacefully and largely unnoticed here except if you were at the Museum of Australian Democracy in old Parliament House in Canberra. 

The UN General Assembly, in resolution A/62/7 (2007) encouraged Governments to strengthen national programmes devoted to the promotion and consolidation of democracy.

We of course were 'in between' governments on the day, readying for a peaceful transfer of power as a result of our own exercise of democratic rights on 7 September.

But hopefuly someone in Canberra noted the message from UN Secretary-General Ban Ki-moon about the need to strengthen people’s voices in how they are governed:
“Despite advances in civic engagement, apathy has become democracy’s most insidious enemy in a growing number of societies... Inclusive participation is the antidote,” he said, underscoring that such inclusivity is not only an end in itself; it prepares communities, societies and entire countries to address opposing points of view, forge compromises and solutions, and engage in constructive criticism and deliberations. “Inclusive participation helps communities develop functioning forms of democracy for Government, corporations and civil society,” Mr. Ban said.
The Abbott Government could start well by reiterating the commitment to join the Open Government Partnership:
a global effort to make governments better. We all want more transparent, effective and accountable governments -- with institutions that empower citizens and are responsive to their aspirations. But this work is never easy. It takes political leadership. It takes technical knowledge. It takes sustained effort and investment. It takes collaboration between governments and civil society.
Membership, and a national action plan with concrete commitments to improve on a number of fronts should be right up the alley of a government determined to restore trust!

Tuesday, September 17, 2013

'Freedom warriors' strike before new government sworn in

Gay Alcorn in Fairfax Media last week welcomed aspects of the incoming government's reform agenda but dreads the 'culture war' that may be part of what Senator Brandis has in mind:
Brandis wants his reforms, which include shifting the priorities of the Human Rights Commission towards traditional democratic freedoms, to be seen as a grand struggle against the intellectual left. The left, he says, has waged a ''deliberate, conscious and methodical attempt'' to marginalise freedom. It abandoned its ''language of liberty'' - for women and gays, for instance - to an insidious human rights agenda that privileges those who claim to be victims. Ah, bollocks. Brandis gave the game away when he spoke to the Sydney Institute in May in a speech entitled ''The Freedom Wars''. ''Who defends freedom of speech in Australia today?'' Brandis wondered. ''Is it really to be left to a few conservative commentators like Andrew Bolt and Janet Albrechtsen; a couple of think tanks like the Sydney Institute and the Institute of Public Affairs; and the Liberal Party?'' 
 The Australian however, says bollocks in reply. In an editorial on Saturday, The OZ suggested it's an ideal time not only for debate about free speech and cultural identity, but, pushing a couple of barrows of its own, about what our children are being taught and why the ABC should be accountable to the public who fund it.

 Meanwhile one of the Senator Brandis' champions Andrew Bolt thinks two immediate steps are for Parliament to abolish the Human Rights Commission entirely and for newspapers to sack the Australian Press Council. Another, the Institute of Public Affairs told a Senate committee earlier in the year, whether the press has a self regulatory body should be left entirely to them. Interesting times. 'Bollocks' certain to feature a lot.

Thursday, September 12, 2013

Coalition Gov 2.0 policy- participatory democracy doesn't rate a mention

Craig Thomler in this post on eGov AU has unearthed the Coalition's egovernment and the digital economy policy platform. Craig's assessment amounts to limited thinking about the possibilities but steady ahead: "don't expect much slowdown in Government 2.0 progress under the Coalition, although we are unlikely to see an acceleration (as the US did under Obama and the UK under Cameron)."

Craig notes that efforts to get answers before the election to questions about their position on Gov 2.0, open data and the Open Government Partnership came to nought.

 From his commentary:
The Coalition policy section on 'Government 2.0 and Big Data' seems oddly named and reflects a very narrow view of Gov 2.0 as meaning open data and 'tech stuff', whereas most of the international Gov 2.0 community takes the broader view of Government 2.0 being about transforming how governments and citizens interact with the aid of new tools and techniques enabled by digital channels.

The section essentially focuses on having AGIMO ask communities and businesses which data should be made open - something they already do (albeit in a low-key way) and advocating support for public-private partnership proposals from industry and researchers to use big data for public benefit. There doesn't appear to be a budget attached to this latter approach, so what the statement "The highest return proposals will be supported to proof-of-concept and beyond" means is anyone's guess.

The Coalition policy doesn't discuss how the government will or should use social and other digital channels to develop policy, shape services, engage and empower citizens, or provide any guidance as to whether events and approaches to encourage and support civic use of open data will continue to be supported.

Overall it has a very transactional 'government as vending machine' view - which is good as far as it goes (creating efficiencies is valuable) - but doesn't consider the participatory democracy aspects of Government 2.0, where digital channels can be used to support and build democratic engagement, reduce the risks of government getting policies and services wrong and introduce more ideas and analysis to 'black-box' agency processes.

We live in a world where the experts don't all live within the walls of an agency - or an ideological group - and this hasn't been reflected in either the construction or policy instruments outlines in the Coalition policy.

For all these flaws and concerns, at least the Coalition has policies in this area, and overall it isn't worse (if not much better) than Labor's policies.

Wednesday, September 11, 2013

Blue book 2010 decision likely to be compulsory reading for FOI decison makers

In making some observations yesterday about incoming minister briefs - the Blue books - I was oblivious of the Freedom of Information review decision two weeks ago by Australian Information Commissioner Professor John McMillan, Crowe and Department of the Treasury [2013] AICmr 69 (29 August 2013). Thanks to a reader for the heads up.

The document in question in this case consisted of some pages from the Blue book prepared by Treasury in 2010 for an incoming Coalition government following that year's election, an eventuality that never happened. 

Contrary to usual Treasury practice of destroying (!) such a document immediately after the election, copies were kept through the period of uncertainty leading to the formation of the Gillard government by which time another applicant had lodged an application and the matter was in the AAT when Mr Crowe applied. Treasury settled with the applicant in the AAT by providing a redacted copy, but not the pages sought in this case.

(Of some relevance to the present, Professor McMillan makes passing reference to the fact that back in 2010 "the Treasury noted the strong views of the Leader of the Opposition, the Hon Tony Abbott MP, that the release of incoming government briefs would contravene the Westminster conventions." Interesting times.)

In the matter before him Professor McMillan affirmed the decision to refuse access on the basis that the pages are conditionally exempt under s 47C (deliberative process) and disclosure would on balance be contrary to the public interest.

The special circumstances of the case are highly relevant to the decision. Professor McMillan avoids pre-judging any issue that might arise in connection with refusal of access to September 2013 incoming minister briefs, although in a first, he acknowledges that a class claim can be raised and considered under s 47C [45].

The decision also contains plenty of ammunition for those who might now or soon be casting around for reasons to block applications likely to be forthcoming for these briefs: the summary of Treasury's submissions [13-28]; consideration of broader issues [33 -72]; discussion of the deliberative process and operation of agency exemptions and the associated public interest factors [73-96] that includes some heartening news for 'frank and candid' fans [46-59]; and of less immediate relevance, the law in Queensland which provides a 10 year exemption and the submission from Professor McMillan and the Freedom of Information Commissioner to the Hawke review, and reflected in the report, that a similar approach be taken in the Commonwealth [97-101].

Agencies are likely to cherry pick from the decision reasons to claim exemption in 2013 for departmental commentary and advice on the incoming government's policies and priorities, and on implementation issues, opportunities and challenges.

But there is less here to help those arguing exemption for information about structure and functions of a department, key personnel, facts and statistics, and upcoming events. In addition the public interest factors for disclosure in order to inform discussion and debate  are arguably strong where the information concerns the state of the nation or slices of it, relevant national and international trends, work underway in the department and the challenges facing the government. 

On the separate issue of delay raised in another post yesterday  Mr Crowe's FOI application was lodged with Treasury in December 2010 and has been before the OAIC since January 2011. While this case involves complex questions, this is not speedy access to independent external review.

FOI -15 months from start to finish

Two points from this recent decision Combined Pensioners and Superannuants Association of NSW Inc v Deputy Prime Minister and Treasurer [2013] AICmr 70 (3 September 2013) by Freedom of Information Commissioner Dr Popple:
 One, patience is a virtue, and for determined applicants prepared to do the time, 12 months in the review queue at the Office of Australian Information Commissioner can be worth the wait they shouldn't have to endure.
Two, and the time has surely come for the public service to discard the old chestnut that disclosure of analysis and options for consideration after decisons have been made will inhibit public servants doing their job in future.

At issue was a brief, apparently prepared by the Treasury, titled ‘Government run aged care home credit scheme’. The brief provides an overview of the scheme proposed in a Productivity Commission report, including information about its scope and delivery as well as a discussion of possible risks and benefits. It was prepared for the purpose of briefing a small group of Ministers about the proposed scheme, presumably during the finalisation of the Government’s response to the report. The subsequent published Government response to the report rejected the PC recommendation for such a scheme but did not provide reasons.

The Office of the Treasurer claimed that disclosure of the document would be contrary to the public interest because it would be ‘likely to inhibit the full canvassing of issues and options in the development of Cabinet material’. The Office also said that ‘there is a strong public interest in maintaining a confidential relationship between Ministers and agencies so as to allow agencies and Ministers the scope to explore and develop appropriate policy responses in relation to significant and sensitive policy issues’.

Dr Popple [17-20] 
  • agreed on the importance of some confidential thinking space - when policy is being developed, 
  • didn't regard the brief as in any way sensitive, 
  • described it as is an objective, professional analysis of the proposal that discusses options, but does not favour one option over another, 
  • listed a number of public interest factors that favour disclosure including promote the objects of the FOI act; inform the community of the Government’s operations; reveal further reasons for a government decision and background or contextual information that informed that decision; and enhance the scrutiny of government decision making. And did not identify any public interest factors against disclosure.

So the brief is to be released 15 months after the FOI application was lodged with the Treasurer in June 2012. 

Time and taxpayer money spent arguing a legitimate concern, or gaming the system?  You be the judge.

Tuesday, September 10, 2013

Will 'Blue books' inform public discussion and debate?

Those confident of a place on the front bench in Canberra will be starting to look for and through the Blue briefing books, and journalists and others on the outside will be readying Freedom of Information applications, keen to see the state of things as outlined by the public service. It will be interesting to see how this pans out-an early test on the 'trust' thing?

In 2010 Treasury was first to release a redacted version of the brief, with others following although Foreign Affairs and Trade took a year. (Addendum-see this later post on a recent OAIC decision that I wasn't aware of and explores the FOI issues in detail.)

The Treasury brief informed discussion and debate at the time with Michael Stutchbury then of The Australian commenting that many Australians "would have wanted to know about all this before, rather than after, they voted. Surely that would encourage a more informed election campaign than the one we've just endured."

My view back then:  
Public debate could and should be informed, not so much through daily access to what public servants are telling ministers about policy plans or problems but through publication of what amounts to expert opinion and assessment of issues that are or should be seen as of great public importance. Treasury and public servants generally are up there with the best we have in many fields, although they don't have a monopoly on wisdom, and aren't always right. They have a contribution to make to public understanding of issues, best made not months later when someone might ask under FOI and will usually have to battle through, or years later when the documents are available from Archives, but at the time when the community and public discussion would benefit most from this input.

It remains the same.The Kiwis show how to do it - by publishing the briefs on the internet.

However the Hawke review, without much in the way of analysis and no mention of contribution to debate and other public interest arguments, recommends a blanket exemption for incoming government briefs, and for question time and Senate estimates briefs as well. That isn't the law as it stands today-although it is in Queensland-so not much help to FOI decision makers at this stage.

In the lead up to state elections in NSW, Victoria and South Australia wily public servants at the center of things in premier's departments sought to put a cap on things by asking agencies to prepare the briefs for cabinet consideration, thus ensuring the cabinet exemption would apply. The Information Commissioner in NSW found parts were 'purely factual' and didn't qualify and some interesting material submitted to the Premier was released subsequently.

The SA Ombudsman found some briefs didn't meet the cabinet document test and for those that did, commented:
In my view, there are reasons why the agencies might give access to parts of the portfolio briefs and other briefing documents, notwithstanding that they are exempt.....I consider that there is a strong public interest in members of the public being aware of policy initiatives and other issues that the agencies consider important to South Australia. In my view, access to such information would enhance public participation in discussions about South Australia’s future, and would be consistent with the objects of the FOI Act of promoting openness and accountability, as well as the principles of administration. I consider these public interest factors to be strongest with respect to generic documents, that is documents prepared with either a returning Labor or an incoming Liberal government in mind.

Monday, September 09, 2013

Integrity, transparency and Open Government Partnership should underpin Abbott Government 'trust' goal

The new Federal government starts in office with a leader who during the campaign identified the trust deficit as the biggest deficit problem, who pledged on election night to create a competent, trustworthy government, and  who reassures on the front page of the Sydney Morning Herald today - 'We won't let you down.'

(The starting point (paywall) on trust for Mr Abbott, drawn from the most recent Newspoll, is 43 per cent consider him trustworthy, and 53 per cent as untrustworthy. At least, better scores than his opponent.)

Trust is hard to win easy to lose. Good luck to us all.

As to the detail, as mentioned in recent weeks, Mr Abbott and the Liberal Party in opposition put nothing on the public record during the campaign regarding plans for governing differently. The integrity issues didn't rate a mention.

There are many. Transparency is a big one. As The Australian in an editorial on Saturday noted:
Mr Abbott promises to restore proper process to government and we are confident he will keep his word. The public service must be de-politicised, cabinet must be restored to prominence and Mr Abbott must maintain a commitment to transparency that is easier to make in opposition than to observe in power
The Hawke report on review of the operation of the Freedom of Information Act will be somewhere in the pile on the desk of incoming Attorney General Senator Brandis.

Senator Brandis won't need to read far - just the transmission letter - to see that the review wasn't as comprehensive as those who advocated it back in 2010 hoped at the time. And that cherry picking the recommendations (many based to my mind, on skimpy or apparently no research beyond consideration of some suggestions in some submissions) isn't the answer to addressing underlying problems that stand in the way of  an Abbott Government emerging as the transparent, trustworthy government the Prime Minister Designate intends. Dr Hawke recommends a comprehensive review, identifies some issues that should be considered but are not addressed in his report, and recommends that we start with a blank sheet of paper to render the complex messy statute understandable by those intended to benefit from it- all of us.

Another issue that requires early clarification is Australian participation in the Open Government Partnership. Then Attorney General Dreyfus announced in June our intention to join.The Liberal Party in Opposition maintained silence. 

But for a government that puts the trust issue up there in lights, standing firm as part of a 60 strong international partnership dedicated to improving the way democracies work with an emphasis on open, efficient and effective government should be a no brainer.

Friends such as current co-chairs Indonesia and the UK, and the US and Korea to mention just a few of the countries involved would expect ongoing Australian commitment to the OGP. As do individuals and groups in Australia following the issue closely and who have been waiting for months since the intention to join was announced to hear how the Government intends to manage the partnership with Civil Society in developing a National Action Plan.

Senator Brandis should reaffirm the commitment by the previous government that Australia intends to join, test whatever thinking has taken place within government about 'partnership' with those outside government who might expect to be part of it, and follow through by ensuring high level Australian attendance at the OGP Annual Summit in London in late October.  

Dr Hawke in his transmission letter dated 1 July advised the Attorney that OGP involvement was proof positive that Australia was interested and understood the importance of 'open government' in the broadest sense.

Wednesday, September 04, 2013

Looming freedoms and rights wars

While the Coalition hasn't put on the record its intended approach in office to transparency and integrity issues,Tony Abbott and Senator Brandis have made it clear in speeches (both entitled 'Freedom Wars') over the last year, that 'freedom' and 'rights' will get the attention of an Abbott government.

Recently in an interview with The Australian, George Brandis to reclaim rights agenda (paywall), the Shadow Attorney General indicated one change would be a new 'rights' emphasis - protecting common law freedoms from legislative encroachment:
(Brandis) plans to refocus the human rights debate on traditional common law rights and freedoms which he believes can be a more effective guardian of liberty than any statutory charter of rights. He announced this week that a national audit will be conducted of federal statutes that infringe common law rights as a first step to restoring these freedoms, "when appropriate". One or more "freedom commissioners" will be appointed to the Australian Human Rights Commission with the goal of applying a balanced approach to all rights and freedoms. Instead of concentrating primarily on the administration of federal anti-discrimination law, Senator Brandis said the commission would also be required to become a national advocate for freedom of religion, freedom of expression and freedom of the press. "I don't want to see the human rights bureaucracy expanded but if we are going to have a human rights agency of the commonwealth, it ought to be an agency that protects human rights, not an agency that protects some human rights and makes excuses for the violation of others," he said. "The rights we enjoy in Australia are much better protected by the common law - as long as we don't allow that to be repealed or attenuated by statutory intervention - than they would ever be by a charter of rights.

The Senator's concerns had been flagged previously in a speech to the Sydney Institute Freedom Wars (members only access in May. The catalyst then was what the Senator described as Labor's unprecedented war on freedom of the press and freedom of expression, with aspects of the Racial Discrimination Act and 'elites' also in the sights.

In 2012 Tony Abbott delivered his Freedom Wars speech to the Institute of Public Affairs,
claiming this position for the Liberal Party:

"Essentially, we are the freedom party. We stand for the freedoms which Australians have a right to expect and which governments have a duty to uphold. We stand for freedom and will be freedom’s bulwark against the encroachments of an unworthy and dishonourable government."

Whether that claim stands up after a spell in office, and if any Freedom Wars battleground is to be narrow or broad scale remain to be seen.
(Update- The Australian 5 September 'Tony Abbott to champion free speech.')

(Real freedom of information, not mentioned in any of these texts, would be a great centrepiece, but I digress.)

In any event the issues raised about common law rights and protection from legislative encroachment are far from straightforward.

Former NSW Chief Justice Spigelman and others such as Chief Justice French of the High Court have pointed out that common law rights and freedoms are limited. Spigelman helpfully listed in this speech 'the common law bill of rights'.

Judges, rarely, 'find' new rights not previously uncovered. Other rights (the FOI right to access government information for example) find their way into law through statute and international instruments. Not all are absolute, some are qualified, others in tension to a degree with competing rights.

Rights reflected in international instruments and agreed to by Australian governments such as the Universal Declaration, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights only become an undisputed source of individual rights and obligations when directly incorporated into domestic law by legislation. There are many gaps in Australian law.

Unless constitutionally protected, hardly the case at all in Australia and Senator Brandis, News Corp and The Australian won't have a bar of a bill or charter, rights, common law or statutory can be modified by legislation. Parliament is supreme. However as the Chief Justice noted, courts take the view that rights that are well entrenched in the common law including freedom of speech and freedom of movement are only abrogated where there is clear legislative intent- by plain words or necessary implication. (The Coalition last time in office came unstuck on this in the Haneef case.)

Freedom of speech or expression - the freedom to say what you like - is not the same as freedom of the press - the freedom to publish or broadcast whatever and whenever you like. There are limitations imposed (national security, the right to reputation reflected in defamation law, and less clear cut the right to privacy) and standards expected of media publications and broadcasters because of the power and privileges they enjoy. Media organisations generally accept this and argue for self regulation. Others argue self regulation will always be unsatisfactory in some respects.

This debate about how and where to strike the balance between freedom and other interests is ongoing not only here but elsewhere.

If and when the freedom wars unfold the Liberal Party stance on privacy law reform will be an element in some of the battles.

There are currently questions floating out there about the legislated reforms to take effect in 2014: do the changes go far enough, is the law adequate in light of emerging issues, are the changes to commence too soon?

A whole range of recommendations from the ALRC report in 2007 were not dealt with in Stage 1 of the reforms. These include the terms of the exemption from the Privacy Act for media organisations in the conduct of journalism, and the removal of the exemption for political parties and small business. The ALRC has a current reference on privacy protection in the digital age and a statutory cause of action- before it was announced Senator Brandis seemed highly sceptical.
The Opposition did not enthusiastically embrace the mandatory privacy breach notification legislation introduced but not passed in the last Parliament.

And there are ongoing issues concerning privacy and surveillance and telecommunication interception.

More than a whiff of grapeshot is likely should the guard change after 7 September.

Monday, September 02, 2013

The Coaltion all for restoring trust, but not talking about the detail

Inside the last week, there is little from the major parties about how they intend to govern, particularly to restore trust and operate in accordance with high standards of integrity.

The ALP at least replied to Transparency International Australia (ALP response pdf) and the Accountability Roundtable (ALP response pdf) recounting the record of reform over the last six years and indicating an intention, if re elected, to examine scope for doing some of the things flagged by both groups - in broad general terms only.

But the Liberal Party hasn't responded so far to the invitations to set out their policies and priorities in this space.The Party's Plan for Real Action doesn't say anything relevant either.

If the Opposition wins, it remains to be seen what Tony Abbott 's observation that the trust deficit is highest on his list of deficits may mean for transparency, accountability, open government, anti-corruption initiatives such as a national or parliamentary integrity commission, a code of conduct for parliamentarians, political party donations, lobbying reform, taking whistleblower protection to the next level, and a host of other integrity related issues.

Just what an incoming Liberal/National party government would do regarding the current government commitment that Australia join the Open Government Partnership is also uncertain. As far as I am aware no-one has said a word on the subject, publicly at least. Several messages, raising the question with Shadow Attorney General Brandis, Shadow Foreign Minister Bishop and Malcolm Turnbull remain unanswered.

Surely we can expect bipartisanship on this commitment?

The Greens, commendably are committed to action across the integrity spectrum as set out in this response pdf to TI Australia and this to the Accountability Roundtable pdf. They may  have some clout. Longer odds the Pirate Party Australia and the Wikileaks Party
- although they're ready.