Queensland pioneering on open government measurement

The Queensland Information Commissioner's 2009-2010 Annual Report covers the first year of the operation of the Right to Information and Information Privacy acts. The Office has set a high standard in reporting against its targets, and has a good story to tell.

Of particular interest are the steps being taken to establish data for the measurement of progress towards achievement of the objectives of the RTI scheme through opinion surveys of public service culture and community awareness and attitudes. In addition, 212 significantly large and independent agencies (of the 602 agencies subject to the legislation) are to be part of an electronic audit based on the Office's Self Assessment Tool, that reflects the legislative and best practice compliance obligations set out in the published Performance Standards and Measures. (One reservation about this is the Tool to be completed by each agency runs to 31 pages of questions. More comment about this in another post, hopefully soon.) The surveys and audit are to be repeated in future to assess changes over time.

Queensland with a year's start on other reform jurisdictions is setting the pace in this area. Given the relevance of these pioneering efforts to measurement of performance in other jurisdictions, let's hope we won't have to wait a year until the next annual report to hear more about the surveys, and the results.

As to other matters..

The Office received around 4000 inquiries from agencies and members of the public, and 439 applications for external review, a 60% increase over the average of the previous three FOI years. Health topped the respondents' bill with 78, Police 48, Communities 42, then a gap to Environment and Resource Management with 18, and a long tail of other agencies. In local government, Brisbane City Council was the respondent in 17 matters with Rockhampton next with eight.

The Office resolved 338 matters prior to a decision, including 267 settled informally.  Applicants generally did well in matters that went to formal resolution: of the 35 decisions by the Commissioner, 8 affirmed the agency decision, 15 varied, and 12 set aside the decision.

The median number of calendar days for an external review to be finalised was 37 days. As at 30 June 2010, 4 reviews more than 12 months old were open.

Individual citizens made the bulk of review applications. Journalists were involved in 27, up from two the previous year and eight a couple of years ago. Prisoners initiated 41, companies 37, community and lobby groups eight and politicians five.

71% of applicants who responded to a survey were satisfied overall with the service provided by the Office in 2009–2010. And 98% of agencies agreed the information and assistance from the Office was of a high standard. 

Not much review activity needed from the Office on Information Privacy matters: 13 privacy complaints were received during the year. In 11 cases the Commissioner had no jurisdiction.

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:

Privacy surfaces, Demi settles

Demi Moore settled with New Idea publisher Pacific Magazines her Australian action claiming breach of copyright and breach of confidence over publication of photos taken at a private party in Los Angeles, prompting Ben Hills in The Age and Tim Dick, Media Editor of the Sydney Morning Herald to reflect on the state of the law regarding a cause of action for breach of privacy.

Hills quotes Sandip Mukerjea, a senior associate at Minter Ellison, which represents the paper, saying political parties believed a privacy tort would ''primarily benefit the rich and famous rather than the ordinary man and there's not a pressing need for it.'' But he gives space also to the Australian Privacy Foundation view that a public interest defence would protect serious journalism. ''We think you can you have the best of both worlds,'' said APF spokesman Nigel Waters. ''There's a gap in the law and we need a privacy tort to fill that gap.''

Dick notes that three law reform commission reports recommend action, says "(p)oliticians in all jurisdictions are cool on the idea and media companies icy," muses over how vague and complex this might become in the courts, and refers to a likely chilling effect on reporting on the edges of "the public interest."

Neither Hills nor Dick delve into the broader issues raised by former prime minister Paul Keating in his recent University of Melbourne speech about media failures to apply and enforce their own professed standards in weighing privacy and the public interest. And while Dick is right about media companies views, some voices in the media and in government think some action is warranted.

Mark Day for example took the same line on reform as that first suggested by ABC Managing Director Mark Scott 18 months ago: it is probably wiser that the media get into discussion now about sensible reforms to privacy law "before the legislature loses patience with the self-regulation regime and imposes standards of its own."

And Dick missed these comments by the federal Communications Minister last week on ABC Q and A, that indicate not all politicians are as cool on the idea of a cause of action as he suggests

STEPHEN CONROY: Look, I think what I found really interesting about today was that a News Limited publication outed somebody. When the South Australian attorney-general tried to say that people had to identify themselves on a blog during the South Australian election campaign News Limited led a writers' campaign to say this was censorship just by saying, hey, everybody else when the write has to say, "Political commentary" and identify themselves. So I thought it was really interesting to see News Limited outing somebody for anonymity today when they ran a campaign to protect anonymity about 12 months ago. But I also think this country needs to face up to a debate around the tort of privacy. I mean, if you look around the world there's much greater protection for individuals privacy than we've got here in Australia and on the one hand we've got a campaign on called The Right to Know. Well, we need to have some balance between the right to know and the tort of privacy so I personally am a fan of these concepts.

Finance calls for action on parliamentary entitlements reform

The Finance Red book briefs also contain material on parliamentary entitlements, the need for action on the  report of a review that former Special Minister Ludwig sat on since receiving it in April, and to sort out what is to be done on the related issue of government agreement to establish the position of parliamentary integrity commmisioner with a role to report on such matters. Finance says it has deferred action on two Freedom of Information applications for the review report until a government response. 

While I've mentioned (often) the $140 million plus in allocations to the Parliament that go under the freedom of information radar, an issue crying out for attention since action was recommended by the Australian Law Reform Commission in 1995, Finance says there is a total of $373 million in this year's budget for parliamentarian's entitlements. The Herald Sun has done the sums-$1.65 million per head for our 226 federal politicians.

The Department, in bringing to the Minister's attention that he has various powers to deal with matters concerning entitlements including investigation of misuse under a 2000 protocol (that may have been tabled in parliament but it is otherwise not published anywhere to my knowledge), advises "the entitlements framework is complex." Part of the problem is administration is split between Finance and the parliament itself. When it comes to accountability and transparency the framework lacks coherence, and fails first principles as some parliamentarians refuse to even certify that expenditure has been properly incurred.

Because of the lack of transparency we'll just have to take Laura Tingle writing in the Australian Financial Review on Friday about the first week of parliament at her word (emphasis added)

 "Let's face it: neither major party wants a general election before June 30 next year for the reason that they've all used up their MPs" allowances, which are shamelessly used to help finance election campaigns and don't get a top-up until next financial year."

Let's hope out of this that simplification and transparency including something along the lines of a single site monthly online publication of details of all payments and expenditure are the hallmarks of reform.  Putting it up and making it searchable by member along the lines of this Scottish Parliament system would be a step in the right direction.

A cabinet minister at the table does not a cabinet committee make.

Dennis Shanahan in The Australian says new committees announced this week by the Gillard government to revisit a minerals tax and carbon tax "are built on the failed foundations of Labor's first-term attempts," and that the latter, linked to cabinet by minister Combet is guaranteed secrecy and "protection from Freedom of Information requests.." Maybe he's right on the first point but it ain't necessarily so when it comes to the second, unless some steps are taken to do more than put a senior cabinet minister in charge.

Prime Minister Howard set up a kitchen cabinet in 2002 known as the Senior Minister's group. Comprised entirely of ministers it was for this reason off to a better start than the climate change committee (two cabinet ministers plus up to five or six members of parliament) in being taken to be a cabinet committee, and was aided by the fact that Howard and others including the cabinet secretariat treated it as such. But as reported in this post in February, Deputy President Forgie of the Administrative Appeals Tribunal in a Freedom of Information decision said that while prime ministers were free to establish any committee or decision making process they like, the establishment of this committee and other factors meant it lacked essential characteristics that would give it cabinet committee status:

" ... I have concluded that the Senior Ministers’ group was not a committee of Cabinet. It was treated as a group that was analogous to a committee of that sort but its being treated in that way does not make it a committee of that sort. There is no evidence of Cabinet’s having decided that the Senior Ministers would be able to make decisions on certain matters that would be binding upon Cabinet itself, as in the case of the NSC, or that their decisions required Cabinet’s discussion and ratification, as in the case of decisions of the ERC. If the Senior Ministers were a committee of Cabinet, it would be expected that there would have been some formal decision about the status of their decisions. On the evidence I have, there is none. It would be expected that there would be some reference to the work of the Senior Ministers in material available to the public or at least to the legislative arm of government. An obvious place to reveal its existence would have been in PM&C’s Annual Reports. If not there, then it would be expected that information about its existence would have been available from the Cabinet Secretariat as directed by the Cabinet Handbook but it was not. There is no reference to be found. Unquestioningly, the former Prime Minister was within his rights to create the Senior Ministers’ group and to direct its tasks as he would. Having regard to the findings I have made, however, I am not satisfied on the evidence that I have that he established it as a Cabinet committee either on an ongoing or an ad hoc basis.[149]

Aspects of the operations of the climate committee might be protected from disclosure under the FOI act for other reasons, but blanket protection arising simply from minister Combet's presence won't cut it.

(Update: The terms of reference for the committee which according to the media release "will report to Cabinet, through the Minister for Climate Change and Energy Efficiency, Greg Combet" but with the Prime Minister not Combet in the chair, include the following provisions relevant to this issue.

1. The Multi-Party Climate Change Committee ('the Committee') is established to:
1.1. consult, negotiate, and report to the Cabinet, through the Minister for Climate Change and Energy Efficiency, on agreed options for the implementation of a carbon price in Australia; and
1.2. provide advice on, and participate in, building community consensus for action on climate change.

2. The Committee decisions will be reached by consensus or, if there are differences that remain after good faith discussions, these will be presented to the Cabinet, but with every effort made to produce workable options...

8. The Committee will ensure its deliberations and papers remain confidential to the Committee and the Cabinet until a final position is agreed or all parties to the Committee agree otherwise. At its initial meeting the Committee will determine the mechanism by which it will provide updates of its work.

12. The Committee would generally meet in the Cabinet room. The Cabinet Division of the Department of Prime Minister and Cabinet will be responsible for minute-taking.)

Privacy and the dead

The latest iappANZ Member Bulletin, edited by Nicole Stephensen, includes an article by me on that lively topic. I was prompted to have a look at the issue in Australia by "Keeping the secrets of the dead" in Legal Studies 2010 (The Society of Legal Scholars, Blackwell Publishing, no link available) by Mary Donnelly and Maeve McDonagh of University College Cork in which they examine the situation in England and Wales. Maeve is well known here as a result of a couple of university stints, and the article includes some Australian references.

The Australian Law Reform Commission detailed how our privacy laws are a mess in this and other areas, but the Federal Government rejected recommendations, citing constitutional issues, that would have been a start to applying appropriate statutory principles to the handling of information about a deceased person. As at least part of the constituency (the living are also affected) is rarely heard, few appear to be lamenting the absence of discussion and debate, or the missed opportunity to act. While no set of laws can cover every eventuality in such a complex area, there is a case for uniform and consistent principles in Federal and state laws regarding the handling of information about a deceased individual whether held by public or private sector bodies. The article shows we are a long way from this point. With the Federal Government ducking, despite suggestions from the ALRC on how to address the constitutional issue if one exists, the mess is unlikely to be attended any time soon.The text of the article (around 1500 words) follows.

Slipping into Deputy Speaker's chair

Plenty of media coverage in the last few days about the election of the Liberal Party's Peter Slipper as Deputy Speaker of the House of Representatives but it seems Bill Hoffman at the Gold Coast Bulletin Sunshine Coast Daily is the only one writing about the ongoing investigation into Mr Slipper’s claims for parliamentary entitlements, and any possible link between the two.

Special Minister of State for the Public Service and Integrity Gary Gray told Hoffman that

“Details of any specific action, or the outcome of any matter dealt with under the protocol, are not made publicly available. This does not preclude other avenues of accessing information, such as the Freedom of Information process."

Yes, that's true for documents held by Finance. But Mr Gray at some point might let us in on current thinking about issues raised here about entitlements including:

The report of the panel to look at entitlements and related matters established in September last year by then Special Minister of State Ludwig to report within 6 months, which the Government has apparently had since April but is yet to be released.

The unnamed members - surely not anyone holding high office - and senators that the Department of Finance says routinely refuse to certify that payments made to or on their behalf have been properly incurred.

The long silence from governments of all persuasions about the 1995 recommendation by the Australian Law Reform Commission that the Freedom of Information Act be extended to the parliamentary departments that this year will spend $142 million running the place, including payment of some entitlements separate from those paid by Finance. All entitlement payments and expenditure incurred should be published proactively in any event.

And the detail of what the proposed Parliamentary Integrity Commissioner's mandate "to report to parliament on entitlements" will involve.

"Unnecessary debate" still running, fast trains aren't

Michael McKinnon of the 7 Network told the Right to Know Day Conference in Brisbane on Tuesday that he had applied immediately under the Freedom of Information Act to the Department of Transport for documents concerning the proposal for a high speed train when it was raised during the election campaign, only to be told then, as reported this week in Fairfax papers, that disclosure was contrary to the public interest because it was an ''incomplete picture unlikely to make a valuable contribution to public debate. ''Indeed, its nature is such that release would likely lead to confusion and unnecessary debate about issues that are not settled within government."

McKinnon said following the knockback Reporter Mark Riley had "monstered" Minister Albanese over the refusal, with the result that the minister decided to release to 7 a briefing note on the subject. The Department's view that fast trains are unviable of course is not the only or definitive assessment, but who other than the Department, obviously edgy about  Labor's commitment of $20 million for a limited study, would argue that release wouldn't make a valuable contribution during the campaign to public debate?

The good news is that the minister showed leadership, after the election, in the shuffle towards more open and transparent government. A big advance on Wayne Swan's "don't blame me, I'm only the Treasurer" response when his department ran this argument to protect documents from disclosure in May 2008.

The bad news is that we are still apparently a long way from routine disclosure of information of this kind, that a minister who should be flat out on other things had to get involved, that knocking on a minister's door to get attention is a course unlikely to be available to John and Mary Citizen in similar circumstances, and that some are still clinging to hoary old chesnuts like this, when come 1 November "unnecessary debate" is finished as a consideration relevant to a decision about the public interest in disclosure of documents.

Publication of Treasury's Red Book contributes to public understanding

There should be more of it.

The release in response to Freedom of Information applications and the initiative taken to publish on the internet Treasury's "Red Book" brief prepared for a returned Labor Government is a commendable start on delivering more open government as promised by Prime Minister Gillard. While parts have been redacted- including everything, even the title of Attachment G- most of the briefs have been published. Economic and other policy commentators have already found much of interest, prompting The Australian's Michael Stutchbury to observe

Many Australians would have wanted to know about all this before, rather than after, they voted. Surely that would encourage a more informed election campaign than the one we've just endured.

The same goes for what other agencies had to say on issues within their domain so interesting to see whether who if any have or will follow the Treasury lead.

Public debate could and should be informed, not so much through daily access to what public servants are telling ministers about policy plans or problems but through publication of what amounts to expert opinion and assessment of issues that are or should be seen as of great public importance. Treasury and public servants generally are up there with the best we have in many fields, although they don't have a monopoly on wisdom, and aren't always right. They have a contribution to make to public understanding of issues, best made not months later when someone might ask under FOI and will usually have to battle through, or years later when the documents are available from Archives, but at the time when the  community and public discussion would benefit most from this input.

This comment in June 2008 argued the merits of such an approach following publication of embarrassing leaks that showed differences between agencies about the merits of the ill fated FuelWatch. Maybe Treasury's disclosures indicate we are moving in this direction and away from the excessive secrecy of previous times.

  

Perhaps indicative of the traditional Treasury risk centric mindset, the Administration brief includes a section on FOI, advising (emphasis added):

The Policy Coordination and Governance Unit provides advice and management of risks associated with Freedom of Information (FOI) and privacy issues in accordance with legislative requirements.

Treasury did not publish the Blue Book, the briefing prepared in the event of a change of government, but processed FOI applications for a draft that was never finalised. According to media reports Shadow Treasurer Joe Hockey passed it around after redacted copies were released to journalists in response to FOI applications.

Queensland where I am at the moment is unique in including an absolute exemption in the Right to Information Act (Schedule 3 Clause 3) that protects for 10 years information prepared for the purpose of briefing an incoming minister about the department.

NSW busy with announcements on integrity

The NSW Government had a busy week on the integrity and accountability front, with Premier Keneally announcing the introduction of legislation into parliament to amend the Protected Disclosures Act (Download PDF), releasing campaign finance reform proposals (Download PDF), establishing a Joint Select Committee on Parliamentary Procedure to see what changes "agreed" in Canberra might be suitable for adoption in NSW, and indicating preparedness to look at the Ombudsman's suggestion of an integrity act for the public service. The Premier branded the last mentioned potentially "symbolic" claiming the state already has "one of the most stable, integral and respected public sector workforces in the world."

Not mentioned in the media release on changes to whistleblower protections is that the amendment bill extends a protected disclosure specifically, to one made by a public official in honest belief on reasonable grounds of "a contravention of government information laws."

Conferences calling

I will be in Brisbane next Monday and Tuesday attending Right to Know Day functions, so look forward to catching up with Queensland readers in attendance.

iappANZ’s one-day conference, “Silver Lining: The Privacy Umbrella of Cloud Computing” will be held in Sydney on 30 November.

The 2010 Conference of the CMCL–Centre for Media and Communications Law University of Melbourne Law School on 25-26 November, includes a number of interesting sessions including this one to be chaired by Moira Paterson of Monash University:

2.00 - 3.30pm - Regulatory Approaches

Room 108

Andrew Stewart, Adrian Lawrence and Alison Manvell (Baker & McKenzie)

Regulating Content by Platform – Reconsidering Traditional Approaches

Helen Versey and Anthony Bendall (Privacy Victoria)

Privacy and the Media

John McMillan AO (Australian Information Commissioner)

Office of the Australian Information Commissioner

The 1st Global Conference on Transparency Research "to bring together leading scholars from throughout the world to collectively advance our understanding of the impact and implications of transparency policies that involve governments, either directly or indirectly" has issued a call for papers. The conference will be held at Rutgers University 19-20 May 2011. Australian institutions are missing from the impressive list of international sponsors although Rick Snell of the University of Tasmania is a member of the Advisory Committee.

NSW Information and Privacy Commission

The Legislative Assembly passed the bill on 31 August to integrate Privacy NSW and the Office of Information Commissioner, up to now separate but colocated bodies, into a single agency, the NSW Information and Privacy Commission , and the Legislative Council  followed suit on 21 September. The amendments to legislation also set up formal consultations between the commissioners, broaden oversight by a parliamentary committee to extend to the Privacy Commissioner and address issues concerning appointment and dismissal, clean up a previous oversight regarding amendment of personal information, and create an advisory committee to both commissioners.

No one opposed the amendments, and few issues of substance about the integration of the two offices were raised. Shadow Attorney General Greg Smith commented that "(t)he creation of two commissioners of equal status is bureaucratic duplication and could lead to inefficiencies and demarcation issues," but neither he nor other speakers mentioned that the NSW Law Reform Commission had recommended a model different to that adopted - two commissioners with discrete functions but with the Information Commissioner in charge. The adopted model puts the Information Commissioner in charge for administrative purposes, not regarding the exercise of functions by the Privacy Commissioner. The result is that the three jurisdictions that have had a go at structuring similar arrangements have produced three different results. (See my earlier comment here.)

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.

Devil in the detail in shield laws and the public interest

A renewed attempt to enact a federal shield law for journalists has had a push from Victorian Attorney General Rob Hulls and from independent Andrew Wilkie, reported to be planning to introduce legislation when parliament sits next week. What is proposed, as outlined by Chris Merritt in The Australian is a  bill to create a "rebuttable presumption" that confidential sources should remain confidential, based on New Zealand legislation. This was not acceptable to the government in the last parliament with the Evidence (Journalists' Privilege) Bill that passed the House of Representatives in May last year sitting on the Senate Business List without progress. The Opposition threw weight behind the rebuttable presumption idea during the election campaign.( Update: A uniform national approach on this would require the states to co-operate-while Merritt sees grounds for some optimism don't hold your breath.)

The devil is in the detail in this, particularly who should be entitled to the privilege, and the circumstances that could override the presumption of confidentiality. The New Zealand model is outlined below. As Eric Pfanner in The New York Times reports it is an issue in the US where there is no such protection at a national level, with questions still being asked about whether such a law is needed, and some arguing in any event for the exclusion of organisations like WikiLeaks.

Pfanner also summarises developments in Europe where protection for the reporter-source relationship is cited in the European Convention on Human Rights, and many European countries have written it into law.

But, privilege in this case is always subject to buts...

E-health pros, and privacy concerns

This article in the Sydney Morning Herald today has a close look at the Government's e-health plans, with $466 million on the table and enthusiastic support from some medical circles as well as privacy advocates' fear of "a stalking horse for another run at a national identity card. They also fear e-health records will mean Big Brother peeking through the keyhole of a very private place: the consulting room."(Update: Health Minister says safeguards are in place.)

NSW Premier fronts questioning about transparency and integrity

NSW Premier Kristina Keneally faced questioning first up in a Budget Estimates hearing last week about her views on accountability, transparency, integrity and standards raised by Ombudsman Bruce Barbour recently. The Premier said she agreed with the Ombudsman's comments that these values are important to any democracy, and that for democracy to function at its best, its elected members must uphold them as she does in her actions, and as she expects members of the Government to do so. The Premier said she was not surprised that the Ombudsman advocates the importance of these principles:

"However, I was surprised that he chose to make such comments in a public forum, given that he has met with me in my capacity as Premier and has not raised those particular views with me directly...I.. respect that he holds a position in which, if he seeks to do so, he can provide that full, frank and fearless advice directly to the Government. To date he has not done that."

From the transcript it sounds as if the Premier and Ombudsman have met once in the 10 months since she came to office.There was no admission of any shortcomings in this area and nothing to indicate government interest in the Ombudsman's call for legislated standards for the public sector and for re-examination of the integrity framework. The Premier rejected the suggestion she should follow up his concerns with the Ombudsman, and defended her personal record:

"Let me remind you that in circumstances where I have made a determination that Ministers in my Cabinet have not acted with the integrity that I expect I have sought and received their resignation. When I held the portfolio of Planning I instituted a series of reforms and changes in that portfolio that put in place greater transparency, particularly around the issues of political donations, particularly around depoliticising the Planning portfolio. So if you would like to make a characterisation that I am not acting with initiative I would invite you to examine the entirety of my ministerial record."

There were questions to the head of the Premier's department about the register of minister's interests, something he admitted he didn't look at regularly if at all. After a little scrambling it turned out one of his deputies has it under control. No one raised the question why the GIPA act confers an absolute presumption of a public interest against disclosure of anything in the register.

Later in the hearing,The Greens Dr John Kaye raised a concern about cabinet documents and the operation of GIPA, but ran out of details when more was needed:

Data deficits emerge, and a step up for Gov 2.0

Peter Martin in the Sydney Morning Herald reports that the chairman of the Council of Australian Government's Reform Council, appointed to push state governments to improve their hospitals, schools and disability services, says he is in the dark for much of the time and can't get the information he needs.

''Of the nine national health-care benchmarks, data is not available to measure three,'' he said. ''We can't report on indicators related to the quality and safety of hospital care and we can't measure progress against the agreed benchmark of reducing type-2 diabetes. Hospitals data is routinely one year late...''Our data on disability comes from an ABS survey conducted once every six years. Our report released this year relied on data from 2003. We are unable to measure progress.'' While the council is required to monitor the proportion of young people who have obtained a year 12 or equivalent qualification in each state, it is forced to rely on an annual Bureau of Statistics field survey. ''It's a survey of 20- to 24-year-olds, and there's a time lag. For our 2010 report we used data from the 2008 survey based on answers to questions from people who completed year 12 between three and seven years ago,'' he said.

Once decisions are taken about the need for data, collection takes time and money, so there may be an explanation that it's still early days in some jurisdictions, particularly if the goal posts have shifted. But it never ceases to amaze that we haven't been measuring performance in many areas against policy and program goals and objectives.


In Canberra AGIMO announced a Gov 2.0 Steering Group, appointed "to provide leadership and oversight in implementing the Government 2.0 agenda," and posted a status report on the Gov 2.0 work plan that includes an impressive range of activity including raising awareness at COAG, and encouraging publication of data sets already held but not published to date by Commonwealth agencies.

Queensland "world beater" on whistleblower protection

Dr A.J Brown's summary and analysis of the new Queensland Public Interest Disclosure Act in The Australian describes the protections for taking a public interest disclosure to a journalist as "the simplest, clearest and most liberal provision for public servants to be able to go public with serious concerns about wrongdoing, if official authorities fail to act -- not just in Australia, but anywhere in the world." As Chris Merritt comments this ups the ante in Canberra where independent Andrew Wilkie has a particular interest in the subject and newfound clout. Dr Brown's comparisons of the Queensland scheme with NSW and the Federal Government's March proposal follow:

A few cracks in Queensland's "best of breed" law

In an opinion piece in today's Courier Mail, I point out that recent concessions to local government there put something of a dent in Queensland Government claims to lead the nation on open government. Amendments to the Right to Information Act passed in June exempt from disclosure information considered in the course of a local council's budgetary processes, and accord the work of the Brisbane City Council's Establishment and Coordination Committee, consisting of the Lord Mayor and the chairs of other council committees, the same level of cabinet secrecy claimed essential to the operation of government at state and federal level. Both sides of parliament supported the changes. Only the six independent members of the Assembly voted against.

There is no harm test - both exemptions protect innocuous as well as other information for 10 years after it comes into existence - or any requirement to weigh public interest factors that would require consideration of benefits of disclosure of particular information. Reasons given for the changes are weak and unconvincing.

"Information brought into existence in the course of a local government’s budgetary processes” is broad and imprecise and capable of wide interpretation by councils. Local Government Minister Boyle said at the time, perhaps more in hope than anything else, that councils didn't have to use what amounts to a discretion to refuse access.This exemption is based on a similar exemption in the RTI act since inception for information held by an agency other than a council. There was no reference to exemptions of this kind in the Solomon Report. The Premier's response to the report includes this statement:

The government also considers that there is a compelling public interest in protecting the confidentiality of material prepared in the course of budget deliberations, particularly in terms of options for budget revenue and expenditure measures, and will also include this material in the Cabinet exemption.

Nothing else was made of this at the time. I'm not aware of any similar broadly drawn blanket exemption in other FOI/RTI acts for government agencies or local councils, or any precedent elsewhere for giving a local council committee a cabinet type exemption.

The text of the article follows-it didn't make it into the online edition of the paper.

Ministers for privacy, FOI and integrity.

The full details of the Gillard Ministry and the Administrative Arrangements Order reveal we have an historic first with Brendan O'Connor appointed Minister for Privacy and Freedom of Information. These  functions remain in the Prime Minister's portfolio. (O'Connor is also Minister for Justice and Minister for Home Affairs, with those functions in Attorney General's.)

Gary Gray is Special Minister of State for the Public Service and Integrity, also the first time we have seen integrity included in a ministerial title. The functions are also part of the Prime Minister's portfolio.

This is the right place for these functions, and appointing people with these titles in close proximity to the PM is a good thing. Comments yesterday about the ministers' standing at 22 and 29 in the hierarchy and other matters still stand.It's the first time FOI has been allocated to a minister in the outer ministry since the act was introduced in 1982. Offset to a degree by putting the subjects up in lights. No mention in the AAO of Gov 2.0 or the Australian Government Information Office but presumably Penny Wong as Finance Minister has these responsibilities.