ACT FOI bill best of breed by far but will it fly?

Markus Mannheim in The Canberra Times recently drew attention to the Freedom of Information bill drafted by Shane Rattenbury, the sole Greens MLA in the ACT Labor-led government. 

Mannheim was right to suggest passage of the bill would make the territory the most transparent jurisdiction in Australia. The bill in its current form is not available and is still subject to negotiation with the Labor Party, but Mr Rattenbury tweeted that it is the draft tabled for consultation over 18 months ago with a few changes.

See my comments in February 2014 with a link to the bill as it stood at that time.

Now years in the making, can the bill get across the line?

 @smbounds @MarkusMannheim Exposure draft on ACT Leg Reg at https://t.co/qaLhHh0fey Few changes since but basically same.

— Shane Rattenbury (@ShaneRattenbury) October 27, 2015

ACT FOI bill 'best of breed' so far

The draft ACT Freedom of Information Bill 2013 tabled by The Greens Shane Rattenbury last November for public consultation can lay claim (so far, and with no challengers in sight)) to the Australian 'best of breed' title, drawing as it does on reforms elsewhere in the 2007-2010 period.

Mr Rattenbury's support enabled the ALP to form government after the 2012 election. He is Minister for Territory and Municipal Services, Minister for Corrections, Minister for Housing, Minister for Aboriginal and Torres Strait Islander Affairs, Minister for Ageing. FOI might be beyond his portfolio responsibilities, but that didn't stop him taking this step.  It remains to be seen where this goes now - consultation closed on 1 February.

ACT whistleblower protections, new best practice standard

The ACT Assembly passed the Public Interest Disclosure Bill 2012 yesterday, to acclaim from the leading expert on such things, Professor A.J. Brown of Griffith University, writing in The Canberra Times:

It is historic legislation, improving on recent reforms in Queensland and NSW, and providing the country's clearest regime for ensuring public agencies listen to their people, take action to protect them, and ''ensure just outcomes … including by preventing and remedying the effect of detrimental action''. It also extends the circumstances where, if systems are not in place to deal with wrongdoing raised via official channels, insiders can go to the media.  So far, in NSW and Queensland, the newer legislation covers whistleblowers who go to the media as a last resort. This, too, is included in the ACT bill, with some helpful new safeguards and thresholds to guide whistleblowers and agencies on when this is acceptable. But as well, the ACT act is the first to make explicit what many Australians expect - that when it comes to serious public interest matters, if there is really no safe official channel available, we would prefer that a whistleblower go public than stay silent. The act provides that if a public servant can't reasonably use any official channels without ''significant risk'' of reprisal, they will still be protected if they go straight to the media.

Highlighting also inaction, and the way forward, for those just over the lake:

The big question for Canberra residents - especially if you are a federal public servant - is when the Commonwealth government is finally going to follow. Every day, it becomes more obvious why effective federal whistleblowing rules are needed..... The newer legislation, especially the ACT act, can help provide solutions to the federal government on how to catch up with other governments, and put in place stronger systems for acting on such information. It is also not enough just for authorities to listen - they have to protect and support those who speak up. A key issue for the ACT remains more effective, low-cost avenues for ensuring that mistreated whistleblowers are properly compensated, and able to get on with their lives and careers - but this is also something only the Commonwealth can help solve, under the Fair Work Act. After two years of inaction, the federal government has everything it needs to forge the solutions needed to deliver on its commitments. It will be another historic day - and another government with rare historic vision - which finally sees federal whistleblower protection rules come to pass.

ACT Assembly moving on whistleblower reform, FOI changes still to come

The Canberra Times report on the introduction of the Public Interest Disclosure Bill in the local assembly yesterday includes a tick from Professor A.J Brown-always a good sign - who like many is still hopeful despite missed deadlines that the Federal government will come good finally after promised deadlines for action last year came and went.

A Sydney Morning Herald editorial earlier in the week, Raising our voices for openness noted the dithering  in Canberra, on the big hill at least, while pointing to evidence that a public mindshift is underway with four in five Australians now believing whistleblowers should be free to reveal wrongdoing and to take concerns to the media, without fear of workplace retribution.

(Update:See ACT Hansard and and the exposure draft in March.)
 

I notice that while I was away in March the ACT Assembly resumed debate on the Freedom of Information Amendment Bill.

ACT FOI reform stalled, whistleblower protection plans open for comment

ACT Chief Minister Katy Gallagher's plan to bring the Territory Freedom of Information Act generally into line with the reformed Commonwealth act by the end of 2011 was not realised. Her version is the ambition failed because the bill was blocked in the Legislative Assembly in December by the Opposition and The Greens. Their version is they voted to adjourn debate because the Government was seeking to rush through less than satisfactory legislation and they were not ready for substantive debate on the bill introduced three weeks earlier in November. Either way, debate will resume sometime in this session. It's been a long haul since the Assembly established a committee to have a look at this in 2009 although some changes to the law have occurred since and the Chief Minister has some administrative improvements to her credit. The bill as introduced would bring welcome changes but stops way short of groundbreaking.

Of interest also in the Territory is the exposure draft of the Public Interest Disclosure Bill released on 22 December and open to submissions until 26 March-by email to psm@act.gov.au or to

Public Interest Disclosure: Consultation

Public Sector Management

Chief Minister’s Department

GPO Box 158

Canberra ACT 2601.

This proposal is a significant improvement on the 1994 act, but as always leaves further room for changes that would deliver "best of breed." Queensland leads in that respect and of course the Commonwealth drags the chain with nothing to show for years of talk.

 It's not too late to point out how the ACT might improve even further.

ACT-more open government still to come

The Canberra Times is involved in a bit of tug of war with the ACT government over freedom of information issues, to which I made a small contribution today. Here is a related editorial

.http://www.canberratimes.com.au/news/opinion/editorial/general/freedom-in-law-but-not-in-attitude/2345529.aspx

ACT Open Government website debuts with cabinet summaries

The ACT Government's Open Government website is up and running including a single disclosure log for documents released by government agencies in response to Freedom of Information applications, to be posted within ( a generous) 15 business days of release, plus media releases and data sets. And a summary of cabinet outcomes with material posted initially for the period June to September.

The Chief Minister's Welcome statement, " I am pleased that we will be the first Australian government to make a summary of our Cabinet outcomes available..." is welcome, but either makes a neat distinction or ignores the fact that the Queensland Government has been publishing Cabinet material including decisions since July 2008.

Those with long memories might also recall s 10 of the Victorian Freedom of Information Act  that came into effect in 1983, and still in force, requiring the Premier to "cause to be published on a continuing basis a register containing- (a) details of the terms of all decisions made by the Cabinet after the date of commencement of this Act; (b) the reference number assigned to each such decision; and (c) the date on which the decision was made. (2) The information referred to in subsection (1) shall be entered on the register at the discretion of the Premier." 

It was heralded at the time as groundbreaking. Notice it doesn't say when or how. There is this reference to cabinet decisions to 1993 at the Public Record Office. A search of the Department of Premier and Cabinet website for something contemporary produces zero results. A Victorian reader may know when it dropped off the radar and, ahem, why.

Other governments are yet to take such a grand step.

ACT FOI to align with Commonwealth reforms

Action foreshadowed by the ACT Government in the response to a Legislative Assembly report recommending Freedom of Information changes will bring the ACT into line generally with the Commonwealth reforms of 2010, although why (response to Recommendation 15) the ACT is to "retain conclusive certificates for national security purposes" while the Commonwealth and other reform jurisdictions rescinded powers to issue certificates entirely seems odd. Given its combination of state type and municipal functions it's tempting to suggest the ACT government should align more closely with disclosure models for local rather than national government, for example the publishing requirement for NSW local councils in Schedule 1 of the GIPA regulation 2009.(The largest NSW council by population, Blacktown, has around 300,000 compared to around 360,000 in the ACT.)

The response includes a welcome commitment to more open government generally, but rejects at this stage at least the establishment of an ACT combined Ombudsman, privacy and FOI commissioner, legislation for an ACT privacy act, and some "bold" ideas such as a public interest test for all FOI exemptions other than cabinet documents.

Weekly cabinet report and open gov website-maybe more-for ACT

ACT Chief Minister Katy Gallagher received another run in the Canberra Times for her open government plans with this report based on a media release of 23 June that followed her earlier comment she was going to make an announcement.The media statement commences:

ACT Chief Minister Katy Gallagher, will make public access to information the default position of her Government as the first step in increasing openness of Government. Measures include release of a weekly summary of Cabinet issues and decisions and creation of an Open Government Website, which will be used to release government background reports and reviews; provide public access to material released through Freedom of Information; and access to submissions made during public consultation.The plans outlined in a Ministerial Statement to the Assembly today, are set to make the ACT Cabinet the most open in the nation and include a commitment to hold a Virtual Community Cabinet on Twitter next month.

The Ministerial Statement referred to, with those details some of us love, will show up when the Assembly Hansard for 23 June is published. My two attempts to get it from the Chief Minister's Media Adviser came to nothing-she first sent me the wrong document and hasn't been able to send the right one since I brought this to her attention last week. (Update: the debate on the matter is at the Hansard p 2422. The Chief Minister spoke, took a pasting from the opposition and The Greens over her record on open government, and tabled the Ministerial Statement. But as the document doesn't appear in Hansard or anywhere else I can see online, interested parties need to toddle into Civic during business hours to see if there is anything more in it. In speaking to the Assembly the Chief Minister didn't even mention the Committee report on FOI referred to in this post.)

If you are interested in what the politicians had to say about transparency and openness in the ACT before the Chief Minister made her ministerial statement you will find the three sides of the story-Government, Greens and the Liberal Party- at page 2130 of the Assembly Hansard 21 June in a debate on the importance of open government. But only if you are really interested-it ran for an hour.

ACT about to join the FOI reform movement

The Canberra Times reports ACT Chief Minister Katy Gallagher is planning to demystify the cabinet process and overhaul the territory's freedom of information regime as part of a new era of accountability reform to be revealed in the ACT Legislative Assembly this week.

No further detail in the CT but it looks as if Territorians are about to hear a response to recommendations in the Legislative Assembly Standing Committee on Justice and Community Safety report on Freedom of Information completed in March this year.  The report was a long time coming-the Assembly commissioned the inquiry in December 2008. Once the inquiry got going (I last looked in February 2010 when nothing had happened) it seems to have proceeded ever so quietly: a total of just six public submissions, and three committee hearings in September/October of a few hours each, one with an all government line up consisting of the Attorney General and government staff, the others with the Australian Information and Privacy commissioners together, and the Queensland Information Commissioner separately. (Not a user of the act, an outside government type, or one of the few submitters in sight.)

The report proposes legislative reform to incorporate the key features of the 2009/2010 Commonwealth reforms including the "push model" but with some ground breaking variations in the approach to exemptions; the establishment of an ACT Ombudsman/Freedom of Information Commissioner/Privacy Commissioner replacing services provided to date by the Commonwealth; and ACT privacy legislation to replace the Commonwealth Privacy Act 1988 currently in force.

The significant FOI exemption features that would differ from Commonwealth law include:

Cabinet documents

[13] ACT legislation should follow the example of the New Zealand Official Information Act 1982. The report notes:  "The Act does not list any categorical exemptions for cabinet documents and, in fact, does not use the word ‘cabinet’ at all."The act should "provide a clear basis, upon which cabinet documents may be released or made exempt from release under the provisions of the Acts."

Exemptions generally

[14] All other exemptions be re-cast so that they are subject to a single consistent public interest test that is subject to merits review.

Deliberative documents

[17]: An exemption on grounds that release may reveal the decision-making processes of government agencies should no longer apply in the ACT.

What the Gallagher government makes of all this should be clear later in the week-and what might have been remains for another post.

The full list of Committee recommendations follow.

Slow-no?- progress in the Capital Territory.

Whatever happened to the ACT Assembly Committee inquiry into the Freedom of Information Act?

Impressive terms of reference were adopted in April last year, but apart from three published submissions including one from the Australian Press Council there is no visible sign of activity since, and no report date for the Committee. Given the ACT Act is basically the same as the Commonwealth Act, perhaps it's been shelved until those reforms are settled, but no-one seems to have said as much.

ACT on the FOI reform bandwagon

The Australian Capital Territory is the latest to join the Australian Freedom of Information review rush following a decision last week by the Legislative Assembly to ask the Standing Committee on Justice and Community Safety to conduct an inquiry into the 1989 Act. The ACT Act is basically THE Commonwealth Act and the movement at the station there would prompt re-examination in any event, but an inquiry was also part of the deal for support by The Greens for the formation of an ALP minority government after last year's election. It's also been an issue the Liberals' Vicki Dunne has pursued for years. Sweet for Dunne, who has had some celebrated battles with the Stanhope governments over FOI, and who moved the motion to set up the inquiry- only to have a series of amendments added that string the terms of reference out to three pages of detail (and "any other relevant matter" to boot)-that she ends up in the chair.

Details here.Thanks to Ray Polglaze for the heads up.

ACT FOI changes.

Thanks to Ray Polglaze of the ACT who did some checking on what happened last week in the ACT Assembly and confirmed as follows.

The legislation as passed abolishes conclusive certificates in relation to documents affecting relations between the Commonwealth and States, executive (cabinet) documents and internal working documents but retains certificates for documents claimed exempt on national security grounds.(The last point wasn’t picked up in the Canberra Times which reported all certificates had gone.You have to wonder why the ACT retains this power when the Commonwealth Government’s own bill before the Parliament would abolish all conclusive certificates.)

There is a new provision that excludes cabinet notebooks from access under the FOI Act. (The Government’s other proposals that would have added some new exemptions for example for question time briefs, to ensure “frank and candid advice” appear to have all been rejected.)

On the wider FOI review agreed between The Greens and the ALP as part of the deal that enabled the ALP to form government after the last election, this seems likely to now be undertaken by the Standing Committee on Justice and Community Safety. The Assembly also voted unanimously to change the standing orders to create a new position of independent arbiter to determine whether claims of executive privilege on Government documents ordered to be tabled were legitimate, similar to the role played for some years now in the NSW Legislative Council by former chief justice Sir Laurence Street.

ACT Assembly scuttles some Government FOI proposals.

According to these Canberra Times and ABC reports, The Greens and the Opposition Liberal Party combined with success to force some changes to the Government's Freedom of Information Bill in the ACT Assembly.The reports are a bit skinny on the detail, but conclusive certificates seem to have gone completely and some proposed new exemptions appear to have been rejected. I'll be interested to see something more on exactly what has transpired when the ACT Hansard appears.

Here is what I said in December about the Government's proposals, so good on The Greens:

"The Government's Bill (Hansard 11 December 285-287) would abolish conclusive certificates for cabinet documents and internal working documents (but not for documents that could attract the national security exemption). The reference in an Attorney General media release at the time that "the Freedom of Information Amendment Bill 2008 also proposes additional amendments to protect certain documents that ensure Ministers can fully exercise their responsibilities to the Assembly and its committees" turns out to be new proposed exclusions from the Act for question time briefings, incoming government briefings, annual estimates briefs and cabinet notebooks. The Attorney General used the Queensland Solomon Report and that government's plans to do the same thing as justification, arguing"that to preserve and promote individual ministerial responsibility, to ensure free, fearless and frank advice, certain communications between government and its public service advisers must be protected. This reinforces the personal, individual responsibility of ministers and their ability to govern effectively and to account to parliament and its committees appropriately. It is in the public interest to preserve the confidentiality of this kind of advice. We all know when in government that the effectiveness of these documents is compromised by the knowledge that such documents may be disclosed under the legislation as it currently stands. "Do we? Are blanket exceptions of this kind vital to enable ministers "to govern effectively and to account to parliament and its committees appropriately. "Don't current exemptions work satisfactorily to ensure sensitive information (of the cabinet-notebook variety, for example) is protected from disclosure? And no explanation for acting on these issues in advance of the comprehensive review planned for next year. The Greens who get to call the shots might have some interesting issues to weigh when the Assembly resumes."

ACT FOI reform two-step.

The new ACT Legislative Assembly sat for three days last week, the first substantive sittings since the election that resulted in the return of the ALP Stanhope Government, formed only through the support of The Greens who hold the balance of power.Three days produced two Freedom of Information Amendment bills-one from the Liberals Vicki Dunne, the other on behalf of the Government from Attorney General Simon Corbell. Both managed a second reading speech from the proponent but no further debate and the Assembly has now adjourned until February. The bills themselves are not up on the Assembly website. Dunne's speech contained little detail (Hansard 10 December 161-162) except it is largely a re-run of an earlier unsuccessful attempt at reform.

The Government's Bill (Hansard 11 December 285-287) would abolish conclusive certificates for cabinet documents and internal working documents (but not for documents that could attract the national security exemption). The reference in an Attorney General media release at the time that "the Freedom of Information Amendment Bill 2008 also proposes additional amendments to protect certain documents that ensure Ministers can fully exercise their responsibilities to the Assembly and its committees" turns out to be new proposed exclusions from the Act for question time briefings, incoming government briefings, annual estimates briefs and cabinet notebooks. The Attorney General used the Queensland Solomon Report and that government's plans to do the same thing as justification, arguing

"that to preserve and promote individual ministerial responsibility, to ensure free, fearless and frank advice, certain communications between government and its public service advisers must be protected. This reinforces the personal, individual responsibility of ministers and their ability to govern effectively and to account to parliament and its committees appropriately. It is in the public interest to preserve the confidentiality of this kind of advice. We all know when in government that the effectiveness of these documents is compromised by the knowledge that such documents may be disclosed under the legislation as it currently stands."

Do we? Are blanket exceptions of this kind vital to enable ministers "to govern effectively and to account to parliament and its committees appropriately."Don't current exemptions work satisfactorily to ensure sensitive information (of the cabinet-notebook variety, for example) is protected from disclosure? And no explanation for acting on these issues in advance of the comprehensive review planned for next year.

The Greens who get to call the shots might have some interesting issues to weigh when the Assembly resumes.

ACT to abolish most conclusive certificates.

The ACT Government will introduce legislation in the Assembly on Thursday to amend the Freedom of Information Act to abolish conclusive certificates except in respect of documents claimed exempt on national security grounds.This stops short of the total abolition proposed by the Federal and Queensland governments, although in both those cases the national security exemption will remain tight.

All will be revealed on Thursday about this additional point in the ACT announcement :"The Freedom of Information Amendment Bill 2008 also proposes additional amendments to protect certain documents that ensure Ministers can fully exercise their responsibilities to the Assembly and its committees."

ACT Government sees the green light on FOI and other reforms.

Enthusiasm for improved transparency, accountability and integrity will be evident in the new ACT Government to be sworn in this week, after The Greens with four Assembly members included changes for these purposes as part of the deal to deliver government to Jon Stanhope and the Australian Labor Party.

Many of the changes will be to the way parliament operates with agreement on what The Greens describe as a"Parliamentary reform agenda which will establish the ACT Assembly as a world leader in scrutinising and opening up the processes of government and taking a more collaborative and inclusive approach to the processes of parliament."

Other commitments include:

Demonstration of Government leadership in enhancing integrity in Government by working with oversight institutions to establish the concept of an integrity branch of government - comprising all those oversight institutions, in recognition of their joint interest and their separation from the Executive, Parliament and the Judiciary.

Completion of inquiries within 12 months into reform of the Pubic Interest Disclosure Law and Freedom of Information Legislation (including the appointment of an independent Information Commissioner).

Removal of provisions in the FOI Act which currently allow for conclusive certificates, except where they provide for the protection of national security information held by the Territory.

Passage of legislation which will require all political donations to be disclosed within one month of receipt and in an election period, on a weekly basis".

There is a world of difference between getting things done in the pocket-sized ACT and running the nation as a whole, but this last commitment makes proposed Federal disclosure of donations-twice a year, within eight weeks of the deadlines, and to be on the web as soon as practicable- look minimalist.

Full details are in the ALP Greens Agreement.

FOI delivers

How about this rash of Freedom of Information disclosures over the last week:
Banks turn to Future Fund for cheap cash
Police rosters handed to Liberals
Moral stance on executions under threat
Monash joins Royal Women's on RU486 prescription list
Property crash began last January, Treasury figures reveal
Adult Ed in crisis, say Libs
School computer plan may hit taxpayers
Superboat big secret: it was dull
Tiger Moth death mystery revived
Bad teachers back in class
Taxpayers to foot $6m toxic site bill
Brethren schools net $18m funding

Then, on a different level, there was the resignation of the Victorian local councillor, shall we say, exposed, through a Freedom of Information request as having submitted for reimbursement a receipt from a brothel in Canberra where he had been on, ahem, council business.

ACT Auditor general highlights FOI failings

The ACT Auditor General has found significant fault with Freedom of Information processing in three government departments with a high incidence of failure to meet statutory deadlines.

ACT Government to look into FOI reform

The ACT Government has released for public comment a discussion paper on Governance with recommendations aimed at improving community engagement and feedback. It includes a section on access to information issues, recommending examination of what can be done to encourage the use and reuse of government information, and a close look at the Solomon Report on the Queensland Freedom of Information Act to see what might be applied in the Territory. See Citizen Centred Governance .

Some were unimpressed. Submissions close 8 September.

An early test of the Government's interest may come with a vote on an Opposition Bill to abolish conclusive certificates- a Solomon recommendation in Queensland where they have rarely if ever been used, and on the casualty list across the lake in Canberra where Senator Faulkner last week presaged their removal from the Federal FOI Act. As the Canberra Times reported:

"The Stanhope Labor Government has used conclusive certificates to prevent the release of cabinet and other government documents relating to the strategic and functional review of the ACT public sector and the closure of ACT Government schools. In November 2007, Liberal MLA Vicki Dunne introduced a private member's Bill to abolish conclusive certificates for ACT cabinet and internal working documents. Yesterday, in the light of Federal Labor's FoI changes, she called on the Stanhope Government to support her Bill. ''The pressure is now on the chief minister to support the Opposition's FoI legislation when it is debated in the Legislative Assembly next month,'' she said.