Incoming government briefs: what's changed since 2010?

Dcriel

The first Blue Book access issue of the 2013 new government season has emerged with Delimiter told that its Freedom of Information application for the briefing book in the hands of Communications Minister Turnbull will cost $2072 to process. And quickly crowd-raising the money.

We could be in for a different season this year compared to 2010. Then, following Treasury's 2007 and 2010 leads, government agencies released or published mostly redacted versions of the incoming government briefs. 

Foreign Affairs did manage to spin it out for a year!

This time around we aren't hearing transparency talked up-so far.

Tone at the very top in some cases is trending in the opposite direction.

The recent decision by Australian Information Commissioner Professor McMillan, although leaving open the issue of access to 2013 briefs, canvassed the range of issues relevant to disclosure. The first time observation that a 'class claim' could be entertained for exemption of certain types of documents (incoming government briefs?) as deliberative process documents won't have gone unnoticed.

 Back in 2010 Prime Minister Abbott had strong views on a related issue, publication of Treasury costings of Liberal policies, during the days of uncertainty about the formation of a government:

TONY ABBOTT: This is very important Lyndal, because you know, our system depends on public servants being able to give free, frank and fearless advice to government and that means the advice has got to remain confidential. And what we've got here is a desperate Prime Minister trashing the Westminster system in an attempt to hold onto power.

LYNDAL CURTIS: So you don't want that information released?

TONY ABBOTT: Well if, if, if the most confidential public service advice can be casually released just to help this government to hang onto power, I mean they are trashing the Westminster system in a desperate attempt to hold onto power...The conventions are there for a reason, they are there because if you are going to have efficient and effective government the public service has got to be able to give confidential advice...Now you just can't have this advice strewn around like confetti because you have a desperate government desperately trying to cling to power and in the process trashing the Westminster conventions. But what cannot happen, you cannot have the frank and fearless advice of the public service prejudiced by releasing it to people for whom it was never intended. I mean this completely undermines and compromises our whole system of government.

More on point, Opposition frontbencher then, now Minister for Trade and Investment Robb said at the time incoming government briefs warranted state secret status if a public service 'down tools" was to be avoided:

''The red and blue books are fundamental to successful transition to government, and that's another important plank of convention in the way in which our government runs,'' he said. ''That material is based on frank and fearless … advice by the public service, and if they thought that could become public knowledge, they would not conduct that sort of assessment again.''

And sitting unattended so far in the in tray of Attorney General Brandis, Dr Hawke's FOI review report recommends a specific conditional exemption for the briefs.

There are counter arguments of course, particularly that the public interest in disclosure of those parts of briefs that contain information about the state of the nation or departmental slices of it is strong. The South Australian Ombudsman's observations about the state equivalent documents, held in that case to be cabinet documents, apply equally to documents about national affairs:

In my view, there are reasons why the agencies might give access to parts of the portfolio briefs and other briefing documents, notwithstanding that they are exempt.....I consider that there is a strong public interest in members of the public being aware of policy initiatives and other issues that the agencies consider important to South Australia. In my view, access to such information would enhance public participation in discussions about South Australia’s future, and would be consistent with the objects of the FOI Act of promoting openness and accountability, as well as the principles of administration. I consider these public interest factors to be strongest with respect to generic documents, that is documents prepared with either a returning Labor or an incoming Liberal government in mind

In any event in Canberra this year there is potential for all this to be a drawn out FOI battleground. And something of an early test regarding the need to address the trust deficit.

Charges might be round one. Those in the queue with applications for the Communications brief have apparently received a letter asking for a deposit against  the estimated cost of processing their application - the same $2072 as indicated to Delimiter. While probably technically within the law the applicants and the court of public opinion might see this as a bit rich. 

Looming freedoms and rights wars

While the Coalition hasn't put on the record its intended approach in office to transparency and integrity issues,Tony Abbott and Senator Brandis have made it clear in speeches (both entitled 'Freedom Wars') over the last year, that 'freedom' and 'rights' will get the attention of an Abbott government.

Recently in an interview with The Australian, George Brandis to reclaim rights agenda (paywall), the Shadow Attorney General indicated one change would be a new 'rights' emphasis - protecting common law freedoms from legislative encroachment:

(Brandis) plans to refocus the human rights debate on traditional common law rights and freedoms which he believes can be a more effective guardian of liberty than any statutory charter of rights. He announced this week that a national audit will be conducted of federal statutes that infringe common law rights as a first step to restoring these freedoms, "when appropriate". One or more "freedom commissioners" will be appointed to the Australian Human Rights Commission with the goal of applying a balanced approach to all rights and freedoms. Instead of concentrating primarily on the administration of federal anti-discrimination law, Senator Brandis said the commission would also be required to become a national advocate for freedom of religion, freedom of expression and freedom of the press. "I don't want to see the human rights bureaucracy expanded but if we are going to have a human rights agency of the commonwealth, it ought to be an agency that protects human rights, not an agency that protects some human rights and makes excuses for the violation of others," he said. "The rights we enjoy in Australia are much better protected by the common law - as long as we don't allow that to be repealed or attenuated by statutory intervention - than they would ever be by a charter of rights.

The Senator's concerns had been flagged previously in a speech to the Sydney Institute Freedom Wars (members only access in May. The catalyst then was what the Senator described as Labor's unprecedented war on freedom of the press and freedom of expression, with aspects of the Racial Discrimination Act and 'elites' also in the sights.
 
In 2012 Tony Abbott delivered his Freedom Wars speech to the Institute of Public Affairs,
claiming this position for the Liberal Party:

"Essentially, we are the freedom party. We stand for the freedoms which Australians have a right to expect and which governments have a duty to uphold. We stand for freedom and will be freedom’s bulwark against the encroachments of an unworthy and dishonourable government."

Whether that claim stands up after a spell in office, and if any Freedom Wars battleground is to be narrow or broad scale remain to be seen.
(Update- The Australian 5 September 'Tony Abbott to champion free speech.')
 
(Real freedom of information, not mentioned in any of these texts, would be a great centrepiece, but I digress.)
 
In any event the issues raised about common law rights and protection from legislative encroachment are far from straightforward.
 
Former NSW Chief Justice Spigelman and others such as Chief Justice French of the High Court have pointed out that common law rights and freedoms are limited. Spigelman helpfully listed in this speech 'the common law bill of rights'.
 
Judges, rarely, 'find' new rights not previously uncovered. Other rights (the FOI right to access government information for example) find their way into law through statute and international instruments. Not all are absolute, some are qualified, others in tension to a degree with competing rights.
 
Rights reflected in international instruments and agreed to by Australian governments such as the Universal Declaration, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights only become an undisputed source of individual rights and obligations when directly incorporated into domestic law by legislation. There are many gaps in Australian law.
 
Unless constitutionally protected, hardly the case at all in Australia and Senator Brandis, News Corp and The Australian won't have a bar of a bill or charter, rights, common law or statutory can be modified by legislation. Parliament is supreme. However as the Chief Justice noted, courts take the view that rights that are well entrenched in the common law including freedom of speech and freedom of movement are only abrogated where there is clear legislative intent- by plain words or necessary implication. (The Coalition last time in office came unstuck on this in the Haneef case.)
 
Freedom of speech or expression - the freedom to say what you like - is not the same as freedom of the press - the freedom to publish or broadcast whatever and whenever you like. There are limitations imposed (national security, the right to reputation reflected in defamation law, and less clear cut the right to privacy) and standards expected of media publications and broadcasters because of the power and privileges they enjoy. Media organisations generally accept this and argue for self regulation. Others argue self regulation will always be unsatisfactory in some respects.
 
This debate about how and where to strike the balance between freedom and other interests is ongoing not only here but elsewhere.
 
If and when the freedom wars unfold the Liberal Party stance on privacy law reform will be an element in some of the battles.


There are currently questions floating out there about the legislated reforms to take effect in 2014: do the changes go far enough, is the law adequate in light of emerging issues, are the changes to commence too soon?
 
A whole range of recommendations from the ALRC report in 2007 were not dealt with in Stage 1 of the reforms. These include the terms of the exemption from the Privacy Act for media organisations in the conduct of journalism, and the removal of the exemption for political parties and small business. The ALRC has a current reference on privacy protection in the digital age and a statutory cause of action- before it was announced Senator Brandis seemed highly sceptical.
The Opposition did not enthusiastically embrace the mandatory privacy breach notification legislation introduced but not passed in the last Parliament.
 
And there are ongoing issues concerning privacy and surveillance and telecommunication interception.
 
More than a whiff of grapeshot is likely should the guard change after 7 September.

The Coaltion all for restoring trust, but not talking about the detail

Inside the last week, there is little from the major parties about how they intend to govern, particularly to restore trust and operate in accordance with high standards of integrity.

The ALP at least replied to Transparency International Australia (ALP response pdf) and the Accountability Roundtable (ALP response pdf) recounting the record of reform over the last six years and indicating an intention, if re elected, to examine scope for doing some of the things flagged by both groups - in broad general terms only.

But the Liberal Party hasn't responded so far to the invitations to set out their policies and priorities in this space.The Party's Plan for Real Action doesn't say anything relevant either.

If the Opposition wins, it remains to be seen what Tony Abbott 's observation that the trust deficit is highest on his list of deficits may mean for transparency, accountability, open government, anti-corruption initiatives such as a national or parliamentary integrity commission, a code of conduct for parliamentarians, political party donations, lobbying reform, taking whistleblower protection to the next level, and a host of other integrity related issues.

Just what an incoming Liberal/National party government would do regarding the current government commitment that Australia join the Open Government Partnership is also uncertain. As far as I am aware no-one has said a word on the subject, publicly at least. Several messages, raising the question with Shadow Attorney General Brandis, Shadow Foreign Minister Bishop and Malcolm Turnbull remain unanswered.

Surely we can expect bipartisanship on this commitment?

The Greens, commendably are committed to action across the integrity spectrum as set out in this response pdf to TI Australia and this to the Accountability Roundtable pdf. They may  have some clout. Longer odds the Pirate Party Australia and the Wikileaks Party
- although they're ready.

Attorney General debate leaves integrity on the sidelines, prompts The Oz to pursue privacy 'zealots.'

The notes prepared by Anne Wardell Deputy Editor-In-Chief for Law and Business at CCH seem to be the most comprehensive record available of the debate last week between Attorney General Dreyfus and Shadow, Senator Brandis. No mention, according to this summary, of the transparency/accountability/integrity/open government issues of primary interest here.

The Attorney General listed privacy as one of the next term priorities and separately elaborated in an interview with Chris Merritt in The Australian- Privacy law 'no attack on media'. The bill to require mandatory serious breach notification that failed to get up in the last parliament will be reintroduced if the ALP wins - Merritt queries the cost to business. (As to Opposition policy, who knows?)

And as the headline suggests, Merritt gives prominence to the privacy cause of action issue, managing to extract acknowledgement of uncertainty about what might result from the Attorney's reference to the Australian Law Reform Commission:

 Despite the fact that the ALRC had been asked to design a privacy tort, Mr Dreyfus said it was possible the commission could recommend that such a tort was not needed. "They might," he said. The inquiry's terms of reference did not amount to a commitment to the creation of a privacy tort. "But they do ask for a detailed design of what a statutory cause of action for serious invasions of privacy might look like, for good reason."You cannot have a proper discussion about this until you have got down the detail."

In a related opinion piece Mark Dreyfus not afraid to stand up for free speech Merritt suggests the Attorney shouldn't be held responsible for "Labor's disgraceful record on freedom of speech" because he was new to the job and

"used his first interview as Attorney-General to express personal concern about the risk to freedom of speech from legislation that encourages people to sue each other over invasions of privacy. Until those remarks appeared on the front page of this newspaper, nobody in the Gillard government had expressed the slightest disquiet in public about the deeply flawed plan for a privacy tort that was then in development. It was a plan that seemed designed to remedy a mischief on the other side of the planet."

Of course, there are many who see growing mischief in interferences with privacy in all sorts of local nooks and crannies. However Merritt thinks these 'zealots' may have had their day:

In 2009, when the commission last recommended in favour of a privacy tort, much of the debate had been captured by zealots who seemed to have no understanding of the fundamental rule that privacy - like all other human rights - is not absolute. It needs to be balanced in a way that addresses the intended mischief without inflicting unnecessary damage to other rights such as freedom of speech.

I can't recall anyone who argues the right to privacy is absolute. But it is a universally recognised right.

Three law reform commissions, and most others who have looked conclude there is a gap in the law. Many think it would be best filled by a carefully crafted statutory cause of action that does exactly what Merritt suggests, balancing privacy and other rights.

The only absolutists in this are those who advocate such an exalted position for freedom of speech/freedom of the press. Some reminders from testimony to the Committee examining the Government's media reform legislation in March:

It's all about trust..

The Prime Minister in announcing the election and Mr Abbott speaking more expansively on a number of occasions including at the campaign launch yesterday, are both talking 'trust'.

The Leader of the Opposition puts it at the top of the list: the trust deficit is even more serious than the budget deficit.

The Fairfax Poll published on Saturday had Mr Abbott as the more trusted leader, with a rating of 43 per cent to Mr Rudd's career-low 36 per cent. 

But in May Federal members of parliament were 25 in the list of 30 professions rated for ethics and honesty in the Roy Morgan Survey (pdf). That 14% score was a 4 point improvement! 

Mr Abbott offered 'say what you mean and do what you say' as his shorthand solution to the problem. 

Sounds like a welcome commitment to honest, open communication. But a long way short of a plan to restore and maintain trust. 

More will be needed from whoever wins for example improvements on the open, transparent, accountable government front, a code of conduct for parliamentarians, an integrity commissioner and other anti-corruption measures, lobbying and political donation reform, and addressing shortcomings in whistleblower protections. For a start get rid of that blanket FOI exclusion for the parliamentary departments that both sides of politics rushed through a few months ago. (As an aside remember 'I'll end secrecy in 2007? There is a long list of that sort that might have something to do with the trust deficit.)

The Accountability Roundtable and Transparency International Australia have separately called on the main parties to outline their plans on a range of these issues. No published responses to date.

Throughout the two years saga of will we or won't we join the Open Government Partnership, I'm not aware the Opposition said anything on the subject. I've written to Shadow Attorney General Brandis and Shadow Foreign Minister Bishop (and to my local member Malcolm Turnbull) inquiring where they stand, but no response there either.

The Liberal Party's Plan for Real Action in the chapter 'Delivering strong, stable and accountable government' contains, well, no plan for real action:

The Coalition will do the right thing for Australia and deliver a strong, stable, accountable government that puts the national interest first and delivers a better future for all Australians. We will restore accountability and improve transparency measures to be more accountable to you. We will govern for all Australians, not favour any particular group. We’re all in this together and we’ll encourage all Australians to work together. We will end the class war and the bad blood between Labor and business that is damaging investment and employment.

As usual we live in hope. 

Trust in government-that's another matter.

The Opposition and open, transparent and accountable government

My local member is the Hon Malcolm Turnbull. I sent this email today:

'Craig Thomler wrote to you in May with a number of questions concerning the Opposition's position on Gov 2.0, and open, transparent and accountable government generally.

He posted his message to you publicly in June on eGov AU but I understand is yet to receive a response.

Readers of Open and Shut would be interested in your response as well.

One of the issues raised in Craig's message was the Opposition's position on the Open Government Partnership. Since that time Attorney General Dreyfus has announced the Government's intention to join.

I am not aware of any public statement from the Opposition on the OGP and wrote to Senator Brandis and Julie Bishop last week in the following terms:

"I write to seek an indication of the Opposition's position regarding Australian membership of the OGP.

You will be familiar with the initiative launched by President Obama in September 2011.

Australia was invited to join at that time. In June 2013 Attorney General Dreyfus announced the Government's intention to do so. Since, nothing has been said publicly about the process for the development of the National Action Plan, required as part of the application and which must be developed in partnership with civil society organisations.

Australian membership provides an opportunity to improve transparency, accountability and open government here, and to advance our interests more broadly through engagement with the 58 other member countries and in the region in conjunction with the current co-chair, Indonesia.

I would welcome any comment you wish to make about the Opposition's intentions regarding the OGP and would bring your response to the attention of those who take a close interest in these issues.

Because of the international dimension, I have sent a similar email to Shadow Foreign Minister Bishop.

Thank you in anticipation."

Any comments you or your colleagues can make on these important issues will be widely distributed to the many individuals and organisations that take a close interest in good government.'

Peter Timmins.
Open and Shut
www.foi-privacy.blogspot.com.au

(Addendum: on the broader integrity front, Transparency International Australia has sent these questions(pdf) to the parties.)