Labor makes a 10 minute hit on culture of secrecy, government speakers stay mum

In the House of Representatives yesterday Alannah Mactiernan (Perth, ALP) moved:

That this House:
(1) expresses concern at the culture of secrecy prevalent in the Government and the serious undermining of the core principles enshrined in the freedom of information legislation;
(2) notes the Government has:
(a) defunded the Office of the Australian Information Commissioner (OAIC) despite failing to pass its legislation to abolish the office; and
(b) failed to advance Australia's application for the Open Government Partnership (OGP); and
(3) calls on the Government to abandon its attack on the OAIC and provide it with proper funding, and recommit to joining the OGP.

The motion didn't get far in the 10 minutes allocated before debate was adjourned with Mactiernan and Labor Party colleague Graham Perrett the only speakers.

Could the lack of interest or appetite on government benches to contest the argument suggest a decision not to waste time defending the indefensible while rethinking is underway or completed on both the OAIC and the OGP fronts? Ah, we live in hope.

Mactiernan recounted to the House an FOI experience unlikely to stand the pub test: 
an application to a minister (in this case an assistant minister) that was not processed before the reshuffle, for documents concerning a decision to support a $1.7 billion project in WA couldn't be processed afterwards

"since the portfolio of the assistant minister no longer exists and.. the documents have not been transferred to the new minister.... 'These documents are specific to the minister and to the staff.'

Iran 1970: Public Domain via Wikimedia Commons

Crikey's Josh Taylor ran into the same problem with FOI requests to the office of Prime Minister Tony Abbott that had gone unanswered for seven months before Malcolm Turnbull’s arrival in the office. They couldn't be processed thereafter because the documents weren't held by the office of the current PM. Taylor speculates "the FOI request was lost in one of the dozens of bags of shredded documents seen leaving the prime minister’s office the morning after the leadership change."

The rules about retention, transfer or disposal of documents when the minister leaves or transfers office are hard to find. In theory at least documents held by a minister's office concerning the discharge of functions as a minister are records for the purposes of the Archives Act. 

 Archives Australia provides guidance on what happens to records held by an agency when administrative changes occur, but nothing that I can see when ministers leave the chair.

The FOI situation is that a minister's office is a separate entity from the department for which the minister is responsible. Documents subject to FOI in the hands of the incumbent at any time are those documents "held by the minister" that relate to the affairs of an agency or department. 

If the documents went out the door or found their own way to the shredder as the previous minister and staff headed out, the documents won't be held by the newcomer, end of section.

The Saturday Paper: Plan to abolish OAIC part of bigger secrecy picture.

Sophie Morris links the plan to abolish the Office of Australian Information Commissioner with other developments in Abbott weakens FOI and public service disclosure  

Extracts 

The weakening of the freedom of information regime has occurred without fanfare, eroding an important mechanism for holding governments accountable and safeguarding against abuse of power and wrong decisions.

The government announced in the budget last year that it planned to wind up the OAIC. Ostensibly, this was a savings measure, worth about $10 million over four years, but it was also a ploy to limit FOI requests and appeals.

When it was clear the senate would baulk at passing the legislation, which Labor and the Greens argue will reduce oversight of government actions, McMillan was left in limbo, limping along on rationed resources.

His Canberra office, where 25 staff used to work, closed in December. His departure will further weaken the office, which opened in 2010. A year earlier Labor’s special minister of state, John Faulkner, said: “These reforms will change the law, but they will also demonstrate the government’s commitment to culture change, to a shift from a culture of secrecy ... to one of openness and transparency.”

FOI laws had existed since 1982, but the Faulkner reforms were the first attempt to make them really work. Faulkner pursued his reforms despite resistance from within the then Labor government and the public service.

His aspiration was at least partially achieved. The biggest sign of change was in 2010, when departments published, in response to FOI requests, the briefings they had prepared for the incoming government, providing information about the policy challenges ahead. After the Coalition came to power at the 2013 election, requests for these documents were denied, in an early sign of the tide turning against transparency. Under legislation prepared by the Abbott government, Attorney-General George Brandis and his department will take over some of the FOI functions and appeals will again be sent to the Administrative Appeals Tribunal, attracting an $860 filing fee, which will deter many applicants.

Timmins says the public service culture has already shifted back in favour of non-disclosure.“I think there’s been a fair bit of gaming of the system on FOI,” he says. “With the OAIC thought to be on death row, agencies have worked on the basis in some cases, I think, that if you knock back a [FOI] request, you won’t have to worry too much about someone taking you on. These days, there’s no great incentive to make a correct and proper decision.”

Senior bureaucrats have also mounted the case for a further weakening of FOI laws. Most notable were the comments from John Lloyd, the new public service commissioner, who set the tone for the rest of the bureaucracy in his first public speech in March.

 “FOI laws are very pernicious,’’ said Lloyd, whose past roles include serving on the Australian Building and Construction Commission, the Australian Industrial Relations Commission and as director of workplace relations and productivity at the Institute of Public Affairs.

“I think they [FOI laws] have gone beyond perhaps what they intended to do, and I think they do make us a bit over-cautious and make some of the advice more circumspect than it should be, and I hope the government will address that and perhaps reassess the extent of some of those FOI laws.”

Brandis’s office did not respond to inquiries about whether anyone would be appointed to replace McMillan or whether he agreed with Lloyd’s description of the FOI regime.

 

Timely reminder:“Democracy dies behind closed doors.”

David Cole, the Honorable George J. Mitchell Professor in Law and Public Policy at Georgetown University Law Center writing in The New York Review of Books reflects on drone strikes and surveillance, and given the incredible extension in what technology can deliver, the importance of transparency. 

Professor Cole while acknowledging secrecy is sometimes necessary, ticks various boxes about the extent to which a degree of forced transparency has had a subsequent restraining influence on US policy and programs, but needs to go further:

We won’t have a chance to arrive at defensible policies on surveillance and targeted killing if the questions are not fully and fairly debated. When the balance between individual rights and security is struck in secret one-sided determination, as has been the case with both drone killing and electronic surveillance, as well as the CIA’s enhanced interrogation program, it will inevitably be skewed. Increasingly, our governments seem to be insisting that our lives be transparent to them, while their policies remain hidden from us. For the sake of democracy itself, we must do all we can to resist that impulse.

Australian readers might ponder the situation here in light of this Business Insider list in June 2014 of what the world learned in a year of Snowden leaks.

We had or are having something of a debate about the powers given to Australian security services, metadata and data retention. 

But as Martin Place and Paris are sure to raise questions about the need for ever more information about all of us in the search for the deranged, driven and malevolent, let's plug for Professor Cole's full and fair debate. 

Something we missed here following revelations for example about Australian involvement in those drone strikes and the PRISM and XKeyscore programs, spying on our friends and in this case their lawyers, the shared arrangements we have entered into to pool information about citizens, and who here in government let alone the rest of us knows what is going on.

More from Professor Cole here:

What chance a 'principled framework to balance secrecy and open and accountable government' ?

Close to zero I venture.

The August 2012 briefing note finally released (well, minus attachments) in response to my FOI application for work undertaken on the Australian Law Reform Commission Report Secrecy Laws and Open Government of December 2009 reveals little progress in those three years on what should have been a major project across government but it doesn't tell the full or current story. 

FOI reforms mooted in 2009 and referred to in the ALRC report were introduced in 2010, but as we know the government is intent on removing a central element of those reforms by disbanding the Office of Australian Information Commissioner.The ALRC strongly supported the concept in its report.

Whistleblower protection law referred to in the ALRC report and mentioned in the briefing note came to pass (finally again) in 2013.

The Attorney General could enlighten us with a statement about where things stand in 2014 although the file might be buried at the bottom of in-trays in AGD. The advice from within no doubt says the report was commissioned by the previous government and arguably no response is required from this one.

However the disclosure reminds that the ALRC recommends a rational, comprehensive approach to reform of the crazy patchwork of secrecy laws currently on the books and sits there possibly gathering dust while the government today introduces changes to legislation that will add to our sizable collection of secrecy laws. I haven't seen any mention of the report in the discussion of the National Security Legislation Amendment Bill (No. 1) 2014 or  the changes to legislation foreshadowed by the Attorney General and still to come. 

Maybe it's too much to expect in the current climate but the ALRC proposed "a new and principled framework striking a fair balance between the public interest in open and accountable government and adequate protection for Commonwealth information that should legitimately be kept confidential."

More than 60 recommendations outline what should be done to bring about some coherence and consistency in the statute book's 500 plus secrecy provisions:

• repeal the wide catch all offence provisions in the Crimes Act - s 70 is described as "seriously out of step with public policy developments in Australia and internationally" - and introduction of a new general offence provision limited to disclosures that harm essential public interests, 

• principles to guide review of the hundreds of specific secrecy offences in legislation and the creation of any new ones such as those currently before parliament,

• and measures to improve information handling practices across government including sorting out in a more definitive fashion the relationship between FOI and secrecy laws. 

The draconian s 70 'unauthorised disclosure' provision is among the worst of the complex, confusing and uncertain secrecy laws on the books. We have had voices urging change to this provision that go back to former High Court Chief Justice Sir Harry Gibbs in 1991. One of the few  against change however was the recently replaced secretary of the Attorney General's Department Roger Wilkins, who told a senate committee way back in 2008 (page three of the transcript Thursday 27 November 2008 (PDF 192KB):"My personal view. I am not sure of the government's view on this. My personal view would be that you should not interfere with section 70 of the Crimes Act. That should remain intact". 

Whether in Wilkins time, extending to 2014, ministers had a chance to consider the matter is another question.

In 2014 a new principled framework for secrecy and open government is way overdue.

The ALRC has laid out how to go about this. Alas, no sign of starters. 

Secrecy laws remain sitting uneasily with open and accountable government

Here is what you are entitled to know about work undertaken in the three years since the Australian Law Reform Commission completed a report on Secrecy laws and open government:

                        (This space intentionally left blank.)

The report, tabled in March 2010 identified 506 secrecy provisions in 176 pieces of legislation, including 358 distinct criminal offences and made 61 recommendations for reform. In publishing the report the commission observed:

Secrecy laws that impose obligations of confidentiality on individuals handling government information—and the prosecution of public servants for the unauthorised disclosure of such information—can sit uneasily with the Australian Government’s commitment to open and accountable government. Secrecy laws have also drawn sustained criticism on the basis that they unreasonably interfere with the right to freedom of expression.

Ah yes, amen to that. 

But my Freedom of Information application to the Attorney General's Department for a copy of the most recent summary of the work undertaken or still remaining to be completed on a response to the report was knocked back. 

Today ditto, on internal review for the same reasons as spelled out (well in a fashion) in this Notice of determination, apparently because the document contains deliberative matter and these considerations tip the balance in favour of non -disclosure. I quote:

• "whether it is contrary to the public interest to disclose draft material that has not gone before the relevant minister (or ministers) and does not reflect the government's settled policy (or even a settled view within an agency) and would have cross-portfolio implications if released

• whether it is contrary to the public interest to provide the public with a factually incorrect sense of direction that an agency (and the Government) is taking on matters of criminal law, where the material in question uses strong language that would suggest it is the Government's final settled position when it is not

• whether an agency could effectively discharge its responsibilities if material prepared for internal consultation and consideration was released prematurely  and damaged  the relationship between an agency and the Government and

•  whether it is contrary to the public interest to disclose material that would inhibit policy officers  from considering (and documenting) a full range of draft responses to ALRC recommendations."

You won't be surprised - I'll invite the Office of Australian Information Commissioner to give  the decision the once over.

As to the broader issue of what it says about priorities that the document is a minute to the Secretary dated 24 August 2012, is said to contain thinking of the kind not put to the minister in the previous two and a half years, and that there has been no document created along these lines in the year since...

I'll leave you to your own conclusions.

Secrecy and foreign affairs

My hurried contribution before taking off for a while, to a discussion on secrecy and international and foreign affairs on the Lowy Institute Interpreter - here is the thread - where the question was asked, to get things going, whether we have a culture of secrecy in government.

Draconian criminal penalties for unauthorised disclosures of all stripes

A decision last week by the Western Australian Court of Appeal in a case involving former premier Brian Burke is a reminder that the law in some states is just as draconian as s 70 of the Commonwealth Crimes Act in creating a criminal catch all offence for unauthorised disclosure of information by a government employee. Putting to one side what is also alleged to be corrupt conduct in the case in question, the decision contains a message that public servants and ministerial officers in WA should be ultra cautious about what they say about work related matters to anyone outside the loop. The decision suggests release of information about the business of a Western Australian government agency contained in an "official paper" or document to an unauthorised person by a person not lawfully authorised to disclose the information could see the discloser run the risk of up to three years in jail.

The WA law and similar laws in some other states tend to fly under the radar compared to s 70 which has seen the much publicised conviction of Allan Kessing and others. That  provision attracted attention in the Australian Law Reform Commission December 2009 Report on Australia's secrecy laws- along with 500 other secrecy provisions in 176 pieces of legislation, including 358 distinct criminal offences. And that was 18 years after a committee chaired by former High Court chief justice Sir Harry Gibbs concluded

"It is undesirable that the sanctions and machinery of the criminal law should be applied in relation to the unauthorised disclosure of all forms of official information and this should be avoided if possible." [ALRC Report 1.10]

One of the principles underpinning the ALRC recommendations is

criminal sanctions should only be imposed where they are warranted—when the disclosure of government information is likely to cause harm to essential public interests—and where this is not the case, the unauthorised disclosure of information is more appropriately dealt with by the imposition of administrative penalties or the pursuit of contractual remedies.

In line with this, the commission recommended repeal of s 70 and replacement with a general provision that would apply a criminal penalty only where disclosure caused harm to an identifiable public interest. The government, 21 months later is yet to respond to this and other recommendations.

 Queensland, Western Australia, Tasmania, the Australian Capital Territory and the Northern Territory all have laws that contain broadly framed offences for the unauthorised disclosure of information by public officials and impose criminal sanctions similar to s 70. ( Cited in the ALRC report: Criminal Code (Qld) s 85; Criminal Code (WA) s 81; Criminal Code (Tas) s 110; Crimes Act 1900 (ACT) s 153; Criminal Code Act 1983 (NT) s 76).

These laws  have their origins in 19th century United Kingdom law. They should have no place in their current form in Australia in the 21st.

Assange lawyer:disfunctional FOI encourages whistleblowers

In this interview published by Miller-McCune, Julian Assange's lawyer Mark Stephens, one of the best in the media law game anywhere, discusses "the uncomfortable relationship between the free flow of ideas and the inclination of governments to make everything a secret."  Well worth a read. Much of it has relevance everywhere, in particular:

M-M: Is the government entitled to keep any of its secrets?
MS: It is the government’s job to keep its own secrets, and it is the media’s job to be a check and balance on that. For myself, clearly I would accept that the government must have its secrets. But as Richard Dearlove the former head of MI6 has said, the state should have its secrets, but not as many, and not for as long as most people think. That’s the critical factor....

M-M: Is there a direct relationship between a flawed freedom-of-information system like the one you’ve just described and the rise of whisteblowing outlets like WikiLeaks?

MS: Freedom of information has been a good thing since 1766 when the Swedes first passed a freedom of information law. The theory in democratic society is that we know all things of moment so that we can make up our minds about the issues of the day. If we’re not told most of the important matters on which to base our decisions, then clearly they’re going to be skewed. If you have a freedom-of-information system which is defective, if you have an exponential increase in classification like we’ve seen in the last two to five years, where the classification graph goes up virtually vertically, at that point, you are going to see far more people whose consciences are going to be pricked to become whistle-blowers. The dysfunctional nature of freedom of information, the overclassification, means that people are not going to stand for that lack of accountability in government.

If you're in New York this panel discussion with Stephens on Wednesday, "Life After WikiLeaks: Who Won the Information War" at the Colombia School of Journalism sounds interesting.

While his client can't travel for obvious reasons, Stephens can. Is anyone trying to get him here?

Kessing whistleblower conviction unsound as well as unjust

Good on Chris Merritt and The Australian for continuing to draw attention to developments concerning Allan Kessing and his conviction for a breach of section 70 of the Commonwealth Crimes Act, and again pushing the case for justice for him in these articles today. Withheld information that has now come to light casts fresh doubt on the conviction, following Kessing's admission after the trial that he leaked to a member of staff of Anthony Albanese, but not, as charged, to journalists at The Australian.

Customs letter raises questions
Allan Kessing in 'wrongful conviction'
Cracks in Kessing case illustrate why secrecy is insidious

Kessing a hero

Professor (Paul) Wilson (of Bond University) said it was clear that Mr Kessing had leaked the report "but not to The Oz". "Even assuming that he did leak to The Oz, as well as Albanese, Kessing in my view is a hero -- his motives were entirely in the public interest, may well have led to changes in airport security that saved lives and exposed a potential criminal culture among some segments of personnel working at airports. "His financial devastation for acting in the public interest and his present legal position is an appalling indictment on a government that says it respects human rights and justice," Professor Wilson said.

Merritt's wrap

So it looks like this man is simultaneously a victim of injustice and a real whistleblower who risked his liberty because it was the right thing to do. And that applies even though it meant breaching the self-serving secrecy laws that generations of federal politicians have used to hide maladministration. If anyone needs convincing about the insidious impact on the justice system of this fixation with secrecy, look no further than this case. It shows that federal law enforcement agencies appear to have concluded that government secrecy laws -- unlike laws against real crime -- can safely be applied selectively. Back in 2005 when the leak at the heart of this affair embarrassed the government of John Howard, there was almost no limit to the resources the Australian Federal Police devoted to finding someone to blame. Kessing, who at that stage had retired, was followed through the streets of Sydney and subjected to the sort of scrutiny that even career criminals rarely receive. But when he admits that he broke the same secrecy law by leaking to Albanese's staffer, the law enforcement agencies behave as if nothing has happened. Could it possibly be that the complexion of the government in Canberra is a relevant factor in the enforcement of the Commonwealth Crimes Act? This selective application of secrecy laws proves what many have long known: these laws are too easy to abuse and desperately need reform.

"Desperately need reform," yes. Merritt doesn't mention that the ALRC report on reform of secrecy laws including the draconian s 70 has been with the Attorney General for 14 months, and was tabled in Parliament a year ago. Not a word from the government in response since.

US and Australian law regarding publication of government secrets

Attorney General McClelland on 17 December announced the Australian Federal Police had not identified any criminal offences regarding WikiLeaks "where Australia has jurisdiction" and added:

“The Government remains extremely concerned about the unauthorised and irresponsible distribution of classified material.”

We are likely to see that concern flavour discussion and debate next year on a range of issues: open government in all its dimensions, the Government's response to the ALRC report on secrecy provisions in Commonwealth laws, shield laws for journalists, whistleblower protection, and perhaps even government copyright.

The leaks of course were of US government documents although the content of some reveal information passed on to US embassy officers in Canberra by public servants in government agencies including intelligence agencies. Whether WikiLeaks/Assange or anyone else has committed an offence under US law by publishing classified materials remains to be seen.  Secrecy News has facilitated access to this Congressional Research Service memo on the Wikileaks controversy, “Criminal Prohibitions on the Publication of Classified Defense Information” dated December 6. The summary states:

This report identifies some criminal statutes that may apply [to dissemination of classified documents], but notes that these have been used almost exclusively to prosecute individuals with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents, or to foreign agents who obtain classified information unlawfully while present in the United States. Leaks of classified information to the press have only rarely been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it. There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship.

There is a good discussion about the US legal issues in this NPR On the Media interview with University of Chicago law professor Geoffrey Stone including Senator Lieberman's move to introduce the SHIELD Act- Securing Human Intelligence and Enforcing Lawful Dissemination.

If the leak had been here and of Australian documents covering ground similar to some of that published, s 79 of the Crimes Act and s 91.1 of the Criminal Code (Cth) (espionage) might apply to publication if it occurred within Australian jurisdiction. Philip Dorling who is doing the hard slog for Fairfax papers on the released cables relevant to Australia is familiar with the law. Two years ago he had the police knocking on the door  after he wrote an article in the Canberra Times about the Defence Intelligence Organisation.

Neither secrecy nor openness in international affairs should be absolutes.

My Administration is committed to creating an unprecedented level of openness in government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration."

—President Barack Obama, January 21, 2009

This statement appears at the top of the US State Department web page headed "Open Government Initiative." The page outlines steps taken or planned in accordance with President Obama's Open Government Directive, issued coincidentally, a year ago this week.

The publication of a selection of state department cables apparently leaked by an army private who made the call on what he thought should be known more widely wasn't what President Obama had in mind. The leak, the posting of cables on Wikileaks, and the associated media coverage has changed the atmospherics of discussion about more openness in the foreign affairs field around the world, including here. "Need to know" and secrecy, on the way out for a brief moment, are coming back into the discourse as claimed vital prerequisites to the conduct of international affairs.

Wikileaks likely set back to open government cause

Regardless of whether you agree with US Secretary of State Hillary Clinton that the latest Wikileaks document dump is "an attack on the international community," Foreign Minister Rudd's expression of extreme concern" or Attorney General McClelland calling in the police to investigate whether Julian Assange has committed a crime, the release of cables sent by US missions abroad won't help advance the cause of more openness in the foreign policy field. Random transparency of this kind will likely boost the "told you so" arguments of those who advocate more not less secrecy, making a sensible debate about the legitimate issue of the balance between those needs and openness and accountability more difficult. To date secrecy has too often trumped those other values.(Update:This AFP article canvasses these issues. Martin Dart - an "IM manager working in government in Perth"-also sees lots on the downside.)

Coincidentially (?) The Australian today reports that the Attorney General has written to media organisations proposing a national security protocol for reporting sensitive information.

Other views on the Wikileaks disclosures include Praveen Swami in The (UK) Telegraph who sees some potential for embarrassment but concludes there's "a lot more to be learned about the world around us from nothing more secret than old newspapers than from the treasures Julian Assange has brought up from the beast’s lair." And James Mann in The New Republic who observes "Wikileaks has taken us well beyond the types of disclosures that the Freedom of Information Act, for the past several decades, has provided to journalists and historians" but nevertheless confidently predicts the survival of secret diplomacy.

Information gathering in legitimate ways is a large part of what diplomats do, not evidence of spying, although you have to wonder about the instruction to US embassy officers to collect among other things credit card account numbers as part of the biographical information gathered on notables around the world.

 

Shield law, whistleblowers and secrecy provisions all part of the framework

In introducing the Evidence Amendment (Journalists' Privilege) Bill, Andrew Wilkie recounted the experiences of some high profile whistleblowers and the journalists who publicised their concerns, and acknowledged that the logical counterpart to the bill will be whistleblower legislation, adding that he looked forward to "working with members in this place to progress such unprecedented federal legislation during the term of this parliament."

Whistleblower legislation has been unfinished business for many months (years). The Government announced earlier this year a response to the Dreyfus committee report that was welcomed at the time as close to world's best practice. Until Queensland went one better. Mr Wilkie clearly has further thoughts on the subject.

Wilkie didn't mention it in his speech, but the third leg in all this is the need to clean up Australia's secrecy laws, including the draconian s 70 of the Crimes Act that makes the disclosure of information without authorisation a crime subject to up to two years imprisonment, and for which there is no defence. The Government is yet to respond to the Australian Law Reform Commission's recommendations.

Wilkie acknowledged that the protection of the identity of a source must give way in some circumstances to other interests. The

" bill does recognise that there may be circumstances where the public interest in the disclosure of the identity of the source is so strong that it should be provided to the court. In such cases it will be up to those parties who want to force a journalist to reveal their source to prove that the public interest is best served in disclosing the source and that the public interest benefit of a disclosure genuinely outweighs the likely harm to the source.This bill will replace the existing provisions in division 1A of the Evidence Act. It will include a new provision that provides clear authority for the presumption that a journalist is not required to give evidence about the identity of the source of their information. This presumption can be rebutted in circumstances where the public interest outweighs any likely adverse effect for the person who provided the information to the journalist, as well as the public interest in the communication of information to the public by the media."

Masterly argument blocks release of school value add

The NSW Department of Education rejected an application under the Government Information (Public Access) Act for access by the Sydney Morning Herald to information on the value added by the state's comprehensive schools to their students' performance between year 10 and year 12. In an editorial (second at this link) the Herald said refusal of access to "this sophisticated and meaningful data" is simply ridiculous, particularly as  the Department released the same information about selective schools one month ago. The editorial points out that the Department's decision is inconsistent with the federal government's push for greater transparency, that it means that no data which shows any differences between schools could be released, and that it denies parents access to the most meaningful information available on school performance.

All this is to no avail if the Department is correct in claiming the information is covered by section 18A of the Education Act 1990, and it waved a Crown Solicitor's opinion at the Herald to make the point. Section 18A in its current form came out of an Alice in Wonderland debate in Parliament that led to measures ( subsections (4) and (5)) that the Government decried but voted for, that impose a fine on NSW newspapers utilising publicly available information to publish comparative performance information.

Schedule 1 of the GIPA act lists section 18A of the Education Act as one of the prohibition on disclosure provisions in 26 acts that are taken (section 11) as establishing a conclusive presumption of an overriding public interest against disclosure. Schedule 1 clause 1 states the overriding presumption applies where disclosure is prohibited by those provisions and "whether or not the prohibition is subject to specified qualifications or exceptions and whether or not a breach of the prohibition constitutes an offence." This suggests that in dealing with a GIPA application an agency must refuse access to information that properly falls within any of these prohibitions.There appears to be no discretion to release available to be exercised by the GIPA decision maker even though under the original acts information can be released in certain circumstances.

On the basis of the Herald reports I'm not convinced the release of the added value index would involve a publication prohibited by section 18A, so it will be interesting to see what might come from any challenge. In any event a National Agreement would clear this up if governments were really serious about transparency and the school system. But why NSW should need Commonwealth agreement before releasing information about NSW schools is another matter.

Section 18A states:

The past as prelude, at the movies

Judith Ehrlich, the Timmins, Professor David Weisbrot

The terrific documentary The Most Dangerous Man In America is a must see for those who remember the Vietnam war era. But it will be an eye opener for those who have never heard of Daniel Ellsberg and the Pentagon Papers but who listen with some scepticism to what we are being told 40 years later about current wars in which the US, Australia and other countries find ourselves. I saw it at the weekend and by happenstance had the opportunity to meet Judith Ehrlich the co director who had been in town for the screening at the Sydney Film Festival where it won the Audience Prize. That's now added to a string of others including an Academy award nomination earlier in the year. The documentary is screening at the Chauvel in Paddington, Sydney for the next two weeks. Keep your eyes peeled elsewhere. And by the by, tonight's Foreign Correspondent on (Australian) ABC  features interviews with Ellsberg and Wikileaks' Assange, something of a modern counterpart, in the program USA/Iceland - Truth or Dare.

Some personal ancient history, folks.

Actions belie big promises of open and transparent government

In a weekend in which two incumbent state Labor governments suffered swings of 7 and 12 per cent, suggesting regardless of the result both are on the nose, and the SA government without waiting for the poll to be declared, is in the news today kicking off a Labor listens" campaign, commentary in the weekend papers about developments in other jurisdictions wasn't encouraging:

Paul Austin in The Age Door shuts on open policy

"Once the champion of democratic reform, Brumby's Labor is now a liability. The John Brumby democracy project is running out of puff. Once proud champions of democratic reform, the Premier and his party are now impediments to a better Victorian polity. Brumby and Victorian Labor have a distinguished record on improving the quality of our democracy and enhancing the openness and accountability of public office - which makes it all the sadder that recent events suggest this Premier and this government have little more to offer in this sphere."

The Canberra Times Chipping away at the walls of secrecy (no link available) in welcoming the Government's plans for whistleblower protection reform, commented:

"Legislation intended to open up government in Australia to greater public scrutiny, while laudable, will not make headway unless ministers, heads of departments and senior public service managers lead by example. On most of the evidence, this is not happening. Indeed, Prime Minister Kevin Rudd last week cited cabinet privilege for his refusal to disclose letters from Environment Minister Peter Garrett regarding compliance issues with the failed home insulation program, and all governments before this one have successfully quarantined documents from disclosure under freedom of information laws, often for no other reason than a desire not to be embarrassed. Likewise, a culture of secrecy (and hostility to whistleblowers) within the senior levels of the public service is well entrenched. The whistleblower legislation will succeed in removing a chip or two from the Chinese walls erected by government and bureaucracy, but only concerted action from the top will bring them down."

 Max Suich in The Weekend Australian Spymaster stirs spectre of cover foreign activities about "the continuing and absurd shroud of secrecy that surrounds ASIS, with agents overseas, and its history" about events going on 40 years  ago, and excessive secrecy in the release of archived documents:

"In the US, it is now accepted that much of the dirty work that the CIA carried out was authorised and often ordered by the White House, from president Dwight Eisenhower onwards. We have never had any clear understanding here of what ministers have sought from the secret services and what have been independent enterprises. Nor do we have a clear account of how Australian and foreign intelligence agencies affected the political and diplomatic relations of Australia with key nations such as the US, Indonesia, China and Japan."

The Sydney Morning Herald in an editorial The case for coalmining is not entirely open cut  concluding a series on coal mining in NSW that revealed, among other things, a deeply flawed approval system that lacks transparency, and has no central body responsible for managing the process.

"..what is needed is a new spirit of openness and transparency in the mining approvals process. The government is merely the custodian of natural resources, which it only owns on behalf of us all. Community consultation should be a key component of government decision-making right from the start, before a licence is granted. For too long the balance of power has been stacked in favour of mining companies and against local communities. A website giving transparent, up-to-date information about all upcoming licence tenders and mine proposals should be established as a first step."

You would think this would be a walk up, even before the start of the new promised era of proactive disclosure under new laws, sadly yet to take effect.

ALRC on secrecy No 3:assorted other issues

Other bits and pieces from the Australian Law Reform Commission Report Secrecy Laws and Open Government in Australia (posts 1 and 2 if you missed them). The  unspecified contribution to the culture of secrecy of the practice of requiring of an officer an oath that goes beyond the strict letter of the law is of particular interest. That's on top of 500 odd secrecy provisions to start with.

Senior management should be held to account
 15.13 The ALRC continues to see the benefits of including in the performance agreements of senior officers in Australian Government agencies a responsibility to ensure efficient and effective information-handling practices. As noted in ALRC 77, giving tangible incentives to staff to pay greater attention to, and to improve, an agency’s information-handling practices will increase the likelihood of cultural change.

Staff need more guidance on information handling

Recommendation 15–1 Australian Government agencies should develop and administer training and development programs for their employees, on induction and at regular intervals thereafter, about the information-handling obligations relevant to their position, including the need to share information in certain situations. Programs should also provide information about how employees can raise concerns and make public interest disclosures.

Oaths of secrecy should be limited to obligations at law

15.28 Approximately 8% of the secrecy provisions identified by the ALRC— predominantly in laws governing taxation and revenue-protection information— empower a specified person, or persons, to require officers to take an oath or make an affirmation of secrecy. Secrecy obligations may also be included in the oaths of office required for assuming certain public positions, such as the oath taken by Executive Councillors. In addition to conduct covered by these legislative provisions, some agencies have taken administrative action to require officers to sign an acknowledgement of their secrecy obligations.

15.30 The ALRC has heard anecdotally, however, that some Commonwealth employees have been asked to sign oaths that set out substantially more stringent secrecy requirements than those that apply under relevant Commonwealth laws.

15.35 In DP 74, the ALRC expressed the view that the relevant Australian Government agency should retain the discretion to administer an oath or affirmation of secrecy, in accordance with any legislative provision. However, the ALRC proposed that where an agency decides to administer such an oath, it should ensure that it is an accurate reflection of the requirements under relevant Commonwealth secrecy laws. In particular, the ALRC was concerned about the potential for oaths and affirmations to set out broader or more onerous obligations than the secrecy laws on which they are based.

Recommendation 15–2 Any Australian Government agency that administers oaths, affirmations or declarations of secrecy should ensure that these properly reflect what is required under relevant Commonwealth secrecy laws.

Changes to Archives Act

The taxation specific secrecy provision in the act [Recommendation 16–5 ], Section 33(3) should be repealed.

And current uncertainty about the relationship between the Archives Act and secrecy provisions in other acts should be removed:

Recommendation 16–6 The Archives Act 1983 (Cth) should be amended to provide that the public access provisions of the Act override any secrecy provisions that would otherwise apply.

ALRC on secrecy No 2: FOI issues

Freedom of Information related issues feature prominently in the Australian Law Reform Commission Report Secrecy Laws and Open Government in Australia released last week (see earlier post). Chapter 2 discusses secrecy in the context of open government; Chapter 14 provides a framework for effective information handling; Chapter 15 addresses the associated culture change issues; and Chapter 16 examines the inter-action of secrecy provisions with the FOI, Archives and Privacy acts, and with claims of parliamentary privilege.

Section 38 to stay

Of particular interest is the change of heart by the Commission on the preliminary view expressed in its Discussion Paper, Review of Secrecy Laws (DP 74), that section 38 of the FOI act which currently provides exemption for information of the kind referred to in specified secrecy provisions in other acts, should be repealed. The Report notes:

 16.82 Two competing views were evident in submissions. On the one hand, there was support for the proposal to repeal the secrecy exemption on the basis that this would promote open government, and that other exemptions in the FOI Act provided sufficient protection. On the other hand, a number of agencies were concerned that the repeal of the secrecy exemption would leave insufficient protection for their information holdings. Particular concerns were raised by regulatory agencies that handle large amounts of personal and commercial information.

Agencies won out. The Commission [Recommendations 16-1 to 16-4] says Section 38 should be retained:

16.83 The ALRC has considered the secrecy provisions that currently invoke the exemption, and is persuaded that the exemption has an ongoing role to play. Particularly compelling in this regard are secrecy provisions which apply to a confined class of highly sensitive Commonwealth information—such as those included in the Civil Aviation Act 1988 (Cth) and Telecommunications (Interception and Access) Act 1979 (Cth). As set out in the Queensland Government’s response to the Solomon Committee report, these matters ‘require an absolute guarantee of confidentiality to ensure upfront public confidence and participation in certain processes of government’

There is a question whether some of the 65 provisions of other acts that currently are linked to the s 38 exemption meet this "highly sensitive" standard. In the FOI reform bill currently before the parliament no relevant amendments have been proposed, so re-examination of schedule 3 is another issue to be pencilled in for phase three of the reform process two years down the track.

Some fine print that hopefully won't be missed includes:

16.84 The recommendation that the exemption should be retained also recognises the fact that numerous other recommendations in this Report seek to narrow the scope of secrecy provisions, including, in most circumstances, linking them to an express harm requirement. Implementation of these recommendations will help to minimise the potential incursion of the secrecy provision exemption on the principle of open government. However, the ALRC considers that additional reforms are needed to ensure that the exemption does not operate to reinforce a ‘culture of secrecy’.
16.85 First, the secrecy exemption should be amended to include a definitive list of secrecy provisions that operate to conclusively override the FOI Act. This ensures that the minister responsible for administering the FOI Act is involved in the decision to include any secrecy provisions on the list.
16.86 Further, ministers who wish to add a secrecy provision to the list of exemptions should be required to assess, and put on the public record, the potential impact of the proposed amendment on the scrutiny of government action. Such an assessment could be included in the explanatory memorandum to ensure parliamentary scrutiny and debate. Among other considerations, relevant factors would include the breadth of the class of information to which the secrecy provision applies, and the likely relevance of the information for public scrutiny of government action.

Turning the schedule attached to s 38 into the "definitive list" would  mean the end of the practice of putting other provisions in separate legislation that give effect to the section and override the FOI act. The ALRC discovered [16.24] four such provisions: National Health Security Act 2007 (Cth) s 90; Australian Prudential Regulation Authority Act 1998 (Cth) s 56; Superannuation Industry (Supervision) Act 1993 (Cth) s 252C; Reserve Bank Act 1959 (Cth) s 79A.

The Commission declined to follow the NSW and Queensland precedents that give weight  to the existence of a secrecy provision in another act not specified in the FOI act as a  consideration, to be weighed along with other relevant factors, where a public interest test applies. The report recommends an amendment to the FOI act to provide that the act overrides obligations of non-disclosure in other legislation. Other exemptions apart from s 38 of course, depending on the content of a document, might still apply.

As long as there is some serious sorting out of the current schedule, and a vigilant guard is forever on duty to stop further creep through observance of the process recommended for any attempt to add to it, this isn't a bad compromise.

Two other issues of direct FOI relevance:
The discussion of the role of oversight bodies [15.57] including the Information Commissioner and this recommendation:

Recommendation 15–4 The Information Commissioner should review and report to the Minister on the information-handling policies developed by Australian Government agencies in accordance with Recommendation 14–1 and any relevant employee directions.

And discussion of protections for disclosure [16.93] including the following recommendation, which I think reflects what is proposed in the FOI reform bill:

Recommendation 16–3 Sections 91 and 92 of the Freedom of Information Act 1982 (Cth) (FOI Act) should be amended to extend the indemnities from civil and criminal actions to authorised FOI officers who:
 (a) disclose an exempt document under the FOI Act pursuant to a bona fide exercise of discretion not to claim the exemption; or

(b) disclose a document other than under the FOI Act provided that:
(i) the document would not have been exempt had it been requested under the FOI Act; or

(ii) the disclosure would have been a bona fide exercise of discretion not to claim an exemption had it been requested under the FOI Act.

Sunshine Week and the never-ending story

It's Sunshine Week in the US, again leaving those here who would like to see media organisations really step up to the plate on the public's right to know and why it's important, green with envy at the resources, professionalism and wide scope of and support for the initiative. The unfortunate news is the poll published there today that shows the public thinks government secrecy is as strong as ever.

The National Security Archive  has also published the result of an audit of agency compliance with President Obama's directive on openness.

The Obama administration "has clearly stated a new policy direction for open government but has not conquered the challenge of communicating and enforcing that message throughout the executive branch," the report concluded.

Those here faced with the same challenge should note what appears to have happened when the writtten directives were issued last year by the President and Attorney General to agencies to do things differently:

Some agencies (13 out of 90) implemented concrete changes in practice as a result of the memos; some (14 out of 90) have made changes in staff training; and still others (11 out of 90)  have merely circulated and discussed the memos. The remaining agencies (52) either told the Archive that they have no records that demonstrate how they implemented the Obama and Holder Memos or did not respond at all to the FOIA request.

Update:The White House commented in this New York Times report on the audit:

"The White House, however, took issue with the group’s methodology and said that the administration had made clear progress in turning around an executive branch that is often averse to public disclosures. “What we have done this year is to build the infrastructure to build a lasting change,” Norm Eisen, the special counsel to the president for ethics and government reform, said Sunday.

“It’s not enough for us to make initial, strong pronouncements. How do you really turn the battleship to achieve a lasting impact?” he asked. He said that throughout the executive branch, public information officers “are really trying to turn that battleship, and the initial returns are positive,” with more documents being released in the last year under Freedom of Information Act, or F.O.I.A., requests. But “there’s much more to do” and it will probably take another year before the changes are fully seen, he added. Even so, he said that the White House’s early data suggested more reason for optimism than the National Security Archive report in tracking progress under the Freedom of Information Act.".. The administration planned to release a broader report on government openness next month.."

ALRC on secrecy, calls for new balanced framework

The Australian Law Reform Commission report Secrecy Laws and Open Government in Australia (ALRC Report 112) was tabled in Parliament today after a 15-month inquiry, and welcomed by the Attorney General and the Special Minister of State, but nothing more at this stage. The Commission's media release provides an overview.(Update: Not much in the papers this Friday morning except this AAP report in the Herald Sun, and presumably elsewhere.)

The report makes 61 recommendations for reform, "including a new and principled framework designed to reinforce open and accountable government while ensuring adequate protection for Commonwealth information that should legitimately be kept confidential." There would seem to be years of work ahead within government in undertaking the recommended agency review of 506 secrecy provisions in 176 pieces of legislation, including 358 criminal secrecy offences, but acceptance of a framework, principles to underpin the approach, and a move towards consistency would be a good thing.

There is a lot of welcome news here particularly the recommendation that section 70 of the Crimes Act, the basis for the conviction of Allan Kessing among others, for an unauthorised disclosure, be repealed and replaced [5-1] by a general offence provision for unauthorised release of information that 

has caused, or is likely or intended to cause, harm to identified public interests: damage the security, defence or international relations of the Commonwealth; prejudice the prevention, detection, investigation, prosecution or punishment of criminal offences;endanger the life or physical safety of any person; or prejudice the protection of public safety. 

Importantly the ALRC recommends [6-4] the offence should require intention on the part of an officer to cause the harm, or reckless indifference whether this will result.The broad definition of Commonwealth officer [6-1] whose conduct would be regulated would extend to the Governor General, ministers and parliamentary secretaries- all reasonable enough, but interesting to see how this goes.

Potentially controversial recommendations [6-6, 6-7] are that any subsequent disclosure of information of this kind, for example by a journalist, should be an offence. It's easy to see the free speech arguments that are likely to emerge but it shouldn't get lost in transmission that there are three elements to this offence: (a) the information has been disclosed by A to B in breach of the general secrecy offence; B knows, or is reckless as to whether, the information has been disclosed in breach of the general secrecy offence; and B knows, intends or is reckless as to whether the subsequent disclosure will harm—or knows or is reckless as to whether the subsequent disclosure is reasonably likely to harm—one of the specified  public interests. 

The recommendations [7-3] include the need to protect whisteblower disclosures made in accordance with the law, and subsequent disclosures of information. The report restates the need for a robust whistleblower protection scheme, described "as an essential element in an effective system of open government and a necessary complement to secrecy laws." This should prompt action on the Dreyfus report (that some see as not robust enough) which has been with the Attorney General since February last year, and on the promise of legislation in this parliament.

There are some important "culture" and freedom of information issues in the report and recommendations, to be the subject of another post soon.

I was a member of the ALRC Advisory Committee for this reference, but our contribution was merely that. Thanks to former president Professor David Weisbrot, his successor Professor Ros Croucher who conducted the inquiry,  the staff and other members of the committee for some interesting discussion, and a job well done.

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