MPs and opaque arrangements about expenditure of public money

The NSW Remuneration Tribunal last week issued the 2009 Annual Report and Determination of Additional Entitlements for Members of the Parliament of NSW. I'm all in favour of paying parliamentarians properly as recommended by an independent body but we badly need more sunshine about what goes here, despite the Tribunal's commendation of some recent initiatives to improve accountability.

For example how much of the electoral allowance (now ranging from $39950 to$82095 depending on the size of the electorate) each member spends, on what. NSW parliamentarians, like their Federal counterparts may pocket any unspent electoral allowance with the only issue one between the member and the Australian Taxation Office.The Determination tells us one submission received by the Tribunal suggested any unspent portion of the allowance should be returned to the Consolidated Fund rather than being retained by Members, but alas any such change, the Tribunal says, would be outside its powers and require legislative change.

Payments to members are subject to audit but no information about the expenditure of this or other allowances paid to individual members- Logistic Support Allocation, Electorate Charter Transport reimbursement, Committee Allowance, Electoral Mailout Allowance- or expenditure on other entitlements is publicly available from the Parliament. Not even the rule book that Parliamentary Joint Services uses for payments is on Parliament's website. But you can glean a little from the Tribunal Determination.

The Tribunal, at the request of the Presiding Officers, ruled out the use of the LSA to purchase promotional products for constituents such as "fridge magnets, notepads, shopping lists, key rings and pens." No moat cleaning revealed here, but what else is claimed only the Tax office will ever know.

Then there is the Sydney Allowance for members whose nominated place of residence is outside Sydney. It has been modestly increased (by $6) to $246 per night. The Determination tells us that everyone from a backbencher to a minister eligible for the allowance can choose to receive pay as you go payments or a lump sum, in the case of a minister and a few others, 180 nights worth ($44280). Members are to retain some proof they stayed overnight, but no details of expenditure are required. If they choose pay as you go they are entitled to additional payments over the limit on proof of expenditure. The Determination says the payments are meant to provide for long-term accommodation and I wouldn't want to condemn these worthy souls to life in a hotel room but the quid pro quo for nice round sums like $44000 should be publicly available details of where and on what the money goes.

Members of parliament also get money in the LSA to directly employ two or three people in their electoral office at public expense.The Determination even refers to payments to an approved relative. But nothing is publicly available about who is on each of their payrolls.

Is Tasmania unique where newly appointed parliamentary secretary Allison Ritchie resigned from that position and parliament last week after it was revealed she employed her mother, two sisters and her brother-in-law in her office, touching off debate there about the need for some rules about all this?

The legislative branch of government in NSW (which will spend over$100 million on Members Support this year) and everywhere else in the country drags the chain when it comes to open and transparent government. All are outside the scope of freedom of information laws and the parliamentarians themselves, with a few notable exceptions such as The NSW Greens' Lee Rhiannon show no interest in lifting the game on their own volition.

Secrecy on emergency readiness hinders not helps preparedness

From ABC online

Dr Anthony Bergin the Director of Research Programs at the Australian Strategic Policy Institute and David Templeman the former director-general of Emergency Management Australia on excessive and damaging secrecy about national preparedness for large scale emergencies:

"Terrorists already know where our soft spots exist. Sweeping vulnerabilities under the carpet results in our elected representatives having less incentive to fix the problems. When it comes to releasing information about the risks we face, governments should cease treating the public like helpless children that require protection"

Lobbyists register one year on

This discussion on Radio National's the National Interest suggests two prominent lobbyists think the registration scheme, now a year on, has had little or no impact on their operations. Robin Banks of the Public Interest Advocacy Center points out that registration, in the absence of regular reporting on contacts, and a scheme that doesn't extend to those who represent themselves, or to the lobbying of members of parliament, fails to deliver the transparency we should expect concerning influence peddling.

Media organisations clash over FOI reform

Mark Day in The Australian reports on a power struggle within the Australian Press Council partly prompted by a clash over the APC's role and the belief by publishers that it was straying from its mission:

"that increasing resources were being spent on annual state-of-the-media reports and developing policy on issues such as privacy, freedom of information and government secrecy. When the APC and the publishers' new lobbying group The Right to Know clashed on recent government proposals for FoI reform, RTK welcomed the moves, the APC said they did not go far enough and government officials asked which industry voice they should listen to."

They're both right- the Federal reforms were welcome but didn't go far (or fast) enough. On NSW reforms ARTK appears not to have made a submission but the APC managed a view or two. In Queensland on the other hand ARTK was busy- the Premier made a special point in Parliament of singling them out for mention for their contribution.

Gov 2.0 in the news

The Gov.2.0 initiative, about disclosure of useful government information of potential benefit to the community, is running - Minister Lindsay Tanner is blogging away strongly about what he says the Federal Government is on about, which sounds great but has provoked a string of mostly sceptical comment; in the US state information officials are going to work with the White House to develop national standards on disclosure of government data but here is a view that being too open may be problematic; the UK Opposion Leader is talking about "letting data free" if he wins the next election; and the Victorian Parliament Economic Development and Infrastructure Committee reported last week on Improving Access to Victorian Public Sector Information and Data.

All grist for the mill for the Government 2.0 Taskforce.

Alice in Wonderland: Alice wants to know about school.

The NSW Parliament yesterday also finalised the Education Amendment (Publication of School Results) Bill with an amendment forced on the Government by The Greens and the Opposition in the Upper House and accepted by the Assembly (Hansard page 4).

Although it accepted the amendment with teeth gritted, I'm struggling to understand the Government's position on league tables, plain, simplistic or crude, or why those who pushed this think there should be restriction on media treatment of publicly available information. The effect of the amendment that The Greens and the Opposition have won in any event seems absurd, given the fact that anyone on-line or outside NSW will not be restrained by the prohibition on publication. But The Greens are trying to solve that problem too. Next they will be off to the UN.

And this in a law that is otherwise promoting more transparency for information about school performance.

(4) A person must not, in a newspaper or other document that is publicly available in this State:
(a) publish any ranking or other comparison of particular schools according to school results, except with the permission of the principals of the schools involved, or

(b) identify a school as being in a percentile of less than 90 per cent in relation to school results, except with the permission of the principal of the school.

Maximum penalty: 50 penalty units in the case of an individual and 500 penalty units in any other case.


(5) Nothing in subsection (4) prohibits:


(a) anything authorised to be done by or under a relevant national agreement, or

(b) the publication of the ranking of the schools in the top 10 per cent in relation to the results of Higher School Certificate examinations and related assessments so long as the information used to determine that ranking is information as to the results of students that may be publicly revealed under subsection (6) (c).

Today's Fairfax papers on the subject, and this Sydney Morning Herald editorial which concludes:

"Unamended, the bill was a grudging concession to Canberra's demands, allowing school results to be published but in as vague a form as possible. Thanks to the Greens and the Coalition, though, it is now an insult to the public. A Greens amendment bans newspapers and magazines - alone - from publishing school league tables. This attempt at suppression is as offensive as it is futile in the internet age. Its only positive achievement is to expose the Greens' fundamentalist and authoritarian streak. Worse, though, is the Coalition, for whom school league tables were once an article of faith. On Wednesday night it sided with the Greens, hoping to placate vociferous teacher unions and pursue votes by abandoning its own principles. The losers from this extraordinary betrayal are the public, sold out to special interests by the people who should defend them. Schools in NSW should be run not for teachers or bureaucrats, but for the children who attend them."

NSW Government Information Act now law waiting for commencement

The NSW Legislative Assembly yesterday accepted the minor amendments to the Government Information (Public Access) Bill passed by the Legislative Council, so the new law is done and dusted, save for a commencement date. The Act as passed by Parliament is the Bill as introduced with the amendments referred to in this Hansard extract of Assembly debate:

Consideration of the Legislative Council amendments.

Schedule of amendments referred to in message of Thursday 25 June 2009

No. 1 Page 26, clause 53 (2), line 10. Insert "The agency's searches must be conducted using the most efficient means reasonably available to the agency." after "received.".

No. 2 Page 33, clause 64 (2), line 17. Insert "that is necessary" after "amount of time".

No. 3 Page 33, clause 64 (2) (a), line 19. Insert "efficiently" after "dealing".

Mr BARRY COLLIER (Miranda—Parliamentary Secretary) [10.50 a.m.], on behalf of the Hon. Nathan Rees: I move:

That the House agree to the Legislative Council amendments.

Mr CHRIS HARTCHER (Terrigal) [10.50 a.m.]: The Government Information (Public Access) Bill 2009 was introduced by the Premier earlier this week. It was forwarded to the Legislative Council last night where a series of amendments were moved by the Greens and carried by that House. It is not without significance that the bill is being considered in this place today when the news media carries a story that for the first time a report by the Bureau of Crime Statistics and Research prepared by Dr Don Weatherburn has been suppressed by the Government as it relates to juvenile crime figures. The extraordinary situation we have is that, on the one hand, the Premier tells Parliament that he will widen the areas the public are entitled to access to obtain government information and, on the other hand, his Cabinet suppresses for the first time since the bureau was established in 1988 a report on juvenile crime. Dr Weatherburn is quoted in the newspaper this morning as saying, "This is the first time this has ever happened."

That juxtaposition must be considered a test of the Government's sincerity. Notwithstanding that and the comments of the Leader of the Opposition, who led for the New South Wales Liberals-Nationals in debate on the bill, the Coalition accepts and supports these amendments. The amendments are designed partially to try to obtain some degree of coherence and efficiency in the extraordinary billing system that government departments use to respond to freedom of information requests. Requests for information are repeatedly responded to with a letter stating that the information will take so many hundreds of hours to collect and will cost so much per hour, and therefore the applicant can forward thousands of dollars on account—and if more money is required the department will debit the applicant further. In many cases there is every reason to suspect that the response is sent simply because freedom of information officers are looking for a means to frustrate the application. Being unable to frustrate the request on statutory grounds, as outlined in the Freedom of Information Act, the officers seek to frustrate the process by making it cost prohibitive. The amendments moved by the Greens are an attempt to remove as far as possible the tactic of making applications cost prohibitive. The first amendment is to clause 53 (2), line 10 on page 26 of the bill. The amendment states:

Insert "The agency's searches must be conducted using the most efficient means reasonably available to the agency." after "received.

This amendment requires the agency to provide the information efficiently. If the agency's files are structured so that certain words can be entered into the computer system and the files are located, it should take 10 to 15 minutes. It should not require a manual search of the entire filing system. Yet many agency billing accounts refer to an exhaustive manual search of an entire filing system, not just the specialised system relating to the application. The second amendment is to clause 64 (2), line 17 on page 33 of the bill. It states:

Insert "that is necessary" after "amount of time".

With respect to this amendment, the officer cannot just say that the search will take a certain amount of time; he or she must be able to establish that the time frame is necessary. The onus is on the officer to demonstrate a pre-requisite reason for the time taken. The officer cannot just assert that it will take a certain amount of time and therefore demand a large payment, at $30 or $35 an hour. The third amendment is to clause 64 (2) (a), line 19 on page 33. It states:

Insert "efficiently" after "dealing".

Again, this amendment goes to the crux of the matter. Clause 64 refers to an officer in an agency dealing with the application. The specific purpose of this amendment is to insert the word "efficiently". The officer must deal with the request efficiently, not in a long, drawn-out, lackadaisical manner that, once again, sends costs soaring. Over the past 15 years of this Government applications for freedom of information have repeatedly been met with not a denial but a huge account bill. The process of freedom of information requests has been frustrated and distorted by enormous billing accounts. Certain news media organisations may be able to afford to pay tens of thousands of dollars for freedom of information requests, but of course ordinary citizens cannot afford to pay those amounts—and nor can the New South Wales Liberals-Nationals. The Opposition and the citizenry are stymied by the current process. Perhaps news media organisations are not stymied, but even they complain validly about the costs of freedom of information applications. At last we have an attempt to bring the freedom of information application costing system under control. Accordingly, the New South Wales Liberals-Nationals support the amendments. As the Leader of the Opposition outlined in the agreement in principle debate, further matters about accessing government information need to be addressed, but now is not the appropriate time to do so.

Mr BARRY COLLIER (Miranda—Parliamentary Secretary) [10.57 a.m.], in reply: The Government agrees with the amendments. Despite the rant by the Leader of the Opposition in this House during the debate on the Government Information (Public Access) Bill 2009, the amendments were moved by the Greens and not the Opposition. The whole purpose of his rant was to tell us that he "expects to win the 2011 election"—he probably expected to win the 2007 election, but that did not happen. Such is the arrogance of the Leader of the Opposition and also the member for Terrigal, judging from his recent outburst in the House. This is landmark legislation. The upper House in performing its scrutiny function has arrived at amendments that are acceptable to the Government. I commend the amendments to the House.

Question—That the motion be agreed to—put and resolved in the affirmative.

Motion agreed to.

Legislative Council amendments agreed to.

Message sent to the Legislative Council advising it of the resolution

Federal MPs travel details on-line.

Special Minister of State Joe Ludwig yesterday tabled in Federal Parliament the six monthly reports on travel and related expenses paid by the Department of Finance and Deregulation for members of parliament and former members, and overseas study travel reports submitted by members.

Two welcome firsts: for the first time information about airline loyalty points and their use is included. And the reports are also posted on the Department's website.

The information on parliamentarians (537 pages!!) and former parliamentarians comprises: aggregate information on travel entitlements for all Senators and Members; summary information particular to each Senator and Member on costs incurred and any repayments to Finance in the various categories of travel entitlements for two seperate reporting periods:travel paid between 1 July and 31 December 2008 and undertaken on or after 1 July 2008; travel paid between 1 July and 31 December 2008 and undertaken prior to 1 July 2008; and details of payments of Travelling Allowance made by Finance and of any repayments.

Some Fairfax newspapers yesterday reported on the latest details from the Register of Interests for senators and members of Federal Parliament also just tabled, (touching off this debate in the Senate) but we haven't got to the point yet where that sort of information in searchable form is posted on Parliament's website, although hat tip to Open Australia for their manual attempts to publish an "unofficial" version. And also alas, nothing on the web about the significant payments and expenditure of money to and for parliamentarians, including electorate and other allowances administered not by Finance but by Parliament itself.

So at the Federal level some welcome progress. In NSW as we heard from the Attorney General during debate the other night on an unsuccessful move to have the Government Information legislation extend to Parliament itself, those interested in this stuff must be voyeurs.

What to make of leak week?

There are currently over 300 media reports on Google Search about leaks and alleged leakers arising from events of the past week in Canberra and the mystery surrounding Treasury official Godwin Grech.

However The Sydney Morning Herald editorial is right to express a note of concern if the investigation of a forged email "signalled a new crackdown on information flows from the public service and a return to the climate of intimidation enforced under the Howard government. A neutral bureaucracy, biased towards openness, and questioning Senate committees are vital parts of our democracy."

Because forged documents and leaks against the government for political reasons designed to assist the Opposition are one thing, greater transparency about the workings of government are another. This from a post here in June 2008 following controversy about the leak of advice the Government received on Fuelwatch:

"Every organisation must have rules about who can disclose what about its internal workings , but given its role and the nature of the information it holds, special rules should apply to access to government information. We should be entitled to know through designated procedures(not leaks at the whim of someone in the system) what government knows unless some harm to essential public interests would result. Governments need thinking space to weigh advice and make a decision, then choose to act on the advice of this expert or that, or not at all, and to explain itself. However a government serious about transparency should not be trying to limit what we know about the views of its experts by locking the papers up for 30 years when they will be released into open access. Disclosure of the assessments of government advisers, no matter how this occurs, should not endanger the prospect of frank and candid advice in future. The Government should be demanding this sort of advice from its public servants on an ongoing basis. Leakers are not necessarily whistleblowers who deserve sympathy or protection but not all leaks are matters of great national signifigance. Currently unauthorised disclosure of any fact or knowledge acquired in the course of duties by a federal government official is a one size fits all criminal offence under the Crimes Act, for which there is no public interest or other defence. Whistleblowers who act in accordance with established rules to bring to the attention of proper authorities, maladministration, corrupt conduct or the misuse of public money deserve special protection."

The Government needs to keep moving on greater transparency, whistleblower protection, and when finalised, what emerges from the Australian Law Reform Commission examination of secrecy provisions in Commonwealth laws, particularly the draconian Section 70 of the Crimes Act.

Portrait of a busy man

courier mail.com.au
Congratulations to Queensland Freedom of Information review chair David Solomon, who following his appointment earlier in the week to the Federal Government's Government 2.0 Taskforce has been appointed Queensland Integrity Commissioner to give ethical advice to politicians and senior public servants on how to avoid conflicts of interest.

NSW Government Information Bill debate in all the gory detail.

Just on the off-chance that you have a little time on your hands or an overwhelming thirst for the detail, I've put together here the various extracts from Hansard of debate in both Houses of NSW Parliament on the Government Information (Public Access) Bill and related legislation. It runs to 90 pages, starting with the Premier's statement on 17 June, two hours of speeches in the Legislative Assembly on 23 June, and three separate discussions in the Legislative Council on 24 June including consideration of The Greens' amendments around the witching hour. Some of the point-scoring dismissive rejection by the Attorney General of sensible amendments doesn't instil confidence that there was an interest in the best possible outcome.

The two relatively minor amendments accepted by the Government and passed by the Council need to be run by the Assembly of course. That will be routine, today or tomorrow, before Parliament rises to return in September. Haven't seen anything regarding commencement date.

It wasn't a good look on the day of this generally great leap forward to have a report from the Bureau of Crime Statistics suppressed from publication on "Cabinet-in Confidence" grounds. The Attorney General says it will be released in two weeks. By the way under neither the existing FOI Act nor new legislation is there a "Cabinet-in Confidence" exemption that would apply to a report such as this unless it could be shown it was prepared for the purpose of submission to Cabinet ("dominant purpose" in the new world).

NSW Government Information Bill passed by both Houses

The NSW Government Information (Public Access) Bill passed the Assembly on Tuesday and the Legislative Council around 12.30 this morning . The Greens' Lee Rhiannon moved 26 amendments in the Council. All but two related amendments failed as the Opposition sided with the Government on the Bill as introduced, claiming they didn't have sufficient time to consider them properly.

Rejected amendments included an attempt to have Parliament itself brought within the scope of the Act, particularly to ensure scutiny of $100 million allocated for Members' Support including payments to, and expenditures by, members. Attorney General Hatzistergos at one point claimed this information was already publicly available, and on another that what was being proposed " sounded like voyeurism." Ms Rhiannon says the failure to accept the Ombudsman's recommendations in this regard and the lead of countries such as the UK, Ireland, Scotland, India and South Africa tarnishes an otherwise good effort:

"Premier Nathan Rees says he wants to open up his government but he has locked the gate at Macquarie Street, ruining what should be a good news story," Ms Rhiannon said. "The public will still be barred from scrutinising how the $123 million annual budget for NSW Parliament is spent. "The Premier hoped these new FOI laws would signal a new era of openness but the exclusion of NSW Parliament signals that NSW Labor's love affair with secrecy continues. "MPs' pay and how they spend their generous perks and travel allowances will remain a state secret, despite the Premier's claims that 'the days of a secret state are over'.

I'm still looking at the Hansard. The Greens one success was to gain Government support for amendments to ensure searches for documents are conducted efficiently, for example information is retrieved electronically not through papers searches, to reduce the potential costs to applicants- an issue raised in my submission on the Consultation Draft. Unsuccessful amendments sought to:

· strengthen the Act's objects clause

· subject information now caught by a blanket FOI exemption to a
public interest test

· narrow the government's broad definition of cabinet documents
excluded from FOI

· reduce the new lengthier time frames for dealing with FOI
requests

· allow the Information Commissioner to ensure government agencies
comply with the Act.

Let the new era begin!!

Court rules re-litigation of FOI exemption claim an abuse of process

A recent NSW Supreme Court decision (Howell v O'Brien) to dismiss a defamation action brought against the in-house solicitor for Macquarie University involved a number of Freedom of Information aspects including a decision to not allow re-litigation of earlier Tribunal and Court findings that documents were exempt under the NSW Freedom of Information Act.

The plaintiff Sally Howell and the University had been parties to a number of Administrative Decisions Tribunal and Supreme Court cases ( some relevant posts here) concerning documents relating to the investigation of a complaint made against her as Deputy Principal of the Macquarie University Special Education Centre School.In those cases some documents had been found exempt, others were ordered to be disclosed . The defendant, Jenny O'Brien had advised the University about aspects of the complaint investigation conducted by a person engaged by the University for this purpose, and oversighted by the Ombudsman.

The main FOI related issue was whether in these proceedings the plaintiff could seek by subpoena documents held by the University previously found to be exempt by the Tribunal under the FOI Act on grounds of legal professional privilege. Both the Defendant and the University ( which appeared and made submissions but was not a party to the proceedings) asserted that the subpoena should be set aside, either because the Plaintiff was prevented by issue estoppel from challenging the claim of privilege, or because the subpoena constituted an abuse of the court’s process. Justice Patten discussed the relevant FOI history [25-49]), before considering estoppel:

"50 A long line of authority establishes the principle of issue estoppel defined thus by Dixon J in Blair v Curran[1939]

“A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies.”[531]

51 In my opinion, the very issue debated before me upon the subpoena motion was decided adversely to Mrs Howell by the ADT the issue being that the subpoena documents were subject to legal professional privilege of the University.."

However, Justice Patten concluded that estoppel was not available as the University was not a party to the case before him and the Defendant was not a privy of the University, on this point citing [52] the following from the leading text on the subject:

“Res Judicata estoppels operate for, or against, not only the parties, but those who are privy to them in blood, title or interest. Privies includes any person who succeeds to the rights or liabilities of the party upon death or insolvency, or who is otherwise identified in estate or interest. It is essential that the party to be estopped by privity must have some kind of interest, legal or beneficial, in the previous litigation or its subject matter. Privity was described by the US Supreme Court as a mutual or successive relationship to the same right of property, although this cannot be exhaustive. Hence assignees will be bound as privies of the assignor."

However he found for the Defendant on the claim that the issue of a subpoena would involve re-litigation and constitute an abuse of process, citing the following from a decision of the NSW Court of Appeal [53]:

"The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice, and amongst the matters to which regard may be had are -

(a) the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or ultimate issue;

(b) the opportunity available and taken to fully litigate the issue;

(c) the terms and finality of the finding as to the issue;

(d) the identity between the relevant issues in the two proceedings;

(e) any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; ...

(f) the extent of the oppression and unfairness to the other party if the issue was relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and

(g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process". “

Justice Patten rejected the Plaintiff's submission that new evidence had come to light since the ADT decision on the applicability of the FOI exemption that evidenced improper motive on the part of the Defendant, and that this brought into question the privilege claim.[61]

The subpoena was set aside. Justice Patten then dismissed the defamation action on the basis that it was bound to fail because the alleged defamatory publication attracted absolute privilege by virtue of section 25H(2) of the Ombudsman Act. In the course of the decision he rejected a submission that the Defendant also enjoyed the benefit of clause 5 of Schedule 1 of the Macquarie University Act for limitation of liability for any person acting under the direction of the University or the Council in carrying out duties in good faith, because she as the University's employed solicitor, was not in any real sense acting under direction.

Norfolk Island "back from the brink?"

It was no doubt of interest to the 1800 who live out there in the Pacific when the then Minister for Home Affairs announced in May a package of governance and accountability reforms for the Australian external territory of Norfolk Island. According to Islands Business the Minister last year had said the Territory was on the brink of becoming a failed state.

The Member for Canberra, proud to represent those who choose to vote in Federal elections (who said voting in Australia was compulsory everywhere?), elaborated yesterday in Parliament on the Government's plans to:

• Provide access to the Commonwealth Ombudsman to review Norfolk Island Government decisions.
• Provide residents with access to Norfolk Island Government records under Commonwealth freedom of information laws.
• Protect the privacy of residents under the jurisdiction of the Commonwealth Privacy Commissioner for records held by the Norfolk Island Administration.
• Allow residents to appeal to the Commonwealth Administrative Appeals Tribunal against a range of decisions made by the Norfolk Island Government and the Administration.
• Implement a framework for public financial management and reporting more closely aligned to the framework used by the Commonwealth including allowing the Commonwealth Auditor General to conduct audits of the Administration’s financial statements.
• Establish benchmark standards of conduct for Members of the Assembly consistent to those that apply in the States and the Commonwealth.

Thanks to Open Australia for the Hansard link.

Tasmania moving forward on reform inititiatives

The Tasmanian Attorney General says "strong progress had been made on the review of Tasmania’s Freedom of Information and Public Interest Disclosures laws." Tassie is opting for "Right to Information", following the Queensland lead, as the title of the FOI rewrite, due to go to Cabinet shortly. NSW's preference - Government Information (Public Access) - some might say predictably in light of the Attorney General's views about such things, steers clear of "rights."

Only four submissions have been received by the Government so far on Tasmanian whistlebowers' protections, with the close off date this week. Maybe most of those interested might say simply read what they had to say in 71 submissions and 17 supplementary submissions to the Federal House of Representatives Committee Inquiry.

Meanwhile still no hint of any FOI reform interest in Victoria, WA or SA. In SA, this Advertiser report that a response to an application for information about seatbelts in school buses took three years has prompted the Minister for Education to at least ask the Department for an explanation.

Full Court of Federal Court turns pages back to FOI 101

The right to your day in court is a central element of our legal system that must be preserved. But the patience of those involved must be sorely tested in cases, such as Luck v University of Southern Queensland involving a frequent litigant, including on Commonwealth Freedom of Information matters. The Full Bench of the Federal Court spent time and resources (a decision running to 124 paragraphs in three separate but unanimous judgments) in considering and dismissing an appeal, essentially over whether the University of Southern Queensland is an agency for the purposes of the Commonwealth FOI Act. (There were a few other issues including the decision of the hearing judge's refusal to disqualify himself on grounds of bias.)

It isn't and never has been.The University was established by a Queensland act and is an agency subject to the Queensland Freedom of Information Act.Review processes under the state act involve state bodies not the Federal Administrative Appeals Tribunal, or the Federal Court. The applicant pressed the wrong button way back in the process, but pursued the matter doggedly through the Tribunal, a hearing by a single judge and finally the Full Court. While costs were awarded to the University, you can only wonder about the cost to the taxpayer for a matter that was clearly in the wrong jurisdiction. Along the way the applicant who was self-represented, dispensed with the services of two pro-bono legal representatives assigned under Court Order, who according to Justice Rares "failed to win her confidence." I assume they commented about the chances of success.

"The wisdom of the crowd"

When ministers start talking this way, we are moving in the right direction. But I can imagine head-scratching in some public service circles.

Cheney interview off limits-too good comic material.

At least no-one here has justified a Freedom of Information knock-back, on the basis of what the Chasers could do with it. According to AP:

"(US) Justice Department lawyers told the judge that future presidents and vice presidents may not cooperate with criminal investigations if they know what they say could become available to their political opponents and late-night comics who would ridicule them. "If we become a fact-finder for political enemies, they aren't going to cooperate," Justice Department attorney Jeffrey Smith said during a 90-minute hearing. "I don't want a future vice president to say, `I'm not going to cooperate with you because I don't want to be fodder for 'The Daily Show.'"

It didn't wash with the Judge, who wants better reasons.

Wait a moment-where did those script ideas for the Hollowmen come from?

Government 2.0: from words to some action.

The joint ministerial announcement today by Ministers Tanner and Ludwig was the establishment of a Government 2.0 Taskforce (with instant website) to provide advice and assistance to the Government as it moves further into the brave new information world. This sounds a good step that should ensure a broader perspective replaces the Administrative Law framework that has dominated thinking on access to information issues in the Federal Government for too long.

"(The Taskforce) work falls into two streams. The first relates to increasing the openness of government through making public sector information more widely available to promote transparency, innovation and value adding to government information.The second stream is concerned with encouraging online engagement with the aim of drawing in the information, knowledge, perspectives, resources and even, where possible, the active collaboration of anyone wishing to contribute to public life. Importantly, the Taskforce will not just provide advice. It will be able to fund initiatives and incentives( to $2.45 million) which may achieve or demonstrate how to accomplish government 2.0 objectives."

The Taskforce of 15 policy and technical experts and entrepreneurs from government, business, academia, and cultural institutions will be chaired by Nicholas Gruen (I'm a fan of his writings for example this in May last year) and includes Google and Microsoft execs and the respected Queensland Freedom of Information review chair, David Solomon.

There are other tie-ins with FOI Reform, particularly with the proposed pro-active publication commitment, which to my mind is too non-specific at this stage: the Taskforce is to also identify policies and frameworks to assist the Information Commissioner and other agencies in:

• developing and managing a whole of government information publication scheme to encourage greater disclosure of public sector information;
• extending opportunities for the reuse of government information, and considering the terms of that use, to maximise the beneficial flow of that information and facilitate productive applications of government information to the greatest possible extent;
• encouraging effective online innovation, consultation and engagement by government, including by drawing on the lessons of the Government’s online consultation trials and any initiatives undertaken by the Taskforce.

It's going to be busy- a final report and the group disbands by the end of 2009. The Information Commissioner is supposed to start operations in January 2010 so the report should be in the intray-if and when that reform bill that creates the position gets into and through the Parliament.

NSW acts on disclosure of school performance information

I'll leave it to the experts to make what they can of the NSW move ( presumably in line with what is happening in all states and territories) to legislate for the publication of information about school performance. Here is what Education Minister Verity Firth had to say in Parliament last week, making it sound like a big step forward, then claiming NSW has been publishing this sort of stuff for years; in any event amending legislation to permit disclosure of performance information to a national body and subsequent publication by others; and still retaining in the Freedom of Information Act for the time being, and in the proposed Government Information Act, an exemption to protect some information of this kind, and a provision that excludes information relating to relevant functions of the Department and the universities in processing this informtion from the legislation entirely.

On this last point, I raised the breadth of this exclusion, going far beyond the need to afford privacy to individuals, in my submission on the new bill, but vacate the space to James King who set out a strong and detailed case for change. King didn't get anywhere but the Government response to submissions acknowledged the strength of his argument.

Anne Patty in the Sydney Morning Herald says the NSW bill will " lift (the) 10-year ban on the creation of school league tables" but whatever else you make of the Minister's statement she sure didn't say that. The Minister again:

"All State and Territory Ministers have endorsed the important principle that public reporting should not be by way of crude league tables. Instead, the national agreement replicates the best features of the system we have developed in New South Wales—individual reports for each school, with rich information, rather than a single numeral. The protocols agreed by MCEETYA Ministers on 12 June specifically state:Governments will not publish simplistic league tables or rankings, and will put in place strategies to manage the risk that third parties may seek to produce such tables or rankings."

Maybe there is a distinction to be made between league tables and crude and simplistic league tables?