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Friday, July 31, 2015

Australia going backwards on protection of privacy and information access

At a time when threats to privacy abound including from a federal government that lays claim to a watchdog role to safeguard our right to privacy, a government whose leader before the 2013 election committed to increasing government transparency and accountablity, Australia today has no permanent federal information commissioner, no federal privacy commissioner, and no federal freedom of information commissioner. 

The Office of Australian Information Commissioner established in 2010 to enable the commissioners to carry out their functions with an initial estimate of staff required of 100, now has around 65.

Attorney General Brandis is presiding over the erosion of protections put in place to safeguard the right to privacy and promote and oversight the exercise of the right to access  government information. 

Australian Information Commissioner Professor John McMillan resigned today to become NSW Ombudsman.

(Open and Shut joins the OAIC in expressing thanks for his many years of service to FOI and other causes, in and outside government.)

Freedom of Information Commissioner Dr James Popple departed in December 2014 to take up an appointment to the Administrative Appeals Tribunal and was not replaced.

Privacy Commissioner Timothy Pilgrim's five year appointment expired on 19 July. No one has been appointed to fill the position. Pilgrim was appointed Acting Australian Information Commissioner for three months.

As passed by Parliament, the Australian Information Commissioner Act established the OAIC consisting of three information officers: the Information Commissioner, the Freedom of Information Commissioner and the Privacy Commissioner. The functions of the commissioners are set out in sections 7, 8 and 9, and reproduced below.

Something Some - many- things functions cannot be carried out by one commissioner instead of the three legislated by parliament in an office with a reduced staff compliment as a result of budget allocations in the last two years.
Parliament has not passed the government's bill to abolish the OAIC.

The bill has been before the Senate since October 2014 and not brought on for a vote because there is no majority in favour.

Tim Smith QC of Accountability Roundtable and a former judge of the Victorian Supreme Court in correspondence with Attorney General Brandis about the FOI cutbacks submits the government is seeking to achieve its goal through non legislative means, ignoring its obligation to give effect to the law as it exists, a duty that remains until such time as Parliament rescinds the Australian Information Commissioner Act:
not only are the OAIC’s major statutory functions not being performed as intended and legislated by the previous Parliament but the statutory office created by that Parliament can no longer be described as existing. In particular, the evidence available points to the deliberate removal of the funds needed by the OAIC to discharge its statutory FOI functions including its central and critical overarching statutory responsibility to independently monitoring, supervising and guiding the FOI system, and advising the government,  Further, the Government has chosen to pass those responsibilities to one of its Departments.
If one accepts that analysis, why does it not follow that the Government’s actions are a repudiation of its duty? Why does it also not follow that the Executive Branch of our Government is repudiating its obligations to respect, carry out and maintain the laws of the Parliament, the Constitution, the Rule of Law and the Separation of Powers?
The same points could be made about the reduced capacity to conduct the information and privacy functions of the office.

Even broad shouldered Timothy Pilgrim cannot carry out the statutory functions in addition to those that fall to him as chief executive of the office. 

You, me and citizens generally are the losers.

Wednesday, July 29, 2015

ANZSOG Conference 'Opening Government' a real steal

Registration closes Friday for The Australian New Zealand School of Government (ANZSOG) Conference 2015 in Melbourne next month:
Opening Government Transparency and Engagement in the Information Age-40 speakers 2 days The 1 Event You Can't Afford to Miss" 
Sounds great. 

If you (or your employer) can afford it.

$2395 for the full package, whew! 

The program is jam packed with public servants, former public servants now consultants and academics but few if any sign of citizens, journalists and others who sit on the other side of the open government, transparency and engagement tables. Whether the eventual audience made up of those who can afford it will be more diverse, who knows.

I'd love to be a fly on the wall for
Too much information?’: FOI’s defenders meet its critics chaired by Senator The Hon Scott Ryan, Parliamentary Secretary to the Minister for Education & Training, featuring Andrew Metcalfe a long time one time Secretary of the Department of Immigration and Dr Suelette Dreyfus: How important is the right to know what is happening inside our governments? Has freedom of information gone too far or should new information technologies be seized on as an opportunity to do more? Speakers in this session will offer different views about the flow of information between governments and citizens;

The open data sessions.

And the final wrap featuring Jane Halton Secretary of the Commonwealth Department of Finance and Blair Comley Secretary of NSW Premier's: Transparency and Engagement in the Information Age - Implications for public servants Senior public sector leaders discuss how administrations across Australia and New Zealand are adapting to the information age. How well are we preparing for and leading our public servants into the new world of open government?

Terrific if people are talking about such things. But alas, I'm living in a new age of limited entitlements. 

Tuesday, July 28, 2015

Challenge to refusal to release incoming government brief will see "Frank and Candid" put to the test

In a Freedom of Information review application in the Administrative Appeals Tribunal today, Shadow Attorney General Mark Dreyfus QC challenged the Government's refusal to release the Incoming Government Brief Attorney-General Senator Brandis received from his department on taking office in 2013.

The AAT challenge comes 12 months after Australian Information Commissioner Professor John McMillan substantially upheld the AGD decision to refuse access to the brief (Parnell &  Dreyfus). At the time he used similar reasoning (Crowe) to refuse access to unreleased parts of the brief prepared in 2010 for then incoming Prime Minister Gillard. 

It's an important opportunity to test the public interest arguments accepted in those decisions - see my comments at the time - as "Frank and Candid" have since become some FOI decision makers' best friend.  

Attorney General's in this example managed to soak up sixteen months with "Frank and Candid" arguments before releasing most of the document when challenged. By that time it was three years old. There are plenty of others.

 Justice Annabelle Bennett, Deputy President of the AAT, is hearing the application.

I'm sure Deputy President Forgie's monumental decision (in pre 2010 reform days) and sceptical examination of "Frank and Candid" in McKinnon v Secretary Prime Minister and Cabinet [2007] AATA 1969 won't escape attention.

The Media Release from Mr Dreyfus says:
"(Incoming Government Briefs) set out the policy challenges faced by a new government and advise on how the government can go about implementing its agenda. These briefs provide an important overview of the state of the nation at the time the new government takes office and help inform public policy debate", said Mr Dreyfus.

"Labor published IGBs from a range of agencies after the 2010 election and also released incoming Attorney-General’s briefs in 2012 and 2013. Public debate should be informed by the expert advice of government agencies which their taxes pay for. Honest governments have nothing to hide."

The Abbott Government refused Mr Dreyfus' FOI request for the Attorney-General's Department's IGB. It continued to resist disclosure through a review conducted by the Information Commissioner, forcing Mr Dreyfus to go all the way to a contested hearing in the AAT.

The principle of open government the FOI Act upholds was reinforced by amendments made in 2010. These reforms should be respected by the current Government as an important part of upholding the rule of law."said Mr Ben Slade, partner at Maurice Blackburn, whose firm represented Mr Dreyfus in the AAT.

"Unfortunately, Senator Brandis is openly hostile to FOI laws", said Mr Dreyfus.In Senate Estimates in November 2013 the Secretary of his Department admitted that the Government was taking a "hardball" approach to disclosure. Senator Brandis has also sought to abolish Australia's independent FOI watchdog, the Office of the Australian Information Commissioner. Though the necessary legislation has stalled in the Senate, Senator Brandis has imposed harsh budget cuts on the body and refused to appoint new statutory office-holders to the Office, which will soon be completely vacant.

Sunday, July 26, 2015

ALP National Conference 2015: Open and Accountable Government

Extracts below from the Draft National Policy (Chapter 10 Strong Democracy and Effective Government) that went to the 2015 National Conference in Melbourne in recent days, 

The draft includes a commitment to develop and implement a national anti-corruption plan but settles for a review rather than the establishment of a Federal anti-corruption commission; introduce private sector whistleblower protection; preserve and strengthen the Office of Australian Information Commissioner; fulfil Australia’s commitment to join and participate in the Open Government Partnership; and review the operation of Freedom of Information. 

Not much on political donations beyond generalities and requiring disclosure over $1000,even less on the hot topic of privacy and nothing I can see on other subjects of interest such as open data, lobbying or parliamentarians' entitlements. 

On the last mentioned couldn't help but be amused/alarmed/appalled that former minister responsible for such things in ALP governments Gary Gray is reported to have said the system isn't broken. While warranting a tick for some reforms during his time in charge, a pity he wasn't asked about the Belcher Committee recommendations and his contribution to sidelining the important ones for years. Gray while special minister of state in 2011 thought that lobbying rules were just fine and dandy as well!

Yet to see what came out the other end of national conference deliberations.
(Update 29 July: I understand there were no changes to the extracts from Chapter 10 below but the final document is yet to appear.)

Let's hope Labor support for specified sensible steps in the right direction doesn't have the effect of reinforcing Liberal/ National party opposition while they run the show.

Friday, July 24, 2015

Australian Information commissioners: names should be put to faceless public servants

Only Silence-Wikimedia Commons
Decisions by the Australian information commissioners should bring to a halt the widespread agency practice of deleting as irrelevant (s 22) names of public servants below Senior Executive Service rank contained in documents to be released in response to a Freedom of Information application; and deletion of the name regardless of rank on the basis of the personal privacy exemption (S 47F) where it identifies an officer simply carrying out public duties. 

Then again as public servants observe the government's two pronged ongoing attempt to force closure of the office and return the FOI guidance function to the Attorney General's Department, I wouldn't bank on it.

In April in ‘FM’ and Department of Foreign Affairs and Trade [2015] AICmr 31, an attempt on behalf of David Hicks to obtain documents relating to an aspect of his confinement at Guantanamo, Australian Information Commissioner Professor John McMillan said [14]:
There is no apparent logical basis for treating the names of SES officials as being within the scope of a request but of other officials as being irrelevant to the request. Nor, as I have noted in the Guidelines (6.138-141) will the disclosure of the name of an official performing their public duties usually be regarded as an unreasonable disclosure of personal information under s 47F.
    In GF’ and Department of the Treasury [2015] AICmr 47(7 July 2015) Privacy Commissioner Pilgrim recounts that Treasury decided to treat the names, email addresses and other contact details of public service officers as irrelevant to the request,informing the applicant[10]:
    "We will provide you with the designations (for example, Analyst, Senior Adviser, Manager) of authors and addressees of documents in the schedule of documents accompanying the decision letter so that their relative seniority is known.
    Commissioner Pilgrim said

    1. In my view, there is nothing in the request that indicates the applicant considers the names and contact information of public service officers irrelevant to the request. Rather, it appears that the Department simply decided that it will release the designation of officers, but not their names and contact details. 
    He went on to cite the FM decision.

    Treasury in addition claimed as exempt on personal privacy grounds the name of the Australian Government Solicitor Special Counsel Litigation. Commissioner Pilgrim said
    35. ..the Department have not submitted any specific reason why it would be unreasonable to disclose this information. Further, the AGS website provides key information, including photographs and telephone numbers for a number of its Special Counsel and other officers. Consistent with the Australian Information Commissioner’s views expressed in ‘FM’ and which I discussed above at [12], and the absence of any specific submissions from the Department giving reasons why disclosure of the Special Counsel’s name would be unreasonable, I am satisfied that the Department has not met its onus under s 55D of the FOI Act of establishing that document 2 is exempt under s 47F.
    As mentioned in this gripe last year the usual practice in many agencies is to advise the applicant before processing the application that the names of non SES officers in documents will be treated as irrelevant, and seek the applicant's agreement. Usually most applicants will shrug at this point and say yes in the often forlorn hope this will reduce bones of contention. I cited personal experience where the government's preferred guidance setters on FOI, the Attorney General's Department, deleted names with absurd results that those who have carriage of important public policy matters are protected from disclosure for no reason at all.

    In the usual case the names of public servants carrying out public duties should be disclosed when sought although intimidation, harassment or threat to life and safety understandably change the situation. 

    If we need legislative change to get the message through, the Western Australian Freedom of Information Act (Schedule 1 Clause 3) provides a starting point:

    The act provides specifically that matter is not exempt for the purposes of the personal information exemption merely because its disclosure would reveal, in relation to a current or past  officer of an agency, prescribed details relating to the person; the person’s position or functions as an officer; or things done by the person in the course of performing functions as an officer. 

    Prescribed information (Freedom of Information Regulations Clause 9) includes details of the person’s name; any qualifications held by the person relevant to the person’s position in the agency; the position held by the person in the agency; the functions and duties of the person, as described in any job description document for the position held by the person; or anything done by the person in the course of performing or purporting to perform the person’s functions or duties as an officer as described in any job description document for the position held by the person.

    Tuesday, July 21, 2015

    Parliamentarians entitlements-calls for "root and branch review" take us back to the future

    Lots of talk about a"root and branch" review of parliamentarians' entitlements, including on Q&A last night with former Deputy PM Tim Fisher defining the problem as lack of clarity about what is and isn't within entitlement. 

    That's just one of many problems but as the heat hurts and levels of trust and confidence go through the floor politicians can blame themselves and their leaders for not sorting this out years ago.

    The history of the last such review is set out in the Auditor General's Report on travel entitlements (Chapter 2) tabled in June as Parliament rose for the winter break. 

    It's a long sad story of delay and failure by successive governments and parliaments to step up to the plate on recommended reforms to the system.

    Pass the parce
    Four years ago I described it as a case study in slow motion and it hasn't picked up speed since.

    The Auditor General raised a red flag about the system as long ago as 2001-02. There were more red flags in a report in 2009 that led/forced the government in September that year to commission you guessed it, a "root and branch review." 

    The resulting Belcher Inquiry and Report was the first comprehensive review of federal parliamentary entitlements in over 35 years.

    The Labor government received the report in April 2010, held it for a year before releasing it, then acted on two of the 37 recommendations with minister Gary Gray sending the rest off to the Remuneration Tribunal. 

    Fundamental reform ignored
    Five years on according to the Auditor General something, not always what was recommended, has been done with regard to 17 of the 39 recommendations. But 
    "there has been no formal government response to the recommendations of the CROPE (Belcher) report, or subsequent Remuneration Tribunal report, in relation to fundamental reform of the legislative and administrative framework underpinning the provision of Parliamentarians’ ‘tools of trade’." 
    That applies to the Parliamentary Entitlements Amendment Bill 2014 , a bill in the Senate since October 2014 and the subject of this Senate Committee report. The Auditor General said  
    "the measures included in the Bill do not address the overarching structural inadequacies of the existing non‐remuneration entitlements framework that have been consistently highlighted in independent reviews and commentary."
    Proposals in the 2015–16 Budget for further amendment to existing entitlements, yet to be further advanced, don't do it either. The Auditor General:
    "The Budget proposals in themselves do not address the need for the more extensive reform that has been highlighted by earlier independent reviews. In the absence of such reform, Parliamentarians’ entitlements will continue to be provided through a patchwork framework that has been the subject of only limited enhancements. As a consequence, there will continue to be:
    • a lack of transparency as to the particular purposes for which entitlements have been accessed, which can be expected to give rise to continued concerns that the framework is providing greater latitude to Parliamentarians in their use of public money than might be expected in the public interest; and
    • a heightened risk of Parliamentarians being criticised for the judgements they individually make in relation to whether a particular use of publically funded resources was within the terms of the relevant entitlement and represented an efficient, effective, economical and ethical use of public resources."
    Public service advice
    It's not for want of trying by the public servants involved.

    The Auditor General reports the Department of Finance has run the issue up to incumbent special ministers of state to no avail, first in September 2011 and most recently in November 2013 in briefs that presented a proposed legislative framework reflecting the Belcher committee's recommendations. Ministers didn't buy in. 

    Other weaknesses and gaps
    Apart from the absence of "a consistent, simple and transparent framework for providing Parliamentarians with the ‘tools of trade’ required to undertake their respective duties"
    other weaknesses and gaps in the system include:
    • none of the Belcher "recommended additional measures to further enhance the public disclosure of entitlements expenditure have been implemented." "A November 2013 departmental proposal to the (Special Minister of State Ronaldson) that there would be merit in providing more timely, and potentially more detailed, public reporting on entitlements expenditure has also not been actioned." (Katherine Murphy in The Guardian on why its time to get serious about disclosure for political donations, lobbying activity and the use of parliamentary entitlements:"Corporations are required to operate in a system of continuous disclosure. So should politics." Amen to that.)
    • payments by the parliamentary departments, not Finance, to for or on behalf of senators and members are not published and parliamentarians voted to exclude the parliamentary departments from the FOI act (My gripe, not Belcher or the AG);
    • there is no link between public declarations of interests and travel and other use of entitlements, and no single site searchable database of all we should know about our parliamentarians (ditto);
    • the expenditure by departments in support of members of parliament who are ministers is not published (ditto);
    • certification of all usage in a given six month period that expenditure was in accordance with the entitlement "remains a voluntary process with variable levels of adherence by Parliamentarians." The Auditor General doesn't name two parliamentarians who haven't certified expenditure for any of the five six month periods since the requirement was introduced. (The published lists reveal a blank for every period against the names Senator Stephen Conroy and Senator Bob Katter.)
    • the scope of eligible entitlements and what would and would not be publicly funded is yet to be clarified; 
    • definitive advice isn't available about the terms "parliamentary, electorate and official business" that are are used as eligibility criteria for over 50 entitlements. Finance does provide some advice when sought by parliamentarians and staff. However ASKMAPS, an advisory service commenced operations in August 2011. According to the Auditor General, as a result of low uptake Finance decided to cease the service in October 2012 as a savings measure.
    • some entitlements including travel are subject to ‘conventions' that have no legal basis for example publicly funded travel by incumbents during election campaigns up to the point (usually at the end of the campaign) of the leader's policy launch.

    Bronwyn Bishop's charter charges are now being investigated by the Department of Finance in accordance with the Minchin Protocol. The Protocol remains as drafted in 1998. 

    The Auditor General notes it "has been long recognised that the document itself would benefit from amendment to ensure its terms transparently reflect actual practice in dealing with allegations of entitlements misuse, which is not currently the case; and enhance its efficacy as an accountability governance document."

    What odds an announcement soon of another root and branch review?

    Friday, July 17, 2015

    Parliamentarians perks- accountability framework full of holes

    Adam Gartrell in Fairfax Media has shown what can result from digging into the report on expenditure against entitlements by Parliamentarians, former Parliamentarians and surviving spouses or de facto partners of former Parliamentarians published by the Department of Finance. 

    The bald disclosure by Finance that Speaker Bronwyn Bishop spent $5227 for a chartered helicopter flight from Melbourne to Geelong (well, and return) turned into a journalists delight when Gartrell discovered the expenditure was to attend a Liberal party function. It's since become a cartoonists bonanza and worse for Ms Bishop.

    How many other scandalous uses of taxpayers money are hidden away in the small print of "Official Business" we won't know until Gartrell and others do the digging.

    But as to the big picture: 

    Nothing close to real time disclosure
    Information about use of entitlements administered by Finance is published every six months. 

    The current spate of interest in Ms Bishop, Opposition MP Ken O'Dowd claimed public money to attend rugby and a few others relies on the latest report, for the period 1 July 2014-31 December 2014. Some of the expenditure was incurred a year before recent publication. 

    The information is published at the government's discretion and is not underpinned by legislation. 

    There is no link between the official parliamentary websites of members and senators (at and details of their entitlement expenditures published by Finance.

    No comprehensive reporting 
    Finance reports on domestic travel, car costs, overseas travel, Travelling Allowance, office facilities costs, office administrative costs and family travel and car transport costs as advised by other Departments in respect of Ministers, Parliamentary Secretaries, the President of the Senate and the Speaker of the House.
    However other entitlements of members and senators are paid by the relevant parliamentary department, the Department of House of Representatives or the Department of the Senate. These include salaries and electorate allowances, additional salaries and support provided to parliamentary office holders, superannuation entitlements, resettlement allowance payments, and services and facilities to support parliamentarians in Parliament House including the cost of office accommodation, computing and other equipment, telephones, newspapers and stationery. 

    None of these payments are published and can't be accessed under FOI because parliament exempted itself from the act in June 2013.

    Nor are the costs of departmental support for Ministers and Parliamentary Secretaries including for official hospitality.

    Reform ignored 
    Australian National Audit Office Report: Administration of Travel Entitlements Provided to Parliamentarians 2015 (emphasis added)
    "The conduct of an independent ‘root and branch’ review of Parliamentarians’ entitlements following the completion of ANAO’s 2009–10 audit report gave some cause for optimism that improvements would be made to the entitlements framework and its administration. However, fundamental weaknesses in the framework remain. Principally, this is because independent recommendations for substantive legislative and administrative reform developed to simplify current arrangements and safeguard the interests of the Commonwealth and Parliamentarians, or alternative measures to address recognised fundamental issues with the framework, have not been actioned. As a result, the framework under which Parliamentarians’ non-remuneration entitlements are provided has continued to be complex and opaque, with travel entitlements recognised as representing one of the areas most affected by those factors.

    Public interest in disclosure
    Australian Information Commissioner Professor McMillan in AK
     where an unnamed member battled to prevent disclosure of information by Finance and Deregulation about use of entitlements:
    Parliamentary entitlements are publicly funded, administered and scrutinised. There are strong public interest considerations that support transparency concerning these matters, and in particular, transparency concerning whether there has been compliance with government guidelines. Members of Parliament would reasonably expect public scrutiny of their use of Parliamentary entitlements occurring at any time during their Parliamentary career.
    Things in the states are worse
    Virtually nothing is published other than in annual reports.
    Just recently the NSW Auditor-General found that 22 MPs did not complete an annual Declaration stating that benefits accrued from loyalty/incentive schemes, as a consequence of using their allowance and entitlements, were used only for Parliamentary duties and not for private purposes. None were named.

    Follow the Scots:  
    Simplification and transparency along the lines of a single site monthly online publication of details of all payments and expenditure are what is needed. Putting it up on the internet and making it searchable by member along the lines of this Scottish Parliament system would be a step in the right direction.

    Wednesday, July 15, 2015

    Broad shoulders as Privacy Commissioner appointed acting Australian Information Commissioner

    The Office of Australian Information Commissioner announced on15 July that Privacy Commissioner Pilgrim will be acting Australian Information Commissioner from 20 July. 

    With one commissioner the OAIC will continue to function following the departure of Professor McMillan. 

    Well, at least as well as one commissioner can do the work that parliament thought needed three. 

    No media statement so far from the Attorney General who has been busy today announcing the appointment of the Chair of the National Library of Australia Council.

    Monday, July 13, 2015

    Office of Australian Information Commissioner can't run on empty.

    David Donaldson in The Mandarin OAIC to be left without statutory officers reports, well silence so far, on what will happen at the Office of the Australian Information Commissioner after its two remaining statutory officers depart this month, "fueling speculation the government is abolishing the body by stealth." 

    (Update: Announced on15 July that Privacy Commissioner Pilgrim will be acting Australian Information Commissioner from 20 July, so the OAIC will continue to function. Well sort of-one commissioner to do what the parliament thought needed three.)  

    Freedom of Information Commissioner James Popple, left in December 2014 on appointment to the Administrative Appeals Tribunal; the term of office for Privacy Commissioner Timothy Pilgrim expires on 19 July; and Australian Information Commissioner Professor John McMillan departs on 31 July to take up an appointment as NSW Ombudsman. 

    Without at least one statutory officer, permanent or acting, the FOI review function cannot operate. An application to the OAIC is a mandated first external review step for most before a matter can taken to the AAT. The review function or the decision to wave it through to the AAT rests with a commissioner. These functions cannot be delegated.

    The government plan to abolish the OAIC by legislation that has sat in the Senate for eight months.The bill does not enjoy majority support.

    The 'good government' apostles on the government benches have spent a year on this ill conceived journey that would take the cause of open, transparent government backwards.

    No one outside the tight circle within which the Attorney General, his cabinet colleagues and perhaps some senior public servants move think this is a step in the right direction. 

    None have clarified the problem they seek to solve, or engaged with anyone outside the parliamentary triangle on how best to address it. 

    Abolishing the office is out of step with prevailing 'good practice' in all peer group countries and with the systems operating in Queensland, NSW, Victoria, WA, the ACT, Northern Territory and Tasmania.

    It's well overdue time for a rethink.

    Pull the bill and set about some evidence based thinking how to streamline and modernise access to government information including the FOI act and implementation practices.

    Outdated provisions in the FOI act, and inefficiencies and outmoded approaches to implementation abound.

    I doubt if abolishing the OAIC would rank anywhere in a long list of initiatives likely to come out of such an exercise.

    In the meantime and pronto, the government needs to announce how the OAIC will function after the last commissioner readies to turn out the lights. 

    Lax rules boost risk of organised crime snaring government contract

    From The Conversation
    Louis de Koker, Deakin University and Kayne Harwood, Deakin University

    Four Corners this week revealed more about how criminals may be able to access political favour via political donations in Australia, but that is only part of the picture.

    New research suggests more work needs to be done to prevent criminals from subverting government procurement processes and funding their illegal activities by winning tenders to supply goods and services to the government.

    How to make crime pay 

    There are many ways for a criminal to secure a tender. He may receive favourable treatment at the tendering process after a generous political party donation. She may bribe or intimidate a politician or procurement official. Procurement officials may award the contract to a business not knowing that it is controlled by criminals. Criminals may, of course, also gain such control of a supplier after the contract is awarded.

    The risk of criminals controlling businesses is real. The Australian Crime Commission’s May 2015 Organised Crime in Australia report identified the abuse of legitimate business structures as one of the key enablers of organised crime in Australia.

    Sole proprietorships, companies and trusts are, for example, used to hide who owns and controls a firm. Such business structures can also be abused to fund crime and and launder the proceeds of crime – or even facilitate terrorist financing. The US Special Inspector General for Afghanistan Reconstruction investigated US Army procurement practices in Afghanistan and found more than US$150 million in contracts had been awarded to companies with ties to terrorists.

    In an effort to disrupt the money flows of criminals and terrorists, governments worldwide have adopted laws based on standards set by the Financial Action Task Force, an inter-governmental body that aims to combat money laundering and terrorist financing.

    A key plank of the standards requires countries to compel banks to adopt “know your customer” due diligence practices to identify criminals and keep their transactions out of the banking system. Banks must take reasonable steps to identify and verify all customers and controllers (called beneficial owners) of customers. To guard against laundering risks linked to corruption, they must also identify customers who hold senior public offices (so-called Politically Exposed Persons), their family members and close business associates. Identity particulars must be verified using reliable, independent source data or documents.
    But do governments apply the same due diligence measures when they do business?

    More to be done

    We conducted a study, recently published in the Sydney Law Review, into whether Australian governments take similar care to “know their suppliers”. The procurement spend of Australian governments exceeds A$110 billion per year and presents a rich target for criminals.

    We focused on the type of identification and verification measures that a range of Australian government departments and agencies undertake in relation to prospective contractors.
    In general, we found that standard procurement practices fall well below the standard of the “know your customer” checks required of banks.

    General government procurement practices, for example, do not consistently identify the directors and the controllers of corporate suppliers. It is not routine for procurement officials to check consistently if tender candidates have a criminal history or whether they are controlled by public servants or serving politicians.

    Suppliers are not generally checked against blacklists maintained by other governments or the World Bank or even against Australia’s own foreign sanctions list.
    Where information is collected, it is generally not independently verified. In essence, the government accepts the word of the supplier.

    Reducing risk

    Such practices expose Australian public procurement to criminal risk. Australia has been rocked by enough procurement scandals to show that there is little justification for complacency.

    Victorians recently witnessed the very public picking apart of the Department of Education and Training, as stories of Nino Napoli diverting public funds through dodgy contracts hit the headlines.

    And earlier this year, charges were laid against nine people following an investigation into alleged serious corruption in the transport sector. That case focused on the procurement of infrastructure works at Public Transport Victoria and the former Department of Transport.
    In NSW, ICAC’s inquiries into former ALP minister Eddie Obeid turned up various cases where he is alleged to have attempted to influence decisions of public officials favouring certain companies, without disclosing his or his family’s interests in those companies.

    Headlines such as these saw Australia falling out of the top ten countries in Transparency International’s annual global Corruption Perceptions Index.

    The failure to properly vet suppliers not only increases the vulnerability of procurement processes to corruption and abuse, but also undermines the effectiveness of Australia’s anti-money laundering and counter-terrorism financing laws. It enables criminals to use tax dollars to fund criminal activities and provides them with an appearance of public respectability that may facilitate their access to formal financial and professional services.

    This problem can be fixed. As a starting point, government procurement processes at all levels should be amended to include standardised, risk-based supplier integrity checks.
    Trained procurement officials should be given access to the data that bank compliance officers use to perform their integrity checks on customers. Harnessing the power of Big Data will be crucial in the long run.

    Governments say they have declared financial war on crime, corruption and terrorism but this battle cannot be fought by the private sector alone.

    Governments need to do better, and join the private sector in this battle. The current gaps pose a risk to Australian national security that should not be ignored.

    The Conversation
    Louis de Koker is Professor of Law at Deakin University.
    Kayne Harwood is Casual Lecturer in Law at Deakin University.

    This article was originally published on The Conversation. Read the original article.

    (Comment: The Federal government could do better as well by establishing an anti-corruption commission.) 

    Friday, July 10, 2015

    Voices for action on influence peddling: the only ones missing are those who can make it happen

    Pathetic disclosure requirements for political donations and half baked regulation of lobbying have been known weaknesses and sources of concern for years at all levels of government particularly for the Feds. What we're learning now about the Mafia and about what passes for 'business as usual' in both major parties surely means the time has come....surely?

    ABC Four Corners: The Mafia in Australia
    GEOFFREY WATSON SC, COUNSEL ASSISTING, NSW ICAC: When you look at the (Liberal Party aligned) Millennium Forum website or the way in which it organises functions, the idea is that you would be a donor of a particular value and that would get you so much access, whether at dinners or fundraising events of different kinds. It's access in return for a donation.
    NICK MCKENZIE: It's all about getting the ear of a politician?
    GEOFFREY WATSON: Exactly: and nothing else...
    ..On how many occasions would you see it that a donation was quickly followed by a request to meet a politician? Then ask yourself: why is somebody requesting a meeting with a politician? It's not just to get to know them. It's to influence them as to their decision making. Of course there's a connection.
    Sydney Morning Herald-related article: Glad handing and influence:mafia taking fast track to the powerful:
    The amount of money Madafferi and his associates generated for the Liberal Party is likely to be in the tens of thousands of dollars (records show one Madafferi company donated at least $23,000), although the true figure will never be known because of Australia's opaque fundraising disclosure laws...

    The federal police investigated the Madafferi donations and lobbying, but stated the "nexus between those donations identified and any political leverage could not be substantiated". They were, in part, blinded by Australia's inadequate disclosure regime. Their inquiry, recently obtained under freedom of information laws, warned that police had found "numerous issues relating to the disclosure of donations to political parties". These "issues" meant investigators have limited oversight of who was donating how much, and why.

    Fairfax Media- related article: Political fund raising can't be left to trust

    Our system of democracy relies on transparency. If vested interests can get closer to power by donating money, then the public has a right to know about it.
    Bernard Keane in Crikey on political donations and disclosure 'rules' as revealed at the Royal Commission:
    How bad was Bill Shorten's convenient failure to declare a donation in kind to his election campaign in 2007 from a company? At eight years after the event, it is almost certainly the latest declaration ever. But for $40,000-odd, it's an also-ran. When it comes to our political donation "laws", late declarations and amendments are normal. Political parties routinely get away with declaring hundreds of thousands of dollars in donations years later, long after anyone has stopped scrutinising them. And it's deliberate.....

    So what will almost certainly happen to the existing requirements as a result of Shorten's embarrassment? Nothing. Both recent attempts at improving the Commonwealth donation disclosure laws -- John Faulkner's 2009 effort and then the Gillard government's effort in 2013, when Tony Abbott reneged on a signed bipartisan deal for reform -- have come to nought. And while the media will pursue Shorten for his eight-years-late-and-forty-thousand-dollars-short declaration, the Coalition won't have much to say, knowing that there are likely to be plenty of embarrassing disclosures of its own that might emerge from any thorough examination of what parties are being paid. Instead, we'll be stuck with disclosure laws that border on a joke and leave us in the dark about who is trying to buy influence over our politicians.
    Sean Nicholls in the SMH on funding reform and a Federal ICAC:
    The question mark about influence hanging over both arrangements is another reminder of not only the need for  donations law reform nationally but also the glaring absence of a federal ICAC. Prime Minister Tony Abbott is on the record opposing the move. But last year, NSW Labor gave in-principle support for a federal ICAC-like body and voted to refer it to this year's federal Labor conference. Labor - and Shorten - should embrace the idea and begin pressing the government for action.
    Professor Ian Ramsey, the director of the Centre for Corporate Law at Melbourne University, said new rules were needed to ensure complete transparency:
    "For quite a number of years now, many people, myself included, have really seen significant limitations in terms of our existing disclosure requirements," Professor Ramsey said. "In particular, there are important issues about the transparency, how much is disclosed, and also how quickly that information is disclosed. "Certainly I think there is a real need for improvement."
    Then there's Professor Marian Sawer on The Conversation.

    And Independent senator Nick Xenophon wants changes to political donations to end what he calls a "financial arms race" in Australian politics.

    There are other voices but..

     Nothing so far from those in the leadership positions that count. Plus ca change..


    Monday, July 06, 2015

    Western Australian government rolls over in 'caretaker convention' FOI case without conceding error in the argument

    If you like me were interested in the impact of Caretaker Conventions on Freedom of  Information in Western Australia, save yourself the trouble of looking for the decision by Chief Justice Wayne Martin of the Supreme Court as reported by The West Australian. There is nothing on the Supreme Court or Austlii websites. 

    It turns out there was no hearing and no judgment, simply a consent order lodged by the parties that included the Department of Premier and Cabinet agreeing to orders dismissing its appeal, to setting aside Mr Bluemmel’s ruling, and undertaking to release the documents.

    The department thus accepted that two years of arguing that the documents were held by the Office of the Premier but were not minister's documents subject to the Freedom of Information Act had been prompted by an error in processing that no one seems to have noticed until Information Commissioner Bluemmel pointed it out in his decision.  

    West Australian Newspapers Limited may not have noticed either as it seems to have accepted the matter before the Information Commissioner should be decided on the basis that the documents were held by the Office of the Premier.

    As Commissioner Bluemmel pointed out [70]
    under clause 2(4) of the Glossary to the FOI Act, the Office of the Premier is not to be regarded as a separate agency but is to be regarded as part of the Department of the Premier and Cabinet for the purposes of the FOI Act.
    71.In this case, the complainant initially made and addressed its access application to the ‘Department of Premier and Cabinet’, not the ‘Office of the Premier. That is, the application was for documents held by the Department of the Premier and Cabinet, not the Office of the Premier. On that basis, I consider it is arguable that the issue of whether the disputed documents are documents of a Minister does not arise, on the basis that the disputed documents are documents of the Department of the Premier and Cabinet and, consequently, are documents of an agency within clause 4(1) of the Glossary to the FOI Act
    Ah detail, detail, detail....

    All that complex thinking at taxpayer's expense about the impact of the Caretaker Conventions on the operation of government agencies in the pre election period for nothing apparently although the West Australian's report has a spokesperson pointing out that the Supreme Court had not ruled on this issue. Presumably it has been filed away for future reference.

    The whole business did delay access to the documents for two years but I'm sure
    those behind it wouldn't chalk that up as a partial success.