New information commissioner and a new external review tribunal in NSW.

And with the GIPA act up for statutory review this year, 2014 could be a big one here.

Information Commissioner
Elizabeth Tydd replaces Deirdre O'Donnell who stood down last July. Ms Tydd was most recently the executive director of the Office of Liquor, Gaming and Racing, a real hot seat in Sydney in recent times. And before that assistant commissioner of the Compliance and Legal Group at the Office of Fair Trading, and deputy chairperson of the Consumer, Trader and Tenancy Tribunal, now part of the newly minted NSW Civil and Administrative Tribunal

It's a big job with much to be done to lead the open government 'revolution' foreshadowed in 2010. How far things have moved in that direction is an open question with plenty of suggestions from users that it's not far and certainly not enough.

But information about agency performance in NSW is patchy, and anecdotal. No reports on the operation of the GIPA act across all agencies required each year of the commissioner by section 37 of the Government Information (Information Commissioner) Act have been published. As to the much mooted 'culture change', ???
 
The commission annual report (pdf) 2012-2013 is as thin as those that have gone before regarding the performance of the commission and the effect and impact of a no doubt busy year.

The basic stats are 46 formal GIPA matters finalised, 237 information access reviews, one investigation, 50 ADT matters, 58 complaints, 388 requests for assistance, and 161 privacy internal reviews.

The measures cited in the report as performance measures provide little insight into what has been achieved or efficiency, effectiveness, or quality in delivering the goods. Timeliness in dealing with GIPA reviews is an acknowledged source of agency and applicant dissatisfaction. 

On this score the restructure referred to in the report, with employee numbers down to 25 from 33 a year ago must have played a role.The financials assign $496, 370 to 'voluntary redundacy'.

However after ploughing through the report this reader is none the wiser about the state of the game. A sample of unanswered questions: the state government agencies, local councils or ministers' offices at the upper end of the scale for GIPA review applications and complaints; the number/% of finalised review decisions or negotiated resolutions that substantially affirmed the agency decision or recommended or flowed from reconsideration; the % of GIPA review matters where the agency accepted the OIC recommendation to undertake further review and the names of agencies that did not act on those recommendations (the IPC is limited to recommendations and does not make determinative decisions-therein lies a problem); the correlation between the OIC view and the ADT where a matter followed that course; the average cost of an IPC review and time taken in resolving review and complaint matters and the duration of matters that make up the backlog.

Tribunal
NCAT commenced operating on 1 January 2014 replacing more than 20 of the State's existing tribunals including the Administrative Decisions Tribunal. (Super tribunals are the Admin law flavour of the decade: the establishment of NCAT, follows the creation of VCAT, QCAT, and (WA) SAT. And SA was thinking about it some years back.)

Mr Robertson Wright SC, the inaugural NCAT President,was sworn in as a Supreme Court Judge before assuming the position. Prior to his appointment Mr Justice Wright was a barrister for 30 years and a part time judicial member of the Administrative Decisions Tribunal since 2007.

The ADT deputy president (full time from commencement of operations in 1998) Magistrate Nancy Hennessy heads the Deputy President of NCAT responsible for management of the internal appeals list. 

Most members of the merged tribunals are probably making the transition but for whatever reason deputy president Higgins isn't listed. Members include experienced FOI/GIPA and privacy hands Steve Montgomery, Peter Molony and Naida Isenberg in addition to Deputy President Hennessy.

In the final ADT annual report Judge O'Connor's reflections include that in 1998, ten years after the FOI act commenced in NSW with the FOI review function allocated to the District Court, there was no body of FOI case law to guide decision making. The ADT in 15 years published around 400 FOI decisions.

In 2012-2013, the ADT had 96 GIPA filings and 43 privacy matters, around the same number as the previous year. Average disposal time 28 weeks. 

The significant appeal cases noted in the report include two GIPA decisions: NSW Office of Liquor Gaming and Racing v Fahey [2012] NSWADTAP 55, and Department of Family and Community Services v Edwards [2013] NSWADTAP 17.

Acting NSW Information Commissioner appointed

Kathrina Lo has been appointed Acting NSW Information Commissioner and acting head of the Information and Privacy Commission from 8 July, with Information Commissioner Deirdre O'Donnell finishing up last Friday. 

The notice on the website doesn't mention this but I understand Ms Lo's substantive position is Director of Justice Policy in the Department of Attorney General and Justice. Someone told me that she will be three days a week as Acting Commissioner, the remaining two back at DAGJ as Director of Justice Policy. 

Not sure who apart from the Attorney General or the head of his department thinks this is adequate or satisfactory given the demands of the job, high rates of staff turnover, long delays in dealing with review applications and complaints.The IPC has been under the pump for many months.

It's not as if there hasn't been time to manage a transition to a replacement or less satisfactorily, a full time acting commissioner. Ms O'Donnell's departure plans were announced in March and recruitment of a replacement was said to be underway at that time.

NSW already has a part time privacy commissioner. 

Ms Lo "will fill this role until the Government makes a longer term appointment to the position."

Experience elsewhere demonstrates "acting" appointments can drag on and on.

In Queensland, Clare Smith, Right to Information Commissioner, is the Acting Information Commissioner. Commissioner Julie Kinross left in August last year. The position is vacant "pending the outcome of a selection process conducted by the Department of Justice and Attorney-General and appointment by the Governor-in-Council under the RTI Act. The position was advertised 12 July 2012." 

Lemm Ex takes the prize-he has been Acting Privacy Commissioner in Queensland since December 2011. 

Just ahead of Victorian counterparts. 

Since Helen Vestey left in March 2012, Anthony Bendall acted as privacy commissioner for a year. Currently it's David Watts who is also the Victorian Commissioner for Law Enforcement Data Security and leading the transition to a combined entity.

Information Commissioner job in NSW up for grabs

Advertisements appeared in The Australian and the Sydney Morning Herald (p5) on Saturday for the position of Information Commissioner (NSW) to replace inaugural commissioner Deirdre O'Donnell. Visit this website to apply.

Back in March Laurie Glanfield, Director General of  the Department of Attorney General and Justice announced that Ms O'Donnell was stepping down. And, that "recruitment action to appoint a new Commissioner is underway." 

Under transitional arrangements for the last month, Ms O'Donnell has been "operating remotely" and will finish up on 5 July.

No headhunters apparently involved. Mr Glanfield himself is fielding inquiries - the advertisement invites calls on 02 8688 7313. 

Good luck!

The only reference in the selection criteria to subject knowledge-information access, open, transparent government-is what is implied in "ability to lead the implementation of the legislation."

Law credentials aren't mentioned. And aren't essential. But the commissioner will be operating in a world full of lawyers who continue to have a tight grip on the information access function in many NSW government agencies.

Highly relevant is the ability to speak with confidence and authority to this audience about the law. And to a wider audience, as "independent champion", about the law's spirit and intent.

 The advertisement reads: 

Information Commissioner $300,480 per annum The Information Commissioner is an independent statutory position accountable directly to the NSW Parliament. The Information Commissioner acts as an independent champion of the open government regime established by the Government Information (Public Access) Act 2009. The Information Commissioner has a range of functions under the legislation including promoting an open government culture; building public awareness of information access rights; reviewing agency decisions and investigating complaints about agencies in relation to their information disclosure obligations. The Information Commissioner advises and assists agencies, including local authorities, to meet their legislative obligations, which include mandatory publication of prescribed ‘open access information’; informal release of other information and a residual requirement to respond to formal access applications. The Information Commissioner drives cultural change throughout the public sector so as to facilitate and encourage, promptly and at the lowest reasonable cost, public access to government information. The Information Commissioner will lead and manage the staff and other resources of the Information and Privacy Commission NSW, to effectively and efficiently meet strategic objectives and fulfil reporting requirements. Selection Criteria: Outstanding achievement in administration and management at an executive level. Very high level of personal integrity and commitment to the objectives of the legislation. The ability to lead the implementation of the legislation and proven strategic and business planning skills. Thorough background knowledge and understanding of the machinery of government including administrative and legislative processes. Experience or demonstrated ability to exercise statutory powers and fulfil associated obligations, including reporting to Parliament. Experience and demonstrated expertise in the handling of complaints and dispute resolution. Well developed communication skills for stakeholder engagement, including with the general public, media and government agencies and leaders. The appointment will be for a term of up to five years. Inquiries: Mr Laurie Glanfield, Director General, Department of Attorney General and Justice, (02) 8688 7313. Please visit www.lawlink.nsw.gov.au/appointments to apply. Applications in Word or PDF addressing the selection criteria, accompanied by a detailed curriculum vitae and the names of at least two referees, must be completed online by 12 July 2013.  ...............................

 

NSW Information and Privacy Commissioner leaves but stays

An unusual way to manage transition. From the website:

Information Commissioner Deirdre O’Donnell has announced the transitional arrangements for her role from 24 May 2013. Ms O’Donnell will continue in the role, operating remotely after she leaves the office today until 5 July 2013, to allow for the process to appoint the new Information Commissioner to continue.The IPC’s normal business activities will continue.

In announcing on 25 March that Ms O'Donnell would be leaving on 24 May, Director General of the Department of Attorney General and Justice said the recruitment process for the position was underway. Any visible signs out there?

NSW Information Commissioner to step down

No mention as yet on the website (Update: announcement  26 March) but this notice from the Director General of the NSW Department of Attorney General and Justice has just plopped in my in-tray and seems genuine enough. Surprise, and out of the blue as far as I'm concerned.

To all staff
After three years as the inaugural NSW Information Commissioner, Deirdre O’Donnell has announced she will be leaving her role on Friday 24 May 2013 to fulfil family responsibilities in her home state of Victoria.

Deirdre has been a true champion of open government. At a time when the public sector is undergoing large scale change and reform, Deirdre has made a significant and vital contribution to changing the culture of the public service to be far more open and accessible.

During her time as Information Commissioner, Deirdre made substantial progress on raising awareness of the new right to information regime under the Government Information (Public Access) Act 2009. She was also responsible for establishing the new Information and Privacy Commission (IPC) from 2011.

Deirdre has been a proactive and engaging Commissioner who has lead by example, setting the benchmark for clarity and openness in communication with staff, government agencies and the public.

Deirdre leaves with our very best wishes for the future and I am confident that Deirdre’s achievements provide the next Commissioner with the ideal foundations to further progress the work of the Commission.

Recruitment action to appoint a new Commissioner is underway and you will be advised once an appointment has been made.

Laurie Glanfield
Director General
25 March 2013

NSW never fails to shock or disappoint

Those of us in NSW are bearing but not grinning at revelations before the Independent Commission Against Corruption of get rich schemes involving former ministers. My one sentence about matters not mentioned to date made the Letters in the Sydney Morning Herald on Saturday:

"I guess anything that happened while Eddie Obeid himself was making decisions as minister for fisheries and minister for mineral resources from 1999 to 2003 is just ancient history, and we best move on?"

State Political Editor Sean Nicholls highlighted shortcomings and calls for change from Labor (new to such things) and The Greens about the pecuniary interest register and lobbying disclosures. The Premier is waiting for the ICAC report he says. Both issues have been the subject of recommendations going back years that weren't acted upon.

Among the "transparency" news in Fairfax Media today is this NSW Government Information (Public Access) Act gem:

The Greens MLC John Kaye asked about casual staff at Coffs Harbour Base Hospital and how many had been employed for longer than 12 weeks. The right to information manager at the Mid North Coast Local Health District, Chris Chick, replied it would cost $13,262 to retrieve the information. That included an estimated 51.5 hours at $36 an hour to check the database.

NSW parliament disclosures fine-by 1689 standards

The Sydney Morning Herald published my letter today (scan down to "Publish MP disclosures online") with an edit that makes the final reference to 1689 even more obscure. Here's the text as submitted, with links. The letter was in response to Linton Besser and Kate McClymont at the weekend" Inquiry opens Pandora's box of extensive dealings"
about Eddie Obeid which kicks off " He is not the man his bare pecuniary interest register has depicted."

"The O'Farrell government took action in parliament recently to legislate to remove doubt as to the ability of the ICAC to consider and make findings in relation to the Registers of Disclosures of Members of Parliament. Entries in the name Obeid and Macdonald are now proving interesting and illuminating.

The President of the Legislative Council had queried whether parliamentary privilege, "by operation of the 1689 Bill of Rights," applied to the registers. As the Premier explained, the legislation was necessary to allow the registers to be accessed and utilised by the ICAC "even though they are already publicly available and open to public scrutiny."

The registers are available for inspection between 10 am and 4 pm if you find yourself in Macquarie St on a weekday, but not otherwise. A few journalists occasionally bring some entries to the attention of a wider audience.

Premier O'Farrell told parliament that scrutiny of the registers by ICAC "will not impact adversely on the business of Parliament. It will not inhibit debate. It will not undermine freedom of speech. It will not impede any activities that members of Parliament undertake in the exercise of their representative and parliamentary duties. To the contrary, what it will do is to enhance the integrity and standing of this place. It will further reinforce why it is important for all members to make full and proper disclosure in accordance with the 1983 constitution regulation."

True. But that applies in spades if the registers were to be published on-line, close to real time. With the potential added bonus that more eyeballs might ensure we are aware of sources of gifts and income from second jobs as well as the mysteries and discrepancies.

The same applies to payments of allowances and entitlements and other expenditure by the parliament for and on behalf of members. At present the global amount paid to each is published but buried away in appendices to the annual reports of the departments of the Legislative Assembly and Legislative Council. No details of payments made are provided and the reports can relate to expenditure incurred up to 12 months previously.

The payments are a small part of the $139 million allocated to the parliament in the 2012-13 budget. Parliament is not subject to right to information legislation that applies to state government agencies. The then presiding officers waved off the Rees government when it made an initial inquiry about taking such a step in 2009.

Time for change, Premier.

After all it's 2012 not 1689.

Peter Timmins.

As readers will know the Commonwealth parliamentary departments are subject to FOI - for the moment at least.

NSW Parliament should do better on openness

Shadow NSW minister for transport Penny Sharpe may have been the only politician in Australia to have said anything about the International Day of Democracy and the Declaration on Parliamentary Openness when she spoke in NSW Parliament last week-text extracted below.

While noting all sorts of things being done elsewhere to open parliament to the people, and the fact that the state parliaments have not been helpful to Open Australia (see this 2009 post on that), Ms Sharpe's only comment on things close to home was:

 "Here in New South Wales we can and we should do better."

Indeed.

For starters by publishing online details of payments to or on behalf of parliamentarians at present buried away in annual reports, travel, and the interests register, particularly gifts and secondary sources of income for those who have other jobs. Publishing on-line papers tabled in parliament following Queensland's lead should also be on the list. How about extending the GIPA act to cover the parliamentary departments in line with developments in Tasmania and the national capital? We could go on....

Hansard doesn't record any hear, hears when Ms Sharpe finished speaking.

FOI charges remain a barrier to access and a cost to the taxpayer

The Australian reports today on the refusal by the Department of Prime Minister and Cabinet to waive charges for the release under the Freedom of information Act of 80 pages to Senator Abetz concerning appointments to the Levenson media inquiry, on grounds that  the documents would not be of interest to anyone other than "a limited section of the community, namely the media."  A reminder that the complex, resource intensive and time consuming charge regime remains a flaw in the Commonwealth system, even though  application fees have been abolished.

The Australian information Commissioner reported just that in his review released in March: "The charging framework is not easy to administer, the cost of assessing or collecting a charge can be higher than the charge itself, and the scale of charges is outdated and unrealistic," Professor McMillan said.

This report concludes that further change to FOI legislation is needed. A new charges framework could enable the FOI Act to work better in providing public access to government information without impairing the other responsibilities of agencies and ministers....The prevailing theme in all consultation for this report was that the FOI Act is a vital statute that must be supported by government and made to work in an optimal manner. My recommendations for reform are framed in that spirit. I commend them to the Australian Government for close consideration.

Six months on that's the last heard of the reform proposals, in public at least. Professor McMillan did say he was interested in hearing from others, was considering further consultation and possibly a supplementary report to the Attorney General. But in the meantime, apart from a line of applicants frustrated by the charge hurdle in an age where speedy access is the go...

Who knows how much time and cost to the taxpayer continues to be involved in agencies  calculating estimates,keeping track of time, seeking deposits, considering applications for reduction or waiver on financial hardship or public interest grounds, calculating charges and chasing up requests for payment etc, etc? All that before further time and cost absorbing complex guidance on the subject and arguing the toss on matters where the applicant seeks review on grounds a charge has been wrongly assessed or should be reduced or not imposed.

To date, the Office of Australian Information Commissioner has published 20 review decisions in 2012. Ten relate to charges. In three cases-33%- the commissioner set aside the agency decision. 

Many matters don't go to a formal decision so it's not known how large charge issues loom in the overall review workload of the office. But it is clear that time and cost spent on this is too much at every level.

On the "whatever happened" theme:
In NSW, to Premier O'Farrell's commitment while in opposition to abolish application fees? And to the review of fees and charges by the NSW Information Commissioner that kicked off with a consultation paper and a survey in October last year and seems to have dropped off the radar since?

And in Tasmania has anyone had a look at the consequential effects on applicants, and savings in administrative costs as a result of the decision in 2009 to retain a small application fee and abolish other charges?

If access to information law has the worthy public purpose of increasing public participation in government activity, the fees and charges regime, managed at significant cost to the taxpayer, shouldn't block the way.

Surprise-parts of NSW incoming government brief "entirely factual"

Followers of blue/red book disclosures will be interested to see the NSW Information Commmissioner has informed the Sydney Morning Herald, as the complainant, that parts of the brief prepared for the incoming O' Farrell government last May consist of "entirely factual material" and are therefore outside the scope of information prepared for cabinet, the disclosure of which would be contrary to the public interest. The government is yet to respond to what amounts to a recommendation from the commissioner that the information be released.  Yes, poor form for a government that claimed to be interested in improving transparency.

Steady budget allocation for NSW Information and Privacy

Wikimedia Commons Cimexus

The NSW Information and Privacy Commission received an allocation of $5.4 million in the 2011-2012 Budget yesterday (Budget Paper 3 Attorney General and Justice pages 2-62 to 2-68) for the first full year of operations for the combined entity. Last year the Information Commissioner received a total of $4.5 million.The allocation for Privacy NSW, then a business unit of the Department Justice and Attorney General, was not mentioned separately but buried somewhere in departmental accounts. The Privacy NSW Annual Report for 2009-2010 suggests annual expenditure of around $1 million, so in a tight budget Treasury no doubt would see $5.4 million for both in 2011-2012 as reasonable, although privacy has been skinny on resources for years and won't get any big boost out of this.

The comparison with the two offices that currently combine these functions elsewhere are Office of Australian Information Commissioner $12.6 million, and Queensland Information Commissioner $5.9 million

The "intermediate results" the commission is working towards, like last year, raise some interesting challenges for measurement:

This  service group contributes to protection and advocacy of rights in the community, and an open and accountable government, by working towards a range of intermediate results that include:
▪ privacy rights and rights to access information understood by the public
▪ increased access to information
▪ improved protection of personal information
▪ fewer complaints over conduct of government agencies in releasing information
▪ fewer formal applications for access to information
▪ fewer people seeking review of agency decisions
▪ improved information management by agencies
▪ effective stakeholder relationships.

The published performance information, essentially a few outputs (page 2-64), throws little light on the most important milestones on this journey.

The commission has a staff of 32 (33 in 2011-2012) and in the last 12 months undertook 302 reviews compared to the forecast 100, investigated 60 complaints (100), had 438,000 hits on its website (120,000) and received 419 privacy complaints. Only three agency audits were undertaken as against a forecast 10, with only three planned in the year ahead. Not anywhere near enough to my mind to keep agencies on their toes.

NSW disclosure logs update

The NSW Government Information (Public Access) Act requires each agency to publish on its website as open access information a disclosure log that records access applications that resulted in provision of access to information that may be of interest to other members of the public. Unless publication in this way would be contrary to the public interest.

A quick and far from comprehensive survey last November, five months after the publication requirement commenced, showed many NSW agencies at that stage had posted little or nothing on their disclosure logs. I then had people telling me I had no idea about the lack of resources and their other start up woes, messages received with some but not a lot of sympathy. In this second year of operation Information Commissioner O'Donnell is to take a look at this area of compliance according to the latest OIC news.

In the meantime a recent scan of a sample of agency websites shows things have changed in some instances. The experience confirms NSW lacks the uniformity and ease of access to disclosure logs achieved across federal agencies through adoption of the Australian Information Commissioner's logos scheme on many federal agency home pages.

While this is no competition based on numbers, congratulations to the Department of  Education and Training on the score of being up to date, although a quibble that all information can only be accessed by email request and nothing is posted online. I'd include Police for a commendation as well except you need investigation qualifications to find the log on their website, and if you want any of the released information you have to to fill in and lodge a form. Hardly leading edge.

As to reasons for what amount to nil returns over many months in some other agencies I'm all ears, acknowledging there can be valid lawful reasons for having nothing to post.

NSW Privacy investigates, but what happened to the Commissioner?

I can't recall the previous report of an own motion investigation by the NSW Privacy Commission-years perhaps?-but Acting Commissioner McAteer's report on a breach of security data at the University of Sydney (which also attracted media coverage) suggests a new and much needed willingness to take a closer look at how NSW agencies are complying with the law. I don't think there's been an audit of agency compliance in the 11 years of operation of the privacy act either. And while on the subject, it's now eight months since applications for the position of Privacy Commissioner closed. Sure it's been a tumultuous time in government in NSW since, the O'Farrell team has only been there since March, the merger of the information and privacy commission offices followed by a general public service restructure may have both  involved some upheaval, and any proposed appointment is subject to approval by a parliamentary committee. But eight months??investigation report

NSW Premier lauds whistleblowers, and ups the ante on protection reform.

In contrast to the "in the fullness of time" approach to integrity of government and associated reforms adopted by Victorian Premier Baillieu, NSW Premier O'Farrell is moving right along on some fronts at least, introducing in Parliament this week foreshadowed changes to whistleblower protection law and to the Independent Commission Against Corruption. During his speech the Premier made specific mention of several whistleblowers including Gillian Sneddon whose actions in speaking up led to the jailing of the former Labor Minister for Aboriginal Affairs:

Her case is symptomatic of Labor's treatment of whistleblowers, whether it be the nurses who exposed problems at Camden and Campbelltown hospitals or the brave Bimla Chand, who exposed systematic bullying at RailCorp. Labor's treatment of people who stood up for the public good, who stood up for their beliefs, was nothing short of shameful and every single member of the Labor Party in this place ought to hang their heads in shame.

Ms Chand has been a self-represented litigant in cases against Railcorp in various courts and tribunals in recent years, most recently two weeks ago losing an appeal on a freedom of information matter in the NSW Court of Appeal, with costs awarded against her. Earlier in the year the Court of Appeal dismissed an appeal by her against an Administrative Decisions Tribunal decision that certain claims of sexual harassment and victimisation were not within jurisdiction, and others were not substantiated. An appeal against the  decision of the ADT Appeal Panel to award costs against her in the same matter was also dismissed by the Court of Appeal- with costs awarded against her. In another ADT Appeal Panel decision President O'Connor gave this history:

Ms Chand was employed by the agency between 2000 and 2005. Around 2001 she made internal complaints relating to the conduct of other employees that she considered involved corrupt practices. Later she took leave on medical advice. The agency terminated her employment in 2005 on medical grounds.
3 Ms Chand has brought various proceedings against the agency. She contested her termination in the Australian Industrial Relations Commission. In this Tribunal’s Equal Opportunity Division she sued the agency over alleged sexual harassment by fellow employees during her employment and over alleged victimisation for making those complaints. As to these matters, see Chand v State Rail Authority of NSW [2007] AIRC 911 (21 November 2007), and Chand v Rail Corporation of NSW (No 2) [2009] NSWADTAP 27 (30 April 2009). There is also a reference in the agency’s material to proceedings before the Transport Appeals Board.

After this long and expensive run, Ms Chand now appears to have a sympathetic supporter in high places.

As the Premier outlined, the Public Interest Disclosures Amendment Bill 2011

• expands the type of disclosures that can be made to the Chief Executive, Local Government, in the Department of Premier and Cabinet regarding wrongdoing by local councils. Currently the Act only permits public interest disclosures to be made directly to the chief executive in relation to serious and substantial waste of local government money. As the Division of Local Government can investigate a range of other conduct by local councils, the Government considers that public officials should be able to disclose a wider range of wrongdoing directly to the head of that division and receive the protections under the Act. To implement this, the bill will also allow the chief executive to receive disclosures about corrupt conduct, maladministration, breaches of pecuniary interest obligations under the Local Government Act and a failure to exercise functions properly in accordance with the Government Information (Public Access) Act 2009 by councils.
• imposes express statutory obligations on the heads of public authorities. These include responsibility for ensuring that the public authority has a public interest disclosure policy, that staff are aware of the policy and the protections of the Act, and that the public authority complies with the policy and its obligations under the Act. Placing these obligations in legislation will assist in emphasising the importance of top-down support for public officials who make public interest disclosures. It is also proposed to empower the Ombudsman to assist in resolving certain disputes that might arise as a result of a public official making a public interest disclosure. New regulation-making powers have been included in the bill for this purpose. 
• will also improve the feedback from agencies to whistleblowers about their concerns. Public authorities will be required to send a copy of the agency's policy to a person who has made a public interest disclosure and to acknowledge receipt of a disclosure within 45 days. This requirement will need to be included in the public authority's public interest disclosures policy.

The bill also provides for the Information Commissioner to be a member of  the Public Interest Disclosures Steering Committe, as public interest disclosures can be made to the Information Commissioner regarding a failure to exercise functions properly in accordance with the Government Information (Public Access) Act 2009. Current  members are the Ombudsman, as chairperson, the Director General of the Department of Premier and Cabinet, the Auditor-General, the Commissioner of the Independent Commission Against Corruption, the Commissioner for the Police Integrity Commission, the Chief Executive, Local Government, and the Commissioner of Police. The role of the steering committee is to provide the Premier with advice on the operation of the Act and recommendations for reform.

Among a number of changes to the ICAC, the Independent Commission Against Corruption Amendment Bill 2011 will  permit reports and findings of the Inspector of the Independent Commission Against Corruption to be published more broadly. The Premier said the amendments will clarify that the inspector may communicate his findings and recommendations to the ICAC commissioner, ICAC officers, complainants and any other affected parties for the purpose of resolving a complaint or dealing with a matter. The inspector will also have broader powers to report on his activities to Parliament. 

(Update: Parliament passed the bills in September 2011.)

New privacy reform reports join the logjam

Wikimedia Commons Niklas Bildhauer

Reports recommending action on privacy issues keep piling up, the latest the Federal Parliament's Joint Select Committee on Cyber-Safety report High-wire act: Cyber-safety and the young - Interim Report.

 Itnews focuses on the committee recommendation to remove the small business exemption from the Privacy Act, as recommended by the Australian Law Reform Commission in 2008. In fact Chapter 5 contains nine recommendations mostly supporting those made in April by the Senate Environment and Communications Reference Committee. Apart from removal of the small business exemption, the committee calls for action to ensure more clarity about consent in the online context, regulation by Australian law of any collection of personal information from Australia, tighter rules for transfer of personal information overseas, and for a "Do not track"model.

Some recommendations are relevant to consideration by a senate committee of the government's exposure draft of the Australian Privacy Principles.That process has been underway since June 2010 and the committee is due to report in September.(Correction-the Committee reported on 15 June with 29 recommendations for consideration. As a result the rest of what follows, written before I became aware of this, might appear to have been unduly pessimistic about the timetable. However given the committee's view that some fundamental redrafting is required, I'd be surprised if this is smooth and straight sailing from here. See this later post for details.) After that, if you allow time for a government response, then for parliament to act on a bill, finalisation in 2011-mid year was the original aim- is starting to look unlikely. As for phase 2 and such knotty issues as ALRC recommendations for change to media self regulation rules, removal of the political party exemption, mandatory breach notification, and a statutory cause of action for a serious and unwarranted breach of privacy-all in the government's in-tray for years- finalisation in 2012 will be a stretch.

The government ambition of 2009 to work with the states and territories to harmonise privacy law across the nation is looking a little forlorn as well.

NSW Premier ticking some of many available boxes on integrity

NSW Premier Barry O'Farrell on Friday outlined Measures to restore integrity to Government by "strengthening the powers of the Independent Commission Against Corruption (ICAC), restoring integrity to government advertising, and introducing new protections for whistleblowers," perhaps to get over the line with some "first 100 days" commitments. There is still plenty to do on the "restore integrity" front-here are some of the things on integrity Mr O'Farrell said were important before the election.

In now foreshadowing legislation for whistleblower changes, the Premier made no mention of the substantial amendments, most to commence on 1 July, that were passed late last year under the Labor Government, the effect of which are summarised on the Ombudsman's website. While there was a good point to be made about the years it took Labor to act in 2010 on some ICAC, parliamentary committee and other recommendations for change that go back a long way, the Premier was stretching it just a little in claiming “We are doing more to protect whistleblowers in our first 100 days than Labor did in 16 years."

The proposed changes that the Premier said came from the Ombudsman will

• require public authorities to report back to those making disclosures within 45 days;

• require each public authority to have a designated officer to receive information from whistleblowers; and

• require public authorities to report the number of disclosures made by whistleblowers each quarter

This post last October provides some of the legislative history of the Public Interest Disclosures (Amendment) Act. 

One of the provisions, unique in Australia as far as I can tell, is that "government information contravention", defined as "conduct of a kind that constitutes a failure to exercise functions in accordance with any provision of the Government Information (Public Access) Act 2009", has been added to corrupt conduct, maladministration, and serious and substantial waste as a subject of a protected disclosure.

NSW upper house votes to put lobbying ex-ministers in the cooler

The Lobbying of Government Officials Bill was amended in the NSW Legislative Council last week on the motion of The Greens to add a cooling-off period for ex-Ministers and ex-Parliamentary Secretaries to preclude them from lobbying for 18 months on a matter dealt with in the previous 18 months before ceasing to hold office- one of many recommendations in an ICAC report on lobbying last year that the Government has been silent on so far. It now faces an early test of the commitment to improving integrity in government as the amended bill is now back to the Legislative Assembly where the government alone will determine its fate. (Update: the bill as amended passed.) No one in debate mentioned other issues such as extending the success fee ban to the local government sector, or other ICAC recommendations for tougher regulation including more transparency-pity.

An ALP amendment to increase a fine for breach of the success fee provisions from $55,000 for a corporation and $22,000 for an individual to $550,000 and $220,000 was decided against by the casting vote of the President after a tied vote 19 all. Another Greens amendment to prohibit a member of a political party executive from lobbying was lost 19-21.

NSW ADT rules maximum $40000 for damage from serious privacy breach

The decision by Judicial Member Montgomery of the NSW Administrative Decisions Tribunal to award a privacy complainant $40,000 as compensation for loss or damage is the first instance since the commencement of privacy legislation in NSW in 2000 where the maximum amount has been awarded.( NK v Northern Sydney Central Coast Area Health Service (No 2) [2011] NSWADT 81.) The legislation provides for such an order up to the maximum "by way of compensation for any loss or damage suffered because of conduct" contrary to the relevant privacy principles.

The previous highest award  was $7500, although in another case in which it found it had no jurisdiction, the Tribunal said an award of $15000 would have been justified. Judicial Member Montgomery [52] distinguished other cases by reference to the significant number of breaches in the matter before him, and the seriousness of the damage suffered by the complainant as a consequence, involving as it did a suicide attempt. The decision includes discussion [32-45] of the law concerning compensatory and exemplary or aggravated damages. Judicial Montgomery left open the question of the full extent of Tribunal powers commenting that the maximum amount specified was lower than what might have otherwise been awarded [63].

NSW lobbyists may need to multiskill

Things got even bleaker for the lobbying industry in NSW this week, after the Assembly passed the Lobbying of Government Officials Bill. Here's Premier O'Farrell answering a question on notice from Opposition Leader Robertson later in the day:

"But I do have some absolute bad news for people in this House and outside this House, for businesses in this State, and anyone else who believes that by employing a lobbyist they are going to get better access to my Government or get an inside run on a decision, a tender or anything else, that they are wasting their money. Those days are over. There will never again be a Hawker Britton operating in this State, an organisation like that established by those closest to the Labor Party and for which the former Government was charged at times—and I will come back to that in another question time—money and resources that ultimately found their way into the election campaigns of State and Federal Labor. It was a complete and utter scam on the taxpayers of this State.

Some SA standards best left behind

The new director general of the NSW Department of Premier and Cabinet Chris Eccles has a big job on his hands as he starts today. We wish him well. Fresh from South Australia where he headed the Premier's Department for the last two years, Mr Eccles will find many things different in NSW. One of the few on the plus side is a more modern legal framework regarding government transparency. The new government he is to serve also says its into better governance, with promises that include more open and accountable government. As previously noted here, on the freedom of information front, SA seems firmly stuck in pre-reform mode.

In February, South Australian Ombudsman Richard Bingham in Lucas and Department of Premier and Cabinet overturned a Freedom of Information decision by Mr Eccles on internal review, that parts of documents held by the Premier's Department containing names of persons and organisations they represented who attended functions hosted by SA Progressive Business (SAPB), the fund-raising arm of the South Australian branch of the Australian Labor Party (ALP), were exempt.  The Ombudsman was critical of the six months it took the Department to make the original determination, commenting

"(i)t is incumbent on the agency to ensure that it is adequately resourced to deal with applications in accordance with the FOI Act."

In his decision, Mr Eccles relied on Section 7(1)(c) to claim the exemptions- information of commercial value that if disclosed would have an adverse effect on business affairs or prejudice future supply of information, and disclosure would on balance be contrary to the public interest. During the Ombudsman's review, some of the third parties supported this argument and raised other exemption issues including separate aspects of  business affairs, and confidentiality. The Ombudsman rejected the submissions and ordered disclosure.

On the s 7(1)(c) claim the Department submitted [43]:

The attendance of persons from private sector organisations at SA Progressive Business functions is commercial information attaching to those organisations, is not made public, and is often information those organisations would not wish competitors in their industries to know. I therefore consider that the disclosure of this material could be reasonably expected to have an adverse effect on those person’s business affairs.

The Ombudsman said [42]:

On the facts of this case however, I am not satisfied that the identities of the third parties, or the organisations they are associated with, constitute information concerning the business affairs of the individuals or the organisations in the context of the relevant documents. Much of the information concerns, in essence, individuals scheduled to attend a function, and reveals the organisations they were associated with at the relevant time.

In respect of related arguments put on behalf of some third parties, the Ombudsman said [45]:

I am not persuaded that it could reasonably be expected to follow that the third parties, or organisations they represented, would be adversely affected by release of the relevant documents. In saying this I note that it is commonly understood that organisations lobby the government and the opposition alike, and that this does not necessarily mean an affiliation exists with a particular political party. Such an approach is thought to demonstrate common business practice. Furthermore, as I have previously indicated, a significant amount of information demonstrating links between SAPB or the ALP and named individuals and/or organisations is publicly available, or has previously been released to the applicant.

While it had nothing to do with the Department or Eccles, a submission put to the Ombudsman on behalf of one of the objecting third parties [47] is, well, quaint to say the least:

Third party 10 claims that the relevant documents contain ‘commercially sensitive trade secrets which are of commercial value’ to the company they are associated with and another company (the other company), and information concerning the commercial affairs of those companies. Third party 10 considers the fact of their attendance at an SAPB function, among other things, to be exempt, because it may inform competitors of their ‘confidential marketing activities, business strategy and business dealings’, which may in turn adversely affect the company and the future supply of the information to the agency.

The Ombudsman rejected the arguments against and ordered all documents in dispute to be released in their entirety.