Will Queensland's Palaszczuk lead a return to integrity?

Professor AJ Brown of Griffith University writing at The Conversation looks at the issues in Queensland as the new Premier Annastacia Palaszczuk takes office having committed to “restore integrity and accountability” and forge a path of “consultation and consensus, rather than the division of the past three years”.

Update: In announcing her ministry on 15 February no mention of specific responsibility for integrity and accountability issues. Presumably they're with Attorney General d'Ath. Good sign though that they appear in the first sentence of the Premier's first media statement:

Premier Annastacia Palaszczuk says her new Cabinet will be focussed on job creation, listening to Queenslanders and acting on their concerns, while restoring integrity and accountability to government in Queensland.

Update on the Update: Even better - The Mandarin reports the one assistant minister Stirling Hinchliffe "will work on integrity and accountability issues for the Premier while also serving as leader of the house."

During the campaign Labor promises included

• Committing to the Fitzgerald Principles for good governance.
• Reforming political donations rules, including restoring a lower $1000 disclosure threshold.
• Holding an inquiry by Queensland’s Crime and Corruption Commission (CCC) into the “links, if any, between donations to political parties and the awarding of tenders, contracts and approvals”.
• Upgrading and advertising the chairmanship of the CCC, held on an “acting basis” by former bureaucrat Dr Ken Levy in what Labor brands an “abuse” of the position.

Ms Palaszczuk went further in a letter of intent to win the support of Independent Peter Wellington.  

Not mentioned but waiting for the incoming government also is a dusty file marked "Review of Right to Information and Information Privacy Acts 2013" a review launched by the Attorney General in August that year but which sank from sight after submissions on a discussion paper closed. Neither the review report nor submissions have been published.
Action didn't match the talk in 2013 about Open Government.

A short sharp review against best practice information access standards in 2015 should be part of the Palaszczuk plan.

Amid the stench of political donations, a whiff of reform

 Well in some places at least.

You may have missed the final report delivered to NSW Premier Baird on 24 December on options for long term reform of political donations by a panel chaired by Dr Kerry Schott.

By Martin Kingsley from Melbourne, Australia (Cashmoney) [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons

NSW already has the strictest election funding laws in Australia, but the report puts forward 50 recommendations for legislative change and a new more vigorous approach to implementation of the law and oversight by the regulator.

 Nicole Hasham in the Sydney Morning Herald said the report revealed 

"a political donations system riven with loopholes, weaknesses and corruption opportunities. ...The panel ... found "systemic failures" in laws that govern electoral funding disclosure, spending, caps and bans. It called for an immediate review. The archaic, paper-based system of delayed donation disclosures should be replaced by an online system where disclosures were made in real time, allowing meaningful scrutiny of potential relationships between donations and government decisions, the panel said.

No media release from the Premier accompanied publication but Hasham reports Premier Baird said "the government would consider the report and respond before the March election" adding that it "is understood that most recommendations will be supported."Nothing from Labor so far but NSW Greens welcomed most recommendations
 
NSW with an election on 28 March, ten Liberal members of parliament sidelined by the party because of revelations about breach of the donation rules as a result of revelations in ICAC last year, and Labor carrying the dead weight of former ministers Eddie Obeid and Ian McDonald, the integrity issue is unlikely to sink from sight in NSW as is the fate of most Christmas period releases. 

Some Schott recommendations are subject to the outcome and impact of a High Court decision later in the year in the McCloy case which is challenging an existing NSW prohibition on donations by developers.

That case has the potential to slow down national action on political donations also, something the Panel regards as essential for meaningful reform. (Alas the Federal government is yet to show a flicker of interest in this or anything else on the integrity front.)

As long as the rules governing political donations differ across Australia, there is a risk that any NSW law will be circumvented. The evidence brought to light by the ICAC in Operation Spicer shows how the lack of regulation of political donations at the federal level can be exploited to avoid the bans and caps on political donations that apply in New South Wales. We note that the Premier has recently introduced a new anti-circumvention provision targeted at those who deliberately seek to avoid the election finance laws, as recommended by the Panel in its Interim Report. The federal structure of some political parties creates opportunities for avoiding NSW restrictions on political donations. We believe that the Premier should support greater co-ordination of election funding laws across jurisdictions. A co-ordinated approach to disclosure would be a useful start. We recommend that the Premier seek to put the issue on the agenda at COAG. We also recommend that the Premier report to the NSW Parliament on progress against implementation of our recommendations, to ensure that the current momentum for change is maintained.

Labor and others are pushing integrity and accountability issues in the Queensland campaign leading to the election there on 31 January, just prior to this conference  on the subject in Brisbane on 9 February. Plenty of big donations are being accepted by the LNP Newman government from companies pushing controversial resource developments, caps on donations have been scrapped and disclosure thresholds increased twelvefold.

Unlike NSW and Queensland, Victoria does not regulate political donations and disclosure except for a cap of $50,000 on donations from casino proprietors. But on the good news side perhaps the Andrews government includes Special Minister of State Gavin Jennings listed third in the cabinet line up who will oversee government transparency, accountability, integrity and public sector administration and reform, supported by the Department of Premier and Cabinet.

In addition, the department portfolio now includes providing support in relation to the Auditor-General, the Commissioner for Privacy and Data Protection, the Freedom of Information Commissioner, the Independent Broad-based Anti-corruption Commission, the Local Government Investigations and Compliance Inspectorate, the Public Interest Monitor, the Victorian Electoral Commission, the Victorian Competition and Efficiency Commission, and the Victorian Inspectorate.

Political donations, lobbying, getting the BACC fit for purpose, and long overdue freedom of information reform have to be in there somewhere.

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.

Queensland information Commissioner

I didn't see any media release but a reader noticed the First Assistant Information Commissioner has been appointed Information Commissioner in Queensland:

Rachael Rangihaeata has "extensive experience and expertise to the position having held senior leadership positions across all functions of the Office of the Information Commissioner since 2005, including Acting Information Commissioner.  Rachael led the OIC Implementation team responsible for establishing new OIC functions and providing extensive information and training resources for public sector agencies when the Right to Information Act 2009 and the Information Privacy Act 2009 were introduced. Rachael has also worked in various roles within the Queensland State and Commonwealth public service, primarily in strategic and legislative policy. Prior to her appointment Rachael held the position of First Assistant Information Commissioner since 2006, and most recently led the Assistance and Monitoring functions of the Office.

It took 13 months to fill the position. 

Best wishes to the commissioner and Queenslanders all.

Queensland Integrity-where to from the Open Government Policy Forum?

The transcript of the Open Government Policy Forum in Brisbane on 13 August is now available. 

Of interest to all who follow such things are the Premier's opening remarks (1-6) which include references to open data and Right to Information issues and his views about the need to protect deliberative process documents.

Session 2 on Creating an Open and Accessible Government (20-34) includes comments from Professor Bill Lane and me on transparency generally and RTI, and from the floor by Michael McKinnon of the Seven Network who raised issues concerning charges, proposed a public interest test for confidentiality and legal privilege claims, responded to the Premier on deliberative process, and reminded that public servants have a duty that should not be shirked by not recording elements of the decision making process.

There are other points of interest of course. The Forum provided an opportunity for an airing of a range of issues about the integrity system. 

The importance of culture change was ever present.

Always in the background, rather than up in lights, perhaps because the Government has already accepted the majority of recommendations, was that things are moving in the direction suggested in the Callinan Report on the Crime and Misconduct Commission: the whole integrity system needs rationalisation and simplification because in post Fitzgerald Queensland, it has grown into an industry, has too many elements, is too complex with dispersed responsibilities and overlapping functions, and is confusing to both insiders and those who seek to utilise it. 

Support for the proposition was not tested at the Forum and some influential figures clearly question this. Ombudsman Phil Clarke for one responded (29) to suggestions the complaints system is broken, commenting that he is yet to see the evidence.

A question mark that hung over proceedings was the purpose of the Forum and where things go from here. Professor AJ Brown raised this directly with the Premier in the first question of the day, and it came up again in the final session with Jon Grayson, Director General of the Premier's Department.

In the earlier exchange the Premier indicated the Government 'had views' about where it wanted to head but would take on board 'recommendations from the Forum.'  However the Forum didn't operate in a way that could have produced anything of the kind, and this role hadn't been suggested beforehand. 

I was glad of the invitation to be involved to a degree in reasonably informed discussion covering a broad range of issues. But discussion was wide ranging rather than focused, and none of the issues were covered in sufficient depth to lead to any conclusions.

Prof. BROWN: Thank you, Premier. My name is AJ Brown from Griffith University. My question to you and the Attorney would be what is the process from here? There has been the parliamentary committee review of some aspects of the recent management of matters by the CMC. There has been the Callinan/Aroney review. There are conflicting interpretations, I think, about what that review started out to do versus what it may have done. There are processes underway for finessing the implementation of the recommendations of those reviews. What is the outcome of today's forum going to feed into that process and how are those questions going to be resolved relative to the ones that we are doing today? What is our process for feeding into your thinking on this?
Mr NEWMAN: In relation to the two bits of work on the CMC, being the inquiry led by the chairman over here and the Callinan/Aroney review, the government has been considering that. I suppose it is fair to say that, if nothing else happened, we would have a way forward.We have views .We would be implementing what the member for Gladstone’s committee said and what Aroney and Callinan have said. We will be seeking to fuse those things together, particularly mindful of the very important role of the member for Gladstone in coming up with a way forward for the CMC . I guess the idea was to bring people together to consider more than just that. As I outlined, for example just on the complaints system, there is an opportunity— I suppose a bigger opportunity and a more strategic way we could go—which is to not just go and undertake the implementation of some of those CMC recommendations but, as a result of your deliberations, to take what you good people say today, take that on board and have a more comprehensive set of reforms that we could bring into the parliament. I guess that is the opportunity today.We are here, we are listening and the people in this room really are the key thinkers in the space. That is our view. If you have some strong recommendations out of today, I can assure people that that is going to be something that the government is going to take extremely seriously. Did you want to comment, Jarrod?
Mr BLEIJIE: Professor, in terms of the timeline, we have a few things on the plate at the moment with respect to the implementation panel for t he CMC review, working with the PCMC committee.We would probably expect by the end of the year to have it all wrapped up.The right to information/privacy legislation discussion paper that we have out at the moment is due to finish in November .It would be the comments from today and the feedback from today, with the implementation panel on the CMC and then the RTI, and hopefully bundle it all up at the end of the year so we can say, ‘This is the integrity framework in Queensland.'

Director General Grayson said next steps, well, remain to be seen:

The next steps: let me in the spirit of this forum be open and say that there is not a prescribed path forward. This was the first step and I will certainly be talking with the Premier about the next step. But the first step was to encourage an expression of views, which then the government and indeed the parliament can decide how we go forward

So watch that space.

Queenslanders and others with direct experience in dealing with complaints bodies and with other aspects of the integrity system there might want to complete  the Open Government online survey.

Queensland shooting for No 1 on the open, transparent ratings, but...

He has said it before, but in opening the Open Government Policy Forum in Brisbane on Tuesday Premier Campbell Newman reiterated his intention that the Queensland Government rate as "the most open transparent and accountable government in Australia." 

On the open data front, Queensland is well on the way. But in light of one of the Premier's comments the No 1 spot for transparency and accountability could prove elusive.

Queensland leads the open data journey with praise for what has been done to date and plans for the future. These include requiring all agencies to inventory their data sets by the end of the year with decisions on release then to be taken on a more systematic basis than the random selection and release to date.

However in a related comment and in answering a question from Alison Sandy of the Courier Mail the Premier indicated rethinking about the extent of transparency regarding public service analysis and advice.

The Premier said information should be released unless it was truly commercial in confidence, was private, ie personal information about an individual, and added or 'disclosed the deliberative processes of government, feeding into the cabinet process.'

Sandy asked the Premier for clarification regarding the associated question raised in the RTI review issues paper, whether there is a need beyond current protections "for information in communications between Ministers and Departments." 

The Premier explained more generally that he was against trial by the media that arose from disclosures about investigations, which in his own case prior to the election came to nothing, and to the disclosure of policy ideas of officials that have never gone to ministers becoming front page news, which often had the effect of shutting the issue down.

The scope of what the Premier has in mind, or what is contemplated in the issues paper isn't clear. In a session after the Premier left, Michael McKinnon of the Seven Network suggested it was pointing towards a government preference for a deliberative process exemption without a public interest test.

Alison Sandy reports on the issue today in The Courier Mail and quotes me accurately that something like this would be a significant step backwards:

"I think what the Premier overlooked today is public servants in many of these areas are experts and their thinking can inform and shape public debate," Mr Timmins said. "Of course government might make lots of decisions for its own political interest … but at least the scrutiny that those decisions get now is a valuable guard against those things. "We need some evidence to persuade us that what we've got now doesn't work." Mr Timmins said after decisions had been made, there was "a pretty strong public interest that the issues and options that were identified as relevant leading up to the decision should be disclosed."

This isn't the only issue worth a comment-other aspects on the positive and not so positive side of transparency in Queensland in another post.

Queensland integrity framework

The Open Government Policy Forum convened by Queensland Premier Campbell Newman will be held in Brisbane tomorrow, Tuesday, 13 August . 

The forum is part of a process of review of legislation, policies and institutions that make up Queensland’s integrity framework. 

I am on a panel on Creating an Open and Accessible Government, chaired by Professor Peter Coaldrake, with Jonathon Horton, Barrister, Elizabeth Jameson of Board Matters and Professor Bill Lane of Clayton Utz and QUT. 

Look forward to catching up with any of you who will be there.

The forum will be streamed online through the Parliament of Queensland broadcast facilities, and will be accessible at www.qld.gov.au/opengovernment.   

Four information papers provide background information:

• History of Queensland’s integrity institutions (PDF, 445KB)
• Overview of Queensland’s integrity framework (PDF, 218KB)
• Simplifying complaints management (PDF, 211KB)
• Creating an open government (PDF, 211KB).

There are also papers released earlier in connection with the review of the Right to Information and information Privacy acts.


 

Queensland review of right to information and privacy laws

Queensland Attorney General Jarrod Bleijie has released issues papers in connection with the statutory review of the Right to Information Act and the Information Privacy Act.

Plenty of time until 15 November for comment and submissions. 

Some of the issues will get an airing at the invitation only Open Government Policy Forum in Brisbane next week - I scored one, thank you.

The RTI Issues Paper (pdf) canvasses big picture issues including:

• the 'push' model, how it is working generally, and how to give effect to the Premier's  "determination, through the open data revolution, to change the culture of the Queensland Government to be more open by allowing more public access to Government information collected in all regions, in all kinds of formats, for all kinds of reasons"

• the scope of the act including possible extension to those Government Owned Corporations not currently fully covered, to corporations established by the Queensland Government under the Corporations Act, and to contracted service providers where they are performing functions on behalf of government. (In 2011 Mr Bleijie in Opposition introduced but didn't get far with the Right to Information (Government-Related Entities) Amendment Bill 2011 which would have extended the act to cover any corporation supported directly or indirectly by government funds or other assistance, or over which the state, a minister or a department is in a position to exercise control.)

• excluded documents and grounds for refusal of access including the adequacy of the current public interest considerations and a possible new factor favouring disclosure in the interests of consumer protection. No detailed discussion of the absolute exemptions and whether a public interest test should apply, or specific mention of several unique Queensland exemptions: the equivalent of a cabinet exemption for the Brisbane City Council Establishment and Coordination Committee, championed by the Premier when Lord Mayor; the ten year exemption for information about local government's budgetary processes, and the eight year exemption for Investment incentive scheme information. Ominously perhaps, the question is asked whether there is a need beyond current protections "for information in communications between Ministers and Departments." With regard to the current 10 year exemption for incoming minister briefs, the paper notes "no other jurisdiction has a specific exemption to protect this information, and it could be argued that these documents make a significant contribution to public debate." Interesting, coming just as the Hawke report released last Friday recommends a similar exemption should be included in the Commonwealth FOI act! As is this floating balloon: "Are the current provisions in the RTI Act sufficient to deal with access applications for information about successful applicants for public service positions?"

(Addendum: while there is discussion of issues arising from the current provision concerning limited circumstances where an agency may neither confirm nor deny existence of documents, and not give reasons, no mention of the Callinan report recommendation that an agency should not be required to give reasons for a refusal of access decision for any application for nine months. The Government announced recently that the recommendation was accepted in principle, noting it raised important and complex implementation problems.)
 
There are lots of other matters raised, primarily of interest and relevance to government insiders and aficionados on the outside. I see that the review is being conducted by the Department of Justice and Attorney-General "with oversight by a steering committee of senior representatives from relevant departments." Have to wonder what sort of issues might emerge from a process overseen by a steering committee of senior public servants and community representatives with or without experience in the area? Just wondering....

The big questions in the Information Privacy Discussion Paper (pdf) concern national uniformity in particular the advantages and disadvantages of aligning the current information privacy principles with the Commonwealth's Australian Privacy Principles to come into effect next year, or adopting those principles in Queensland. As the paper notes there is

significant confusion and complexity about how privacy law operates for governments and the private and community sector. In addition, it may create an unjustified compliance burden, particularly where organisations operate in more than one jurisdiction, and are required to comply with multiple layers of privacy regulation. Consumers who have complaints about privacy are often confused or unsure about who the appropriate privacy regulator is.

Ah, the search for national uniformity. Good luck to us all.

Queensland facing a "no reasons" for RTI refusal future?

Just a couple of weeks before Premier Newman announced he was taking further steps to advance the government's claim to be the most open and transparent government in the nation, the Queensland Government (pdf) accepted in principle this recommendation from the Callinan Review of the Crime and Misconduct Commission:

that an agency not be required for nine months (unless ordered by a court to do so) to provide reasons for any decision to refuse access to a document sought under the Right to Information Act. 

There was just a hint in the statement of a pause for serious consideration of the ramifications:

The proposed amendment raises a number of important and complex matters requiring further and ongoing discussion with departments and agencies including the Office of the Information Commissioner. The Implementation Panel will provide advice about how the intention of the recommendation can best be achieved.

The recommendation accepted in principle extends to the Ombudsman as well. 

It seems a ridiculously wide and broad remedy to what Callinan saw as a fundamental problem to be overcome at all costs, the risk of disclosure of anything that might reveal information about the existence, content or subject of a current misconduct complaint or investigation.

However abolishing reasons for decision for all RTI decisions takes simplification of the system referred to by the Premier last week, way too far.
 
As I said when the Callinan report was released:

For mine, the case for the recommendation that no reasons should be given in any RTI case isn't well argued; the report doesn't consider less radical alternatives; and the recommendation if accepted would turn on its head the general well established principle that an administrative decision-maker has an obligation to give reasons. It would mean that public servants have to be taken at their word that there are good reasons for refusal of access which can't be scrutinised or effectively challenged for nine months, unless through Supreme Court proceedings. The blunderbuss should be put back on the shelf, replaced by something more suited to polishing rather than blasting the existing RTI framework, where this is necessary. Quite apart from reasons being more than an RTI issue through a general requirement in the Queensland Judiciary Act, the Queensland Ombudsman's Good Decisions Guide (pdf) (page 10) advocates "giving reasons is good administrative practice in that it promotes fairness, transparency and accountability in decision-making."

Reasons are particularly important when refusal of access to government information is concerned.
  

The Chair of the Parliamentary Crime and Misconduct Committee in a letter  (pdf) to the Attorney General weighed in on this and other matters just prior to the government response, stating the Committee did not support the recommendation:

Firstly, the Panel put forward no empirical basis for selecting the nine month timeframe. Secondly, the recommendation will result in a disproportionate negative effect upon applicants who apply for information under the

Right to Information Act 2009 or make a complaint under the Ombudsman Act 2009 regardless of whether their application or complaint relates to a complaint before the CMC.There needs to be a balance between the public interest in protecting the privacy of those persons subject to a complaint to the CMC and the public interest of complainants to the Ombudsman or applicants under the Right to Information Act receiving reasons for the decisions of those agencies

This recommendation may impact upon the rights of those individuals to appeal against such decisions, or may negatively impact upon other matters relating to that individual in relation to the information they seek. This recommendation will also likely increase the workload of the Office of the Information Commissioner and the Ombudsman’s Office in dealing with complaints about refusal to provide reasons for their decisions. The Committee respectfully suggests that the Legal Affairs and Community Safety Committee may be able to provide more information on this issue given its oversight responsibilities for the Ombudsman and the Information Commissioner.

Integrity in government-up for discussion in Queensland

Queensland Premier Campbell Newman announced last week that an Open Government Policy Forum (to be held in Brisbane on 13 August) would "spark ideas about simplifying Queensland’s integrity system while maintaining real accountability."  

The forum the Premier said, is "the next step in making (the) government the most open and transparent in the nation":

“We’ve decided to hold the forum because of concerns raised in the independent Review of the CMC Act and Related Matters, which found the three fundamental and very simple elements of honesty, fairness and openness were lost in an overly complicated system,” Mr Newman said.“It’s pretty clear there is something wrong with the state’s integrity framework when most people, including a High Court Judge and a leading Professor of constitutional law and governance, think it is overly-complicated and confusing. “We want to make government processes clear, straightforward and accountable and we want to know about any gaps in our integrity and accountability framework.“We are already giving people regular progress reports on our plans, making government data publicly available on line, releasing Minister’s diaries on a monthly basis and once again, we’ve made lying to the Parliament illegal.“Our reforms have made the Queensland Government the most transparent, open and accountable in the state’s history – but we want to make it even better.

The "most open and transparent" claim raises issues of criteria, measurement  and comparison that have had little or no attention here to date. In a submission to the Hawke review academics Brett, Henman, Lidberg and Snell indicated they were seeking a grant for a study into whether FOI regimes have delivered on promises to promote open government.

But even though RTI in Queensland incorporates the push and pull dimensions of open and transparent government, the Premier is raising a broader issue by throwing accountability and integrity into the mix.
--

The Premier rightly can cite Queensland positives such as proactive publication on Open Data, and a national first, the release of minister's appointment diaries. He could have added other pluses such as the publication of selected information about cabinet decisions that puts Queensland (and the ACT) way ahead of other jurisdictions. And uniquely, the disclosure of some lobbying contacts. 

The Newman government of course inherited the Public Interest Disclosure Act 2010, welcomed at the time as world class, and the Right to Information Act 2009, where Queensland led the Australian FOI reform mini-wave. The RTI act however has plenty of gaps, holes and areas for improvement. Beyond the confines of RTI, I'm assuming Queensland is enthusiastic about Australia embracing on the home front the disclosure standards set by the Extractive Industries Transparency Initiative.

A legislated integrity, open government and accountability framework in line with best practice international standards is a good first step, and Queensland still has a way to go to get there. Full and enthusiastic, properly resourced implementation is another matter.

In passing, it's worth noting that Queensland has had an acting information commissioner for a year, and the effect of wide-ranging resource cuts on information publication and access, and where things stand on the culture change front are two of many unknowns.

Then there are outcomes and results? And the relevant criteria, indicators and measures? Who collects, analyses and publishes the data?  Who leads and pushes for continuous improvement?

There is a lively international discussion about these issues, certain to become more visible  as Australia moves towards membership of the Open Government Partnership.

A discussion in Brisbane on 13 August about simplifying and enhancing Queensland's integrity system while maintaining real accountability could provide a spark.

Queensland lobbying rules require public disclosure of contacts

Lobbying rules have proved problematic for the Newman government in Queensland with two ministers resigning during the first 12 months over inappropriate contact and disclosure failings.

But Queensland can take a bow when it comes to scope, reporting of lobbying activity and transparency as a result of changes that took effect from 1 May 2013. Changes to the rules extend regulated lobbying activity beyond ministers and public officials to lobbying the Leader and Deputy Leader of the Opposition and staff; and require monthly reports to the Integrity Commissioner by registered lobbyists detailing lobbying activity including the client, lobbying contacts and the general purpose of the contact, and importantly, the publication of this information on the commissioner's website.

Not the proactive publication of details like we see in the UK Who Ministers are Meeting 
but a stark contrast to other Australian jurisdictions where registration and observance of a code of conduct is all that is required.

A Queensland parliamentary committee, while not happy that both client name and purpose of the meeting are to be published, has recommended extending the scheme to include paid in-house lobbyists of both corporations and associations, and a comprehensive review of the Integrity Act.

The changes this week flow from the Right to Information and Integrity (Openness and Transparency) Amendment Act 2012.

Callinan CMC report uses blunderbuss on RTI act when spit and polish might do

The Executive Summary of the Callinan Report on the review of the Queensland Crime and Misconduct  Commission, when released a few weeks ago, included what seemed to be an extraordinary, broad recommendation that the Right to Information Act be amended to restrict agencies and the Information Commissioner from being required to give reasons for refusal to release documents for a period of nine months after an application was received.

It is far from the most important issue raised in the report, which takes the stick to what it calls "the integrity industry." I'll leave those to others. 

But the lack of clarity in the RTI act recommendation, and the absence of information about other options considered, and the lack of an explanation for it in the Summary meant the publication of the report itself was awaited with interest.

The (redacted) full report has now appeared in Parliament tabled papers 2448-2452. (Hats off to the Queensland Parliament, I think the only Australian jurisdiction where tabled papers are published promptly on-line.) It is also here (Redacted) Full report (in a very large pdf).

Rather than a full, deep analysis, the review's examination of the RTI issue is limited to one page (113) in 248.

The given as far as Callinan is concerned is that the need for confidentiality regarding any fact of, or identity of a person who is subject of a complaint or of an investigation, or interest in a matter before the CMC is absolute.

The report proceeds from there seemingly, conflating two issues. One, how information of this kind might be safeguarded by an exemption. Two, the dangers posed to confidentiality if a decision to refuse access requires reasons to be given.

The report summarises the RTI problem thus:

At present the relevant agency, and on review the information Commissioner must give reasons for its decision whether to give access to documents which may in effect disclose that a matter is under investigation by the CMC and which would probably enable identification of the subject matter and the person who is the subject of investigation.

No examples are given to support the contention that the act isn't working in practice and there is no reference to the matter being raised in submissions.

As to what to do about the problem, the report says it would be possible to add to the categories of exempt information in the RTI act, information that would tend to identify the existence, nature or subject of a complaint to or investigation by the CMC. But

"we think it would be still possible for resourceful organisations to ascertain by process of elimination that a document has not been disclosed because it is related to a CMC  complaint or investigation.

From there it makes the jump to this radical solution (no emphasis added, the report underlines "any"):

"In order to prevent this possibility most effectively it would be better that agencies and the commissioner simply not be required to give any reasons in any case for a period of nine months of the application unless the Supreme Court for compelling reasons of public interest orders otherwise. Unless the discretion of the Information Commissioner not to give reasons is a general one and not in respect of the CMC alone the objective of confidentiality would be defeated..."

No new exemption is proposed. Simply(!) that the requirement for reasons for refusal of access by an agency or the Information Commissioner in "any case" be dispensed with for nine months.

There is no mention in this discussion of the existing section 55 of the Right to Information Act which provides that nothing in the act "requires an agency or Minister to give information as to the existence or non-existence of a document containing prescribed information."  Or reference to the possibility, that if this isn't capable of doing the job, of tweaking, with modifications drawn from other jurisdictions which apparently aren't struggling unsuccessfully to protect information of the kind Callinan wants protected.

The report recommends the same "give no reasons" provision should be included in the Ombudsman Act so that the Ombudsman would not have to explain a decision to refuse to intervene in a matter because it was the subject of a CMC complaint or investigation.

This part of the report concludes 

Without these (protections), as appears from this and other chapters of this Report, the requirement of secrecy is a hollow protection easily evaded.

Really?

For mine, the case for the recommendation that no reasons should be given in any RTI case isn't well argued; the report doesn't consider less radical alternatives; and the recommendation if accepted would turn on its head the general well established principle that an administrative decision-maker has an obligation to give reasons. It would mean that public servants have to be taken at their word that there are good reasons for refusal of access which can't be scrutinised or effectively challenged for nine months, unless through Supreme Court proceedings.

The blunderbuss should be put back on the shelf, replaced by something more suited to polishing rather than blasting the existing RTI framework, where this is necessary.

Quite apart from reasons being more than an RTI issue through a general requirement in the Queensland Judiciary Act, the Queensland Ombudsman's Good Decisions Guide (pdf) (page 10) advocates

giving reasons is good administrative practice in that it promotes fairness, transparency and accountability in decision-making.

Recommendation 10 in the review report reads:

Queensland CMC report floats drastic RTI change

The Australian

The Executive Summary of the report by former High Court judge Ian Callinan on his review of the Queensland Crime and Misconduct  Commission released yesterday is peppered with ascebic observations about  CMC performance and seems mostly about winding the organisation in or taking it down quite a few notches.

But the general nature of Recommendation 10 as framed in the summary and without further explanation is remarkable. It seems to suggest an about face on 30 years or so of administrative law principle that government agencies should give reasons for a decision, including for a refusal of access to information.

Mr Callinan recommends that the Right to Information Act be amended to restrict agencies and the Information Commissioner "from being required to give reasons for refusal to produce documents" and such a restriction should apply for a period of nine months. Perhaps this is meant to be in limited circumstances, for example in responding to requests for documents concerning complaints that may end up with the CMC but the summary doesn't say so. It elaborates on the above in these terms:

"The excuse from the requirement to give reasons must be general because if it is confined to reasons in respect of a CMC investigation, then not giving reasons would immediately identify that the matter was under investigation by the CMC and defeat the purpose of the provision. We recognise this is a far-reaching provision but cannot see any other solution that would prevent leakage of information."

 Reasons could be forced out by a contrary order by the Supreme Court "in situations of compelling public interest."

If there are detailed reasons for the recommendation they are yet to be released. The Executive Summary makes only a passing reference to the underlying issue, "the problem of public release of the fact that the CMC is investigating a matter or a person."  

There is no mention of section 55 of the Right to Information Act which provides that nothing in the act "requires an agency or Minister to give information as to the existence or non-existence of a document containing prescribed information." That sounds as if it might suit Mr Callinan's purpose, although there is room for debate about the public interest in disclosure of well founded allegations of corruption.  

However a quick look at the RTI regs indicates s 55 is yet to be activated four years after the commencement of the act because no information has been prescribed. 
(Correction: I looked in the wrong place. "Prescribed information" is defined in the dictionary of terms in Schedule 6 of the RTI act  as (a) exempt information mentioned in schedule 3, section 1, 2, 3, 4, 5, 9 or 10; or (b) personal information the disclosure of which would, on balance, be contrary to the public interest under section 47(3)(b)." While in its current form it doesn't necessarily address Mr Callinan's concerns, some tweaking by amendment might.)
 

A lot more context and elaboration is needed to justify the recommendation in its present form.

Recommendation 10 reads:

Queensland RTI charts unprompted new territory

Right to Information changes including new Disclosure log requirements came into effect in Queensland on 22 February with the commencement of the Right to Information and Integrity (Openness and Transparency (Amendment) Act 2012.

Two aspects are unique in Australia. Where they came from and why is unknown. They  bobbed up in a bill introduced in a hurry in the Queensland parliament late last year.


An RTI applicant must now reveal whether access is being sought "for the benefit of, or use of the document, by the applicant or another entity". Where access is sought for the benefit or use of another entity, the access applicant is required to name that other entity.

And after a valid application has been received and before any decision on disclosure is made, details of the information being sought and the date of the application must be included on the Disclosure Log. 

Neither gets a mention in all the various ideas put to the Hawke review in Canberra on how to improve the operation of the Federal government's freedom of information act.

In addition to those innovations the amendment scraps the previously available 24 hour minimum exclusive use period for information released to an applicant before it is posted on the disclosure log. The new formulation requires released documents to be posted on the disclosure log "as soon as practicable" after release to the applicant. 

If an applicant fails to access a released document within 40 business days, details identifying the document, information about the way in which it may be accessed and any applicable charge must now be included in a disclosure log as soon as practicable after the access period ends.

Exclusive use
The removal of the exclusive use period in Queensland came as media organisations in their joint submission to the Hawke review argue again for a five days exclusive use period when documents are released to a journalist in response to a Federal government FOI application. At present infomation is required to be posted within 10 days. Journalists contrast some agencies such as Treasury that have a same day release policy and Defence and Customs that in the absence of a legislative requirement give journalists an exclusive use period.

I’ve not heard any fuss from journalists about this issue in NSW where there is no statutory time provision for posting released information on the Disclosure log. Maybe the bigger pool of potential competitors on the national scene makes the difference. It has always been open to a minister/agency to release information publicly after an RTI/FOI application for that information has been received and that has certainly happened. In NSW, sensibly no GIPA charge applies in these circumstances.  

It seems reasonable to allow some exclusive time with released information. Perhaps any applicant - not just a journalist - should be able to ask for a few days exclusive use at the time of making the request, with that elective to bind the agency?

Those of us using Righttoknow aren't concerned that others know what we are seeking.  And sharing the spoils from the moment we succeed.

As soon as practicable after a valid access application^[3] is made to a department or Minister, the department or Minister must include the following information in its disclosure log:

• details of the information being sought by the applicant, as stated in the application; and
• the date the application was made.^[4]

Departments and Ministers publishing details of information being sought by the applicant must first review the information and delete information where required under section 78B.
- See more at: http://www.oic.qld.gov.au/information-and-resources/guidelines/guidelines-access-and-amendment/disclosure-logs-departments-and-ministers#sthash.sEqyw7Vg.dpuf

As soon as practicable after a valid access application^[3] is made to a department or Minister, the department or Minister must include the following information in its disclosure log:

• details of the information being sought by the applicant, as stated in the application; and
• the date the application was made.^[4]

Departments and Ministers publishing details of information being sought by the applicant must first review the information and delete information where required under section 78B.
- See more at: http://www.oic.qld.gov.au/information-and-resources/guidelines/guidelines-access-and-amendment/disclosure-logs-departments-and-ministers#sthash.sEqyw7Vg.dpuf

As soon as practicable after a valid access application^[3] is made to a department or Minister, the department or Minister must include the following information in its disclosure log:

• details of the information being sought by the applicant, as stated in the application; and
• the date the application was made.^[4]

Departments and Ministers publishing details of information being sought by the applicant must first review the information and delete information where required under section 78B.
- See more at: http://www.oic.qld.gov.au/information-and-resources/guidelines/guidelines-access-and-amendment/disclosure-logs-departments-and-ministers#sthash.sEqyw7Vg.dpuf

As soon as practicable after a valid access application^[3] is made to a department or Minister, the department or Minister must include the following information in its disclosure log:

• details of the information being sought by the applicant, as stated in the application; and
• the date the application was made.^[4]

Departments and Ministers publishing details of information being sought by the applicant must first review the information and delete information where required under section 78B.
- See more at: http://www.oic.qld.gov.au/information-and-resources/guidelines/guidelines-access-and-amendment/disclosure-logs-departments-and-ministers#sthash.sEqyw7Vg.dpuf

"From next year, Queenslanders will have the most open, accountable and transparent government ever seen across this nation"

So sayeth Attorney General Bleijie in Parliament on 27 November in introducing the Right to Information and Integrity (Openness and Transparency) Amendment Bill 2012. The bill passed on an urgency motion (debate on the bill itself is in the Hansard 29 November at 3012), received assent yesterday 11 December (Act 45/12) and will commence on a date to be proclaimed.

The changes relate to the RTI act disclosure logs and the the Integrity Act - the latter regarding lobbying, with an Australian first in extending the scope to parliamentary opposition leaders, and requiring lobbyists to keep records of contacts and provide information to the Integrity Commissioner.

The legislation was so urgent apparently that as the Explanatory Note ( see under Right to information.....) states:

 "The community has not been consulted on the Bill. The Acting Information Commissioner was provided with a draft of the amendments to the Right to Information Act 2009 . The Integrity Commissioner was consulted, and provided input into, the proposed amendments to the Integrity Act 2009." 

(I can see a difference in wording here that may be significant.)

Leaving the "best ever" claim to one side - and Opposition leader Palaszczuk claimed the bill weakens the existing integrity laws - journalists and media organisations will be disappointed. I've heard some are pushing the Hawke review in Canberra arguing for five days for exclusive use of documents released in response to a Commonwealth Freedom of Information request. Queensland where they have had up to now at least 24 hours before released information is posted on the disclosure log is cited as a less than perfect precedent.

I guess there have been "I'm mad as hell" shouts in light of the fact that the Queensland 24 hour exclusive period has been scotched as a result of the amendments. This provision in the repealed s 78 "However, nothing about the document (including a copy of the document) may be put on a disclosure log until at least 24 hours after the applicant accesses the document" isn't in the substituted section 78, 78A and 78B The new formulation is to post released documents on the log "as soon as practicable" after release to the applicant.

Rumbling in media circles won't be limited to the lack of opportunity to defend the 24 hours period or argue for longer. Another aspect of the new system likely to give rise to media angst is that details of what information is sought are to be posted on the log as soon as practicable after a valid application has been received by an agency and before any decision on release has been made. 

Here are the relevant extracts from the Explanatory Note (emphasis added)

Queensland developments

Premier Newman has no intention of winding back or scrapping the RTI Act despite comments at the weekend by Attorney-General Jarrod Bleijie that too much public scrutiny was scaring away future politicians-we all knew he was kidding, didn't we? But who knew about the statutory review of the RTI act? It escaped me until the Attorney mentioned it. This report says it began in July last year. From a quick browse it seems to have escaped those responsible for the Department of Justice website and the OIC website as well. Public consultation and engagement part of the process? (I think I did see a reference to an issues paper coming soon.) 

The Premier will publish his appointments diary next week to be followed in this by ministers next year. And in what will be a welcome first for Australia but a step in the right direction, publication of agency lobbyist registers which record contact with lobbyists is also coming by the sound of it-with the government giving it a political twist, why not dig out Labor's old ones as well?

A couple of days out of town and look what happens..

You go off to the National Information Law Conference in Canberra, an otherwise good and useful gathering that FOI reviewer Dr Hawke apparently was too busy to attend, and where it was hard to escape the chill wind of FOI blow-back, in the corridors at least. And, mostly "worst fears" type news emerges while you're pre-occupied:

• integrity failings that came to light in Queensland and led to the resignation of the Minister for Housing include that the minister, his son and the minister's chief of staff were communicating on official matters using private email addresses; the minister's register of contact with lobbyists released during a Budget estimates committee hearing that he declared"very accurate" did not list extensive contact with his lobbyist son on a range of issues; and according to the opposition the minister's ministerial and electorate diary released under Right to Information laws had been doctored to hide the fact he was continuing as a GP to see patients. "A series of Wednesday afternoons at his Morayfield clinic seeing patients was allegedly erased and replaced with 'electorate office' work...the section on electorate office work was redacted because it was outside the scope of the application."
• at the end of the week the Courier Mail reported the Attorney General spoke of a hitherto unpublicised review of the RTI act underway as necessary "because too much public scrutiny is scaring people away from becoming politicians." Hold your sides as you read that it is highly unlikely they'll abolish the RTI act, but most of any information anyone will want will be available on the open government website. The extracts from the article are repeated here in case the archive becomes hard to find in future: "Mr Bleijie denied the use of private emails was a tactic to avoid having them released under the RTI Act, but said he used private email at home because he didn't have access to his work email. "I wouldn't envisage that's a systemic problem, no," he said. "Everyone should be careful what they put in writing no matter what communication you use." Mr Bleijie said abolishing the Right to Information Act, which was introduced in 2009 by former premier Anna Bligh, was "highly unlikely" but changes would be introduced as part of his review. Mr Bleijie said Premier Campbell Newman's plan for an open government website posting all non-confidential documents would greatly reduce the need for RTI. He said he also was investigating the cost and scope of the RTI Act, and extending it to capture information within the Office of the Opposition. A discussion paper will be publicly released for comment. "We'll certainly be canvassing the options of whether the current Act in its form can actually be broadened with the open government and, rather than using an RTI for basis, people can go straight on to government website and get the information themselves," he said. "We're intending that most of the information will be available on the government website. "Some of the information, if it's not statistics per se, there might have to be the mechanism remaining that people can still access that information."
• Bill de Maria formerly of the University of Queensland and a long time sceptic about commitments to transparency took off from there to say FOI laws are useless unless political leaders are fully committed to them. "The best laws aren't worth a row of beans unless..." And there's something in that.
• with the 30th anniversary of the commencement of the Commonwealth Freedom of Information Act on 1 December days away, Jack Waterford of The Canberra Times received a response to a Freedom of Information application 29 years, 11 months and about two weeks after it had first been submitted on 2 December 1982. The application had been deferred, but never heard of again and Waterford subsequently applied in August 2011.  This time PM&C took 18 months to release in full the appendix of a 1981 Royal Commission into a beef substitution racket. "How they fed us donkey burgers"is one thing; how they fed Jack something else in dealing with his FOI application is another. The Canberra Times editorial  draws on what amounts to thirty years in the deep freeze to comment generally on the FOI runaround, delay and impact on citizens and the media of either under-resourcing the function or opposition in most government agencies to releasing information in response to legitimate requests.
• and in the Sunday Age Farrah Tomazin with an almost audible sigh, welcomes the inaugural, confident and optimistic Victorian Freedom of Information Commissioner who has been given just a couple of weeks to get organised from 1 December to conduct reviews of decisions in place of the agency internal review function, investigate complaints and lead ministers and the public service into a new era of open and transparent government. Tomazin (and Open and Shut) wish her well. From everything credible we see, turning this ship around will be a monumental task. Experience elsewhere suggests it will be resource intensive, and require clout and a combination of carrot and stick that she doesn't appear to have in the tool kit. Ministers in Victoria show no sign of public recognition that in this area they and Ms Bertolini are administering a thirty year old act that is no longer fit for purpose, against a backdrop of the nation's most conservative jurisprudence in some respects, with a well developed capacity at middle and senior public service ranks to distinguish what ministers say and what they really mean. The former Victorian Premier John Cain added "monumental" political interference to the mix.