This blog takes an interest in issues associated with Freedom of Information (FOI) and privacy legislation in Australia. Information contained on this site is general in nature and does not constitute legal advice. Follow Peter Timmins on Twitter: @foiguru Follow the open government cause through the Australian Open Government Partnership Network. www.opengovernment.org.au and @opengovau
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Tuesday, June 05, 2018
Friday, June 01, 2018
Public service leader who labelled FOI 'very pernicious' plays a role in selecting new FOI watchdog
Australian Public Service Commissioner John Lloyd, who in 2015 labelled FOI 'very pernicious' and showed no appreciation of the role FOI plays in a democratic society, is on the selection advisory committee that will soon report to and recommend to the Attorney General a replacement Australian Information Commissioner.
Senate Estimates (pages 51-60) hearings last week on the Office of Australian Information Commissioner covered a lot of ground (more in another post) and revealed the process is in the final stages, interviews are complete and an announcement is expected before the end of the month. In addition to the commissioner, members of the committee are the Secretary of the Attorney General's Department (Chair), Secretary of the Department of Health, and the deputy CEO of the Digital Transformation Agency.
The APSC guidelines are that the APS Commissioner or his representative must be included in a selection committee for recruitment or appointment to a Senior Executive Service position. Usually the commissioner himself is involved for a band 3 position such as this.
Senate Estimates (pages 51-60) hearings last week on the Office of Australian Information Commissioner covered a lot of ground (more in another post) and revealed the process is in the final stages, interviews are complete and an announcement is expected before the end of the month. In addition to the commissioner, members of the committee are the Secretary of the Attorney General's Department (Chair), Secretary of the Department of Health, and the deputy CEO of the Digital Transformation Agency.
The APSC guidelines are that the APS Commissioner or his representative must be included in a selection committee for recruitment or appointment to a Senior Executive Service position. Usually the commissioner himself is involved for a band 3 position such as this.
It seems bizarre that Mr Lloyd would put himself forward for a role on this occasion.
Categorising FOI as pernicious-"extremely harmful, damaging, detrimental, deleterious" was bad enough from a leader of the public service.
A former attorney general said at the time Mr Lloyd "either has no understanding of the importance of FOI laws in a modern and transparent democracy or he is trying to undermine the legislation with his comments."
Mr Lloyd topped it off a few months later telling a Senate committee that FOI as originally conceived was intended ('particularly') to provide access to information about an individual's dealings with government, and that the law had expanded in the wrong direction since, completely missing the point that the right to access government information enshrined in FOI law is about transparency and accountability and a cornerstone of democracy.
Mr Lloyd's views about the 'very pernicious' impact of FOI may have been reinforced in the last few weeks as he found himself in the hot seat in a seperate Senate estimates hearing arising from a decision by the Department of Prime Minister and Cabinet to refuse access to an FOI request arising from his correspondence with former colleagues at the Institute of Public Affairs. Mr Lloyd said he was not involved or consulted about the FOI. He confirmed after two days of questions in estimates that he is not under investigation, something alluded to in the PMC decision.
A former attorney general said at the time Mr Lloyd "either has no understanding of the importance of FOI laws in a modern and transparent democracy or he is trying to undermine the legislation with his comments."
Mr Lloyd topped it off a few months later telling a Senate committee that FOI as originally conceived was intended ('particularly') to provide access to information about an individual's dealings with government, and that the law had expanded in the wrong direction since, completely missing the point that the right to access government information enshrined in FOI law is about transparency and accountability and a cornerstone of democracy.
Mr Lloyd's views about the 'very pernicious' impact of FOI may have been reinforced in the last few weeks as he found himself in the hot seat in a seperate Senate estimates hearing arising from a decision by the Department of Prime Minister and Cabinet to refuse access to an FOI request arising from his correspondence with former colleagues at the Institute of Public Affairs. Mr Lloyd said he was not involved or consulted about the FOI. He confirmed after two days of questions in estimates that he is not under investigation, something alluded to in the PMC decision.
The OAIC and its important role in access to government information, privacy protection and information policy was under direct attack from 2014 to 2016 and has been underfunded since, operating with one commissioner instead of the three parliament legislated for. The government apparently has no intention of addressing that hole in the system-hardly in line with executive government responsibility to execute and maintain the laws of the Commonwealth.
Timothy Pigrim, now Angeline Falk and staff have soldiered on as OAIC responsibilities particularly in privacy protection have expanded, privacy issues have heated up and the office is to have a new role and some additional funding and resources for consumer data rights.
Information policy and FOI have been and remain the poor relations, the former disappearing in recent years and the latter marked for example by long delays in completing review applications, little public advocacy about the right to know, and two own motion investigations into what particular government agencies are up to in carrying out their FOI functions during the last six years or so, the most recent in 2014.
Living in hope, I'm sure others involved in the selection process particularly the Attorney General who has the last word, have a broad, deep understanding of the importance of FOI and the need for ongoing positive strong leadership in the long open government journey.
Thursday, April 05, 2018
Australia's Open Government Partnership plans: possible commitments
The following suggestions for commitments, if supported ,require refinement to ensure any commitment is specific, concrete and ambitious.We should learn from experience with the first plan that vague statements of intended outcomes and plans to review and consult do not meet this OGP requirement.
1. Anti-corruption
A national integrity commission and a suite of anti-corruption reforms not limited to those included in the first national action plan yet to be delivered.
5. Civic participation
1. Anti-corruption
A national integrity commission and a suite of anti-corruption reforms not limited to those included in the first national action plan yet to be delivered.
The Deputy CEO of the OGP Support Unit Joe Powell urges countries preparing a plan this year to include anti corruption measures.
https://voices.transparency.or g/2018s-corruption-focused-sum mits-must-turn-promises-into- action-358fa5d35505
2. Integrity
https://voices.transparency.or
2. Integrity
Address gaps and weaknesses in lobbying and political donations regulation. Measures to include a comprehensive scheme for registration of lobbyists, periodic reporting of lobbying activity.
Join Parliament in the open government initiative with a commitment to adopt a code of conduct for parliamentarians and an open government oversight committee.
3. Information access
Pick up from where Commitment 3.1 in the first plan leaves us.
The published information provides no information about what AGD has brought to the attention of government on this commitment.
The published information provides no information about what AGD has brought to the attention of government on this commitment.
Those consulted a year ago provided many suggestions for improving and modernising law policy and practice. Recommendations from the Hawke review and the ALRC report "Secrecy laws and open government in Australia" have not been acted upon.
Australia's FOI act receives 81 /150 points in this respected international assessment
http://www.rti-rating.org/coun try-data/scoring/?country_name =Australia
http://www.rti-rating.org/coun
placing it 57 of 112 laws surveyed. Regardless of the accuracy of this rating the law is middle of the pack, not near international best practice.
Extend pro-active publication requirements- grants, gift registers, appointment diaries for example. Many requirements for disclosure in annual reports should become quarterly or continuous disclosure obligations.
Legislate for open data release including publication of agency data set holdings, publish data sets in machine-readable formats and require updating on a regular basis and confer rights to seek review of agency practice and decisions.
Environment
https://www.theguardian.com/en vironment/2018/feb/20/fantasy- documents-recovery-plans-faili ng-australias-endangered-speci es
https://theconversation.com/la test-twist-in-the-adani-saga-r eveals-shortcomings-in-environ mental-approvals-91821
4. Sector specific commitments
The low level of awareness of the OGP initiative and the limited contributions to discussion of possible commitments means few sector specific issues have been raised to date.
A renewed effort is required now to bring into the discussion of ideas for improvement social welfare and justice groups, indigenous voices and potentially interested parties from sectors such as health, aged care and environment. Issues likely to emerge include
https://www.theguardian.com/en
https://theconversation.com/la
Pick up on where commitment 5.2 leaves us.
This statement on your web page is questionable:
"As part of our first Open Government National Action Plan, we developed a new government framework that helps make sure that people are heard as government makes decisions or delivers services."
This statement on your web page is questionable:
"As part of our first Open Government National Action Plan, we developed a new government framework that helps make sure that people are heard as government makes decisions or delivers services."
In fact all that has happened so far is the Department of Industry Innovation and Science has published a report.
Adoption of a new model is the next step but we do not appera to be there yet.
.
6. Address shortcomings in budget development and oversight as identified by the International Budget Partnership
https://www.internationalbudge t.org/
For the first time in 2017 the survey includes a ranking for Australia.
https://www.internationalbudge
For the first time in 2017 the survey includes a ranking for Australia.
While improvements across the board are recommemded the score on Public Participation 41/100 is well below the 60/100 set as satisfactory
"Australia provides limited opportunities for the public to engage in the budget process."
See recommendations.
https://www.internationalbudge t.org/open-budget-survey/resul ts-by-country/country-info/?co untry=au
"Australia provides limited opportunities for the public to engage in the budget process."
See recommendations.
https://www.internationalbudge
Two of 16 points required for eligibility to join the OGP are based on the IBP score.
https://www.opengovpartnership .org/resources/eligibility- criteria
https://www.opengovpartnership
7. Improve civil society capacity, reaffirm the right to democratic participation threatened by limitations on not for profits and civil society organisations by the Foreign Donations Bill
https://probonoaustralia.com.a u/news/2018/02/predictions-201 8-volunteering/
https://probonoaustralia.com.a
and other legislation. In practical terms encourage and empower civil society to engage and collaborate fully with government.
Reminder:
The Government committed to the Open Government Declaration in November 2015. The declaration states: "..We commit to making policy formulation and decision making more transparent, creating and using channels to solicit public feedback, and deepening public participation in developing, monitoring and evaluating government activities. We commit to protecting the ability of not-for-profit and civil society organizations to operate in ways consistent with our commitment to freedom of expression, association, and opinion..."
The Government committed to the Open Government Declaration in November 2015. The declaration states: "..We commit to making policy formulation and decision making more transparent, creating and using channels to solicit public feedback, and deepening public participation in developing, monitoring and evaluating government activities. We commit to protecting the ability of not-for-profit and civil society organizations to operate in ways consistent with our commitment to freedom of expression, association, and opinion..."
The Australian Government was party to a Joint statement on Protection and Promotion of Civil Society issued in Washington on 23 September 2013 supported by 23 other governments. after meeting with civil society and other groups in New York.
The statement
The statement
"affirms that the strength and vibrancy of nations depend on an active civil society and robust engagement between governments and civil society to advance shared goals of peace, prosperity, and the well-being of all people. We noted our deep concern that many governments are restricting civil society and the rights of freedom of association and expression, both online and offline. To combat this alarming trend, our governments committed to work together to respond to growing restrictions on civil society that undermine its ability to perform its crucial role.... We will lead by example to promote laws, policy decisions, and practices that foster a positive space for civil society in accordance with international law, and oppose legislation and administrative measures that impede efforts of civil society. We will undertake joint diplomatic action whenever necessary to support civil society in countries where it is under threat, and to defend the fundamental freedoms of association and peaceful assembly. We will also work to develop new and innovative ways of providing technical, financial, and logistical support to promote and protect the right of citizens and civil society to freely associate, meaningfully engage with government, and constructively participate in processes to improve the well-being of their countries. Throughout all of these efforts, our nations will continue to engage with representatives of civil society to help us understand and respond to the challenges they confront. We commit to gather again at the opening of the 69th United Nations General Assembly to review our progress toward these objectives. We will work in concert over the coming year to ensure a robust, effective international response to the proliferation of restrictions being placed on civil society. We call on representatives of civil society, the philanthropic community, the private sector, and other governments to partner with us in supporting and defending civil society.")
Australia's Open Government Partnership plans: preliminary comments
The following observations, comments and suggestions are put forward for consideration as plans for the OGP national action plan are developed.
Some raise administrative and policy issues that are unlikely to result in commitments in the plan but nevertheless are relevant to our open government ambitions.
Some raise administrative and policy issues that are unlikely to result in commitments in the plan but nevertheless are relevant to our open government ambitions.
1.Uncertainty about where things stand
The lack of information about where things stand and the likely outcomes by July 2018 limits discussion of possible commitments for the next plan.
A number of commitments are tagged 'Delayed.'
With these commitments and others currently described as 'On track' it is not clear where we are, where we are going and where if anywhere we should aim for next. Current reporting on Commitments 3.1 Information Access (AGD) and 4.3 Open Contracting (Finance) for example provides no indication of what is under consideration by the government.
A number of commitments are tagged 'Delayed.'
With these commitments and others currently described as 'On track' it is not clear where we are, where we are going and where if anywhere we should aim for next. Current reporting on Commitments 3.1 Information Access (AGD) and 4.3 Open Contracting (Finance) for example provides no indication of what is under consideration by the government.
The lack of information hampers discussion about the next phase.
2. Moving toward the open government state
All levels and all branches of government are on the open government journey.
While roughly moving in the same direction they appear to be separate journeys.
While roughly moving in the same direction they appear to be separate journeys.
Has government examined the benefits and options for
3. Link with Sustainable Development Goals.
The OECD report also advocates linking open government plans with the Sustainable Development Goals.
While not included as a commitment, the current National Action Plan refers to the link between Australia’s open government plans and the Sustainable Development Goals .
The plan states the government’s intention to endorse the Joint Declaration on Open Government for the Implementation of the 2030 Agenda for Sustainable Development, explaining the declaration “commits us to transparency, openness and accountability in our domestic and international implementation of the 2030 Agenda for Sustainable Development. It also commits us to look for opportunities in future National Action Plans to progress implementation of the SDGs.”
There has been no public statement about endorsement of the Joint Declaration. There is no mention of the Open Government Partnership in any of the published SDG material on the DFAT website, or in any speeches or statements by the Minister for Foreign Affairs or other government representatives such as the Ambassador to the United Nations.
4. Administrative arrangements OGP
The allocation of responsibilities for policy and management of OGP requires examination
The OGP Support Unit is located in Department of Prime Minister and Cabinet.
Presumably the Unit reports to the Minister for Finance who was designated minister responsible for co-ordination of implementation of commitments in the first national action plan and would appear to have an ongoing role.
This unusual arrangement should be looked at in the context of broader information policy.
5. A transparency regime for the 21st century.
'Information policy' is not mentioned in the Administrative Arrangements Order.
4. Administrative arrangements OGP
The allocation of responsibilities for policy and management of OGP requires examination
The OGP Support Unit is located in Department of Prime Minister and Cabinet.
Presumably the Unit reports to the Minister for Finance who was designated minister responsible for co-ordination of implementation of commitments in the first national action plan and would appear to have an ongoing role.
This unusual arrangement should be looked at in the context of broader information policy.
5. A transparency regime for the 21st century.
'Information policy' is not mentioned in the Administrative Arrangements Order.
Section 7 of the Australian Information Commissioner Act describes the information commissioner functions that include
(a) to report to the Minister on any matter that relates to the Commonwealth Government's policy and practice with respect to:
(i) the collection, use, disclosure, management, administration or storage of, or accessibility to, information held by the Government; and
(ii) the systems used, or proposed to be used, for the activities covered by subparagraph (i)..
There is no mention of this function or work associated with it in published plans or reports of the OAIC in recent years.
AGD is responsible for
Privacy
Freedom of Information
Management of government records.
PMC is responsible for
Co-ordination of Government administration
Public data policy and related matters.
Department of Finance is managing a Whole-of-Government Digital Records Platform Project which presumably will introduce automated systems to facilitate access to some records.
National Archives is responsible for Digital Continuity 2020, a government wide program moving to 'all digital' records.
In all this do we have a minister responsible for information policy? Or a well co-ordinated departmental arrangement?
There is a strong case for at least bringing together functions such as FOI and open data policy and practice.
See Beth Simone Novek on why a similar silo arrangement in the US is a barrier to a satisfactory transparency regime for the 21st century.
Australia's Open Government Partnership plans
I've lodged three comments/submissions about the current consulation by Department of Prime Minister and Cabinet on possible commitments for the second OGP National Action Plan.
On meetings in Canberra, Melbourne, Perth, Sydney and Brisbane that concluded on 23 March
On meetings in Canberra, Melbourne, Perth, Sydney and Brisbane that concluded on 23 March
"Based on the Sydney meet that I attended and feedback from Canberra and Melbourne, the round of consultations was disappointing to put it mildly.
Attendances were low. The lack of awareness of the OGP initiative continues. Beyond utilisation of social media, were steps taken to identify civil society organisations that would seem to have an interest in these issues? Did any agency other than PMC refer to the consultation on their website or contact organisations they deal with to encourage engagement?
The absence of indications from government of serious intent is a factor in the low level of engagement.
When has the PM followed up his words of November 2015 with anything that resembles strong ongoing enthusiasm for OGP principles and values?
A statement by the PM followed by a personal invitation to come forward, contribute and engage with government might have received a better response.
The presentation and facilitation at the Sydney meeting would not engender confidence in any new comer that this is an initiative worth time and energy. Senior government officials were not present. Those who were lacked background and detailed knowledge which meant discussion of particular topics could not get beyond generalities.
Thought bubbles were the dish de jour.The Butchers paper notes published on the website do not reflect the views of the gathering.There was no attempt to seek consensus on topics or possible commitments.
Four hours during working hours is a big ask for those gainfully employed.Another session- shorter,deeper, attended by senior people and likely more engaging-might have seen others attend.
I’d add that the limited take up so far on the invitation to lodge written submissions also reflects low awareness and lack of enthusiasm-for reasons cited above.
An attempt to lift the game should start with the Prime Minister making it clear publicly that Australia is committed to reform, what is on the table and anything that isn’t, and that he and his ministers welcome contributions and will ensure they are given serious consideration."
Monday, January 08, 2018
Canberra Times acknowledges John Mcmillan as distinguished lawyer of highest integrity
The heading on this December 2015 post reflected my views on a column by Jack Waterford in The Canberra Times FOI veteran lets fly with a few wild swings and low blows
in which he delivered an assessment of the contributions to open government by former Australian Information Commissioner Professor John McMillan. In my view both unfair and unjustified.
Professor Mcmillan subsequently took legal action against Fairfax Media, publishers of the CT.The following statement was appended to the online version of the article and published in the 11 November edition:
Professor John McMillan
In legal proceedings brought over this article, Professor John McMillan alleged that it constituted an attack on his personal integrity, performance and competence in his roles as former Commonwealth Ombudsman and Australian Information Commissioner.
If any reader understood it that way, The Canberra Times unreservedly withdraws any such suggestion and sincerely apologises to Professor McMillan for any hurt or embarrassment caused by the article.
The Canberra Times acknowledges that Professor McMillan is a distinguished administrative lawyer of the highest integrity.
Tuesday, September 26, 2017
Right to Know Day
All about events for Right to Know Day Thursday 28 September.
In particular:
In particular:
The Office of the Information Commissioner, Queensland is holding the annual Solomon Lecture for Right to Know Day on 28 September 2017. Mr Kerry O’Brien, one of Australia’s most distinguished and respected journalists, will deliver this year’s lecture and draw on the 30th anniversary of the Fitzgerald Inquiry in Queensland as an opportunity to revisit some of the lessons learnt over the past three decades around open government, including the media’s role.
Following the Lecture will be a panel discussion featuring Channel 7’s Freedom of Information Editor, Alison Sandy, Queensland University of Technology Vice Chancellor Peter Coaldrake AO and Dr David Solomon AM. Journalist Madonna King will lead the panel discussion. Live stream: www.ustream.tv/channel/the-edge-external-events
Following the Lecture will be a panel discussion featuring Channel 7’s Freedom of Information Editor, Alison Sandy, Queensland University of Technology Vice Chancellor Peter Coaldrake AO and Dr David Solomon AM. Journalist Madonna King will lead the panel discussion. Live stream: www.ustream.tv/channel/the-edge-external-events
28 September 2017
We encourage all Australians to explore their Right to Know. Take a moment to discover the importance of government held information, and support its use as a national resource. |
#RTK2017
oaic.gov.au/rtkday |
Monday, September 25, 2017
The public interest-simple and complex
Whose interests? Why defining the 'public interest' is such a challenge
The “public interest” is a political concept that’s regularly trotted out along with other democratic principles such as transparency and accountability. And, like transparency and accountability, it’s difficult to pin down exactly what it means.
Former NSW Ombudsman Chris Wheeler has pointed out:
… while it is one of the most used terms in the lexicon of public administration, it is arguably the least defined and least understood … identifying or determining the appropriate public interest in any particular case is often no easy task.Centuries of scholarship examine the public interest alongside the “common good”, “common interest”, and “public good”, associated with some big names in political philosophy. Common among their thinking was the idea that governments should serve the people, and the people should be the beneficiaries of governing.
Why is the public interest so hard to define?
The public interest is such a complex and tricky concept to navigate because it has intentionally evolved as ambiguous and mutable. It has no overarching definition because it is contextually determined in scope and purpose.This means, in any particular instance, political, legal and regulatory authorities make judgement calls. And what may be deemed in the public interest today may not be in a decade; it changes with social mores and values.
For example, during the UK’s Leveson Inquiry into the media, the public interest came under close scrutiny. The inquiry found media practice should better reflect the contemporary views of the British public.
As Guardian blogger Andrew Sparrow said:
50 years ago it was assumed that there was a public interest in knowing that an MP was gay, but little or no public interest in whether he drove home drunk, hit his wife or furnished his house using wood from non-sustainable sources. Now, obviously, it’s the other way round.Legal bodies and judgements also steer clear of definitions. The Australian Law Reform Commission has expressly noted:
Public interest should not be defined.And, in a Federal Court Freedom of Information case, justice Brian Tamberlin wrote:
The public interest is not one homogenous undivided concept. It will often be multi-faceted and the decision-maker will have to consider and evaluate the relative weight of these facets before reaching a final conclusion as to where the public interest resides.Most will never have reason or occasion to engage with the public interest in an official sense; we leave that to politicians, officials, judges, heads of inquiries, and so on. Wheeler places the onus squarely on their shoulders:
Public officials have an overarching obligation to act in the public interest.
Public interest is about more than compliance
Monday night’s Four Corners program put the Gold Coast City Council and its “developers, donations and big decisions” under a public interest spotlight.What was intriguing about the program was the conflation of the public interest with “real or perceived conflicts of interest” as relating to development issues.
Gold Coast Mayor Tom Tate and his deputy, Donna Gates, both described staying in council chambers to participate in discussion and vote on development issues citing the “public interest” as holding overriding importance.
Giving evidence before the Crime and Corruption Commission, Gates said:
I have, in the main, stayed in the room to vote in the public interest because I firmly believe that that’s what I need to do.Journalist Mark Willacy and Tate pointed out that all behaviour is legally compliant. Willacy concluded:
What’s happening with development here is well within the law and to many that’s the problem.But (despite its lack of definition) the public interest should mean more than legal compliance – it is as much about process and procedure as it is outcome. It’s also about governance and ethics.
Wheeler lists seven elements that better round out the full process that should take place:
- complying with applicable law (both its letter and spirit);
- carrying out functions fairly and impartially;
- complying with the principles of procedural fairness/natural justice;
- acting reasonably;
- ensuring accountability and transparency;
- exposing corrupt conduct or serious maladministration;
- avoiding or properly managing private interests conflicting with official duties; and
- acting apolitically in the performance of official functions.
Jane Johnston, Associate Professor in Communication and Public Relations, The University of Queensland
This article was originally published on The Conversation. Read the original article.
Tuesday, July 11, 2017
Australia’s commitment to open government reform
Published today on the AUSLAW BLOG:
The voters aren’t happy.
While there is no single antidote for this winter of discontent, the way government governs is a contributing factor.
The government tells us that belief in democracy is a shared Australian value and as part of a new approach to citizenship for those who seek to join us, that newcomers will be tested to demonstrate their commitment.
Yet forty per cent of Australians are not satisfied with the way democracy is working.
Only five per cent trust government.
And the majority of Australians think their politicians are corrupt.
Calls for reform propose steps to make decision-making more transparent and politicians more accountable for their actions; for politicians to get serious about cleaning up public life; and for more collaboration between government and citizens in policymaking, regulation and operational delivery.
Submission of Australia’s first OGP National Action Plan
In a development that has received little public attention the Turnbull government has committed to a package of reforms that represent a small step in this direction.
In December 2016, the government submitted its first national action plan to the Open Government Partnership (OGP), an international initiative now with 75 member countries.
The OGP is a multilateral initiative that aims to secure concrete commitments from governments to promote transparency, empower citizens, fight corruption, and harness new technologies to strengthen governance.
In the foreword to the Australian plan, Minister for Finance Senator Cormann said the government:
understands the importance in a democracy of open government to a strong and fair society. Open government also fundamentally supports the Government’s goal for Australia to become a more agile, innovative and collaborative nation…
The reform measures to which the government is committed include:
- better legislative protections for whistle blowers that report misconduct in the tax and corporate sectors;
- better access to government-held information and data, with release of high value datasets and reforms to our information access laws;
- strengthening the national integrity and anti corruption framework;
- undertaking an inquiry into political donations and other electoral matters; and
- improving the way the Commonwealth engages with the public on policy development, service delivery and decision-making..
The plan represents a start, not the final word in delivering more open government:
The Government recognises it must keep lifting the bar to ensure we meet the high expectations of Australians, who rightly expect Australia to be a leader in promoting transparency, integrity and public engagement, and to be at the forefront of technological innovation.
The OGP requires more than words.
The rules of the OGP stipulate that an independent review of the process to develop the plan is required as well as a report on the outcomes and results. And a new plan must be developed every two years.
The Open Government Partnership Explained
The OGP was launched in September 2011 when the eight founding governments (Brazil, Indonesia, Mexico, Norway, the Philippines, South Africa, the United Kingdom and the United States) endorsed the Open Government Declaration, and announced their country action plans.
Since 2011, 67 other governments have joined the Partnership.
Participating countries endorse a high-level Open Government Declaration that requires a shift in norms and culture to ensure genuine dialogue and collaboration between governments and civil society.
Members are committed to the principles enshrined in the Universal Declaration of Human Rights, the UN Convention against Corruption, and other international instruments related to human rights and good governance. Specifically, to increase the availability of information about governmental activities, support civic participation, implement the highest standards of professional integrity, and increase access to new technologies for openness and accountability.
The Declaration acknowledges that open government is a process that requires ongoing and sustained commitment:
We commit to reporting publicly on actions undertaken to realize these principles, to consulting with the public on their implementation, and to updating our commitments in light of new challenges and opportunities.
In addition to domestic reforms, members pledge to lead by example and contribute to advancing open government in other countries:
We commit to espouse these principles in our international engagement, and work to foster a global culture of open government that empowers and delivers for citizens, and advances the ideals of open and participatory 21st century government.
In notifying the OGP of Australia’s membership, Prime Minister Turnbull stated“the goals of the OGP directly align with Australia’s long proud tradition of open transparent government.”
Australian involvement
Australia finally joined the OGP in November 2015. Getting to that point involved a long, on again, off again journey.
Australia had been invited to join the OGP as a founding member in August 2011, by the then United States Secretary of State, Hillary Clinton. .
It failed to respond to that invitation and showed little enthusiasm for the cause until May 2013 when following strong representation within from Senator John Faulkner and from without by civil society organisations, then Attorney General Mark Dreyfus announced Australia’s intention to join.
Little was done to give effect to the decision before the election in September 2013.
Thereafter Prime Minister Abbott showed no enthusiasm whatsoever. The Abbott government announcement in its 2014 Budget that the Office of Australian Information Commissioner was to be abolished was directly inconsistent with a commitment to broaden and deepen open government. Excessive secrecy seemed a hallmark of the Abbott era.
Minister for Finance Cormann told Estimates hearings on a number of occasions in 2014-2015 that membership of the OGP was under consideration. These assurances were reminiscent of the Yes Minister script where Sir Humphrey explained this meant ‘we have lost the file.’ According to Sir Humphrey the phrase ‘under consideration’ can be contrasted to ‘active consideration’, which meant ‘we are trying to find it.’
A Freedom of information application made to Department of Finance in 2015 revealed the Prime Minister’s Office had instructed the Minister and agencies to take OGP matters no further until the full ramifications of the type of initiatives that might need to be undertaken once Australia joined the Partnership were cleared with the Prime Minister.
A change of leadership brought a change in perspective.
As Minister for Communications, Malcolm Turnbull had spoken often about the digital information age, the power of open data and had established the Digital Transformation Office to lead on new ways to deliver government services.
When he assumed office as Prime Minister, responsibility for open government-related matters was transferred to his department.
In November 2015 he announced Australia would proceed with membership of the OGP.
Australia’s National Action Plan commitments
Australia’s first National Action Plan contains 15 commitments across a broad range of issues concerning open government, anti-corruption, public integrity, and citizen participation.
The breadth and scope of the commitments is welcome—a far cry from the limited vision shown by government when public consultation began.
There are some disappointments, particularly the limited commitment to what are high priorities for civil society- political donations reform and gaps in the national integrity framework, particularly the absence of a broad based anti-corruption commission.
Nevertheless, the commitments that have been made are important. For example, one on the ‘high hopes’ list of open government advocates is the commitment to develop “Information management and access laws fit for the 21st Century”:
Australia will ensure our information access laws, policies and practices are modern and appropriate for the digital information age. As part of this, we will consider and consult on options to develop a simpler and more coherent framework for managing and accessing government information that better reflects the digital era, including the Freedom of Information Act 1982 (FOI Act), the Archives Act 1983 (Archives Act) and, where relevant, the Privacy Act 1988 (with primary focus on the Archives Act and FOI Act), which is supported by efficient and effective policies and practice.
Australian freedom of information (FOI) law and practice is out of date and not up to international standards. In the Centre for Law and Democracy Right to Information Rating survey, the the Commonwealth Freedom of Information Act 1982 (FOI Act) received 83 points out of 150 in an assessment of global laws, placing it 58 of 111 laws surveyed.
The internet has had a dramatic effect on public expectations concerning access to information.
First generation FOI laws are based on a process of lodging of an application, a delay while the application is considered, and a decision to grant access to all or some requested information often on condition of payment of a fee.
For those who consult Dr. Google many times a day, this must seem arcane. In some Australian jurisdictions, for example New South Wales and South Australia, FOI applications are still only accepted if received by post or delivered at the relevant agency in person by the applicant, accompanied by a cheque or money order.
Second generation laws have included important advances, prescribing more extensive obligations to proactively publish certain government information. There is still a long way to go to build on this in many countries, including Australia where reforms at the Commonwealth level in 2010 were something of a start in moving in this direction.
Third generation ideas are emerging. Information commissioners in Canada and Scotland have talked about “Transparency by Design.” Record management professionals raise the idea that new records management systems should include a public interface that would provide more and better information about government information holdings to encourage and facilitate requests for access.
Need for a comprehensive review of access regimes in Australia
Before we get to new frameworks however, a comprehensive review is needed of what we have learned from 35 years experience since the commencement of the Commonwealth FOI Act in 1982.
The importance of culture change and ongoing leadership is at the top of the list.
Any review should include but not be limited to the recommendations of the statutory review by Dr Allan Hawke in 2012-13 of the FOI Act and the Australian Information Commissioner Act 2010 (Cth).
None of Dr Hawke’s recommendations, including the need for a comprehensive review of the kind he was unable to undertake, received a government response.
The Hawke review sits alongside many other recommendations put forward over the years by the Australian Law Reform Commission, information commissioners, parliamentary committees and experts for improvement in law, policy and practice, but not acted upon
Conclusion
Action to implement commitments made in the initial OGP National Action Plan is now underway under the watchful eye of an Interim Working Group of government and non government representatives established by Department of Prime Minister and Cabinet in August 2016.
This interim group will be replaced in July by a permanent body, the Open Government Forum, to include up to 16 members.
The OGP Independent Reviewer, Daniel Stewart of the Australian National University, is yet to report on the adequacy of government efforts to engage with civil society in development of the first plan, and will report again in 2018 on outcomes and results.
Open government is a journey not a destination.
Australian membership of the OGP provides an invaluable road map for the journey.
Peter Timmins is Interim Convener of the Australian Open Government Partnership Network and a member of the Interim Working Group established by Department of Prime Minister and Cabinet.
Suggested citation: Peter Timmins ‘Australia’s commitment to open government reform‘ on AUSPUBLAW (11 July 2017) <https://auspublaw.org/2017/07/australias-commitment-to-open-government-reform/>
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