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Tuesday, September 22, 2015

A 21st century government needs to move on from one stuck in the 19th when it comes to openness and transparency

At the swearing in of the Turnbull Ministry yesterday the Prime Minister told the Governor General
Your Excellency, today we are ... forming a government for the 21st century. A ministry whose composition and focus reflects our determination, to ensure that Australia seizes the opportunities of this, the most exciting times in human history. 
The Prime Minister repeated these descriptors a number of times over the last few days. He has also talked about his "wonderful new Cabinet, with brilliant younger people."

A government wishing to be seen in these terms will want to ditch the 'at war with transparency' tag that the Abbott government seemed to wear with pride. (Update: some movement underway)

The PM has said we need a new type of leadership and a government that is open and engaged.

I don't expect this means a burst of transparency regarding 'on water' activities, but an early move on two related fronts would evidence the good intent.

The Abbott government attempt to legislate to abolish the Office of Australian Information Commissioner and in the meantime defunding its FOI and information policy functions, and the non decision after two years about joining the Open Government Partnership represent 19th not 21st century thinking.

Withdrawal of the bill and announcement of a decision to join the OGP would pave the way for development of a national action plan through consultation with civil society as required by OGP rules. The plan would list concrete steps to improve transparency, open government and public participation- objectives the Turnbull government wishes to achieve.

Once the bill to  abolish the OAIC is laid to rest some thought can be given to evidence and changing times. The plan might identify the need for a comprehensive review of information access issues including scope to move Freedom of Information law into the digital open data era and improve efficiency and effectiveness within agencies and at the OAIC if the evidence suggests. 

In a conversation in July Mr Turnbull showed interest in such a review (see below).

The Prime Minister is clearly up also for changing direction when its the wrong way to go, telling ABC radio
When governments change policies, it's often seen as a back flip, or a back-track, or an admission of error. That is rubbish. We've got to be agile all the time. if you can't get something through the Senate, it is, I would say it's highly possible that you could change it to something that will get through the Senate. This is what John Howard calls the iron laws of arithmetic.
I had an opportunity to discuss FOI and the OGP with Mr Turnbull, my local member of paliament in July. These are emails exchanged at the time.

On 13/07/2015, at 2:05 PM, Turnbull, Malcolm (MP) wrote:
Dear Peter

Thanks for taking the time to get in touch.

I’ll go through the information you’ve provided – it certainly was a great opportunity to discuss such a broad range of issues.

Great to chat and thanks again for the follow up. I will report back.




From: peter timmins ..
Sent: Monday, 6 July 2015 11:33 AM
To: Turnbull, Malcolm (MP)
Subject: ....Meeting Follow on

 Mr Turnbull,
Thank you for the opportunity to ask about a range of issues with you at ... on Friday and for your responses.

This is a follow up on two matters raised, FOI and the OGP.

You expessed an interest in the possibility of a thorough ranging review of FOI.

A review by Allan Hawke took place in 2012-13. The terms of reference were skewed, Allan was limited in time and resources, and undertook virtually no research or consultation beyond inviting submissions. His first recommendation was that a comprehensive review-beyond his brief-should be commissioned.

Attorney General Brandis has referred to the report publicly but no action has been taken on any of the matters raised. The only government initiative on FOI  was the 2014 budget announcement and the introduction of legislation to abolish the Office of Australian information Commissioner, not  action recommended by Hawke who said the OAIC was doing a good job. (On another issue you mentioned on Friday, frank and candid advice, Hawke dismissed agency concerns about the adequacy of protections.)

The bill has been in the Senate since October and not brought forward for a vote because of the absence of a majority in favour.  Labor, The Greens and most cross-benchers are opposed. So are those familiar with this area who managed a submission to a senate committee in the five working days allowed late last year.

The bill does away with independent statutory oversight and leadership for open, transparent government, a flaw in the pre 2010 FOI regime recognised as long ago as 1995 by the ALRC; abolishes non-litigious free external merits review of agency and ministerial FOI decisions and moves this function  to lawyers' territory at the AAT where the application fee for those who do not qualify for a concession is $861 at present ; fractures the synergies established only four years ago between FOI, privacy and broader policy on information management ; and places the attorney general in the position of government wide influence on decision making through the issue of guidelines in the stead of the independent commissioner.

These steps are out of line 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.  

With the axe hanging in the air since May 2014, funds allocated to the office only to December 2014 in last year's budget and 'transitional funding' of $1.7 million for FOI this year, the OAIC continues to carry out FOI functions at a reduced level. The FOI Commissioner James Popple left in December on appointment to the AAT as the OAIC closed its Canberra Office. Information Commissioner John McMillan has left or is leaving to become NSW Ombudsman. No acting or permanent replacements have been announced.

No one up to the job would take on either while the bill to abolish the office still sits on the bills list.

One way out of this would be to pull the bill and establish a comprehensive review, the first step in addressing efficiency and effectiveness and modernising information access including FOI.  Inefficiencies abound at the agency level. And the act reflects the times when the Fraser government introduced it for example providing access to documents not information, with antiquated provisions that refer to computers as we thought about them in the 1980s.There is no mention of data sets ( contracts, grants and much else) in the limited pro-active publication requirements, let alone machine readable formats.


Australia has been dithering about signing on to the Open Government Partnership since Hillary Clinton invited us to be a foundation member in 2011.

There is a sound business case for Australia joining and membership and full participation would be consistent with our foreign policy objectives and development goals.

Sixty four other countries have joined or are in the process of doing so. If Australia "should aim to be the leading digital economy in the world"-I think I'm quoting you accurately- we should be with the movers and shakers in this field. They are all members of the OGP including all nine countries ranked above Australia (10th) in the World Wide Web Foundation Open Government Index 2015-UK, US, Sweden, France, New Zealand, Netherlands, Canada, Norway and Denmark. The grouping overlaps with Francis Maude's D5 that requires its members to belong to the OGP.

In a letter to Minister Cormann last August released under Freedom of Information Prime Minister Abbott said he wanted to see the detail of what Australia might commit to in a national action plan before deciding whether Australia should join the OGP. The letter refers to the need to "give effect to practical measures that align with the Government's overall policy objectives in this area and that take into account the work of the (Redacted: s 34(3) Cabinet) and the timeframes for Government decisions on that work."

Presumably the reference is to the work that led to the establishment of the the Digital Transformation Office earlier this year.

I appreciate the distinction you made on Friday between open data and transparency and accountability through FOI but both are about information access, both require agencies to move away from the default position of  non -release/non-publication, and both have an objective to encourage more public participation. While open data is rich with economic and social development potential it too has an accountability dimension.

The National Action Plan required by OGP membership could provide the opportunity to pull these strands together and to include a comprehensive review of FOI.

However there will be mutterings about our bona fides while the government sticks with the plan to abolish the Office of Australian Information Commissioner.

Thank you again for your time on Friday. Happy to talk to you or your staff at any time.

Best wishes.

Peter Timmins.

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