Indian cricket not just tested on Australian pitches

Wikimedia Commons Ricky212.

Unlike Australia's access to information laws, the Indian Right to Information Act (s 2(h) may be extended to cover any non-government organisation substantially financed (directly or indirectly) by funds provided by the national or a state government. While Cricket Australia only has to worry about winning the cricket, its Indian counterpart is facing an off-field challenge-that it should be made subject to the RTI act. The Times of India reports:

"Ignoring objections raised by the Board of Control for Cricket in India (BCCI), the government said there were reasonable grounds for bringing the organisation under the Right to Information Act. In a seven-page written statement submitted before the Central Information Commission, the sports ministry said although there was no direct funding of BCCI, it got "substantial indirect funding" from the government in the form of revenue foregone like "concessions in income tax, customs duty" and land at concessional rates for stadiums.

The ministry also argued that BCCI performed functions akin to state and 'public duties' by selecting national teams and representing India in international events. Citing the Emblems and Names (Prevention of Improper Use) Act, the ministry said, "Since the name Board of Control for Cricket in India suggests patronage of the government, the BCCI may have to drop the name 'India' from its name in case they continue to act as 'private body'."

It added, "In view of the above, the present position of the government of India in this regard is that there exists just and reasonable grounds for BCCI to be declared as a 'public authority' under the Right to Information Act, 2005." 

Cricket Australia and many other sports and other groups in Australia receive direct government funding, some very large amounts, but are not subject to freedom of information laws, as (to paraphrase and generalise) the laws don't extend beyond documents/information held by a government agency or a contractor carrying out a service to the public on behalf of an agency. Government funding doesn't do the trick.

Except in Tasmania. The Right to Information Act  (s 8) provides:

Parliament above transparency and accountability law

The Sunday Herald Sun, fresh from its sister publication finding the Governor's office is a Freedom of Information no go zone, has discovered the Victorian Parliament is out of bounds as well:

Millions of dollars of taxpayers' money is poured into the Department of Parliamentary Services each year to pay for MPs' electorate offices, official functions, staff wages and the everyday operations of Parliament. The department also pays for the cars our parliamentarians drive, their petrol bills, computer and IT costs, utilities and postage and communications bills. But - in another example of the Baillieu Government not living up to its "open and transparent" election promise - every dollar spent in the Parliament will remain exempt under Freedom of Information laws.

When asked, the Premier and Opposition leader both didn't see the need for any change. neither did the parliamentary officers, and all agreed an annual report that contains global expenditure figures should be just fine for accountability hounds.Hardly. Parliaments receive hundreds of millions to carry out public functions, administer themselves and for various payments to and for and on behalf of parliamentarians.

WikiMedia Commons-MiniBjorn

As pointed out for years, this FOI exclusion is replicated in every Australian jurisdiction, except Tasmania where the parliament (and the governor) would seem to be subject to the Right to Information Act concerning matters of administration. Federally, no one speaks the FOI words when it comes to parliament and the government continues to dither about recommendations including for improvements in transparency regarding member entitlements. Member and senator expense claims paid by the Department of Finance (but not payments administered by the parliamentary departments) are published. The South Australian parliament publishes an annual travel expense report listing individual members expenditure.

On the broader issue just about everywhere beyond the Apple Isle, it's let them eat cake.(Update: This Courier Mail report in the last few days on Queensland legislators' expense claims is sourced to Right to Information disclosures. From whom is not mentioned, but something of a mystery as the Legislative Assembly and its parliamentary services department are entities excluded from the act. Mystery solved -thanks to a Queensland reader, these details relate to expenses of ministers and former ministers administered by Ministerial Services Branch of the Premier's Department. That department is subject to the RTI act.)

The Legislature in all jurisdictions should be subject to freedom of information law regarding administrative functions just as the courts are in most places.

The Queen's Australian men and women in, and out, of FOI laws

While the Queen is among us, some unrelated controversy in Victoria over the lack of transparency and accountability at Government House, particularly concerning costs of Governor Alex Chernov's recent overseas visits, but more generally the exemption of the Governor's Office from the Freedom of Information Act by virtue of this provision in the (who would think to look there?) Constitution Act.

Premier Ted Baillieu called a meeting with key staff last week to discuss the issue and made contact with the Governor to weigh up public release of the documents. But it is believed a decision was made to leave the matter in the hands of the Governor.....the travel costs of Victoria's governors have always remained secret - and nothing appears about to change. A spokesman for Mr Baillieu, Simon Troeth, said the Government had nothing more to say about the issue further to a statement issued last week that "detailed questions about the Governor's official travel are matters for the Office of the Governor".

On exemption from the FOI act, for reasons hard to fathom, it's a mixed bag around the nation with the Governor in three jurisdictions subject to the access to information law to some degree, but not at all in three other states apart from Victoria.

The Commonwealth Freedom of Information Act applies to the Office of Official Secretary to the Governor General in respect of documents of an administrative nature ( with a current matter of contention). Similarly the Tasmanian Right to Information Act applies to the state Governor regarding information relating to administration. I can't see the Governor excluded from the South Australian Freedom of Information Act, so presumably the Governor is covered there, although glad to be corrected. 

As to other states, the office of Governor is not a public office for the purposes of the NSW  Government Information (Public Access )Act (clause 3), or the Queensland Right to Information Act, and the "Governor and the Governor’s establishment" are excluded from the Western Australian Freedom of Information Act. 

In Victoria for many obvious reasons, this being a relatively minor one, the penny should have dropped that the FOI act is in need of a thorough overhaul, but there is no sign of recognition so far. And in the other three states affording the Governor a complete exemption from FOI it's time to  amend the act to cast off this colonial overhang of fealty to the Queen's men and women. (Not to mention this relic of Australia's constitutional past- the Queen's powers to annul any law passed by the Australian Parliament within a year of its passage.) Cringe.

As to the Queen on home turf, this from Buckingham Palace:

The Royal Household is not a public authority within the meaning of the FOI Acts, and is therefore exempt from their provisions.Despite its exemption from the FOI Acts, the Royal Household's policy is to provide information as freely as possible in other areas, and to account openly for its use of public money

For the record, NBN Co not completely excluded from FoI

Lisa Martin in the Sydney Morning Herald

Liberal senator Ian Macdonald said NBN Co....had escaped scrutiny following "extraordinary exemptions from parliamentary regulatory oversight". He said the government had exempted NBN Co from scrutiny from the public works committee, limited the Australian Competition and Consumer Commission's (ACCC) oversight and excluded it from freedom of information laws.

Without going into the broader accountability and transparency issues, the FOI reference is clearly off the mark. Senator Macdonald/Lisa Martin forgot/ missed this footnote to the mention in the opposition's dissenting report (Report p 60):

"An amendment passed by the Greens ensured the NBN is subject to the FOI Act with a targeted exemption to protect the confidentiality of its commercial activities. See revised Explanatory Memorandum, National Broadband Network Companies Bill 2010 and Telecommunications Legislation Amendment (National Broadband Network Measures—Access Arrangements) Bill 2010, p. 15. House of Representatives Hansard, 1 March 2011, pp1915-1917."

This post from April has more about the FOI exemption, for 12 months at least, for NBN Co "in relation to documents in respect of its commercial activities."

NBN Co and applicants given 12 month FOI good behaviour bond

The result of last week's final steps in the passage of legislation that included extension of the Freedom of Information Act to NBN Co is that the company is to be subject to the act except, as a result of the Bandt amendment previously approved by the House, in relation to documents in respect of its commercial activities. And the Minister administering the FOI act is to arrange a review of NBN Co FOI experience after 12 months and table the report, as a result of an amendment in the Senate moved by The Greens Senator Ludlam. This review is separate from the two year review of the act due in 2013. And the six month review of fees and charges that must be starting to loom.(Correction: getting ahead of myself-the Australian Information Commissioner is to undertake the review of fees and charges within 12 months of appointment-presumably by 1 November.)

The NBN Co debate resumed on Monday 21 March with Senator Ludlam foreshadowing more robust changes later in the week:

"..we will need to open this issue up again in the committee stage when we get to it tomorrow, to have the FOI Act itself amended to make sure that, as far as NBN Co. is concerned, the presumption is that commercial information will be released unless it can be demonstrated that some harm will be caused if it is released... (W)e are going to try and find somewhere in the middle that allows commercially sensitive material, or material which would be destructive if it were released, to be withheld. Those arguments can be made and appealed..... But let us do away with this blanket of secrecy that somehow accords sacred status to commercial information just because a business is being run. I am hoping that that will satisfy the concerns of the opposition. I am hoping it meets the objectives of the government to presumably not have NBN Co. opened up to repeated hostile or malicious FOI requests, or whatever the concern is. Hopefully we will set something of a precedent in the way that the FOI Act operates as well."

Some back room discussions presumably followed. By the time the Senate got to it later in the week, politics as the art of the possible was the order of the day. With the Opposition wanting more and the Government presumably less, debate (Senate Hansard 24 March 115-119) centred on an amendment moved by Senator Ludlam and supported by Government Senators to add a new Section 100A to the bill to require a review in 12 months of what happens in the making and determination of FOI applications, and a report to be tabled in Parliament.The amendment passed 32-30.

During debate at this stage Senator Ludlam said:

We are not happy, and I suspect the coalition will not be either, with the way the Freedom of Information Act handles definitions of commercial activities. I think there is a body of case law that has built up over the last couple of years that is pointing in the direction that says it is interpreted too broadly and that it is in need of review and repair. That is not a problem for the NBN Co. per se—it is not a communications portfolio issue—but it goes a bit deeper than that, to the operation of the FOI Act itself. What we have done here is propose a couple of things. We want more or less an immediate rolling review of how the Freedom of Information Act is being used and/or abused with regard to the National Broadband Network. We want to know how it is actually working in practice. Senator Birmingham has not spoken on this one yet, but I suspect we are going to be to some degree in agreement with the fact that this could be abused. But let us be very careful here. The Freedom of Information Act can be abused in two different ways. The first thing that might happen is that NBN might say, ‘No, that is relating to our commercial activities; you can’t have it.’ We might see quite a lot of
that. This amendment will expose whether or not that behaviour is going on. The second way in which the Freedom of Information Act can be abused is if certain new organisations, or certain competitors to NBN Co., or people with a particular point of view, start firing freedom of information applications at a rate of 10 or 20 a week, to attempt to either paralyse or bog down NBN Co. That is part of life. Mr Quigley has a pretty thick skin, I guess, after a couple of years in the job. They are used to it and they can handle it. But what we are most keen to know is how it is actually working in practice. So every 12 months the FOI minister, according to clause 2 of my amendment, ‘must cause to be prepared a report of a review under subsection (1).’ I am going to invite the minister in a second to provide a little bit more detail about how this is actually going to work in practice. We want to know how the FOI Act is being used. This is the first time an entity like NBN Co. will have been brought within the ambit of the Freedom of Information Act. It is not Australia Post; it is not CSIRO. We know it is in the appropriate part of the act. The question is: will the act serve us well? That is what this amendment proposes to find out.

 Minister Conroy wasn't able to come up with anything much about how he thought it would work. Later in debate Senator Ludlam said

I think that the idea that commercial information is somehow all sacred, and that the public interest takes a back seat to the commercial interest, is a really serious usurpation that has just crept into public discourse over time—that information that is considered not even necessarily commercially sensitive but merely commercial is precluded from release.

Senator Xenophon also showed interest, seeking information about how the review might be conducted. While the Government made no commitment Senator Ludlam made it clear he has in mind a public process that will include submissions.

The Senate amendments to the Bill were considered by the House of Representatives as recorded in Hansard 24 March [at 121] (I thought it was Friday)

NeHTA not a FOIer

When posing the question the other day about what other government related entities, like NBN Co (until amending legislation passes), are outside the scope of the Commonwealth Freedom of Information Act, I was unaware of the exchange below during the course of questioning of officers of the Office of Australian Information Commissioner in Senate Estimates. Their evidence is no one has a reliable list of who's covered and who's outside the Commonwealth act. I suspect that a similar situation applies in the states with respect to state legislation.

The confirmation that the National E-Health Transition Authority (NeHTA) is not covered by the FOI act despite the fact that annual reports on the operation of the act have for years past listed it as subject to the act, again raises the question: what other entities are out there carrying out important public functions with large amounts of public money that should be subject to the highest standards of transparency and accountability, but aren't?

NeHTA is a company limited by guarantee, established in 2005 by the Australian,State and Territory Governments, with those entities as Members.The board consists of  the CEOs of the various commonwealth and state health departments and a couple of independent directors. It clearly exists to advance public purposes and is responsible among other things, for the healthcare identification service.It received member (state and federal government) contributions of $95 million last year. The accounts are audited by a private firm not the Auditor General and refer to Corporations Act, not public sector standards.The Annual Report is not to a minister and contains no reference to any of the usual public sector reporting requirements. On a related issue as a company with turnover in excess of $3 million, it seems NeHTA itself is subject to the private sector provisions of the Federal Privacy Act, not those that relate to the public sector, which given the nature of its business might come as a surprise. The website makes no mention of what privacy regime applies, but with regard to identifiers states: "New legislation introduced by the Federal Government sets out the governance, privacy safeguards and permitted use of healthcare identifiers. In addition the current state, territory and federal privacy legislation will continue to apply."

Here is the relevant transcript ( Finance and Public Administration 21 February at 112)

FOI exclusion for NBN Co's commercial activities

Adam Bandt

The details of the agreement between the Government and The Greens to bring NBN Co in under the Commonwealth Freedom of Information Act are in a bill passed by the House of Representatives on Tuesday and which is now before a Senate committee. in the House, Adam Bandt of The Greens said the legislation achieves the purpose of subjecting NBN Co to the FOI regime but not in such a way that it would put the company at a commercial disadvantage. Opposition frontbencher Malcolm Turnbull said The Greens have been sold a pup and that the amendments won't achieve this purpose at all. 

In seeking to protect commercially sensitive information from disclosure the NBN amendment largely utilises words already used that exempt documents concerning commercial activities of other government entities such as Australia Post, Medicare and CSIRO. Turnbull didn't raise this, but they have been broadly interpreted in the courts and the AAT to mean for example any document that has a direct or indirect connection with commercial activities-in this 2007 Federal Court case for example, to put outside the scope of the FOI act as it applies to Australia Post, a list of the names and addresses of post office licensees, information you would expect to find in the telephone white pages.Some of the existing and NBN drafting is also, well clumsy-"in relation to documents in respect of"-for example.


To illustrate the lawyer's delight, AAT Deputy President Forgie in Bell and Commonwealth Scientific and Research Organisation [2007] 46 AAR 1 took 89 paragraphs [52-141] to analyse some of the terms now used for the NBN, and the case law in detail, expressing along the way some bemusement at how to apply a binding precedent in another Federal Court decision Australian Broadcasting Corporation and The University of Technology Sydney [2006] FCA 964.

The amendments in effect make NBN Co subject to the act by defining it as a prescribed authority, but exempt the company "in relation to documents in respect of its commercial activities" through the addition of a provision to Schedule 2. An amendment to section 7 provides that "commercial activities" when used in relation to NBN Co means "activities carried on by NBN Co on a commercial basis" or "that may reasonably be expected in the foreseeable future to be carried on by NBN Co on a commercial basis." Turnbull's point is that the reference to the NBN in amendments to s 7, unlike the provision that applies to other entities listed in Schedule 2, is not confined to those NBN functions carried on in competition with anyone else.

The NBN Co situation raised issues about exclusions from the FOI act (what other government owned companies aren't covered?) and Schedule 2 apart from its construction, (ALRC recommendations of 1995 and for example another matter concerning the ABC and SBS) that should have but weren't addressed in last year's FOI reforms. While exempting NBN Co's commercial activities from the act in terms that apply to other entities satisfies the need for neat consistency, it won't deliver certainty and leaves plenty of room for broad blanket exemption claims that won't require any evidence of harm to the commercial interests of the company.

Over to the the Senate Committee. This is only one element of the bills.Submissions closed on 24 February (before the Bandt amendment passed the lower house) and the report date is 16 March. Who's interested? 

Company structure shouldn't shade NBN Co from sun shining in

 Business Spectator:

The National Broadband Network Co (NBN) will be exempt from freedom of information laws, unlike other federal government agencies, according to a report by the Australian Financial Review (AFR)...The NBN's exemption, on the basis that it is an incorporated company according to NBN chief legal counsel Justin Forsell, is in contrast to the precedent applied to Telstra prior to its privatisation when the telecommunications company was subject to FOI laws.

Technically Mr Forsell is right, but whether that's the end of the matter is another question.  The Government claims to be committed to openness and transparency, suffered some political pain because of its patchy record and foot dragging approach to disclosures concerning the NBN, and doesn't have the numbers in Parliament.The Prime Minister
brushed it off this morning saying it's the result of "the ordinary operation of the Freedom of Information Act." The Opposition and The Greens foreshadow a challenge when the Senate resumes.

The definitions in Section 4 of the Freedom of Information Act  scope its application. An agency is a Department or prescribed authority. Prescribed authority includes a body corporate, or an unincorporated body, established for a public purpose by, or in accordance with the provisions of, an enactment or an Order‑in‑Council, other than  an incorporated company.... Mr Forsell's point.

However other elements of the definition open the door to extending the act to NBN Co. The definition of prescribed authority goes on to include "any other body, whether incorporated or unincorporated, declared by the regulations to be a prescribed authority for the purposes of this Act, being...(i) a body established by the Governor‑General or by a Minister; or (ii)  an incorporated company...over which the Commonwealth is in a position to exercise control.."

The broader issue of what bodies are, are not and should be covered by the act, was not addressed in the Rudd Government's 2009-2010 reforms, and hasn't been the subject of serious debate and analysis since the act was drafted in the 70's and 80's. There has been a lot of privatisation and engagement by private sector players in what used to be exclusively government business in those days. 

Definitional issues to one side, the act also includes a list of bodies exempt in respect of all or some functions. That needs re-examination as well. Sensitive commercial information is well protected by normal exemptions and doesn't require that the agency be excluded from the act.

The NBN issue is the tip of a large iceberg. 

There is a strong case for applying the highest standards of accountability and transparency to bodies carrying out essential and critical community service roles-like a national broadband network- regardless of structure or ownership.