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Wednesday, December 24, 2014

Best wishes

"Sydney Opera House Night". Licensed under CC BY-SA 3.0 via Wikimedia Commons -

Whatever you celebrate at this time of the year!

Thanks to readers for your interest and hats off to those who stood and shouted in the right direction about the government plan to abolish the office of information commissioner. You helped slow and hopefully halt this backward step for open transparent and accountable government.

I have a drafts file with loads of things started but not finished so I'll be back sometime soon. In the meantime, all the best.

Tuesday, December 23, 2014

Union interest in FOI sparked by government plan to abolish office of information commissioner.

Tony Sheldon of the Transport Workers Union in an op ed in the Sydney Morning Herald yesterday mainly responded to an editorial that criticised the union over FOI applications seeking access to ministerial travel costs. But he also rightly labelled the government attempt to abolish the Office of Australian Information Commissioner "a blatant attack on the right to information now enjoyed by Australians."

My Letter to the Editor apparently hasn't made the cut, but for your edification:
Tony Sheldon ("FOI follies prove that the powerful hate disclosure" December 22) was on the money pointing out the folly in the government plan to abolish the Office Of Australian Information Commissioner.

Apart from shifting review of decisions to refuse access from the OAIC where it is free to the tribunal which will cost $861 as flag fall without a concession, the government would wipe entirely the role of the commissioner as the independent monitor, advocate and champion of open transparent and accountable government. On that journey we have a long way to go despite 30 years of trying to move in the right direction, boosted to a degree by the 2010 reforms that created the office that the government plans to abolish. The law reform commission had identified this as an impediment as long ago as 1995.

The commonwealth model that faces the chop is similar to that in place in Queensland, NSW Victoria, and Western Australia where no one is talking like this, and accords with international good practice, something the government ascribed to at the G 20 in Brisbane.

The government announced these plans in the budget in May, introduced the bill in October, but did not bring it on to a vote in the Senate because Labor, the greens and most if not all the cross benchers intended to vote against it, but by which time most FOI staff had left and the Canberra office closed.

It should use the break to consider how to improve the system. The first step is to adequately resource the office to provide immediate relief to that poor commissioner working alone at home.

Peter Timmins.

Potts Point 2011
Quite a few comments online include some that take issue with the union spending time and energy on FOI.

Interestingly the union movement was a strong advocate in the seventies for the introduction of an FOI act and part of the Freedom of Information Legislation Campaign Committee that pushed the issue along in those days.

Unfortunately the unions and business have played virtually no role since in the public discussion and debate about open transparent and accountable government. 

The bipartisan campaign for good government could do with a hand.

Human Services not alone in darting and weaving when it comes to FOI

The report by Australian Information Commissioner Professor McMillan of an investigation into the freedom of information processing practices at the Department of Human Services received a good going over in Fairfax Media ( Markus Mannheim), The Canberra Times (Noel Towell) and The Mandarin (David Donaldson). Understandably the focus is on shortcomings in how they do things there.

However the report is of wider significance. Professor McMillan said the
"findings should be heeded by all agencies. The FOI processing environment analysed in this report is not dissimilar to that in many agencies.
In October when the own motion investigation got underway, it must have looked like a last gasp for the commissioner given it coincided with the introduction of legislation to abolish his office. Contrary to these expectations it's still in existence if not in great shape.

The commissioner's findings of wide import include
  • in DHS and probably elsewhere there is resistance to and ignorance of the objective of the act to ‘facilitate and promote public access to information, promptly and at the lowest reasonable cost’ (s 3(4)). The Procedures Manual for use by staff in DHS does not refer to the objects, and FOI training materials detail the procedural and exemption provisions. Only the most recent training program dated August 2014 explicitly refers to the broader role of FOI and the objects thus "providing necessary context for the procedural and exemptions provisions."  The commissioner recommends a message from senior management to this effect. Presumably it hasn't occurred to anyone to convey the importance of FOI along these lines for yonks if at all.
  • the preoccupation with technical legal formality in interpreting and processing FOI requests. DHS has lawyers heaviliy involved in the process.
"A central purpose of FOI legislation is to facilitate prompt and inexpensive public access to government held information. The Commissioner is concerned that a legal and technical approach to FOI can be counterproductive by inhibiting the release of non-sensitive information, creating or extending disputes with clients, and increasing the cost of FOI administration. The department's focus on technical and legal compliance appears to be a significant cause of the rising review rate the department has experienced over the last three years. While a compliance focus may make decisions more defensible on review, combining it with an outcome-based focus is likely to reduce review rates." 
In responding to the department's view that FOI decision making is "a legal process" the Commissioner said
"FOI decision-making, like many functions of government, operates under statute. And the FOI Act confers important information access rights on members of the community that are legally enforceable. But that is not the whole picture. The FOI Act operates within and complements a broader service culture within government. Providing information upon request to members of the public must be informed by principles of legality, but it must also be guided by customer-service principles and the objects of the FOI Act that encourage public participation, scrutiny, discussion, comment and review of government activity. In a high volume decision-making environment where senior officers cannot review each action of every staff member, the principles expressed in policies, procedures and training will have an important and guiding influence. The Commissioner’s impression formed in this investigation is that the department’s approach has moved from a predominately pro-disclosure and outcome-based focus, towards an emphasis on technical and legal compliance."
(This post two years ago on why FOI shouldn't reside in the legal area followed disclosure of how Immigration processed FOI applications also with heavy reliance on lawyers. I've expressed the view previously that the information management environment (not that of spin or the law) where a public management/service to the public ethos prevails might be a better place to locate FOI than the legal area, the practice in many Federal and state government agencies.) 
  • small practical steps can make an important difference. The recommendations in this report contain many specific suggestions on how the department (and potentially other agencies) could improve FOI Act processing. They're mostly about adopting the revolutionary idea that a response to a request for information is a customer service issue.
  • performance measures are essential for gauging whether the reasonable expectations of FOI applicants are being met. In  DHS where the reported statistics turned out to be wrong there is a lot of sheltering behind the number of requests answered within the statutory time period. Period!

Wednesday, December 17, 2014

Privacy tort could enhance press freedom protection here, according to UK media law expert

Wikimedia Commons
Given the long concerted campaign by many media outlets led by The Australian (most recently here) to head off a privacy tort or cause of action, you're unlikely to see much of this in those pages.

From "Enhancing Press Freedom through Greater Privacy Law: A UK Perspective on an Australian Privacy Tort" by Associate Professor Paul Wragg, University of Leeds and Visiting Fellow at the University of Sydney, (Sydney Law Review Volume 36 No 4 December 2014):
"In light of previous inquiries identifying areas of concern in Australia’s privacy law provisions, the Australian Law Reform Commission (‘ALRC’) recently devised a new tort that, if implemented, would better protect individuals from serious invasions of privacy. Although the tort was designed principally with new technologies in mind, there has been vociferous concern that such a tort might unduly inhibit press freedom. This response is familiar to United Kingdom (‘UK’) commentators who have seen the press, in particular, react similarly to common law developments in privacy law. Yet that experience has not been entirely unfavourable to the UK press; indeed, the jurisprudence discloses a generous treatment of the term ‘public interest’, which has kept interference with press activity to a minimum. In light of the reference to press freedom within the ALRC’s proposed tort, and given the absence of an express constitutional provision protecting Australian press speech, this article argues that the UK experience shows how, counter-intuitively, the ALRC’s proposed tort could actually enhance, rather than diminish, press freedom protection in Australia. Consequently, it will be argued that the collectively dismissive response by the press to the ALRC’s inquiry represents a significant missed opportunity. As the ALRC warns, the common law may develop organically to better protect privacy interests. As will be argued, this prospect presents the obvious risk that press interests are not as fully protected as they would be under the ALRC’s proposals.
Dr Wragg dismisses as surprising, ill judged, difficult to fathom, out of touch with popular sentiment and detached from the reality of what is proposed, claims such as those made by News Corp Australia that "the threat to freedom of speech and communication posed by a cause of action, regardless of how it is structured, will undermine our ability to report in the public interest, to the detriment of the Australian public and Australia’s democracy."

However as privacy is one of those freedoms Attorney General Brandis doesn't talk much about, on this aspect is reported to have said "the Government has made it clear on numerous occasions that it does not support a tort of privacy" and the media generally rushes to close the book on the subject, the issue seems destined to remain in the lost cause vault.

Common law development is likely to be slow, contested but as Dr Wragg points out not necessarily to the media's liking.

While our two-soon to be one- national information commissioners battle on working from home....

The UK counterpart is subject to a triennial review, examining whether there is a continuing need for its functions and whether it should continue to operate in its current form; and in Canada the commissioner is under the hammer, although she still has an office to go to, support staff and a budget to get by somehow in the new year. 

On the other hand in New Zealand, the Chief Ombudsman, so far immune is picking up the pace, looking into how agencies and ministers deal with requests for information and asking ministers about 'unwritten' directions to the troops.

"As with all triennial reviews, the review of the Information Commissioner’s Office (ICO) will examine whether there is a continuing need for its functions and whether the organisation should continue to operate in its current form, considering whether services could be provided more effectively and efficiently. If it is determined that there is a continuing need for the organisation in its current form, the review will assess whether the ICO’s control and governance arrangements continue to meet the recognised principles of good corporate governance. The review will also consider the organisation’s structure, efficiency and performance."

(Something along those lines before he reached a conclusion to abolish the office might have helped Attorney General Brandis' case here. The only one to look, Dr Hawke concluded the Office was doing a good job.)

Vincent Gogolek writing in the Huffington Post Canada recounts testimony by the information commissioner to a parliamentary committee that the number of complaints her office receives from people being denied access to documents by the federal government has shot up 30 percent over the past year, and that her budget has been reduced by 11 percent over the past four years. Gogolek looks with dismay at the Australian government's attempt to abolish the office altogether, suggesting Canada might at least be confident that the government there wouldn't go that far in an election year.

New Zealand
The New Zealand Chief Ombudsman announced a major review of the practices of government agencies in processing Official Information Act requests, something the Australian Information Commissioneer didn't get around to in four years, although I expect funding constraints not the lack of concern about what goes on were responsible. The aim of the NZ project is to assess the quality and integrity of OIA practice across the public sector and to address any issues that are found.
“The effective operation of the OIA is crucial to our system of open and democratic government, and this review will scrutinise how things are currently operating and set out a framework for systemic improvement where deficiencies are identified.”
In this interview Dame Beverley said in recent months, there had been allegations in the media that OIA processes have been circumvented for a variety of reasons, and that had the potential to erode public confidence in the OIA throughout the core public sector.

Survey documents are going out including to ministers' offices. I liked this question:
Are there current or recent unwritten directives issued by the Minister or senior management to office or agency staff about the operation or implementation of the OIA (including guidance to an agency on notifying or consulting the Minister regarding OIA requests / proposed OIA responses / finalised OIA responses / Ombudsman investigations of OIA complaints)? If yes, please provide details.

Monday, December 15, 2014

CIA torture revelations reveal transparency and accountability differences as well

The redacted Executive Summary pdf (525 pages) "Study of the CIA's Detention and Interrogation Program, "describes in more than 500 pages a dysfunctional agency so unprepared to handle suspected terrorist detainees after 9/11, that the CIA bought into private contractors' proposals for torture, and then lied to Congress, President Bush, the Justice Department, the public, and to itself about the purported effectiveness of the program." (National Security Archive).

US reaction
" welcomes the long-overdue release of the Executive Summary of the (report). We were appalled by the 11th-hour attempt to intimidate Senator Feinstein and the Intelligence Committee out of releasing the report, and relieved that she resisted that pressure. The argument that government abuses cannot be revealed because of their severity is incompatible with the First Amendment, the rule of law, and accountable government.
As Senator Claire McCaskill said yesterday, this was “gut check time for our democracy.”’s Executive Director, Dr. Patrice McDermott, stated, “the suppression of the report would have ended the last, best hope of ending the unjustified secrecy regarding CIA torture. Instead, we have taken a meaningful first step towards restoring oversight and democratic accountability.”
 UK reaction
Tony Blair to face grilling over CIA torture as his own Labour party calls for evidence
Tony Blair and his former ministers face a grilling over what they knew about CIA torture as their own Labour party demanded they come clean. A chorus of senior Labour figures yesterday said the former Prime Minister along with Jack Straw and David Miliband should appear before the parliamentary committee examining whether Britain was complicit in the brutal US interrogation programme. It came as Sir Malcolm Rifkind, chairman of the Intelligence and Security Committee (ISC), gave the strongest signal that the trio would be called before him. But pressure was also growing for a full judicial public inquiry to investigate the claims...
Australian reaction
Professor George Williams Blood on many hands in CIA torture scandal
There is no suggestion that Australian officials used torture. Instead, we were complicit in the US torture program. In contrast to the UK, which successfully demanded the return of its citizens from Guantanamo Bay, Australia failed to take action to protect Habib and Hicks, despite emerging evidence of their mistreatment.  The problem was not merely one of silence and acquiescence. Australia's political leaders, including Prime Minister John Howard, were some of the strongest international supporters of US actions at Guantanamo Bay. Despite irrefutable evidence of what occurred there, this support has never been retracted.
In other nations, the harm done to citizens at the hands of the US has led to wide ranging inquiries. By contrast, Australia's leaders have shown no appetite to investigate these matters. Both sides of politics have resisted any inquiry that could determine whether Hicks was tortured, and whether Australian officials bear responsibility for the treatment of him and Habib.
America has a lot of soul-searching to do about its departure from the most basic standards of decency. We also need to come to terms with our involvement in these programs. It is past time that a judicial inquiry was held to ascertain how Habib and Hicks were treated, and whether any compensation is due to them. The public has a right to know the truth of what occurred, and to know that measures will be taken to ensure that our leaders do a better job of protecting Australian citizens in the future.

New call for more openness from former top public servant

Former head of Department of Prime Minister and Cabinet Terry Moran delivering the 'Weary' Dunlop lecture last week (The Mandarin)
We are also at risk of forgetting the value of disinterested public service advice to government. No one seriously believes that the public sector should be the only source of advice to government — and I doubt it ever really was. Greater scrutiny and contestability of the advice that departments provide to their ministers would be a good thing and New Zealand demonstrates just how far greater openness can go without destroying the Westminster system of government.

Terry Moran delivering a speech while Secretary Department of Prime Minister and Cabinet in 2009:
"The public service, Dr Shergold said, provides ministers, that is the executive government, with frank, fearless and robust policy advice — and it does so in a confidential manner. I believe, as does (predecessor) Peter, (Shergold) that the confidentiality of advice is critical to our ability to be professional."
Life long learning, a wonderful thing.

Thursday, December 11, 2014

Freedom of information law overseen by one or two men working from home

I thought my heading of the report of the Senate Estimates hearing "Government champion of open government reduced to working from home" clearly captured where openness and transparency rate with the Abbott government. Fairfax Media with "Freedom of information law overseen by one man working from home" and The Guardian "Freedom of information laws upheld by two men working from home" similarly saw this as the main take away.

It's two at the moment, soon to be one with the appointment of Freedom of Information Commissioner Dr Popple to the AAT from 1 January 2015.

Either way you cut it it's a disgrace.

Government champion of open government reduced to working from home

And the government plans at this stage to wait to see what happens to the Freedom of Information Amendment (New Arrangements) Bill when the Senate returns in February-the bill still "reflects the government's intentions."

No transcript available yet (update-transcript here) but this from the live broadcast of questions in Senate Estimates this morning, mostly asked by Labor's Senator Jacinta Collins:
  • the Canberra office of the Office of Australian Information Commissioner closed last week;
  • the Office continues to operate in 'awkward' circumstances to carry out its statutory functions;
  • the Australian Information Commissioner Professor McMillan and the Freedom of Information Commissioner Dr Popple are the only remaining Canberra based officers and are working from home;
  • there will at some point only be one as Attorney General Brandis announced that Dr Popple is being appointed to the AAT as a Senior Member;
  • there were 25 Canberra based staff at one stage. Total staffing now entirely Sydney based mainly dealing with privacy related matters but assisting the commissioners with FOI is 62. In July this year it was 79;
  • complaints about FOI administration are all being referred to the Ombudsman;
  • there are 200 plus FOI reviews still before the Office, with new review applications per month down from 55 in May to 21 in November;
  • following the announcement of closure in May, many review applicants were given the option to take a matter to the AAT. Some did, others didn't;
  • the Office since May adopted a more liberal practice regarding this option for media applicants. Not all wish to go down that path;
  • 80% of IC review applications historically are resolved by agreement shortly after receipt;
  • the Office is in discussion with AGD about the funding situation. Currently surplus funds of $1.4 million remain from the six month budget allocation for FOI functions, as does $3.3 million that would have gone to the Human Rights Commission on 1 January to fund relocated privacy commissioner functions remain with the OAIC;
  • the FOI amendment bill reflects government intentions. It is not appropriate to consider fully re-establishing the Office until such time as uncertainty is removed regarding passage of the bill when Parliament resumes in February;
  • when asked, Attorney General Brandis said the bill had not come on for Senate consideration before the adjournment because of the 'heavy legislative schedule' and competing priorities. When it was pointed out that the Senate only dealt with one bill on the last sitting day, he said that was for others to explain. (The unstated real reason of course was to avoid defeat on the floor of the Senate.);
  • the AGD took on notice questions about whether the commissioner model was international best practice or accepted as such by comparable jurisdictions. ( I can save them the trouble, in short it is an international trend, and yes.)
  • in response to questions about international best practice and the Open Government Partnership, AGD said this was 'entirely' a matter for Finance.

Wednesday, December 10, 2014

Chance for some probing questions about the OAIC

With Canberra fast approaching lock down Senate Estimates, underway since October, still has unfinished business.

The Senate Legal and Constitutional Affairs Legislation Committee will hold a hearing tomorrow on agencies in the Attorney General's portfolio including the Office of Australian Information Commissioner and the Attorney General's Department.

Great opportunity for questions about the government decision to close out the OAIC on 31 December, thwarted when the bill was not brought on for consideration in the final weeks of the sitting; what is being done to enable the office to continue from 1 January, the end of its budget allocation; and what the Attorney General meant by the statement this week from his office that the "Government is committed to implementing its budget measure to streamline arrangements for the exercise of privacy and freedom of information (FOI) functions."

And maybe some answers.

Broadcast on Channel 109/Radio 91.1 (in Parliament House) or

Freedom of Information Social Drinks, Sydney

If you were agitated, engaged or just concerned about the Federal Government's recent unsuccessful attempt to abolish the Office of Australian Information Commissioner, join a group of like minded for a drink and mix around, no formalities, before such thoughts are replaced by summer torpor.

The back room Woolpack Hotel, 229 Chalmers St Redfern, 6pm next Monday 15 December.

You can RSVP here, more privately by sending me an email or what the hell, just turn up, although the back room won't cope with hundreds and might struggle with 50, but we're sure to cope.

Thanks to Matthew Landauer and Henare Deegan of Open Australia Foundation for organising.

On the OAIC, some may not have seen the statement from the Attorney General's office that he intends running legislation next year to streamline FOI and privacy functions.

Tuesday, December 09, 2014

"Do you support the abolition of the Office of the Information Commissioner?"

iTnews is conducting a poll.

I wouldn't even try to influence your vote, just go ahead and do it.

Here and scroll down to Polls on the right hand side.

I think it conforms with democratic values - one vote one value.

They're also polling trust in privacy protection.

Monday, December 08, 2014

OAIC: Attorney General Brandis needs to wheel out the heart starter V2

Sorry folks, but in trying to update this page I lost the lot and can't seem to get it back!!! If you notice it floating around the blogosphere please send it home.

The updated summary is that the Office of Australian Information Commissioner will continue to operate after 1 January, obviously with some difficulty given the budget allocation is to 31 December, and most/many/ just about everyone in the non privacy part of the shop other than the commissioners have left the place. 

According to the OAIC website "We are liaising with the Australian Government about transition arrangements for freedom of information matters."

What really needs to happen is ithe OAIC is funded and put back in operation as quickly as possible to start to repair the damage done by seven months of uncertainty and turmoil since the announcement in May on Budget night of the plan to abolish the office. 

The government then dawdled until October to introduce legislation, and proceeded to plough on despite expert opinion never previously sought, and clear signs of formidable opposition that could prevent passage of the bill. Until the last week of parliamentary sittings when it chose not to bring the bill on for consideration in the Senate.

But iTnews reports
..mercy will likely be short lived for the agency, with the office of Attorney-General George Brandis today confirming to iTnews that the Coalition still intends to pass its bill in the new year. “The Government is committed to implementing its budget measure to streamline arrangements for the exercise of privacy and freedom of information (FOI) functions,” a spokesman for Brandis said.
"Streamline arrangements" should always be on the cards but the process should start with fact finding, evidence, consultation, and development of workable ideas and options, leading to a conclusion that is the best in the circumstances. That shouldn't be too hard to organise early next year as the first step perhaps in acting on the Hawke Review that sits untended in government intrays with a recommendation for a comprehensive review of the FOI act.

Surely the Attorney General intends to do more than simply change the date in the bill that failed to win support this time round? 

Friday, December 05, 2014

Office of information commissioner still ticking

And (finally?) to confirm, the Senate did not consider the Freedom of Information Amendment (New Arrangements) Bill before in the early hours of 5 December it adjourned until the end of February 2015. 

The bill would abolish the Office of Australian Information Commissioner, funded until 31 December, from 1 January 2015. 

A big job tidying up for all involved after someone's poorly conceived thought bubble that first appeared on Budget night in May; that led to legislation introduced in parliament in October but ran into stiff opposition from Labor, the Greens and crossbenchers; and finally sank from sight in the last frantic days of Senate sittings.


Thursday, December 04, 2014

Bill to abolish office of information commissioner in the freezer, hopefully past use by date

Just for the sake of completeness - no Freedom of Information Amendment (New Arrangements) Bill listed in the Senate Order of Business for this last scheduled day of sittings for 2014. 

The bill still lies in the cooler ( at 9 in the Notice paper) but hopefully that's more like the deep freeze for something that should be well past its use by date when parliament resumes next year.

Ministers Pyne and Morrison continue to battle on to the last to try to win support for their bills from the six crossbenchers needed because of Labor and Greens opposition. However the government appears to have decided in the case of the FOI bill they couldn't win the crossbenchers over with such a weak case and potential headlines (that mightn't accurately sum things up) such as 'Minister pleads for crossbench support to close down open government' might add to an already bad year end look.

For calling this one out, full credit to  
  • Labor (Shadow Attorney General Mark Dreyfus and his staff;  Senator Jacinta Collins during the Senate Committee inquiry and Senator John Faulkner in particular); the Greens who  also all  knew this was a dead cat from the get go, in particular Adam Bandt who spoke up in the House debate and Senator Lee Rhiannon for strong questioning during the Senate hearing; and crossbenchers who all listened particularly senators Madigan, Xenophon, Day and Leonhjelm and their staff;
  • those who lodged weighty submissions on why this was not a good move at the last moment when the bill was referred to the Senate committee, views the government could have heard before it announced its intentions seven months ago or in the meantime if they had bothered to talk to anyone outside government;
  • the many active citizens who can recognise a big backward step for open transparent and accountable government when they see it and did something about it, particularly to spread the word and contact the crossbenchers to make sure they understood the adverse consequences that would flow if the bill passed. It's risky to name names but badge of honour to Tim Smith of Accountability Roundtable, Mike Ahrens and Alan Wolfe of Transparency International, Matthew Landauer, Kat Szuminska, and Henare Deegan of Open Australia Foundation, and Ed Santow and Sophie Farthing of Public Interest Advocacy Centre.(Sorry for a couple of misspells in the original.) The rest of you know who you are and the twittersphere was a wonder to behold. Thank you.
  • those in the media mainstream who gave the issue some coverage at least, Will Okenden for one snippet on ABC PM, Michael McKinnon for one piece on ABC online, Sean Parnell of The Australian, Paul Farrell of The Guardian and Markus Mannheim of The Canberra Times, who also published a great an op ed way back by Emeritus Professor Richard Mulgan; and Professor Julian Disney of the Australian Press Council for his personal testimony to the Senate committee. But disappointing that other journalists decided there was no story in this, and that the media coalition Australia's Right to Know was almost alone in supporting a bill of sorts, telling the Senate committee Unhappily and reluctantly we support some form of bill getting through in order to create a review process.." which turned out to be wrong in any event.
We need more strong voices out there for open transparent and accountable government. 

Onward to 2015! 

Wednesday, December 03, 2014

Government pulls bill to abolish information commissioner

 It's over!

The Freedom of Information Amendment (New Arrangements) Bill isn't listed in Senate Order of Business(pdf) for 3 December.

Despite the fact it continues to appear (at No 9) in the Notice Paper I have it on good authority that the government won't bring the bill on for debate today or tomorrow, the last sitting days of the year. It sits there with a number of other bills that the government knows can't pass this senate, at this time anyhow.

As the week unfolded, Senator Abetz Leader of the Government in the Senate in discussions with Senator Leonhjelm and perhaps others was told the FOI amendment bill was not supported by the crossbenches.

My information was that in addition to Senator Leonhjelm, Senators Day,  Xenophon, Madigan and Lambie stood with Labor and the Greens in opposing the bill, that Senators Lazarus and Wang probably were opposed, and maybe even Senator Muir, making five, seven or eight additional votes against when the government needed six crossbench votes for to get the legislation through.

Thanks to all out there who were stirred into action by this government attempt to take the open transparent and accountable government cause backwards, big time. The Twittersphere was amazing to this relative newcomer at least. 

I'm hoping you stay with it as Australia needs a public voice to safeguard against backsliding like this and to push, pull and drag the cause along in the right direction.

To international supporters who watched anxiously while Australia toyed with a world first, whew!

There's plenty of scope to improve the FOI system - all the government needs to do is start the dialogue. As part of that overdue national action plan required of members of the Open Government partnership for example? If they don't we should.

More immediately, Attorney General Brandis and his department will have turned to the next challenge, how to keep the Office of Australian Information Commissioner functioning after 31 December when the budget allocation runs out.

Three weeks ago Matt Minogue, First Assistant Secretary told the Senate committee:
"if the legislation is not passed the commission continues. Yes, there will be practical considerations that government will have to undertake in negotiation with the commission about how to resolve those practicalities, but it is not the case that there will not be any appeal mechanism for applicants.
Australian Information Commissioner Professor McMillan said:
There are practical questions, obviously, about the administrative support that would be needed to discharge functions if the normal budgetary allocation has expired but the legal reality is that the commission still exists, the commissioners still continue in office and the functions conferred upon them by the various acts are still relevantly conferred and are exercisable.....
At the end of the day, one simple option is for the person occupying the position of FOI Commissioner or Information Commissioner or Privacy Commissioner to refer all matters to either the ombudsman or the AAT. The short answer is that appeal rights will not be lost if the legislation does not go through. There are still legal avenues, legal realities, that will ensure that matters can be resolved." 

Tuesday, December 02, 2014

Abolish the Office of Information Commissioner bill down the list; or out the door?

Nope, the Freedom of Information Amendment Bill is not listed in The Order of Business (pdf) for the Senate 2 December, but the list is subject to change. 

An amendment by Labor and The Greens to the innocuously titled Omnibus Repeal Day (Spring  2014) Bill that requires competetive tendering for Australia's replacement submarine contract sees the government crying foul over debate about this while its list of urgent business waits its turn. Whether the abolish the info commish bill is in that lot remains to be seen

Just two sleeps before parliament is scheduled to rise for the year.

Is that "Joy to the World" playing in the background?

Australia gets a 'Please explain' from Open Government Partnership on missed deadline

Australia's dilly dallying over whether to proceed or not proceed with the previous government's notice of intention of May 2013 to join the Open Government Partnership by lodging a national action plan has prompted the OGP Support Unit to write urging action "soon in order to avoid a review by Criteria and Standards Subcommittee.. "

Nine other countries received an 'action please' lettter.

In Australia's case we are now five months late (actually its three years since we received an invitation to join) and acting contrary to OGP process for action plan development.

Finance Secretary Halton, responding to questions from Senator John Faulkner recently said Finance was doing a lot of work on this prior to the Government making a decision on membership. My FOI application for the latest version of the document Finance is working through awaits a meaningful response.

The plan must be developed in partnership with civil society and include 'concrete commitments... that are ambitious and go beyond a country's current practice"so those of us outside the parliamentary triangle wait for someone to put their head above the parapet and say "any thoughts" "what's the best way to proceed" "who should we be talking to about this issue?" 

After all as Secretary Halton also said her mantra is "consult, consult consult" because not all the clever people are in the Department of Finance.

The World Bank has recently drawn attention to the important role information commissioners can and should play in advancing domestic reforms through participation in the OGP.

The government bill to abolish the Office of Australian Information Commissioner is scheduled for debate in the Senate today. 

If the bill passes the Office disappears on 31 December posing something of a challenge for those presenting ourselves to the OGP community of 65 countries where the information commissioner model is accepted as a crucial element of an open and transparent government system.

Finance better latch onto wisdom there before the lights go out.

Still, commonsense may prevail in the Senate.

We live in hope....

Monday, December 01, 2014

Victoria's new government committed to change on transparency front

With a new government in Victoria as a result of Saturday's election the collection of policies and commitments of the major parties gathered by Accountability Roundtable reveals Labor intends to overhaul freedom of information in particular
  • convert the role of the FOI Commissioner into the Office of the Public Access Counsellor (OPAC). The new, independent Office will maintain all existing powers of the FOI Commissioner, and will gain the authority to review those FOI decisions made by Departments and Ministers and made on the grounds of Cabinet-in-Confidence. 
  • OPAC will also gain the power to set standards for Departmental officers (which are currently set by the Attorney General) and reduce the time limit for responding to FOI requests from 45 days to 30 days. The time limit for an agency to consider the OPAC’s decision will also be reduced, from 60 to 14 days.” 
Outgoing Attorney General Clarke in the last days of the Napthine government issued these standards, but as far as I can see not the accompanying regulation needed to activate them, so let's see where the issue of standards goes from here.

More broadly of course FOI in Victoria, largely unreformed or updated since the 1980s, other than creation of the commissioner's position, needs much more than this. Let's hope the Andrews government casts around for input.

Accountability Roundtable also refers to a Media Release by Labor on 15 October 2014, “Napthine blocks move to release performance data” noting; 
“Today, Victorian Labor attempted to introduce the Transparency in Government Bill 2014 which would have enforced the quarterly release of hospital performance data and ambulance and fire services response times. The Napthine Government used its numbers on the floor of Parliament to prevent the Bill from even being debated, let alone passed. An Andrews Labor Government will reintroduce the Bill.” 
And this release on 16 October 2014, “Labor to clean up Parliament with ‘honesty reforms’ ”

Update: This certainly makes a change: Labor to release cabinet in confidence documents on East West Link

Bill to abolish office of information commissioner up tomorrow

The Freedom of Information Amendment (New Arrangements) Bill is listed as the first item in the Draft Legislative Programme for the Senate tomorrow 2 December, but it's helter skelter week there with only a few days before parliament rises for the year. How the timetable looks tomorrow after a long list of speakers today on the government's higher education reform bills is anyone's guess.

Labor and The Greens remain staunchly opposed. Contact with the crossbenchers has been encouraging. 

The government may decide to hold the bill back until later in the week, or preferably later, later, later..........

Abolishing the Office of Australian Information Commissioner without proper inquiry didn't make sense when announced on Budget night in May. 

The government has produced nothing to advance the case for this retrograde step since. 

Meanwhile Labor speakers and The Greens Adam Bandt in the House, the Bills Digest, submissions to the Senate Legal and Constitutional Affairs Legislation Committee, testimony at the public hearing and the committee's report ( other than the two pages the three government senators take to brush aside the evidence) all outline compelling reasons why the bill should be defeated.

To those anxious open transparent and accountable government supporters who have been in touch with me from Canada, the US, UK and elsewhere, common sense is in with a chance in the Australian Senate this week.

Friday, November 28, 2014

Bill to abolish the Office of Australian Information Commissioner, it's yea or nay on Tuesday

The Freedom of Information Amendment (New Arrangements) Bill is now listed for debate in the Senate on Tuesday 2 December. 

Labor and The Greens strongly oppose the bill. 

So do most on the outside who are aware of its content which is retrograde not beneficial for the open transparent and accountable government cause. 

The crossbenchers who will determine its fate have been receptive to the points many of you have made along these lines through phone calls, tweets and emails to their offices over the last few days. Thanks to all those who sprang into action. Not too late for others-contact details here.

Let's hope the nays have it on Tuesday.

Thursday, November 27, 2014

World Bank: "Information Commissions play a crucial role in guaranteeing the right to information"

As the Australian Government moves to abolish the position of Australian Information Commissioner (I hear that a vote on the FOI amendment bill is likely to be deferred from today Thursday to next week, the final week of sittings for the year) and continues to consider whether to proceed or not proceed with a notice of intention to join the Open Government Partnership, Jeff Thindwa, Practice Manager Governance and Inclusive Institutions at the World Bank, writes about the importance of both outlining how accountability institutions such as Information Commissions "play a fundamental role in advancing government openness" and initiatives "such as the Open Government Partnership should deepen engagement with them." 

Presumably the Executive Director for Australia at the World Bank in Washington is happy about the support the Bank gives to "the strengthening of Information Commissions for effective access to information legislation implementation.." 

Meanwhile in Canberra....

Wednesday, November 26, 2014

Will government succeed and abolish OAIC or the ALP, Greens and a coalition of common sense prevail?

The Senate Legal and Constitutional Affairs Legislation Committee Report (pdf) on the Freedom of Information Amendment (New Arrangements) Bill tabled yesterday is unfortunately predictable, in line with other recent Senate committee reports on contentious government legislation.

It canvasses and reasonably accurately summarises the many issues and concerns raised in some but not all submissions, none of which are countered by information or analysis that supports the government view that the bill is somehow a step forward. 

All the evidence and expert opinion from outside government circles is that it is a step in the opposite direction.

But this didn't stop the committee's three government members, two of whom didn't make it to the one hurried public hearing, waving the bill through, recommending only a change to overcome to a degree problems arising from the proposed relocation of the Privacy Commissioner in the Australian Human Rights Commission. Oh and recommending that the government respond to the Hawke review "as soon as possible' and undertake some consultation while they are at it. The Chair Senator Ian Macdonald had been more direct and probably accurate at the hearing when he expressed the personal view it was only about trying to save $10 million over four years and nothing else.

 The two Labor and one Green senators in similar dissenting reports recommend a vote to reject the bill, call on the government to fund the OAIC and to undertake a comprehensive review or at least a review the OAIC. They point out:
  • Proper process requires comprehensive review first, action second, not the other way round.
  • The cost savings are questionable and the measures involve significant cost -shifting to applicants who will now have to pursue an expensive formal appeal process instead of a free and accessible non litigious one. No evidence was received that AAT review would be faster than review by the OAIC-the main plank in the government's case for change.
  • No one was consulted beforehand and support for the bill was virtually non existent in more than 30 submissions to the committee.
  • The current system of management of FOI and related information policy through an independent information commission is best practice as seen in a global trend in comparable jurisdictions and in four Australian states.
  • Oversight of FOI–a system designed to hold executive government to account – will now be led by a core government department, a clear conflict of interest.

The Bill comes on for debate in the Senate on Thursday 27 November. 
With Labor and The Greens opposed, its fate is in the crossbenchers' hands. The Government needs the support of six of eight.

I spoke to their offices in the last two days-except that of Senator Muir where no one answered the phone.

In all cases they were interested in what I had to say: that the legislation is retrograde not beneficial and if passed will be a giant step backwards for the open, transparent and accountable government cause when excessive and unnecessary secrecy is painfully evident.

If you feel similarly, I urge you to contact any or all of the following today:
Ring- simply say you wish to talk to someone there about the freedom of information bill currently before the Senate, and make as few or many points as you wish.
Tweet: hashtags #OAIC. #Auspol #FOI
Senator Day
(02) 6277 3373
twitter @senatorbobday
Senator Madigan
(02) 6277 3471
twitter @SenJJMadigan
Senator Xenophon
(02) 6277 3552
twitter @Nick_Xenophon
Senator Leonhjelm
(02) 6277 3054
twitter @DavidLeonhjelm
Senator Lazarus
(02) 6277 3204
Senator Wang
(02) 6277 3843
Senator Muir
(02) 6277 3040
Senator Lambie
(02) 6277 3063

      Who knows- common sense anyone?

      Monday, November 24, 2014

      FOI amendment bill wishfully or wrongly listed as non contentious

      The Draft Legislation Programme  for the Senate this week lists the Freedom of Information Amendment (New Arrangements) Bill for Thursday 27 November under the heading "Non controversial legislation-to be confirmed."

      I have it on good authority this is either wishful thinking on the government's part or a mistake after the program was discussed between party whips.

      Labor is opposed; The Greens are opposed; and my conversations with staffers in crossbench offices today suggest they see the point -  the legislation is retrograde not beneficial to those who may use the act, and more broadly a set back on the long journey towards open transparent and accountable government.

      The government needs four six of eight crossbench votes for the bill to pass.

      If you have time for a brief "I want to let you know that I hope the senator votes against this bill" or something even stronger, the phone numbers are here.

      The Senate Legal and Constitutional Affairs Legislation Committee is scheduled to report on the bill tomorrow 25 November.

      Voice up about the government bill to abolish the information commissioner

      Add Professor AJ Brown of Griffith University to that group urging the Senate not to vote to abolish the Office of Australian Information Commissioner. 

      Writing in The Conversation about what was achieved on the anti-corruption front at the G20 Leaders Summit and what still remains to be done, Professor Brown asks can we do better?
      Can Australia, or the G20 as a whole, do better than this? The answer is we must. Why would Australia not also show its leadership by completing the decision to join the Open Government Partnership? Or announce that it intends to become a full member of the Extractive Industries Transparency Initiative, another international mechanism endorsed and encouraged by the G20? Or back its commitments to transparency with a positive blueprint for open data and citizen rights to information, rather than abolishing the Office of the Australian Information Commissioner as is currently underway?  Or say how it intends to clean up its own “know your customer” requirements and enforcement, under the new beneficial ownership principles? All these issues signal what many average citizens fear – there’s a huge gap between the rhetoric of leaders and the reality of their governments’ actions."

      Contact a crossbencher today about the Freedom of Information Amendment (New Arrangements) Bill, up for a vote soon- the bill is not a step even vaguely in the right direction.

      Senator Day
      (02) 6277 3373
      twitter @senatorbobday

      Senator Madigan
      (02) 6277 3471

      twitter @SenJJMadigan

      Senator Xenophon
      (02) 6277 3552

      twitter @Nick_Xenophon

      Senator Leonhjelm
      (02) 6277 3054

      twitter @DavidLeonhjelm

      Senator Lazarus
      (02) 6277 3204

      Senator Wang
      (02) 6277 3843

      Senator Muir
      (02) 6277 3040

      Senator Lambie
      (02) 6277 3063