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Monday, July 14, 2014

Government thinking about FOI changes needs a full airing before, not after decisions

The Fairfax Media report that Cabinet is reviewing/has reviewed Freedom of Information fees and charges, and the recommendations from the Hawke review is not surprising. 

They had to get around sometime to looking at the report to the then Attorney General by Australian Information Commissioner Professor McMillan on charges completed in February 2012, and the Hawke review report completed well over a year ago. 

But both reports, and the Government's thinking about the issues raised deserve a thorough airing that they haven't received to date.

More cost recovery and the search for disincentives to ease the workload are likely the catalysts for action on charges.

Some recommendations ( boosting informal or administrative access) in the McMillan report are sensible improvements, but others such as the flat 40 hour limit on processing time are not. 

There are also issues not addressed in the report that flow from the decision announced in  Budget 2014 to abolish the OAIC.For example, the going rate for a review application to the Government's preferred one tier at the Administrative Appeals Tribunal is since 1 July $861, and that's for starters.

A detailed examination of FOI processing, resourcing and costs should be undertaken before any changes to the charging regime.

The claim that FOI costs something close to $50 million a year to administer has been run up the flag without any evidence as to agency efficiency and effectiveness in carrying out FOI functions or any examination of the benefits side of the equation. This at a time when there is much self congratulation about the 'free data' voluntarily released by government agencies that fueled Gov Hack gatherings across the country at the weekend and may deliver big economic and social dividends.

But free access to what the government voluntarily releases and increased charges over and above what can already be hefty imposts for access to the information government isn't pushing out the door will take some explaining.

How much of the FOI administrative costs can be attributed to inefficiency, failure to invest in technology, refusal to make sought after information available promptly and at lower cost without the need for formal applications, and gaming the system by putting applicants through the run around, we don't know. Professor McMillan didn't go there nor did Dr Hawke. It's no doubt the tip of an iceberg but take a look at the pedantic, bureaucratic and no doubt costly to the taxpayer correspondence generated by applications made through Righttoknow.

As to the Hawke report (pdf), cherry picking the bits that appeal to those in the government shouldn't be on either. Dr Hawke had limited terms of reference, limited time, completed his inquiry apparently without any research or prying into  dark FOI corners, or talking much to anyone at all outside the Parliamentary Triangle. 

Hence his recommendation No 1
"..that a comprehensive review of the FOI Act be undertaken."
And this concluding observation: 
"I believe a complete rewrite of the FOI Act in plain language is now necessary, so that it is readily accessible and easily understood."

Saturday, July 12, 2014

Sorry emailees, power now restored

Apologies to email subscribers who may have not have had a message in a while. 

Like to tell you that my brilliant technical skills over many hours located the problem and fixed it. The truth be known, I don't have a clue what happened or how it magically corrected itself. The system is back. You may have missed all or some of the posts listed, starting with the most recent.

Apart from the email subscription in the sidebar you can also follow me on Twitter where my modest handle is @Foiguru

Thursday, July 10, 2014

Policy 101: Blind siding rarely the way to bring the troops with you

Independent Senator Nick Xenophon in Crikey today:
The budget in May was a stinker. As one senator reportedly told The Australian Financial Review this week, the budget was “in more shit than a Werribee duck”, referencing the coastal town south of Melbourne that hosts a sewage treatment plant. I have big policy problems with the budget, such as the Medicare co-payment and the cuts to auto sector workers, pensioners, social security, higher education, health, schools, foreign aid and renewable energy funding. But I’ve been gobsmacked at the blind-siding of the whole country by this government. When did the government tell the states they were stripping a lazy $80 billion out of their future health and education budgets? When did the government tell the auto sector it would drain a further $600 million out of industry assistance (that makes $1.1 billion cut in total) that could have gone to restructuring ahead of the exit of the car makers? When did the government tell the universities it was going to cut 20% from federal funding for undergraduate courses and deregulate the sector? When did the government tell self-funded retirees it was taking away their modest seniors’ supplement?

Never, that’s when. Until budget night, that was. The subtext is all about mistrust of the electorate. I’m tipping Budget 2.0, sometime soon. And the government won’t get that through unless it restores trust with the voters.
You could add plenty to the Senator's list of Budget blind siders that add to the trust deficit including the announcement of the plan to restructure the access to information system by abolishing the Office of Australian Information Commissioner, all the time pronouncing a commitment to transparency and accountability and claiming the resulting changes will "improve administrative efficiencies and reduce the burden on FOI applicants."

Is this the senate to sort out public interest immunity claims?

The Senate from here on will likely be an even livelier front for argy bargy over access to government documents.

 But whether there is appetite and numbers among Labor, The Greens, the PUPs and assorted others - maybe even among staunch parliamentarians on the government benches - to push for a mechanism to resolve a disputed public interest immunity claim remains to be seen. Refusal to produce has been treated as a 'political problem' to date. If the matter can't be sorted by negotiation it dies in the ditch at that point.

In February there were indications it was game on. At one point the non-compliance rate with orders of the 44th Parliament to produce stood at 100%. The Senate Procedural Information Bulletin at the time labelled it "an unprecedented situation." The record has improved since.

The Legal and Constitutional Affairs References Committee then huffed and puffed about the refusal to comply with an order to produce documents relating to 'Operation Sovereign Borders' with secrecy about the boats an ongoing issue, given new impetus this week.

The report also recommended the Senate refer to the Procedure Committee "as a matter of urgency" inquiry into the independent arbitration process followed by the NSW Legislative Council regarding responses to orders to produce and any modifications necessary if such a scheme was to be adopted by the Senate. The Clerk of the Senate Dr Laing told the References Committee the NSW system is the best around for adjudicating these matters.

The 'matter of urgency' didn't count for much. The report was tabled on 6 March but there has been no debate and no referral to date.

Meanwhile stand offs continue. 

The Procedural Bulletin reported on the May-June Senate Estimates hearings:
There were numerous occasions when officers or ministers declined to provide information and senators pressed for articulation of the grounds on which the information was being declined. In most cases, the questions were then taken on notice. Some examples include:
  • monthly reports of agency figures on involuntary redundancies (Australian Public Service Commissioner) – said to be advice to ministers (FPA, 26/5)
  • whether the Prime Minister’s Chief of Staff attends Cabinet meetings (FPA, 27/5)
  • appointment and role of the new Cabinet Secretary (FPA, 27/5)
  • the timing of advice on cessation of the Nursing and Allied Health Scholarships Support Scheme in Tasmania (CA, 3/6)
  • further questions about funding for mental health programs (CA, 3/6)
  • the number of Cabinet decisions in relation to free trade agreement negotiations with China (FADT, 5/6).
In other cases, while only skeletal public interest immunity claims were articulated – such as national security concerns in relation to information about drone strikes in Yemen and the death of Australians (LCA, 28/5) – senators did not press for further information....

There are always cases of officers or ministers declining to provide answers on the basis of “longstanding” practice, only to be embarrassed by the discovery of the information from a public source moments later. In this round, the ministerial order of precedence – astonishingly – was claimed to be a secret, but was found shortly thereafter on Wikipedia (FPA, 27/5). It is also reflected in the published ministry list and in the order of occupation of seats on the front benches in each House. Membership of the Government Staffing Committee was also discovered to be public information (FPA, 29/5)...


Despite the recent enhancement of opening statements with the agreement of the Chairs’ Committee, “advice to Government” is still the most common bleat by officers and continues to remain unpursued on most occasions. Apparently, it is also “not the practice” to make legal advice public in estimates hearings, a statement made in the context of discussion of the tabling of departmental legal advice on the legality of settlements in the Palestinian Territories at a previous round of hearings (FADT, 4/6).
In another development Senator Wong has a number of motions before the Senate including 298,
noting "the frequency with which freedom of information legislation is invoked to withhold information from senators and the Senate, not only by reference to grounds of exemption in the legislation but also apparently on the basis that an answer will not be provided if a Freedom of Information (FOI) request has been lodged for the same information;
(b) recalls the observations of the Procedure Committee in its Third Report of 1992 that:
(i) there is no basis in law for the application of the FOI Act to the production of documents to a House;
(ii) if a minister were to regard all of the exemption provisions in the FOI Act as grounds on which to claim a privilege against disclosure of information to a House, this would considerably expand the grounds of executive privilege hitherto claimed;
(iii) the use of the provisions of the FOI Act as a checklist of grounds for non-disclosure does not relieve a minister of the responsibility of carefully considering whether the minister should seek to withhold documents from a House, or from considering the question in the context of the importance of the matters under examination by the House;
(c) resolves That the same principles apply to the provision of information to committees in response to questions asked by senators, which require the same careful consideration by ministers;
(d) declares that declining to provide documents or answer questions on the basis that an FOI request has been made for the same information is an unacceptable response, is not supported by the FOI Act and shows a profound lack of respect for the Senate and its committees.
Secrecy surrounding what is up for grabs in the negotiation of the Trans-Pacific Partnership Agreement continues to attract attention in the Senate.

Meanwhile The Greens Senator Rhiannon is seeking to up the ante in that 'vexatious applicant' matter and the associated refusal of an an FOI application for the Senate vote count software, with this motion that may or may not get a run today:
*330 Senator Rhiannon : To move—That there be laid on the table by the Special Minister of State, no later than 15 July 2014:
 (a) all correspondence and documents, whether written or in email form, from the Special Minister of State’s office and/or the Australian Electoral Commission (AEC) relevant to:
 (i) the decision of the AEC to have Mr Michael Cordover declared a vexatious applicant, and
 (ii) the assertion that Mr Matthew Landauer colluded with Mr Cordover to harass the AEC; and
 (b) the source code of the software by which Senate vote counts are conducted.
(Update: Paul Farrell in The Guardian reports the motion passed on 10 July and quotes Senator Rhiannon:
“There is no justification for the AEC refusing to release information on how the Senate vote is counted,” Rhiannon said. “It is widely known that it is very complex so surely the methodology used should be publicly available. “Why would you stop the public knowing how the Senate vote is counted?..The AEC are not only doing the wrong thing in refusing a legitimate FOI request – in the wake of the WA federal election debacle they are further damaging their own reputation,” Rhiannon said. “The AEC hardline position in trying to discredit Mr Cordover as a vexatious litigant is an abuse of the law under which the AEC operates and raises the very relevant question what do they have to hide."
I'd expect resistance to the software demand which in the FOI context the AEC claims contains 'trade secrets' and information of a commercial value. Whether the Senate or the AAT becomes the forum for battling this out remains to be seen.

Tuesday, July 08, 2014

What's the problem: why not close to real time disclosure for accountability purposes?

With all the talk and welcome enthusiasm in open government circles concerning public release of government data sets, governments, including the legislative branches are yet to fully embrace timely, searchable publication on the internet of information that goes to accountability.

Some quick examples off the top of my head. I'm sure deeper digging would see the list multiply many times over.

Voters go to elections without knowing who has funded campaigns, and at other times have no idea for close to two years who may have kicked the can. Federal election disclosure returns are made available for public inspection 24 weeks after polling day on this website. Annual disclosure returns are similarly made available for public inspection from the first working day in February, ie seven months since the end of the reporting period, and 19 months since any donation made at the commencement of the period. With some variations its the same in the states. Why not continuous on line and easily searchable disclosure close to real time?

NSW joined Queensland and the ACT from 1 July in the publication of ministerial diaries.Its far from universal practice however. Queensland diaries are published monthly at the end of the following month. NSW returns are required quarterly with ministers given a month at the end of the quarter to complete the paperwork. Publication on the Premier's Department website will occur up to four months after the contact. Why not continuous disclosure, searchable across all ministers, close to real time?

(The original post also referred to the failure just about everywhere to provide comprehensive single site searchable information close to real time about parliamentarians entitlements, and up to date searchable information contained in the register of interests. In removing a gremlin I've lost the text!!)

Monday, July 07, 2014

AEC way too quick in reaching for the 'vexatious' FOI button.

Cordover self portrait
Lots of interest on Twitter (@mjec) last week about the Australian Electoral Commission and Michael Cordover's Freedom of Information application for the software used to count votes during Senate elections. 

Particularly that two requests and an application for internal review of the decision on the first of those, and a request for Information Commissioner review by Cordover were enough to send the AEC off to the Australian Information Commissioner seeking a declaration that Cordover was a vexatious applicant.

The AEC's reasoning is puzzling, and the claim seems more like another in the all too frequent gaming the system stakes. 

But it brings to light the fact that it isn't necessary to use the FOI act repeatedly to run the risk of being sent to the FOI sin bin.

While repeated use and abuse of process is one ground, the commissioner can but has never exercised the power, make a declaration where a particular access action involves, or would involve, an abuse of the process, or would be manifestly unreasonable. None of this applies in Cordover's case, a genuine attempt to find out more about the way votes are counted in an agency that is central to the exercise of our democratic right.

The AEC's claim however is a telling example of what an agency could do if it had power itself to deal with an application it regarded as vexatious. Exactly what the Hawke report (90-92) sitting in an in-tray in the Attorney General's Department for 11 months now, recommends: an amendment to permit an agency to decline to handle a repeat or vexatious request or requests that are an abuse of process, without impacting on the applicant’s ability to make other requests or remake the request that was not accepted. The applicant could appeal against such a decision to the OAIC.

Back to the Cordover matter- and by the way follow me on Twitter:@FOIguru

Thursday, July 03, 2014

NSW access to information law under review

The five year statutory review of the NSW Government Information (Public Access) Act 2009 and the Government Information (Information Commissioner) Act 2009 is underway with a call for submissions. Get cracking!

The purpose of the review is to determine whether the policy objectives of the Acts remain valid and whether the terms of the Acts remain appropriate for securing these objectives.
The policy objective of the Government Information (Public Access) Act 2009 is to open government information to the public by:
  • authorising and encouraging the proactive public release of government information by agencies, and
  • giving members of the public an enforceable right to access government information, and
  • providing that access to government information is restricted only when there is an overriding public interest against disclosure, in order to advance an open, accountable, fair and effective system of Government.
The objective of the Government Information (Information Commissioner) Act 2009 is to establish an independent champion of open Government.
 
The review will also consider the relationship between the Government Information (Public Access) Act 2009 and the Privacy and Personal Information Protection Act 1998.
 
The Acts can be viewed at www.legislation.nsw.gov.au

The Department of Police and Justice invites interested individuals and organisations to make written submissions to the review. Submissions should be sent to: The Director, Justice Policy, Department of Police and Justice, GPO Box 6, Sydney NSW 2001 or by email to justice.policy@agd.nsw.gov.au.
If you would like to provide comments in an alternative format please call (02) 8061 9222. If you are hearing or speech impaired please contact us via the National Relay Service on 133 677.
 
All submissions will be treated as public and may be published, unless you indicate that all or part of your submission should be treated as confidential.
 
The closing date for submissions is 29 August 2014.

Wednesday, July 02, 2014

Silver Anniversary: 25 years since FOI commenced in NSW

The silver isn't without some tarnish but access to government information has come a long way since the commencement of the NSW Freedom of Information Act on 1 July 1989. 

From that day the absolute discretion exercised more frequently than not by public servants and ministers to refuse or limit access because they could, was replaced by legal, enforceable rights to know what government knows unless there are good reasons why not.

Time is testimony to the fact that opinion varies about whether that line has been drawn in the right place and whether those responsible for delivering the goods have delivered in full or left the requester empty handed or short changed.

But overall the Information Commissioner can report in 2014 that many applicants get most of what they seek most of the time; the Government's ICT Strategy proclaims: "An open, online approach to delivering services, communicating and sharing information in accordance with the principles of transparency, participation, collaboration, and innovation"; and the government has encouraged an Open Government Community of Practice.

A pity that 1 July 2014 passed apparently unnoticed in the corridors of power. With or without a cup of coffee and a biscuit discussion about this journey would have been not only of interest to many but for government would have the makings of a reasonably good story about what has been achieved since 1989, and the lessons so far.

If you are interested in the stepping stones along the way to where things are today:

Monday, June 30, 2014

G20 and countries including Australia need to re-open the whistleblower protection file

This survey of Whistleblower Protection Rules in G20 countries (pdf) notes that the group declared in 2010 that they would have adequate measures in place by 2012 to protect whistleblowers and provide them with safe, reliable avenues to report fraud, corruption and other wrongdoing. 

The report acknowledges some advances but concludes the G 20 countries have fallen short of meeting the commitment. In many, "whistleblower protection laws fail to meet international standards, and fall significantly short of best practices." One of the authors, Professor AJ Brown told The World Today.
It's very much a job that is less than half done in terms of protecting the whistleblowers in the public sector and it's a job that's less than a third done when it comes to protecting whistleblowers in the private sector ..
Australia does reasonably well on public sector rules, with room for improvement, but is way short of the mark when it comes to the private sector.

The adequacy of protections requires attention because of costs to the economy and other reasons:
Serious wrongdoing can lead to wasted taxpayer money, unsafe consumer products, public health threats, financial instability and environmental damage. Lacking strong legal protections, government and corporate employees who report wrongdoing to their managers or to regulators can face dismissal, harassment and other forms of retribution. With employees deterred from coming forward, government and corporate misconduct can be perpetuated
As Transparency International points out, collective and individual country initiative and ambition is required if the G20 is serious about anti corruption measures.

Should Australia, as G 20 President this year chose to lead from the front, a senate committee, almost on cue, has recommended a number of steps to improve private sector whistleblower protections.

The recommendations include a review of the adequacy of Australia's current framework for protecting corporate whistleblowers, expansion of the definition of whistleblower and the scope of information that can attract protection, establishment of a special whistleblower office within the corporate regulator, and closer alignment between public and private sector protections.

Also that the government explore options for reward based incentives for corporate whistleblowers including qui tam arrangements that would enable someone who assists a prosecution to be eligible to receive all or part of any penalty imposed.

The senate committee also made recommendations (Chapter 22) on the need for greater transparency at the corporate regulator ASIC for a number of reasons including to counter perceptions that is captured by big business.  ASIC should publish more of its internal policies and keep the business and academic worlds better informed about developments and trends  by providing and disseminating information it receives from a range of sources, as well as ASIC's analysis of this information.

The G20 survey comments about Australia include:

Wednesday, June 25, 2014

FOI commentaries: two for the money

Alison Sandy who found her FOI feet with the Courier Mail and is now Freedom of Information Editor at Seven News, compares our governments on the secrecy-transparency scale, well mainly FOI law and practice, and gives Queensland the gold star and South Australia the wooden spoon.

Experience rather than detailed research and analysis of all the variables here, but generally close to the money for mine.Tasmania and Western Australia don't get a mention. The former is in good FOI law territory while the latter should be marked down because it sat out the 2009-2010 reform era that elsewhere brought more pro-active disclosure and other positives for information access.

Paul Farrell in The Guardian is close to the money as well in asserting that the sound of closing doors in Canberra, with changes on the way, indicate a "new and deliberate assault is now being launched on one of the pillars of access to federal government information: the Freedom of Information (FOI) Act. We risk losing one of our most valuable tools to help open governments." The string of published comments includes this from me on the Budget announcement that the Office of Australian Information Commissioner is to be abolished:
The changes proposed are a giant step backward. FOI was an orphan in government for close to 30 years without an independent champion and advocate, someone to nurture, safeguard,and promote the idea that the citizenry has a right to access government information. That gap was filled by the reforms of 2010 although the Commissioner was never properly empowered or resourced. Now the position is to be abolished. Review of a government decision not to disclose information in response to an FOI application, now available after an inordinate delay from the Information Commissioner will in future only be available by application to the Administrative Appeals Tribunal. From 1 July the fee is $861, the process is unlikely to be speedy and you would be game venturing there without a lawyer because the government agency arguing against you will have a good, expensive one. In future advice and guidance on the interpretation of the legislation for government agencies, now with the Commissioner, will be in the hands of the Attorney General's Department. Talk about fox and hen house! The claim that these changes will improve transparency and accountability is laughable, not based on evidence, and runs counter to the trends around the world where independent office holders champion the cause and provide non litigious review of decisions. Finally whether the changes will produce the claimed savings of $10 million over four years is uncertain to say the least.That the public are the losers isn't I'm afraid.
Farrell notes the role played by the media coalition Australia's Right to Know in leading the 2007 campaign for FOI reform that bore fruit in 2010, suggesting now is the time for the coalition's long silence since to be broken. That's on the money as well.


Tuesday, June 24, 2014

Trust in politicians Episode XXX: "Democracy for Sale"

On ABC Four Corners last night Linton Besser illustrated how a deal to win partial control of a major public utility opened the door on a web of alleged corruption, impacting both State and Federal politics and players on both sides of the political divide, and how the rules that are supposed to regulate political donations can be ignored or corrupted right across Australia. 

It's not just that the Federal and state rules relating to political donations are weak, and as shown, ineffectual. So too those that relate to lobbyists. NSW rules on that front may be ahead of other jurisdictions but recommendations from the ICAC in 2011 still await a response

And as the program points out while we have anti-corruption bodies in the states there is no Federal commission to fight corruption. 

The Greens introduced the National Integrity Commission Bill into Parliament last year. When it came up for debate in May Liberal and National party senators who spoke dismissed the idea out of hand. As Senator O'Sullivan put it:
This government is proud of Australia's position and reputation. Australia is consistently ranked by Transparency International as one of the least corrupt countries in the world. This is a recognition of the net measure of respective coalition governments in this place and in states right across this country. As a political movement, we have a sub-zero tolerance to corruption.
Watch or read the Four Corners transcript. A couple of extracts follow including Senator John Faulkner's call for a lower threshold for reporting political donations and close to real time disclosure, and adding his voice at least to the national integrity commission cause.

Monday, June 23, 2014

Civil society puts it to the G20: open, transparent government part of the growth equation.

The C20 Global Summit has called on the G20 to tackle endemic corruption, confront the challenges of climate change and urgently address the social and economic time bomb represented by the world’s unemployed youth.


Governance was one of the four key policy issues preoccupying the Summit. 

The decline in trust and the associated issue of lack of transparency and accountability were constant refrains in various sessions including open government, anti-corruption and tax transparency.

Chair of the C20 Steering Committee Tim Costello said
“Good governance includes transparency and accountability to citizens.” 

Relevant policy 'asks' from the Summit aimed at tackling corruption and addressing the  transparency issue include the development of a new focused and measurable G20 Anti-Corruption Plan, and public registries required to disclose accurate beneficial ownership information – in open data format – of companies, trusts and other legal structures, to tackle tax avoidance, tax evasion, corruption, money laundering and terrorist financing.

The Summit Communique was handed to the Prime Minister, the chair of this year's G20 leaders, yesterday.

In the lead up to the Summit an economic analysis on the potential of open data to support the G20’s 2% growth target was released in Canberra by Martin Tisne of the Omidyar Network. The analysis Open for Business was undertaken by Lateral Economics and illustrates how 
"an open data agenda can make a significant contribution to economic growth and productivity. Combining all G20 economies, output could increase by USD 13 trillion cumulatively over the next five years. Implementation of open data policies would thus boost cumulative G20 GDP by around 1.1 percentage points (almost 55%) of the G20’s 2% growth target over five years."
The C20 Communique calls for G20 members to "release data and statistics used to inform the G20 working groups as open data where legally possible and include open data requirements within G20 policy recommendations." 

The Open for Business Report calls on G20 governments to sign up to the Open Data Charter, as the G8 urged a year ago.

Minister for Communications Malcolm Turnbull noted earlier in the year:
Unfortunately, in Australia, the private sectors interest in leveraging public data has been limited simply because of the lack of data that has been made publicly available. We are committed to working with agencies to ensure the publication of data becomes a routine government function. And importantly, if we are to catch up with  the United States, which has published more than 200,000 data sets, we must ensure that data is not only published regularly but in a machine readable form. We are committed to turning around our slow start to empower the private sector to capitalise on the disruptive potential of information, of data...
The current Australian Government's Principles on open public sector information state that open access should be our default position. And this approach is reflected in the United States too where President Barack Obama, on his first full day in office, who issued a presidential memorandum that,"in the face of doubt, openness prevails [when it comes to the release of agency data]."
And, as recommended by the Government 2.0 Taskforce, the information must be truly open. So unless there are good reasons, to the contrary, government information should be:

  • free
  • easily discoverable
  • based on open standards and, of course, machine-readable
  • properly documented and therefore understandable, and
  • licensed to be freely reusable and transformable."
So terrific that government might do more to make data holdings publicly available, giving effect to Parliament's intention in the (2010) objects section of the Freedom of Information Act "to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource." 

However opening up the data side of the shop with more discretionary disclosure while leaving unattended the broader issue of transparency and accountability would lead to one door open and the other half (or more) shut.

Let's open both doors wider by commiting to the Open Government Declaration on the way to membership of the Open Government Partnership. 

Thereafter fully engage in a meaningful partnership with civil society to develop a national action plan that addresses open data, and improved transparency for accountability, public participation, anti-corruption and a myriad other purposes. 

There's a dollar sign as well somewhere for improving trust, confidence, and ultimately government's capacity to make and stick with hard decisions that advance the public interest.
uphold the principles
uphold the principlesthe Open Government Partnership,

“Key policy asks to come out of the Summit aimed at tackling corruption and recognising the need for transparency, included the development of a new focused and measurable G20 Anti-Corruption Plan.
“Also needed are public registries required to disclose accurate beneficial ownership information – in open data format – of companies, trusts and other legal structures, to tackle tax avoidance, tax evasion, corruption, money laundering and terrorist financing.
“Good governance includes transparency and accountability to citizens,” Costello said.
- See more at: http://www.probonoaustralia.com.au/news/2014/06/g20-thrown-challenge-inequality-and-sustainable-growth-c20-summit#sthash.oJ9CJFNq.dpuf
“Key policy asks to come out of the Summit aimed at tackling corruption and recognising the need for transparency, included the development of a new focused and measurable G20 Anti-Corruption Plan.
“Also needed are public registries required to disclose accurate beneficial ownership information – in open data format – of companies, trusts and other legal structures, to tackle tax avoidance, tax evasion, corruption, money laundering and terrorist financing.
“Good governance includes transparency and accountability to citizens,” Costello said.
- See more at: http://www.probonoaustralia.com.au/news/2014/06/g20-thrown-challenge-inequality-and-sustainable-growth-c20-summit#sthash.oJ9CJFNq.dpuf

Thursday, June 19, 2014

The trust thing-where to from here?

The absence of trust and confidence in politicians, government and institutions is striking.

 The Readers Digest Survey of who is held in high regard for integrity and substance sees politicians ranked 49 of 50 professions, with no politician ranked higher than 68 in a list of 100 public figures. The Prime Minister is at 79. Roughly confirming the Morgan Poll.
in April where 12% of Australians rated Federal (and state) parliamentarians highly for ethics and honesty beating out three of 50 30 professions. The trend line before the Budget according to the Essential Report was that trust in political leadership dropped 13 points since February.

Then there's the Lowy Poll 2014:
"... 60% of Australian adults, and just 42% of 18-29 year-olds say ‘democracy is preferable to any other kind of government’. Only a small majority of the population (53%) choose ‘a good democracy’ over a ‘strong economy’. For those who do not see democracy as the preferable form of government, the strongest reasons are that ‘democracy is not working because there is no real difference between the policies of the major parties’ (45% citing this as a major reason) and ‘democracy only serves the interests of a few and not the majority of society’ (42%)."
Then Leader of the Opposition Tony Abbott was on the money in September 2013
when he identified the trust deficit as the biggest deficit facing the nation. But things have got worse not better.

Lack of trust translates to a major governance problem. Government in a democracy occupies a position based on the notion of a public trust. As well lack of trust complicates the making of difficult decisions and government's capacity to see them through.

It is not a unique problem to Australia.

Books are being written about why it is so but among many contributing causes are lack of honesty and consistency, overuse of spin, excessive secrecy, failure to genuinely consult and test ideas, and pre-occupation with short termism and political advantage.

The Oxford Martin Commission report Now for the Long Term explores some of these issues. 

Chair Pascal Lamy visited Australia two weeks ago. Canberra was on his itinerary and he met at least one minister, Andrew Robb, Treasury Secretary Parkinson and officials involved in the G 20 process.

Let's hope Lamy was able to refer them to the Agenda for the Long Term section of the report, page 59 and the recommendations for Innovative, Open and Reinvigorated Institutions that include:
Optimise new forms of political participation, transparency and accountability, whilst amplifying the voices of global citizens. The Commission recommends renewed commitment to transparent government and deeper political engagement...
The report describes the Open Government Partnership as "a particularly welcome development" bringing together government, civil society and private enterprise in member countries to address governance and means to improve transparency, accountability and public participation with independent international oversight of their efforts. 

It's such a good model
The Commission calls for the OGP platform to be adopted by other institutions and governments, and for the platform’s work to be expanded to strengthen coordination between citizens across countries.
Readers will know of Australia's dithering over whether to join the OGP now running without resolution for close to three years. When I checked with the Office of the Minister for Finance this week on the current position before heading off to the C20 Summit in Melbourne:
the government has made no decision to join or withdraw the Labor government's May 2013 notice of intention to join.
Not of its own a decision likely to reverse the trust decline, but the penny should drop sometime that a journey starts with a step in the right direction.


Wednesday, June 18, 2014

First report card on operation of NSW GIPA act

It's taken a while-three years in fact-but the NSW Information Commissioner's report on the operation of the Government Information (Public Access) Act 2009, the first since commencement, has been tabled in Parliament and is available here.  

The current commissioner Elizabeth Tydd took up the post earlier this year and clearly attached a priority to compliance-finally-with this mandatory annual reporting requirement.

I'm yet to have a close look but the Commissioner reports that three years of information about agency performance
"..confirms the Act is achieving its goal of improving the general approach of decision makers in providing timely and proactive access to information, giving the citizens of NSW confidence in Government decision making. The report indicates that the strategic intent of the Act is largely being met with most agencies complying with the Act’s requirements.
  • consistent and credible levels of information release
  • high levels of timeliness
  • increasing number of valid applications
  • the application of public interest considerations
  • greater release of information through agency reviews."
The  high level snapshot reveals:
  • 50,318 applications were lodged across the five sectors
  • 82% of those applications were lodged with government agencies, state owned corporations or Ministers
  • 17% of the applications were lodged with NSW councils 
  • 61% of the applications lodged with government are attributed to three agencies: Police (36%) RMS (15%) and WorkCover (10%)
  • 87% of decisions made by agencies were processed within the statutory time frame
  • There is a positive trend with 2,245 invalid applications received in 2010 – 2011 reduced to 1,699 in 2012 – 2013.
 

Tuesday, June 17, 2014

C20 Global Summit this week in Melbourne.

The C20 Global Summit will take place in Melbourne this Friday and Saturday so a big crowd can be expected to chew over the four key policy themes: inclusive growth and employment; infrastructure; climate and sustainability, and governance. Position papers on each topic are here.

I'm on a panel on Friday on Open Government to be chaired by Greg Thompson, Executive Director International, Transparency International Australia and Member C20 Australia Steering Committee. Others panelists are

  • Natalia Soebagio – Chair, Executive Board Transparency International Indonesia
  • Martin Tisne – Director of Policy, Omidyar Network (major funder of the Open Government Partnership to the tune of $1.48 million)
  • Eloise Todd – Advocacy Director, ONE International.
Hope to catch you if you are there.

Monday, June 16, 2014

Victoria rejigs privacy law

An important step forward on legislating for protective security standards but national harmonisation of privacy principles is drifting even further over the horizon.

Victorian Attorney General Robert Clark introduced the long awaited Privacy and Data Protection Bill in Parliament last week.
The Bill merges the existing roles of Privacy Commissioner and the Commissioner for Law Enforcement Data Security to create a single Commissioner for Privacy and Data Protection with responsibility for the oversight of the privacy and data protection regime in Victoria. The Privacy and Data Protection Bill 2014 also addresses a number of the data security issues identified by the Victorian Auditor-General in his 2009 Report on Maintaining the Integrity and Confidentiality of Personal Information, including measures to ensure that government handles personal information securely and consistently.
The Bill provides for the development of a new protective data security framework for the Victorian Government. The Commissioner for Privacy and Data Protection will be responsible for issuing protective security standards as part of the framework.
The Commissioner will also develop guidelines to assist Government agencies to develop plans and help ensure changes to current processes are implemented smoothly.
The framework will include protective data security standards, protective data security plans prepared by public sector bodies to implement the standards, and specific law enforcement data security standards.
The Bill provides for departments and agencies to seek a determination about whether a particular use of personal information that it holds is authorised or required by law.
The Bill will also allow public sector organisations to seek approval for arrangements allowing them to handle or share personal information in ways that vary the application of certain information privacy principles, if that use of the information is clearly in the public interest.
“These reforms enhance privacy protections for individuals while giving public sector agencies greater clarity about the appropriate use of personal information,” Mr Clark said.
The Bill also re-enacts key provisions of the Information Privacy Act, including the Information Privacy Principles. Those principles are based on what were the IPPs in the Commonwealth Privacy Act, substantially changed along with other provisions such as the definition of personal information with effect from 12 March 2014.

Six years ago the Australian Law Reform Commission recommended that the principles it put forward for new Federal legislation "also be applied to state and territory government agencies through an intergovernmental cooperative scheme—so that the same principles and protections apply across Australia no matter what kind of agency or organisation is handling the information." 

In 2009 then minister Ludwig in announcing the Phase 1 Federal government response to the ALRC report undertook to
"work with the states and territories to harmonise privacy law across the nation. The first stage response will create a platform from which the Government can pursue national harmonisation through discussion with the states and territories. Ultimately, the aim will be a consistent set of privacy standards for the Commonwealth, state and territory public sectors, as well as the private sector. The Federal Government will be looking to the states and territories to repeal privacy laws including health privacy laws that apply to the private sector. Additional national consistency issues will be considered in the second stage response."
Harmonise? National consistency? Not in 2014 or anytime soon if Victoria is any indication.

Bruce Arnold has done the spadework on the provisions of the bill.