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Tuesday, July 26, 2016

Sunlight shone on Northern Territory prison practices leads to a Royal Commission

How the damning material in videos about the treatment of young boys in the Northern Territory Don Dale Youth Detention Centre came into the hands of ABC Four Corners is not known but with a Royal Commission to investigate the system all may/will be revealed in due course.


The public record includes The NT Children's Commissioner Don Dale Youth Detention Centre Report to Minister September 2015 pdf that provides details of one of the worst instances of mistreatment but not the videos. 


Almost certainly the video footage wasn't offered up by those responsible for the system or delivered on a plate via the Information Act 2002.


If someone on the inside thumbed through the Public Interest Disclosure Act beforehand he/she would know it provides protections for reporting through official channels but none for public disclosure to the media or anyone else for any reason, falling short of what is regarded as best practice. 


A look further to the Northern Territory Criminal Code Act Schedule 1 Clause 76 would remind that unlawful communication of confidential information could get you three years in another detention centre. 


And there is no available defence to a charge such as absence of harm or the importance of disclosure in the public interest:

Disclosure of official secrets
(1) Any person who, being employed in the public service or engaged to do any work for or render any service to the government of the Territory or any department or statutory body thereof, unlawfully communicates confidential information coming to his knowledge because of such position is guilty of an offence and is liable to imprisonment for 3 years.
 (2) If he does so for purposes of gain he is liable to imprisonment for 5 years. 

A provision in similar terms is S 70 of the Commonwealth Crimes Act.  

Recommendations for repeal and reform first floated in 1991 reinforced in 2009, have been ignored by governments since. 

Review of information access law in NSW grinds on, missed deadline notwithstanding

This post in March commented on the slow, closed door approach to review of open government legislation in NSW and elsewhere.

The NSW Parliament imposes deadlines but they pass... and pass.

The Government Information (Public Access) Act 2009 and the Government Information (Information Commissioner) Act 2009 include a requirement for a statutory review to be undertaken by the Minister administering the act "as soon as possible after the period of 5 years from the date of assent to this Act" with a report to be tabled in each House of Parliament within 12 months after the end of the period of 5 years.

The review is to determine whether the policy objectives remain valid and whether the terms of the Acts remain appropriate for securing these objectives. 

The date of assent for both acts was 26 June 2009, the date of commencement 1 July 2010.

Five years after the date of assent takes us to 26 June 2014. A period of 12 months after the end of 5 years for the report to be tabled means the deadline was 26 June 2015.

Shadow Attorney General Paul Lynch in a Question on Notice on 3 May 2016 asked the Attorney General "when the review would be completed." Attorney General Gabrielle Upton on 7 June answered (2944) "The review is currently being carried out and a report will be provided in due course." 

No report has been tabled as at 26 July 2016.

In May, in a welcome development the attorney general's department invited me and a few others to a roundtable, informing invitees that the department was interested in input into the review from outside government as most of the 80 submissions received had come from government agencies and local councils.  

Participants had no input into the agenda but a couple of hours chat ensued about the issues the department wanted to talk about-something at least.
Thirteen months and counting for a review report to be tabled isn't too bad when you look at deadlines listed by Justice as Reviews in Progress. The report on the review of the Workplace Surveillance Act 2005 was due no later than June 2011 and for the Defamation Act 2005, October 2011.

One of these days.....

Friday, July 22, 2016

Five time acting appointment for information commissioner position: what to make of that?

Attorney General Senator Brandis led the unsuccessful two year battle to abolish the Office of Australian Information Commissioner that ended in May 2016 when the government announced it would not proceed, finally recognising the weight of numbers in the Senate that favoured an independent watchdog to keep an eye on information access practices.

Now reappointed, the Attorney General according to ZDnet will appoint Timothy Pilgrim for the fifth time as Acting Australian Information Commissioner next week

The office operated from January to June 2015 with two of the three commissioner positions parliament established when it created the office, and since that time with one.

Senator Brandis told Senate Estimates (Q&A pp 42-44) in May this year the decision in  2014 to abolish the office was a 'good economy measure-and we haven't changed our mind."

Following the election, numbers of those in the Senate who have a different view than the Attorney General certainly won't be less and maybe more, so abolition of the office isn't on the cards.

However executive government has control over the budget and the appointment of commissioners. 

As Senator Brandis in Opposition in 2009 said 
"..The true measure of the openness and transparency of a government is found in its attitudes and actions when it comes to freedom of information. Legislative amendments, when there is need for them, are fine, but governments with their control over the information in their possession can always find ways to work the legislation to slow or control disclosure...."
Attitudes and actions on display include the Attorney General presiding over two years of uncertainty about whether the office of the independent watchdog had a future, adding that he hasn't changed his mind and it should be abolished if he had his way, continuing the practice of acting appointments to run the show with only one of three top positions filled, a squeeze on the budget for the office, and maintaining silence as public service leaders disparaged freedom of information and went public in calling on government to legislate for tighter guarantees of confidentiality for advice.

According to the Prime Minister takeaways from the close election result are that the public is disillusioned with government, politicians and the major parties, and restoring trust is a priority. 

Different attitudes and actions - that positively promote transparency and accountability - might help.

Tuesday, July 05, 2016

A messy election outcome could bring open, transparent government in out of the dark

It's still up in the air as to who governs - and therefore gets to call most of the shots - and perhaps what the successful major party leader will have to agree to in order to form a government. 

Then on an ongoing basis, there is uncertainty about the constraints or influences that will apply to the government policy and legislative agendas because of numbers in the House and Senate.

Transparency, accountability, public integrity, citizen participation, all elements of good government, hardly rated a mention on the campaign hustings.

But one welcome outcome from the current mess is that three major players, Labor, the Greens and NXT have more open, transparent government on their list of priorities. 

In contrast to the Coalition which offered nothing in this space during the election campaign other than open data and more digital services. Those new commitments came on top of the Turnbull government decision to join the Open Government Partnership, a decision so far not fleshed out with the required ambitious commitments to “promote transparency, empower citizens, fight corruption, and harness new technologies to strengthen governance.” 

EFF Designer Hugh D"Andrade
Nick Xenophon on ABC AM this morning:
Nick Xenophon, you're the only potential kingmaker to say that you're willing to strike a formal agreement with either side to form a minority government. The others have ruled it out so far. Why are you open to it?

NICK XENOPHON: Because if you run for election with a particular agenda about saving jobs, about strengthening manufacturing and farming jobs, about tackling predatory gambling and making governments accountable, if there's an opportunity to achieve that agenda with either side of politics, particularly if you come from the political centre, then it's an opportunity you should take up.....And when it comes to government accountability the fact that whistleblowers in this country aren't protected, that there is a real issue about the mechanisms of government with our freedom of information law and the like, which shows that we really need to have government to be more open, more transparent, and I think these are issues that need to be debated and discussed.

MICHAEL BRISSENDEN: Is this result ultimately a necessarily a recipe for chaos?

NICK XENOPHON: No, it's not. It can be a recipe for cautiously having a framework in place that leads to better government, more accountable government, and I would like to think a greater confidence in our political institutions if you have those reforms, if you have greater transparency in government processes, if there is more accountability.