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Friday, November 21, 2014

Finance says Australia yes, still 'considering' OGP membership, but participating and busy with preparatory work

Answers to questions from Senator John Faulkner in the delayed Senate Estimates hearing for the Department of Finance yesterday provide a glimmer of hope that Australia might yet proceed to fully join the Open Government Partnership. 

Minister Cormann gave the standard summary: 
"the situation is as it was when we last discussed this in May or June. The government has expressed an interest in joining the open government partnership. We are undertaking the necessary due diligence in order to come to a final decision. A final decision has not been made this point." 
However when recently appointed Secretary Jane Halton expanded on this it turns out a ministerial/prime ministerial decision was taken that Australia should participate in voting in the election of the OGP Steering Committee a few months back, and the department is working on a national action plan, with a rather mysterious reference "to 162 particular recommendations on 19 different topics."

Secretary Halton:
"So whilst we are participating as a participating country, we are doing the domestic work that would enable us, should the government choose to participate, to do the public consultation on the National Action Plan, and then ultimately to agree and sign on."
So all to the good, if as slow as a wet week given that we were invited to join over three years ago and the previous government lodged a notice of intention to join in May last year. Surprisingly that's enough to get us a vote.

And while public servants continue with what the Secretary described as "quite a lot of work" on the OGP, it's remarkable that no one I know outside the hallowed halls of power in Canberra has been asked for any input on any issue to do with membership, process, or the range of matters that might be considered relevant to a national action plan. 

Those 162 recommendations on 19 topics must represent a public service view of the open government space. Did 'abolish the OAIC' get a mention I wonder?

Those of us on the outside may share or differ on the list but as the Secretary knows, the clever people don't all reside in the Department of Finance. 

The Mandarin this week reported on an interview with Secretary Halton in which she talked about e-government, claimed we are no digital dawdler particularly in comparison to the British government, and revealed her interest in reaching out to the real world:
Along with impressing upon her team the need to “join the dots” between the department’s various projects to form a picture that reflects the government’s objectives, she’s been asking them to “talk to people”. “There’s no point us dreaming up an idea if it doesn’t work in the real world; it won’t be used,” she said. “So, one of the things I’ve been talking to my people a lot about is ‘consult, consult, consult’. Ultimately, government will make a decision, but I need to know and I want my people to know what the CFO down in Health thinks about a framework, or what the secretary of the Defence Department thinks about how this will work for him. We need to understand and get people’s input. I mean, there’s a lot of clever people in the public service. They don’t all reside here, so why wouldn’t we get their ideas?”
There are lots outside the public service as well, looking to advance the partnership in Open Government Partnership.

The relevant extract from the transcript follows:

Warning that doing goverrnment business through personal emails could amount to misconduct, or worse.

The South Australian Independent Commissioner Against Corruption (Annual Report pdf P57) is concerned that some public officers, mainly ministerial staffers, use personal rather than government email accounts to conduct official business and sounds a warning:
"It has been suggested that the reason for doing so is to avoid the requirement to disclose those emails where an application is made under the Freedom of Information Act 1991(‘FOI Act’). If it is the case that public officers are engaging in this kind of conduct to avoid the consequences of the FOI Act, that conduct should cease immediately. It is a matter of concern that public officers would seek to circumvent a legislative scheme designed to enhance transparency in government decision making. Such conduct might, at the least, amount to misconduct in public administration and be the subject of investigation and potential disciplinary action. I am told that the FOI Act is often abused. If that is so that is a reason to address that Act. It is not a reason to frustrate the FOI Act. While it remains the law the spirit of the Act should be observed by all public officers. Presumably those emails are not maintained in accordance with the State Records Act 1997 (‘SR Act’) (where that Act applies). The conduct therefore might also amount to an offence against section 17 of the SR Act. An offence against that section by a public officer while acting in his or her capacity as a public officer would amount to corruption in public administration under the ICAC Act."
Just a South Australian issue? 

I haven't seen it raised by the various watchdogs in other Australian jurisdictions, but it would be naive to think it doesn't or couldn't happen elsewhere.

And just ministerial staffers?

In an article in July this year based on documents released under FOI about an advertising campaign by the Rudd government to deter boat arrivals, Tom  Swann uncovered references to an email described as from “the Minister’s Gmail”:
The first email was sent at 8pm on Thursday, July 18, by the department’s head of communications, Sandi Logan. It contained the guidelines’ criteria for exempting a campaign from normal scrutiny, with the words “extreme urgency” underlined. Close to midnight someone in the prime minister’s office sent a media plan – “canvassed and locked-in” – to Burke’s media advisers and senior immigration bureaucrats. The sender’s name is redacted, but the email is described elsewhere as coming from “the Minister’s Gmail”. The email ordered “Full-page ads in all metro tabloids the day after the announcement and the next 3 days”, “Ads in all major ethnic papers”, “radio spots” and “social media”, with a budget of $30 million. It also provides the campaign slogan.

"Personal emails" cropped up in the UK in 2011 as an access issue prompting the Information Commissioner there to issue guidance that emails of this kind could, depending on content, come within the terms of the FOI act there. On that score in most jurisdictions here, the test would be whether the email is held by the agency or in the possession of an officer carrying out duties. 

Thursday, November 20, 2014

Crossbenchers should insist on evidence based approach to FOI policy

The Canberra Times (Freedom of Information watchdog may be saved but staff have already left) suggests the government is struggling to find votes from the crossbenches to ensure passage of the Freedom of Information Amendment (New Arrangements) Bill.

I hear that an offer was made that if the bill passes, the government will commit to a comprehensive review of the FOI act to commence within three months.

Not hard to spot the flaw in this befuddled approach to policy making that involves acting first then taking a close look at what should be done.  

The review was the first recommendation of the Hawke review that the government has sat on for 15 months. It's needed but before not after demolishing a key element in the 2010 reforms and abolishing altogether the independent monitor advocate and champion of open government.

And if the claimed but not evidenced savings of $10 million over four years is really what this is about, a close look at agency performance might also reveal how to save money in the administration of the FOI act. The Open Australia Foundation has put before the Senate committee inquiring into the bill 17000 pages that document the user experience in the form of correspondence with agencies of hundreds of FOI applicants, providing a unique treasure trove of the legalistic pettifogging gaming that goes on in some agencies. That would be a good place to start.

As indicated at the committee hearing last week the issue of support staff for the commissioners to carry out their functions from 1 January will need attention if the bill does not pass, but hey those genii who came up with the idea of abolishing the OAIC can surely rise to that challenge.

Tuesday, November 18, 2014

The public trust principle and delivering on the G20 'best practice' commitment

Tim Smith QC, Accountability Roundtable, yesterday on Fairfax The Zone:
I think it is clear that open and accountable government will produce better government than secret government. Secret government - government that thrives on secrecy - becomes hostage to the more powerful and assertive interests in the community, and tends not to have the benefit of the views of others in the community who have something relevant and important to say.

Turning to the public trust principle: it is one that I was not aware of until 2009, and I have found that I am in good company. Very few people are aware of it. Now, obviously when you say that you have entrusted someone with power over your life, you expect that person to exercise the power in your interests and not their own interests.

That would be the expectation on the person to whom you have conferred the power. In terms of public office, we voters entrust those we give our vote to with enormous powers over our lives. And simply as an ethical principle, it seems to be unarguable that in that situation the person entrusted with the power by us should give primary emphasis always to what is in the public interest, and if they find their personal interest in conflict, they must give priority to the public interest.

But I now know, after further research and consideration and discussion that this is not simply an ethical principle. It is part of the common law of Australia.

May I quote the former Chief Justice of the High Court from his speech made before presenting the ART Parliamentary Integrity Awards last year

“It has long been an established legal principle that a member of Parliament holds “a fiduciary relation towards the public” and “undertakes and has imposed upon him a public duty and a public trust”. The duties of a public trustee are not identical with the duties of a private trustee but there is an analogous limitation imposed on the conduct of the trustee in both categories. The limitation demands that all decisions and exercises of power be taken in the interests of the beneficiaries and that duty cannot be subordinated to, or qualified by the interests of the trustee”
And on the question how might Australia best proceed with the G20 commitment 
to international best practice,Tim flags the Open Government Partnership as one of the pathways:
To honour our commitment to lead by example in implementing international best practice for public sector transparency and integrity, Australia will need to attend quickly to two other major international commitments as signatories to the UNCAC and as an applicant to join the Open Government Partnership (OGP). The OGP was established in 2011 by 8 countries including the USA, UK and Indonesia. Under the UNCAC, Australia is yet to complete its required National Anti-corruption Plan (NAP) and, under the OGP, its first Direct Action Plan. Both the UNCAC and OGP also spell out, as international best practice, that the plans required be developed in consultation with civil society. 
So there is cause to hope that our G20 commitment indicates that these matters will now be addressed. After all, we would otherwise fail to honour our commitment to lead by example. In addition we would be ignoring, to our own cost, what the over 60 members of the OGP understand and accept, namely, that strengthening open and accountable government will help domestic and international economic growth, one of Australia's major objectives. The public interest appears to point in one direction.

Monday, November 17, 2014

G20 countries to lead on international best practices for public sector transparency and integrity

From the 2015-16 G20 Anti Corruption Plan (pdf), an "agreed document" that supports the Communique issued at conclusion of the Leaders' Summit in Brisbane yesterday, this from the section Public sector transparency and integrity:
"G20 countries commit to leading by example in ensuring our government agencies, policies, and officials implement international best practices for public sector transparency and integrity.  The (Anti Corruption Working Group) has identified public procurement, open data, whistleblower protections, immunities for public officials, fiscal and budget transparency, and standards for public officials as issues which merit particular attention."
We look forward to engaging with the Government on this challenge. For starters, abolishing the Office of Australian Information Commissioner and its important function as independent monitor, advocate and 'champion' of open government, as proposed in government legislation currently before the Senate, is not international best practice.

Timely also that Tim Smith QC from the Accountability Roundtable is in The Zone
at Fairfax Media today explaining
those in public office hold positions of public trust and should therefore place the public interest above all other considerations. From this flow such tenets of democracy and public policy as accountability and transparency. And under our legal system, the principle has expanded beyond the realm of ethics to guide and become enshrined in judge-made law, the common law.
 Tim is answering questions here .

Friday, November 14, 2014

NSW Parliament sorts crown privilege and public interest immunity claims

And in some respects it's a win for the public right to know that government is discharging its responsibilities to safeguard our interests as it is required to do.

See here for background but in brief, the issue arose following an order by the NSW Legislative Council to produce the Crown Casino VIP Gaming Management Agreement for the James Packer casino to be built at Barangaroo. 

The Department of Premier and Cabinet supported by Crown claimed privilege for parts of the agreement citing commercial confidentiality, statutory secrecy and public interest immunity and arguing they should not be tabled and available for public inspection. (See Correspondence.)

The Independent Arbiter (former Crown Solicitor and President of the Court of Appeal) Keith Mason QC examined the agreement, accepted some of the claims but rejected others. 

The Greens Dr John Kaye moved the matter be referred to the Privileges Committee to assess the Arbiter's decision. DPC and Crown continued (in confidential submissions) to argue their case.

The Privileges Committee recommended that the Council order tabling of the agreement in accordance with the decision of the Arbiter.

Dr Kaye decided not to push for more. The version of the agreement redacted in accordance with the ruling of the Arbiter was tabled on 13 November.

The exercise provides another example for parliaments elsewhere around the country that have no mechanism to resolve disputed claims that the NSW system is an excellent model. 

The Privileges Committee report reveals that since 1999, the Legislative Council has made over 300 orders for production of papers."In almost 50 instances, the services of an independent legal arbiter have been employed. In the committee’s view, the process is robust and effective."

Sean Nicholls in The Sydney Morning Herald highlights the bits that the government unsuccessfully argued to the Arbiter and the Privileges Committee should not be publicly disclosed, in particular Schedule 1 of the Agreement. The schedule includes measures that the government required in the agreement to ensure Hong Kong/Macau gambling magnate Stanley Ho or his associates had no involvement in or connection with Crown's activities here or overseas, ever.

There are differences between the issues and those that arise under public access to government information law, but the following points from the Privileges Committee report are of interest and some relevance:

Former Victorian FOI decision maker denies being as denying as commissioner said

Of all the possibilities that annual reports on the operation of freedom of information legislation contain misleading information (such as 'everything is going along wonderfully well') I never expected a claim of the sort made by Don Coulson former senior adviser to the premier and reported in The Australian today would make news.

The claims relate to the 2012-13 annual report of the FOI Commissioner, and the publication of a list of decision makers with a mini scorecard on their decisions:
(Mr Coulson) said the commissioner’s ­report identified him as a decision- maker and attributed to him the making of five decisions to deny access in full, one decision of partial release of information and no decisions allowing access in full. However, Mr Coulson said this was incorrect and that he had made one decision to release ­documents in full, one in part and only two were denied in full.
“While these decisions may not seem to be significant, the ­incorrect figures tabled by the commissioner resulted in adverse comment about me in newspaper reports, which were repeated in other websites across Australia,’’ he wrote.“As well as the incorrect date about my decisions, I am also aware of at least one decision made by Tony Nutt as the chief of staff ...“While Mr Nutt as a decision­-maker was not reported in the commissioner’s tabled report, I believe (he) ought to have been.’’Mr Coulson wrote to FOI commissioner Lynne Bertolini about the alleged errors, but they have not been corrected."
It clearly matters to Mr Coulson who is pursuing a wrongful dismissal claim, and information provided to the parliament should be correct, but....

Maybe we will see a really exhaustive examination of FOI in Victoria in The Australian sometime soon?

Thursday, November 13, 2014

Victorian FOI Professional Standards may set new standard for agency bosses

At five minutes to midnight - well, on 31 October, days before the government went into caretaker mode on 4 November prior to the election on 29 November -  Victorian Attorney General Robert Clark issued the first Freedom of Information Professional Standards, exercising powers (Section 6L) inserted in the Victorian FOI act in 2012 with the passage of legislation to establish the position of foi commissioner.

The standards are the new benchmark for Victorian government agencies in administering their responsibilities under the Freedom of Information Act and establish "overarching principles to steer Agencies' conduct in their handling of freedom of information matters, with a view to making their actions of the highest standard."

The standards are mostly statements of what you hope you could expect of government in handling your FOI application.

 But the act, Section 6M, provides that the Principal Officer of an agency "must ensure that any officer or employee of the agency concerned in the operation of this Act complies with any professional standards that are prescribed by the regulations in performing his or her functions under this Act."

That plus this principle in the Standards seems to constitute a performance commitment that may be the first of its kind for, us at least - any comments?

Principal Officers have a responsibility to:
a.  promote an appropriate pro-release culture to ensure the transparency of public sector information

b.  ensure FOI decision makers are aware of the requirements of the FOI Act and these professional standards, and how they apply to decisions and actions in the course of processing FOI requests

c.  ensure relevant staff are provided with adequate information, guidance, training and support in applying these professional standards and the requirements and objects of the FOI Act

d.  ensure internal FOI procedures are regularly reviewed in regard to their effectiveness, compliance with legislation, case law and any guidance from the FOI Commissioner

e.  ensure their agency’s decisions comply with the requirements of the FOI Act and these professional standards

f.  provide an appropriate level of resources to ensure the timely processing of requests, and

g.  keep the FOI Commissioner informed of changes to their agency’s Principal Officer and FOI contact details.

Section 6M provides that the obligation to comply is with any professional standards that are "prescribed by the regulations." I don't see any relevant regulation published to date so maybe the Attorney General didn't get that far before campaigning intervened.

No mention under timeliness in the Standards of contact with the minister's office, a subject addressed in the Department of Justice Practice Notes issued until 2012 that are still up on the internet. Practice Note 10
“Where a decision relates to a Minister’s portfolio and/or where a Minister could be asked by the media or in Parliament to comment or explain about the response to the request or the contents of the documents once disclosed, or they are sensitive in any way, the agency is to provide a brief to the Minister. This is to be done five days prior to the proposed finalisation…”
In cases where the agency needs to brief the Minister, the five-day noting period needs to factored into how the agency divides the processing time of a maximum of 45 days."
The Ombudsman years ago raised concern about long delays as decisions sat in ministers' offices awaiting 'noting' and The Greens Greg Barber highlighted interference by ministerial staff in decision making as a result.

I don't know if the Freedom of information Commissioner has delved into that practice, but after 29 November it all starts again.

The Accountability Roundtable is keeping track of what the major parties say they will do if elected. 

A comprehensive review of the Victorian act which shows all the signs of 1983 thinking, and holding principal officers to those professional standards should be high on the list of whoever wins.

Wednesday, November 12, 2014

FOI review rights won't disappear if New Arrangements bill doesn't pass.

Paul Farrell writing in The Guardian on the Senate Legal and Constitutional Affairs Legislation Committee public hearing on the Freedom of information Amendment (New Arrangements) Bill reported that the ABC’s freedom of information editor, Michael McKinnon, appearing on behalf of the media coalition Australia's Right to Know, had raised significant concerns that if the bill did not pass applicants would be left without any review options, due to the closure of the OAIC. The OAIC is funded only to 31 December. “Unhappily and reluctantly we support some form of bill getting through in order to create a review process,” he said.

Farrell did not report that both Australian Information Commissioner Professor McMillan and First Assistant Secretary of the Attorney General's Department Matt Minogue in later evidence assured the committee it was not correct that review options would disappear.

Professor McMillan:
"Just on that, I might intervene to correct some confusion on the point of discussion in the last panel session on what will happen after 31 December if this bill is not passed. If the pill (sic) is not passed the OAIC will still continue to exist. It will not have a budgetary allocation, but the OAIC will still exist. The three commissioners each have appointments that extend beyond 31 December. The FOI commissioner and myself, for example, have appointments that continue until 30 October next year. There is of course a legal duty on government, under our constitutive act read with the Remuneration Tribunal Act, to ensure that we are paid at salary while we are still in office. There are practical questions, obviously, about the administrative support that would be needed to discharge functions if the normal budgetary allocation has expired but the legal reality is that the commission still exists, the commissioners still continue in office and the functions conferred upon them by the various acts are still relevantly conferred and are exercisable.....
At the end of the day, one simple option is for the person occupying the position of FOI Commissioner or Information Commissioner or Privacy Commissioner to refer all matters to either the ombudsman or the AAT. The short answer is that appeal rights will not be lost if the legislation does not go through. There are still legal avenues, legal realities, that will ensure that matters can be resolved."

Matt Minogue:
"Certainly. In terms of the key issues that have been raised in the questioning this afternoon, the concern is that, come 1 December (sic) if the bill is not passed applicants would be left with no appeal mechanism at all. That is not the case. You would be rightly be horrified if that were an unintended error, but that is not the case. I think the answer provided by the OAIC commissioners was appropriate there. If the legislation is not passed the commission continues. Yes, there will be practical considerations that government will have to undertake in negotiation with the commission about how to resolve those practicalities, but it is not the case that there will not be any appeal mechanism for applicants.

CHAIR: As I heard Mr Pilgrim, he said they will still do it but they will not be getting paid and would not have any staff—if the bill passes.

Mr Minogue : If the bill passes the external merits review mechanism is the AAT, as outlined in the provisions of the bill.

CHAIR: What someone was telling us was that to go to the AAT you had to have an authority from the commission, and if the commission no longer existed how could anyone go.

Senator JACINTA COLLINS: If the bill did not pass.

Mr Minogue : That is right. If the bill did not pass the concern was that there would be this disjunct between the formal requirement to go to the OAIC, but no OAIC there to be gone through. That is not the case, as I think Professor McMillan outlined. That threshold concern will not materialise. Yes, there will be practical considerations about how that function is continued, given that since the announcement of the government's decision the work has been on implementing the government's decision, not unsurprisingly. So the resources available to the commission will be less than they are today, and government will have to consider that at the time. But I think it would be appropriate to put to ministers, rather than officials, what would happen if the bill does not pass."

Publication of incoming government briefs: New Zealand shows the way.

I know there are differences in the type of issues covered.

But following decisions right across government to refuse access to the incoming government briefs prepared for Abbott government ministers last year, the general thrust of which was confirmed by the Australian Information Commissioner on the basis that 'frank and candid', poor petals, required that a brief not be disclosed because public servants wouldn't in that event do their job properly next time, developments in New Zealand provide a sharp contrast.

The State Services Commission has proactively published, with some redactions the incoming government brief provided to all ministers and the brief provided to its incoming minister following the October election. We can only be reasonably confident our equivalents will be publicly available in 28 years.

(Update: There I was thinking this was a big deal when what State Services has done is commonplace In NZ not unusual.)

The government brief outlines thinking about steps to address challenges including
  • Getting greater access to complete data sets that will inform effective targeting of effort and investment.
  • Engaging in a deeper way with New Zealanders over their issues and solutions.
  • Strengthening New Zealand‟s strong reputation nationally and internationally for operating with integrity and inclusiveness.
And the minister's brief includes a reference to a subject government here doesn't talk about publicly: making a real fist of its Open Government Partnership commitments. 

Australia apparently is still 'considering' whether to proceed or not proceed with the previous government's May 2013 notice of intention to join the OGP. It is three years since we were invited, and the membership ranks have since swelled to 64 or 65. As to NZ:
We had some initial ideas about how we can make the greatest contribution to the Government’s plan for New Zealand. We would welcome an opportunity to discuss these ideas with you.

By 2017……

System Stewardship

We will have strengthened the perception of New Zealand as a high integrity country. We have met New Zealand’s Open Government Partnership commitments, put in place a Code of Conduct for Ministerial Advisers and embedded improved information security and privacy practices across the State services.
Meanwhile here Canberra is head down and flat out trying to win support in the Senate for its legislation to abolish the Office of Australian Information Commissioner and remove from the statute book the role of independent monitor, advocate and champion of open government...

Tuesday, November 11, 2014

FOI New Arrangements Bill

The Senate Legal and Constitutional Affairs Legislation Committee public hearing yesterday on the Freedom of information Amendment (New Arrangements) Bill had its moments.
Only three members attended, the Chair Senator Ian Macdonald (Liberal National), Deputy Chair Senator Jacinta Collins (Labor) and Senator Lee Rhiannon (The Greens), so that was disappointing. Then Senator Macdonald recused himself from the session with the Office of Australian Information Commissioner because he, as a third party who objects to disclosure of information about a disputed payment has a matter before the Office awaiting a decision. 

The transcript for your edification-comment when I get a chance.

(Update: Paul Farrell in The Guardian is one of the few who reported the hearing.)

Monday, November 10, 2014

Experts in no doubt: no merit, and a backward step in move to abolish OAIC

In the course of its inquiry into the Freedom of Information Amendment (New Arrangements) Bill 2014 the Senate Legal and Constitutional Affairs Committee will hold a public hearing in Sydney on Monday 10 November from 1.15pm - 5.00pm at the SMC Conference and Function Centre, 66 Goulburn Street.

I am down to appear, so too the Law Council of Australia, Open Australia Foundation, Public Interest Advocacy Center, Australian Press Council, Australia's Right to Know, Office of Australian Information Commissioner, and the Attorney General's Department. Submissions from OAF, PIAC, OAIC and me have been published so what others have to say is awaited with interest. 

As to published submissions twenty four organisations or individuals from outside government who reacted in time to the five days notice are virtually unanimous on the big question: 
The committee should recommend that the Senate vote against the bill. 
Those organisations and individuals are:

Transparency International Australia
Accountability Round Table   
Queensland Integrity Commissioner
Open Australia Foundation
Public Interest Advocacy Centre
Australian Privacy Foundation
NSW Council for Civil Liberties
Liberty Victoria
Pirate Party Australia
Guardian Australia
Associate Professor Moira Paterson Monash University Faculty of Law Director, Graduate Studies; author of Freedom of Information and Privacy in Australia: Government and Information in the Modern State (LexisNexis, 2005) and FOI Editor of the Australian Administrative Law Service.
Dr Johan Lidberg, Monash University. Senior Lecturer in Journalism in the School of School of Media, Film and Journalism, who has undertaken international comparative research into FOI practical functionality for the last 13 years. 
Public Law and Policy Research Unit, The University of Adelaide. Submission written by Dr Gabrielle Appleby, Deputy Director of the Public Law and Policy Research Unit, Dr Judith Bannister, Senior Lecturer, Adelaide Law School and Anna Olijnyk, Lecturer, Adelaide Law School
Assistant Professor Bruce Baer Arnold, University of Canberra School of Law    
Craig Thomler, social media and Government 2.0 advocate and practitioner.
Megan Carter, Consultant with 33 years experience in this field in Australia and overseas.
George Samuel.
Andrew Donnellan.

And your blogger, Peter Timmins.

The Queensland and NSW information commissioners spoke in similar terms at a conference last Thursday. 

More on the submissions and the hearing to come.

Friday, November 07, 2014

The Australian dusts off the "Must resist any move to give a right to sue over privacy" file.

In response to the headline to Chris Merritt's report in The Australian "Time to stop droning on about privacy, as a tort is unnecessary", it's wishful thinking but...
it's way, way past time for Chris Merritt to stop droning on that the very idea of a tort for serious unwarranted invasion of privacy would be the end of the world as we know it.
Of course as the Attorney General apparently has said "the Government has made it clear on numerous occasions that it does not support a tort of privacy" this issue is in the lost cause box in any event. Until something in the mix changes regardless of evidence of increasing threats to what we thought might be private, the high level of public concern about privacy and the view of most experts not employed or retained by News Corp that the gap in the law should be filled by a carefully crafted statutory provision. 

News Corp publications of course always have an unerring eye when it comes to balancing privacy and the public right to know and be informed even when it comes to intimate details about Senator Peris. (Segue to a wonderful reflective piece on the general subject by Jack Waterford in The Canberra Times although whoever wrote the headline should have read the article more closely.)  Their activities in the conduct of journalism aren't covered by the Privacy Act but privacy complaints about others were up 183% in the year to June.

This time Merritt is on about a parliamentary committee report that recommended the following among many other steps to deal with gaps in the law in the light of the widespread and growing use of drones.  

You wouldn't know it from Merritt's article that use of drones by journalists wasn't central to the committee's consideration of the problem. Or that there is a stack of reports other than this one that recommend a statutory cause of action:
The Committee recommends that the Australian Government consider introducing legislation by July 2015 which provides protection against privacy-invasive technologies (including remotely piloted aircraft), with particular emphasis on protecting against intrusions on a person's seclusion or private affairs.
The Committee recommends that in considering the type and extent of protection to be afforded, the Government consider giving effect to the Australian Law Reform Commission's proposal for the creation of a tort of serious invasion of privacy, or include alternate measures to achieve similar outcomes, with respect to invasive technologies including remotely piloted aircraft.
It's in Attorney General Brandis' in tray. Don't hold your breath.

Former NSW commissioner Ken Taylor was fair and forgiving

The NSW IPC note on the death of former Privacy Commissioner and Acting Information Commmissioner Judge Ken Taylor describes him as "well-respected and fair." 

I can attest to that. 

Despite the fact that I'd had a crack at him about his low profile as privacy commissioner, and his selection as the person to get things established at the new information commission before it opened for business, Judge Taylor and Nigel Waters who undertook the preparatory work subsequently engaged me to make a start on guidance documents on the interpretation and application of the new GIPA act and agency responsibilities.

The judge must have swallowed hard when my name cropped up but in my formal and other contact with him in the course of doing this work (a fair bit of which didn't see the light of day) he had the good grace not to mention or take exception to what I had said previously.

I first encountered Ken Taylor in the nineties when Chief Judge of the District Court Reg Blanch asked me to help develop some performance indicators for the court, to bring his 'planning committee' consisting entirely of judges along with the idea that 'management' mattered and all judges had a responsibility to manage court resources. And if the court didn't develop ideas about managing and measuring performance, others were keen to do it for them.The exercise was close to a first for courts in Australia. 

Reg Blanch loved this stuff. His colleagues didn't. 

With the exception of Ken Taylor who took a real interest and proved a valuable ally to Reg in making these then radical ideas stick.

Vale, and condolences to his family.

This is the citation for Ken Taylor's Member (AM) Order of Australia award in 2012.

Saturday, November 01, 2014

Senate Committee inquiry into planned abolition of OAIC:submissions close in 5 days

The Freedom of Information Amendment (New Arrangements) Bill 2014 has been referred to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 25 November. A letter inviting submissions sets Thursday 6 November as the closing date. And I understand a public hearing will take place on 10 November. 

Abolishing the OAIC and dispensing with many of its FOI and leadership functions goes way beyond the much needed tweaking of the FOI review system.The Government case is weak and unconvincing. Strongly urge those who think likewise to make a submission.

In essence:  
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. FOI suffered the more time went on, culminating in the dark Howard years leading to the 2007 election. 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 unsatisfactory long delay, but at no charge, from the Information Commissioner will in future only be available by application to the Administrative Appeals Tribunal. From 1 July the fee has been $861, although there are concessions; 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 and the Department. 
The claim that these changes will improve transparency and accountability and remove the so called 'burden' on FOI applicants 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.  Queensland, NSW, Victoria and Western Australia all have variations on the system the Federal government wants to abolish- all seem to be operating reasonably OK.
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.

A few other thought starters from last week:

The debate in the House.

A rerun of earlier analysis. 

And this from Emeritus Professor Richard Mulgan in The Canberra Times in June.

You can contact the committee secretariat on 02 6277 3560 or via email to

Friday, October 31, 2014

"New Zealand reaffirms commitment to open government"

Australia should emulate the 'reaffirm' part of that headline. 

As well as the sentiments in the announcement by NZ State Services Minister Paula Bennett that New Zealand formally became a member of the Open Government Partnership, with the publication of its Open Government Partnership (OGP) Action Plan.
“New Zealand has a strong and well respected foundation of open and transparent government, and formally joining the OGP gives us a fantastic opportunity to build on these successes,” Mrs Bennett says. “We rank highly on several integrity measures, including first equal out of 182 countries in Transparency International’s 2013 Corruptions Perceptions Index and first out of 132 countries in the 2014 Social Progress index. “Our work in the OGP and with partner countries will allow us to do even more to deliver openness and integrity, so that New Zealanders can be assured government is responsive to their needs and serves them in the best way possible.” A stakeholder-led advisory group will be established to assist the Government with meeting OGP commitments."
The NZ consultative process and earlier indications of the content of the plan came in for some criticism recently- the establishment of the advisory group may improve the mood.
Published information about NZ and the OGP includes
And sure to stun the dedicated guardians of the cabinet room at PM&C in Canberra:
The Abbott government is still 'considering' whether to proceed with the May 2013 notice of Australia's intention to join. 

You would like to think we could cut and paste the NZ case for membership with a one word substitution:
"The OGP is an international organisation, committed to making governments more open, accountable, and responsive to citizens. The OGP objectives resonate with New Zealand values and with our goals for international, economic and social development. By joining the OGP, New Zealand can continue to build and strengthen our system of open government, while also playing a strong leadership role in the OGP by sharing our experiences and expertise. OGP membership will also strengthen New Zealand’s ties with many countries who participate in the OGP. Joining the OPG also provides a platform for the government to further explore new and innovative ways of working with civil society to deliver better public services.

Thursday, October 30, 2014

Senate Committee to look into the case for abolishing the OAIC

I don't think any reasonable supporter of open transparent and accountable government will find the case proven.

A phone call from Canberra from someone who should know:
  • A public hearing will be scheduled in Sydney on 10 November.
  • "There is no appetite among cross benchers to support the legislation."
Thank goodness.

The ALP, The Greens and those on the crossbenches can see recognise a furphy (improbable story) when they see one. 

(Update - Bill introduced in the Senate and debate adjourned until 25 November.)

Tell cross benchers in the Senate, give thumbs down to abolishing OAIC

I've written to the cross bench senators in the following terms and urge you to do the same:
Senator, I strongly urge you and your colleagues to vote against the Freedom of Information Amendment (New arrangements) Bill. Labor and Greens speakers in the House were right in arguing that no case has been made for the abolition of the Office of Australian Information Commissioner. Removing the independent monitor and 'champion' of transparent and accountable government is a retrograde step and will not "reduce the burden on FOI applicants" as claimed by the Attorney General.

For more information see this post yesterday

And this earlier analysis

Happy to talk at any time

Peter Timmins
For others interested: for ease of reference the case against, taken from previous posts:

Wednesday, October 29, 2014

Can the Senate save the OAIC, and FOI from a giant step backwards?

The House of Representatives yesterday (in an hour) passed the Freedom of Information Amendment (New Arrangements) Bill to disband the Office of Australian Information Commissioner with effect from 31 December. Opposition speakers Shadow Attorney Genereal Dreyfus, Sharon Claydon and Graham Perrett and The Greens Adam Bandt spoke against the bill, presaging a situation in the Senate where the cross benchers will decide its fate.

It should be opposed. 

The government's arguments for the initiative, on this occasion summarised by Parliamentary Secretary to the Minister for Communications Paul Fletcher, are weak, revolving around the claimed complexity of the system of review of FOI decisions and the need to simplify and streamline arrangements. 

No one on the government side has explained the leap from a shared view of many including the Australian Information Commissioner that some changes to the review system might overall be helpful to how abolishing the Office will "improve administrative efficiencies" and even more laughably, "reduce the burden on FOI applicants." 

As Adam Bandt (The Greens) said
"..this is not about addressing real issues in the system. It is not about addressing technical questions that have arisen during the brief operation of a system that may have had some flaws and may have introduced some level of complexity. Some might say it needs some tweaking. If that is the case then have a proper review of it and come back with some suggestions to make the system work better. Do not abolish it completely. That is the direction that this government is going."
Parliamentary Secretary Fletcher, apparently with a straight face, told the House the "Abbott government is strongly committed to transparent, accountable and open government." Mark Dreyfus more accurately captured the mood of many of us:
"Unsurprisingly, I regret to say, given its liking for secrecy the Abbott government is now seeking to abolish the Office of the Australian Information Commissioner and to introduce other measures to close the door on open government in our nation—and it is doing so without any mandate from the public that elected it. This is a government that wants to hide what it is doing from the Australian public and, when you look at what we do know about what the Abbott government is doing, you can see why they would want to be hiding. This government has been seeking to work in secrecy and to avoid its obligations under the existing FOI Act since it came to office."
As non government speakers pointed out, the just published OAIC annual report suggests some of the delay problems are dissipating:
In 2013-2014, the Information Commissioner indicated that many problems of backlog had been resolved and the office had improved response times despite a significantly increased workload. In his media statement releasing the annual report, the Australian Information Commissioner, Professor John McMillan AO, said: "The OAIC made excellent progress in resolving freedom of information (FOI) matters, completing 646 Information Commissioner reviews, an increase of 54% from last year. Another success was to reduce the time taken to commence work on new review applications, down from 206 to 40 days."

The OAIC also processed 2,456 extension of time requests and notifications and responded to 1,903 phone and written enquiries about FOI. This dramatic improvement is evidence that in just the first two years of operation the OAIC is making real progress in providing information to the Australian people and helping to ensure open and transparent government. (Sharon Claydon, ALP Newcastle)
No government speaker in the few words uttered to justify the initiative since the surprise announcement in May has mentioned the broader ramifications of disbanding the office.

As Adam Bandt said:
"What we did not hear in the minister's second reading speech was that the abolition of the office is going to remove the statutory monitor of compliance with the scheme. This is very significant. This is a seismic shift in how government decision makers think about the openness of their information. This is not something that ought to have been new to the Australian decision-making system. Back in 1995 the Australian Law Reform Commission recommended that we take action on this front. It took 15 years for the government to act. I commend the previous government for at least acting. Having taken that step that has been called for since 1995 and having had now a couple of years of operation of this, which is generally receiving positive comments, with the caveat that it should be given a bit more time to let it prove itself, the government is now taking us back to the situation before anyone took any steps at all. We are going to have a gap in our system and there will now not be an independent officer charged with driving that kind of accountability and transparency within the government. Similarly—and this was also not referred to—we are going to now not have an officer charged with that provision of strategic advice to the government on the broader questions of information management."
No one outside government was consulted before the May decision or since that I have heard. In the normal course of things a bill like this would be referred to a senate committee for report. Despite expected government howls that the legislation must pass and pass now, given the budget allocation for FOI related functions runs out at the end of December, non government senators should reject the bill or at least insist on a moment or so for close examination of an initiative that goes to central questions about the management of transparency accountability and open government. 

They'll find that apart from the broader world out there that sees the information/foi commissioner role as essential in any information access scheme worth its salt, Queensland, NSW, Victoria and Western Australia all operate versions of the system that the Federal government claims is overly complex and costly and must be disbanded.

How it might be best done is the question the government never asked.

Monday, October 27, 2014

WA Information Commissioner frowns on 'heads up' for ministers in advance of FOI decisions

Maybe there are many instances of agencies around the country that as a matter of routine report to their minister about freedom of information applications received and on hand, and give the minister's office a 'heads up' or more, an opportunity to 'comment', on decisions regarding access to particular documents.

On the last mentioned the Western Australian Information Commissioner in his 2013-2014 annual report said the law is pretty clear there: decisions on access to agency documents are for the agency, the agency alone and not the minister.  

While ministerial responsibility under the Westminster system means it is understandable that an agency would want to ensure that its minister is informed on agency operations, the implications of the legislated FOI differentiation between an agency and the minister are also clear:
"To avoid perceptions of inappropriate influence, it may be prudent not to brief a Minister on any individual matters until the agency has made a decision on access. Where the applicant is an individual, respect for that individual’s privacy would best be served by briefing the Minister in a way which does not disclose the identity of the access applicant. In any event, knowing the identity of the access applicant in a particular mattter is unlikely to assist the Minister discharge his or her executive responsibilities." (Full text below.)
This is along the lines of, but goes further than a protocol issued last year by the Queensland Information Commissioner. The protocol accepts that a reporting system may be established but the circumstances where briefing is required should be limited to where "this is relevant to the minister's responsibilities," and generally, where the giving of access to information requested" will require the minister or Department to prepare for public debate." According to the protocol, systems for reporting to the minister and the director general, where they exist, should be documented in a written policy, the policy must be made available for inspection under s 20 of the RTI act, and in the interests of transparency should be published on the Department’s website. (Anyone up north checked that out?)

The Queensland (and NSW) right to information legislation includes offence provisions for improper interference in decision making by any person. That might serve to limit the persuasiveness of any offered suggestions from on high and keep agency decisions at least in the general direction of the right track.

 Section 23 of the Federal FOI act which at least theoretically means the minister has the option to process any application received by the agency may change things a bit at the national level. (I can't recall it ever being publicly cited. Victoria has a similarly anachronistic provision.) 

But the Department of Prime Minister and Cabinet FOI Processing Milestones (pdf) (as they existed in 2013) leave you wondering why the PMO needs to be informed at every step of the way. My summary of the internal communication instructions:

1.  Every FOI request received is to be notified by email to: the Secretary of the Department; The Prime Minister's Office (Adviser on FOI); the First Assistant Secretary (relevant line area); the identified decision maker; and relevant contacts as identified by A&AR (eg FAS, Cabinet Division.) The email notification provides, among other things "an opportunity for the Secretary and PMO to indicate their interest in being engaged in consultations."
 2. As the process rolls on, "all internal parties (the Secretary, PM&C line areas, PMO, other ministerial offices in the portfolio) are consulted as appropriate.The Deputy Secretary and FAS of the line area should be kept consistently informed of all sensitivities."
3. As documents are gathered for decision "the decision maker must consider whether a brief on documents being considered for potential release should be provided to the Secretary to allow him an opportunity to provide comments or insights, prior to a decision being finalised." 

4. As the decision maker forms a clear view on information to be released, a number of further consultation steps are required including with the Secretary "if appropriate," and with the PMO which "should be given three days to provide final comment." 

5. "Three days before release, the decision maker should send a copy of the decision letter and documents for release to the Secretary with a noting brief advising of consultations and any sensitivities and email copies to the relevant Deputy Secretary, First Assistant secretary and PMO contact/s. If the Secretary hasn't been consulted previously and needs more time to review the documents it may be necessary to negotiate a brief extension of time with the applicant."

Some of those 'comments' if they are recorded might make interesting reading.

Then there is what we know about Immigration. The Cornall Report on FOI processing revealed that similar to the situation in Victoria, five days notice of decisions on access to non-personal documents is given to the minister's office. The Australian Information Commissioner noted in his report of an own motion investigation that the department advised that the process is so  the Minister's office "can understand the nature of the documents intended to be released and comment can be given" (emphasis added.)

As to other agencies,who knows?

In WA in any event agencies can see the Information Commissioner frowns on this.

The text of the WA annual report item follows