Last week for NSW statutory review submissions

A reminder, to me to get cracking as much as it is to you, that submissions to the statutory review of the NSW Government Information (Public Access) Act and the Government Information (Information Commissioner) Act close on 29 August.

I'm no fan of the way these reviews are conducted- a notice that the review is underway that few will ever see, terms of reference limited to "determine whether the policy objectives of the Acts remain valid and whether the terms of the Acts remain appropriate for securing these objectives", no discussion or issues paper, no dialogue or fora for interested parties to engage and discuss, and almost certainly no attempt by the agency conducting the review or any agency to survey users, or frequent users. On the other hand government agencies will be well armed with suggestions that reflect their interests.

Somewhat similar to the unsatisfactory process in the review of the Commonwealth act by Dr Hawke that the government has now had a year to chew over.

In Queensland the review of the RTI act and aspects of the information privacy act kicked off a year ago with release of two discussion papers but not a word since.

Government thinking about FOI changes needs a full airing before, not after decisions

The Fairfax Media report that Cabinet is reviewing/has reviewed Freedom of Information fees and charges, and the recommendations from the Hawke review is not surprising. 

They had to get around sometime to looking at the report to the then Attorney General by Australian Information Commissioner Professor McMillan on charges completed in February 2012, and the Hawke review report completed well over a year ago. 

But both reports, and the Government's thinking about the issues raised deserve a thorough airing that they haven't received to date.

More cost recovery and the search for disincentives to ease the workload are likely the catalysts for action on charges.

Some recommendations ( boosting informal or administrative access) in the McMillan report are sensible improvements, but others such as the flat 40 hour limit on processing time are not. 

There are also issues not addressed in the report that flow from the decision announced in  Budget 2014 to abolish the OAIC.For example, the going rate for a review application to the Government's preferred one tier at the Administrative Appeals Tribunal is since 1 July $861, and that's for starters.

A detailed examination of FOI processing, resourcing and costs should be undertaken before any changes to the charging regime.

The claim that FOI costs something close to $50 million a year to administer has been run up the flag without any evidence as to agency efficiency and effectiveness in carrying out FOI functions or any examination of the benefits side of the equation. This at a time when there is much self congratulation about the 'free data' voluntarily released by government agencies that fueled Gov Hack gatherings across the country at the weekend and may deliver big economic and social dividends.

But free access to what the government voluntarily releases and increased charges over and above what can already be hefty imposts for access to the information government isn't pushing out the door will take some explaining.

How much of the FOI administrative costs can be attributed to inefficiency, failure to invest in technology, refusal to make sought after information available promptly and at lower cost without the need for formal applications, and gaming the system by putting applicants through the run around, we don't know. Professor McMillan didn't go there nor did Dr Hawke. It's no doubt the tip of an iceberg but take a look at the pedantic, bureaucratic and no doubt costly to the taxpayer correspondence generated by applications made through Righttoknow.

As to the Hawke report (pdf), cherry picking the bits that appeal to those in the government shouldn't be on either. Dr Hawke had limited terms of reference, limited time, completed his inquiry apparently without any research or prying into  dark FOI corners, or talking much to anyone at all outside the Parliamentary Triangle. 

Hence his recommendation No 1

"..that a comprehensive review of the FOI Act be undertaken."

And this concluding observation: 

"I believe a complete rewrite of the FOI Act in plain language is now necessary, so that it is readily accessible and easily understood."

Integrity, transparency and Open Government Partnership should underpin Abbott Government 'trust' goal

The new Federal government starts in office with a leader who during the campaign identified the trust deficit as the biggest deficit problem, who pledged on election night to create a competent, trustworthy government, and  who reassures on the front page of the Sydney Morning Herald today - 'We won't let you down.'

(The starting point (paywall) on trust for Mr Abbott, drawn from the most recent Newspoll, is 43 per cent consider him trustworthy, and 53 per cent as untrustworthy. At least, better scores than his opponent.)

Trust is hard to win easy to lose. Good luck to us all.

As to the detail, as mentioned in recent weeks, Mr Abbott and the Liberal Party in opposition put nothing on the public record during the campaign regarding plans for governing differently. The integrity issues didn't rate a mention.

There are many. Transparency is a big one. As The Australian in an editorial on Saturday noted:

Mr Abbott promises to restore proper process to government and we are confident he will keep his word. The public service must be de-politicised, cabinet must be restored to prominence and Mr Abbott must maintain a commitment to transparency that is easier to make in opposition than to observe in power

The Hawke report on review of the operation of the Freedom of Information Act will be somewhere in the pile on the desk of incoming Attorney General Senator Brandis.

Senator Brandis won't need to read far - just the transmission letter - to see that the review wasn't as comprehensive as those who advocated it back in 2010 hoped at the time. And that cherry picking the recommendations (many based to my mind, on skimpy or apparently no research beyond consideration of some suggestions in some submissions) isn't the answer to addressing underlying problems that stand in the way of  an Abbott Government emerging as the transparent, trustworthy government the Prime Minister Designate intends. Dr Hawke recommends a comprehensive review, identifies some issues that should be considered but are not addressed in his report, and recommends that we start with a blank sheet of paper to render the complex messy statute understandable by those intended to benefit from it- all of us.

Another issue that requires early clarification is Australian participation in the Open Government Partnership. Then Attorney General Dreyfus announced in June our intention to join.The Liberal Party in Opposition maintained silence. 

But for a government that puts the trust issue up there in lights, standing firm as part of a 60 strong international partnership dedicated to improving the way democracies work with an emphasis on open, efficient and effective government should be a no brainer.

Friends such as current co-chairs Indonesia and the UK, and the US and Korea to mention just a few of the countries involved would expect ongoing Australian commitment to the OGP. As do individuals and groups in Australia following the issue closely and who have been waiting for months since the intention to join was announced to hear how the Government intends to manage the partnership with Civil Society in developing a National Action Plan.

Senator Brandis should reaffirm the commitment by the previous government that Australia intends to join, test whatever thinking has taken place within government about 'partnership' with those outside government who might expect to be part of it, and follow through by ensuring high level Australian attendance at the OGP Annual Summit in London in late October.  

Dr Hawke in his transmission letter dated 1 July advised the Attorney that OGP involvement was proof positive that Australia was interested and understood the importance of 'open government' in the broadest sense.

Dr Hawke's FOI report may get lost in pre-election hubbub

My ears pricked up at the Privacy Reform and Compliance Forum in Sydney today when in answer to a question about the OAIC from the audience, Attorney General Dreyfus said in passing '"we are waiting for the report from Dr Hawke."

I had been working on the basis that Dr Hawke's report on the operation of the Freedom of Information Act had to be finished and the report submitted by 30 April and tabled in Parliament within 15 sitting days. In my mind this was any day in the next week or so.

Here is why. The text of the relevant section of the FOI act reads:
Review of operation of Act

             (1)  The Minister must cause a review of the operation of this Act to be undertaken.

             (2)  The review must:

             (a)  start 2 years after the commencement of this section; and

             (b)  be completed within 6 months.

Note:This section commences immediately after the commencement of section 3 of the Australian Information Commissioner Act 2010 .

             (3)  The Minister must cause a written report about the review to be prepared.

             (4)  The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives the report. 

But prompted by the Attorney General's comment, a close reading of the provision suggests the review must be completed within six months of commencement on 1 October, ie 30 April. 

However there is nothing that stipulates when the report must be submitted to the Attorney General thereafter.

It seems Dr Hawke has whatever time he likes or needs after completing the review, to write the report and hand it over to the Attorney General. Who then within 15 parliamentary sitting days must table it.

With Parliament to sit for eight days commencing on 17 June and perhaps not again before the September election, strictly speaking the Hawke report may not see the light of day until well after election day on 14 September.

Hawke FOI review report lands in Attorney General's in- tray

The Hawke report on the operation of the Freedom of Information Act and the Australian Information Commissioner Act was due to be handed to Attorney General Dreyfus today and must be tabled in Parliament within 15 sitting days. With Parliament resuming on 14 May the report will be tabled before Parliament rises again for the winter recess at the end of June.

Maybe pleasant surprises lie ahead, like a forthright account of what needs to happen to achieve the lofty aims of the legislation. We'll wait to see.

But the review process - written submissions, then leave it all to us folks - was straight out of an out of date textbook. Magnified by the fact it is about the operation of legislation that has as an object "the promotion of Australia's representative democracy by increasing public participation in Government processes." 

The Department straight-batted queries regarding adequacy of the process in an answer to a question taken on notice from Senator Rhiannon PDF 134KB

As at 12 February more than 75 submissions had been received. Sixty nine have been published overall - 32 from government or government related agencies or individuals.

I have the impression Dr Hawke was almost entirely in the hands of the public service throughout the six month review, with AGD providing whatever support he needed.

Dr Hawke didn't appear to venture far from the Parliamentary Triangle here but went to NZ during the review wearing another hat and made some FOI contacts I understand.

Oh, I had one 40 minute phone conversation with him just after submissions closed. 

More than most I expect and more than anyone I heard from except Rick Snell who had about the same. 

Roll on June...