Federal Parliament back in the spotlight

Plenty of big issues on the agenda but....

Update: Oops! Thanks to the watchful soul in Canberra who tells me I was looking at the 2013 program not 2014.  

The correct list (pdf) of proposed legislation for the spring sitting includes The Freedom of Information Amendment (New Arrangements) Bill 2014:

-establish new arrangements for the exercise of privacy and freedom of information (FOI) functions, including: disbanding the Office of the Australian Information Commissioner; arrangements for an Office of the Privacy Commissioner; making external merits review of FOI decisions only available at the Administrative Appeals Tribunal following compulsory internal review; and providing for the Ombudsman to take over responsibility for investigation of FOI complaints.

As I was saying before thankfully corrected:

Labor, The Greens, PUPS, DLP, Family First and independent senators particularly senators Xenophon and Leonhjelm who have a strong interest in transparency and accountability should look closely at how the changes will benefit FOI applicants as claimed by the Attorney General in the only public words uttered in announcing the decision in May or since.

Quite apart from leaving the cause of FOI virtually orphaned in the hands of the Attorney General's Department, the 'administrative efficiencies' that will see merits review back exclusively with the AAT will mean applicants aggrieved face a charge of $861 (currently) for the pleasure. 

Abolishing the information commission runs completely counter to good practice access to information here or anywhere else in the world.

And I'd wondered what had happened to this proposed cut back on contract disclosures in the name of 'red tape' that emerged in February. The Canberra Times reports today that Labor won't support it, so another issue to add to the cross bench chat list.  

.............. 
Continuation as originally published:  
.....no sign on the published legislative program(pdf) for this sitting of a bill to abolish the Office of Australian Information Commissioner and deal with the flow on effects. 

Labor, The Greens, PUPS, DLP, Family First and independent senators particularly senators Xenophon and Leonhjelm who have a strong interest in transparency and accountability should look closely at how the changes will benefit FOI applicants as claimed by the Attorney General in the only public words uttered in announcing the decision in May or since.

Quite apart from leaving the cause of FOI virtually orphaned in the hands of the Attorney General's Department, the 'administrative efficiencies' that will see merits review back exclusively with the AAT will mean applicants aggrieved face a charge of $861 (currently) for the pleasure. 

Abolishing the information commission runs completely counter to good practice access to information here or anywhere else in the world.

And I'd wondered what had happened to this proposed cut back on contract disclosures in the name of 'red tape' that emerged in February. The Canberra Times reports today that Labor won't support it, so another issue to add to the cross bench chat list.  

Cut back on published contracts in the name of cutting red tape?

In order "to pursue the deregulation agenda and reduce red tape for agencies in their reporting processes" Department of Finance officials in Canberra told Senate estimates this week of a proposal to increase the threshold for publication of information about government contracts online on Austender from $10,000 to $20,000. 

The change would mean non publication from 1 July of contract details that represent four per cent by value of total contracts but a much higher percentage in terms of the number of contracts.

AtelierMonpli

While the administrative burden for agencies would ease, what it means for transparency is also clear: less not more. 

What other cutbacks on the publication of information in the name of the deregulation and reduce red tape agenda are in the pipeline remains to be seen. 

Austender publication of contract information quarterly is a Department of Finance requirement that rests on policy not legislation. A Senate Order requires reporting of contracts over $100000 including on the extent of use of confidentiality provisions. The Senate Finance and Public Administration Committee has a current reference on this.

Former Finance Minister Penny Wong pointed out in Estimates the lack of consultation with the parliament about the Austender proposal and raised the possibility of changes down in the Senate Order threshold if the Austender level is raised.

The Auditor General and others have been calling for rationalisation and improvement in the systems for years. Poor search capabilities are another issue.

Disclosure obligations for contracts (grants and a range of other information we expect or should expect agencies to make available as a matter of routine) should be incorporated in legislation as a publication requirement - a highly desireable Freedom of Information reform waiting to happen.

The Q&A in Estimates follows. 

Serco contract disclosure illustrates some FOI progress

And some way to go as well.

New Matilda has published details from the 2009 Department of Immigration and Citizenship (DIAC) contract with British multinational Serco, obtained through an FOI request by London based freelance journalist and blogger Paul Farrell. Parts of the contract as executed have been withheld including some parts that the decision maker apparently considers should be released, but can't be released at this stage as Serco objects and has rights of review. (The decision notice is unclear about what is in this category.)

Courtesy of New Matilda 
View the FOI officer’s decision and a list of the folios withheld.

New Matilda separately has published what it says is a leaked version of the contract, providing an opportunity for some interesting analysis of the FOI decision by those with the time and interest. However that copy is marked throughout as "Public Release Version" so it may be incomplete in some respects.

Again courtesy of New Matilda see the leaked version of the contract here.

The pages of the executed contract released under FOI are all marked "Commercial in Confidence."

While acknowledging the Freedom of Information request raised some complex issues, the application was dated 14 December 2010, the response 2 September 2011. Some aspects are still to be determined. Presumably the absence of any reference to charges was because the request was not dealt with within time, or additional time granted by the Australian Information Commissioner. And some of the following claims are at least open to question.
 
The DIAC decision maker claimed exemption for information:

Still too much confidentiality in Commonwealth contracts

The annual Australian National Audit Office performance audit to assess the appropriateness of the use and reporting of confidentiality provisions in Australian Government contracts, in accordance with a 2001 Senate Order, highlights some improvements - around 10% of the 42,000 contracts entered into in 2009 contained confidentiality provisions, consistent with experience over the previous three years, and a significant decline from 24 per cent in 2001–02 -but also ongoing problems.

An examination of a sample of 150 contracts, managed by 33 agencies, that were reported to Parliament containing confidentiality provisions, identified 52 (35 per cent) correctly, and 21 (14 per cent) incorrectly asserting confidentiality provisions contrary to the standard in Finance guidelines.  However the remaining 77 (51 per cent) did not contain confidentiality provisions but had been listed in documents tabled in Parliament as containing such provisions, potentially precluding or restricting the Parliament and the public from accessing information about them.

The audit concluded:

"Overall, while the use of confidentiality provisions has decreased since the Order was introduced, the benefit of the Order, as an accountability and transparency mechanism for Australian Government contracting activity, is not being fully realised due to incorrect use of confidentiality provisions and inaccuracies in contract reporting.."

The report attributes this partly to multiple and differing requirements for reporting on contracts. In addition to the Senate Order agencies are required to comply with Department of Finance instructions to report procurement activity in AusTender, an internet based system, including whether there is confidential information within any contract or agreement with another agency, for example, profit margins, or confidential information obtained or generated during the term of the contract.

But the report also draws attention to the fact that contract preparation practices in some agencies do not "support adequate consideration of the use of confidentiality provisions in contracts." Polite auditor language, pointing to the fact that confidentiality provisions end up in too many contracts without hard headed consideration of the need, or the merits.

Finance is urged to explore consolidation of reporting obligations and to promulgate consistent and more readily understood guidance. Agencies are implored to lift their game.

Culture (memo Information Commissioner Designate) almost certainly has something to do with what appears to be excessive caution, or willingness to comply with contractors wishes on the part of some public servants. (As an example price lists frequently crop up in confidentiality provisions.)

And consolidation of requirements and the cause of rigour would have been advanced if the opportunity had been taken in the Freedom of Information reforms to legislate for publication of contracts, and to define in law "commercial in confidence." Contract disclosures (or other categories of information required by administrative instructions to be published such as  grants) don't get a mention in legislated proactive publication obligations that will commence next May.

Paydirt for digging deep on published contract information

Linton Besser's articles in today's Sydney Morning Herald  about Defence contracts result from a three month investigation, and show  plenty of questionable and sometimes worse examples of profligate spending by the Department.

The articles themselves give the lie to the old line that if it's public there's no story. With more information than ever before available on-line, in this case some contract disclosures, those with the time, energy and resources to dig deep, spot the story, build the picture, follow up on the bits that seem odd or out of the ordinary, and put it all together play an important role in telling us "news." However while Besser has mined the published information extensively, the requirement to publish Commonwealth Government contracts should be on firmer footing, in legislation - it isn't  at present - and the searchability of government websites needs plenty of improvement. We are still going to need a Besser to do the digging and to bring to attention such things as Defence spending $30,000 on items simply described as "stuff", revealed in a contract note no-one else noticed that has has been up on the web since September last year, and some apparent phantom contracts-or simple stuff -ups - as well.

All this from Defence- whose up for a similar exercise across all agencies?

"Open Government" but a tough task to track consultants

Tom Dusevic and the Australian Financial Review ( subscription only) did a great job in analysis in the Wednesday 18 February edition after digging out details of the $514 million in consultancies let by the Rudd Government in its first year in office. Dusevic and Verona Burgess, the Fin's Government Affairs writer today, both highlight how the high use of consultants at a time of across the board cuts in government operating costs continues to impact negatively on public service expertise and in-house research capability.

Up with the leaders in the big league of generalists are Boston Consulting ($18.68 million) and KPMG ($17.28m), with Booz and Company ($7.45m) and PricewaterhouseCoopers ($7.08m) also doing nicely. The Australian Government Solicitor ($9.51m) and Corrs Chambers Westgarth ($6.14m) were the top picks in the legal fraternity.

With a government committed to greater openness and transparency it shouldn't be as hard a job as Dusevic experienced to work out what is going on with our money- a fully searchable database and a big stick to enforce reporting would mean access to information on who is getting work from government, for what, is a breeze.

Here is Dusevic's take on the task:

"There is no systematic or centralised tracking of actual spending on consultancies across the federal sphere. To reach its spending estimates,the AFR analysed annual reports and government tender records,which have been vastly improved since September 2007. Through cross-referencing some 95 per cent of actual spending has been captured; the remaining 5 per cent covering dozens of small agencies has been extrapolated......Some consultancy contracts remain confidential. In a supposedly open era of government, details about many contracts are published several months after they begin, sometimes after they have expired, and often not at all. It makes monitoring consultancies an onerous job."

It shouldn't be.

Getting FOI reform in the fast track

At the end of July I made some suggestions for action Senator Faulkner could take to shift things along on the Federal Freedom of Information reform front apart from the commitment to two phase reform sometime down the track. At that time and probably still, Senator Faulkner thought those complaining about slow progress were "ungenerous critics." My list appears to have made not the slightest impression on anyone in Canberra. So no illusions here about influence but what about a list of initiatives NSW Premier Nathan Rees could consider if he wants to keep the ball rolling in his plan to end excessive secrecy in NSW?

Matthew Moore in the Sydney Morning Herald on Saturday kicked things off suggesting the Premier could push agencies to respond positively to Ombudsman recommendations following the investigation of complaints regarding FOI, and provide guidance on what he expects to be disclosed publicly as a matter of routine, starting with the cost of ministerial trips and the cost-benefit analysis of major government spending commitments such as the staging a V8 car race at Sydney Olympic Park. On the first point, the Ombudsman's Annual report reveals 171 positive outcomes from 190 completed investigations in the year to 30 June, so there are a few from last year reluctant to accept the Ombudsman's wisdom. On the second,for starters get up on the web the register of interests of members of parliament, government grants made to organisations to carry out functions on behalf of the government, and inspection reports on food standards in restaurants, schools and hospitals.

As to other possibilities:

Designate someone with standing and clout (with no connection with the dark arts of the past) to act with your authority to turn things on their head in this area, as you explained your intention last week. Ask the Ombudsman to have his review report on your desk promptly, and in any event to let you have a first report on policy and public management issues by 1 January.

Tell Education and Health there is to be no more foot-dragging on the publication of information about performance in the schools and health systems and that NSW is to stand with, not against, Federal ministers in this endeavour.

Issue a policy directive that documents should be released unless there is clear harm to government, individual or business interests. Get rid of all the wishy-washy and in some cases questionable guidance in the Manual issued last year by the Premier's Department that provides a straw to hang onto for those looking for an excuse to knock back a request.

Put some performance measures in place and make it clear performance- particularly timely access- in this area is the responsibility of a senior officer in every agency. As the Ombudsman has pointed out NSW Police appaear to have systemic problems.

Tell agencies that in assessing charges the Government sees a public interest in use of the FOI Act to access documents concerning the conduct of government functions, or that will contribute to debate about matters of public concern, and that charges should not stand in the way of access to these type of documents.

Find out what happened after Morris Iemma acknowledged shortcomings (I use the word loosely) in the disclosure of government contracts on the web, as has been required by law since January 2007, and get things sorted so that local councils are subject to a similar requirement from 1 January 2009.

Check what sort of public money, time and energy is going into defending in the Administrative Decisions Tribunal questionable FOI determinations by agencies to refuse access to documents and convince agencies to pull the plug on those that aren't necessary in a government no longer to be described as the secret state.Ditto regarding any rearguard actions currently in the courts where government agencies are contesting Tribunal decisions.Ditto for complaints to the Ombudsman that haven't yet been investigated.

Go and talk to the next meeting of FOI officers from government agencies who meet in the Parliament House Theatrette on 12 November and tell them your expectations- this group meets every few months and has done so since 1989.It would be a first - none of your predecessors have ever attended a meeting

Whew, all this before getting moving on a new act early in 2009!

Good luck.

Brave new open world for NSW Government contracts yet to arrive

Interested in what NSW government agencies are up to in contracting with private sector bodies, including buying and selling land; what contracts are being awarded to a particular firm by different government agencies; and what's being spent across government on contracts for a particular type of service?

Should be a snap since an amendment to the NSW Freedom of Information Act, promoted by the Independent Member for (and Lord Mayor of) Sydney, Clover Moore, included a new section (15A) requiring information about contracts after 1 January 2007 for $150,000 or more to be published on a central government website, and in the case of contracts in excess of $5 million, (Class 3 contracts), the publication of the contract itself. As mentioned at the time, there are various qualifications, including for commercial confidence information(defined in the section, itself a plus), and others that are questionable ( for State Owned Corporations; industry support grants by the Department of State Development;and information that would attract any exemption in the FOI Act), but it all sounded like a big leap forward from the days of closely guarded secrets like the penalty provisions of the Cross City Tunnel contract.

Well it's turning out to be a a slight shuffle in the right direction rather than what was hoped for at the time.Compliance by government agencies has been patchy, to put it mildly, with some agencies who simply ignore the requirement entirely and others who don't, or for technical reasons can't, post the full or edited provisions of the big dollar contracts. To make matters worse, the designated central website for all this-the Department of Commerce e-tender site- is close to useless as an accountability tool, with limited search capability and an inclination to go haywire, even when you set strict parameters for a search.

Clover Moore recently asked (3347) the Premier in Parliament, on notice:

1. How does the NSW Government ensure that agencies comply with requirements of Section 15a of the Freedom of Information Act 1989?
   
2. How many "class 3" contracts between a Government agency and the private sector, as defined by Section 15a of the Freedom of Information Act 1989, became effective since 1 January 2007?
3. How many actual "class 3" contracts were available on the tenders.nsw.gov.au website as at Monday 2 June 2008?
   
4. How many of the "class 3" contracts that are not published on tenders.nsw.gov.au between 1 January 2007 and 3 June 2008, are not commercial-in-confidence?
   
5. With regard to "class 3" contracts not available on tenders.nsw.gov.au that are not commercial in confidence:
   Why are these contracts not available on the website?
   How are these contracts publicly available?
   
6. Since commencement of Section 15a of the Freedom of Information Act 1989 what measures have been taken to update the search function of the tenders.nsw.gov.au site to make it more easy to use by those searching for contract disclosures?
   
7. Is the NSW Government aware of the website managed by the United States of America at www.usaspending.gov, which provides an easy to use method of finding government contract disclosures?
   
8. What assessment has the NSW Government made of updating the tenders.nsw.gov.au site so that it provides similar easy to use searches as the usaspending.gov site?
   
9. What work has the NSW Government done on drafting Regulations for Section 15a of the Freedom of Information Act 1989?

The Premier's answer is below. I think it can be paraphrased :— we told the troops what they had to do, but we haven't followed up to see what they are doing; there are a couple of contracts up there but we have no idea how many should be there; the website is hopeless but Commerce has had a look at it and assure us things will be better later in the year; in respect of the last question, almost two years after we said we would talk to local councils about bringing them into the scheme, they haven't returned our call.

"A Premier's Memorandum (M2007-01) was issued in January 2007 which described the (then) new contract disclosure obligations imposed by section 15A of the Freedom of Information Act (FOI Act). In particular, the Memorandum noted that it is each government agency's responsibility to comply with the new provisions.

A number of class 3 contracts are available on the tenders.nsw.gov.au website. The total number of class 3 contracts which became effective since 1 January 2007, however, is not centrally collected.

The Department of Commerce has conducted a study into possible improvements in the website's search function usability and effectiveness. A redeveloped tenders.nsw.gov.au website, incorporating improvements recommended in the study, is expected to be operational later in 2008.

The Government has sought advice from the Local Government and Shires Association on its view as to whether a regulation should be made to extend the FOI Act's contract disclosure obligations to local authorities. No advice has been received to date."