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Thursday, May 28, 2015

Australian Information Commissioner tells Senate Estimates 'still working from home'

I only caught the end of Senate Estimates for the Office of Australian Information Commissioner so await the transcript with interest.

In the meantime have a read of this account from Markus Mannheim Public Service Editor The Canberra Times: Government denies starving FOI watchdog of funds even though he works from home. 

I tuned in in time to hear Commissioner John McMillan say the current situation was "awkward" and "undesirable."

Sean Parnell FOI Editor of The Australian tweeted McMillan was "too polite' in the circumstances and 'too diplomatic." I guess McMillan couldn't possibly say "shameful."

Wednesday, May 27, 2015

Former judges verdict: government handling of OAIC abolition breaches fiduciary duty, maybe the Constitution

Three former justices of the Victoria Supreme Court-Tim Smith, David Harper and Stephen Charles- writing in The Age describe as "deeply disturbing" the government's actions in sitting for seven months (and counting) on the bill in the Senate to abolish the Office of Australian Information Commissioner and not fully funding the statutory FOI functions of the office in the meantime. 

They also raise issues that go to government responsibility as our 'public trustee' and its obligations under the Constitution to give effect to the laws of the Commonwealth.

An extract:
 ....its fiduciary duty to us as our public trustee has been breached. That duty is to place the public interest first. Where now is the election commitment to increased transparency and accountability? Where now is last February's promise that "good government" has begun?

And what of its obligations under our constitution? The constitution (section 61) says the executive government's power extends to the "execution and maintenance of this constitution and of the laws of the Commonwealth". Accepting that "execution" means "giving effect to", what has in fact occurred is the opposite of "giving effect to" and of maintaining the laws of the Commonwealth. Where does the executive government claim to get the constitutional power to not only change a Commonwealth law but also do so in such a way as to effectively repeal it when it has no power to legislate? Under our constitution, that power rests with the Parliament. Accepting that proposition, on what basis may the actions of the executive government be said to have given effect to and maintained the constitution?


In addition, can the government claim that its conduct otherwise maintains the constitution? Does its conduct involve both a denial that it, the executive branch of government, is subject to the laws made by the Parliament and also a claim that it can act to alter the operation of the laws of the Parliament without its consent. If so, does that constitute a failure to honour and so maintain two fundamental principles that underpin our constitution and our democracy – the rule of law and the separation of powers?


These are all important questions that need to be asked and answered.


Let us hope that the Senate budget estimates this week will do so by shedding further light on the detail of what has occurred. Let us also hope it will reveal that the government has acted on a valid legal basis and what that is. Finally, let us hope that the government will also look afresh at the matter as public trustees should and give priority to the public interest by adequately funding the 2010 statutory system. For that will help to promote open government, help to deliver "good government", reduce the risk of corruption and assist economic growth.

 

Tuesday, May 26, 2015

Dreyfus calls on AG to end "lawless" behaviour: put bill to the vote or fully reinstate OAIC

Shadow Attorney General Mark Dreyfus speaking in the Adjournment debate in the House of Representatives last night on the government attempt to abolish the Office of Australian Information Commissioner, a decision announced in last year's budget, but stuck since October in the Senate without majority support.

He's right- it is well past time for this to be sorted.

An extract:
"....Ahead of the 2013 election, in its little blue pamphlet entitled Our Plan, the coalition promised that if elected it would:
            … restore accountability and improve transparency measures.
This, like so many others, is a promise that the Abbott government have broken. Without any review or consultation, the government announced in the 2014 budget that they would abolish the Office of the Australian Information Commissioner.

The OAIC is Australia's transparency watchdog. It oversees the FOI system, handles complaints and provides a cost-free, independent forum for appealing against government FOI decisions. The importance of such an independent body is obvious to anyone who cares about transparency and accountability in government, and the damage that would be done by the government's plan to abolish the OAIC is clear. The government would return oversight of the FOI system to the Attorney-General's own department, a department whose secretary proudly declared in Senate estimates last year that it took a 'hardball' approach to FOI requests.


The government would make the Administrative Appeals Tribunal the only avenue for appealing against unsatisfactory FOI decisions by government. Instead of the no-cost process offered under the OAIC, anyone who wants to challenge a refusal to release documents under FOI will now have to pay over $800 just to file their appeal in the AAT. Citizens will lose the expert support of the OAIC—a watchdog body designed to hold government to account—and instead have to navigate the full adversarial process of the tribunal themselves. Needless to say, this is a retrograde step from a government with no commitment to transparency or accountability—a government, in fact, which we can now see are deeply committed to secrecy, opacity and obfuscation. It is a proposal that Labor cannot and will not support.


We established the OAIC in fulfilment of our own election promise to improve transparency and accountability ahead of the 2007 election, and we still believe strongly in the need for an independent FOI watchdog. It seems that the Senate crossbench have come to the same view. Embarrassingly, more than a year after the government announced their plan to abolish the OAIC, and withdrew funding from the body, their legislation remains stalled in the Senate. In an incredible display of arrogance, however, the government have simply acted as if their bill has passed. Despite the clear failure in the parliament, in the recent 2015 budget they provided only a small sum of transitional funding to the OAIC to keep it just barely operational.


The OAIC has been stripped of staff; its statutory office holders are scarcely able to perform the responsibilities which the law still imposes on them. Unbelievably, it was revealed in Senate estimates, the Information Commissioner, Professor McMillan, has to work from home. The position of Freedom of Information Commissioner has sat vacant for almost six months now; the government have simply refused to honour their legal obligation to appoint a new office holder to replace Dr Popple, who left the position at the beginning of the year to take up another appointment.


The government have transferred complaint-handling functions to the ombudsman and policy functions to the Attorney-General's Department, despite the law still conferring those functions on the OAIC. This is lawless behaviour, and we should expect better from the Attorney-General, the first law officer of the Commonwealth. It is not for him to decide whether a statutory body is abolished or not. Under our Constitution, that is a power entrusted only to this parliament. He does not get to choose which laws to honour and which to ignore.


It is a sad irony that the government behaves in this way as they seek to abolish a body designed to uphold accountability in government. It is well past time for the government to admit that their attack on the OAIC has failed. The government should either bring their bill on for debate and a vote in the Senate, or uphold the existing law by fully reinstating the Office of the Australian Information Commissioner."

Monday, May 25, 2015

FOI and citizen rights suffer as tone at the top sends closed shop message


A series of developments send a message inconsistent with sentiments expressed by Senator Brandis in 2009 that Freedom of Information is vital to ensure that government remains open, responsible and accountable for its decisions. 

As the senator said at the time "the true measure of the openness and transparency of a government is found in its attitudes and actions when it comes to freedom of information."

Attitudes and actions worth noting include:

Item 
The Federal government sticks with its plan announced by Attorney General Brandis in May 2014 to abolish the Office of Australian Information Commissioner. In proposing a reallocation of functions the government makes no mention of the fact that FOI related roles such as oversight of freedom of information implementation and ongoing leadership of cultural change to encourage more open government are not re-assigned anywhere.

The bill has been on the Senate list since October and not brought forward for a vote apparently because of the absence of a majority in favour. 

With the axe hanging in the air since May 2014, funds allocated only to December 2014 in last year's budget and 'transitional funding' of $1.7 million for FOI this year, the OAIC continues to carry out FOI functions at a reduced level - for an unspecified period.

(The bill also abolishes the non-litigious free external merits review process for review of agency and ministerial FOI decisions, and moves this function exclusively to lawyers' territory at the AAT where the application fee for those who do not qualify for a concession is $861 at present and to rise in line with the CPI from 1 July; fractures the synergies established only four years ago between FOI, privacy and broader policy on information management in the digital age; and places the attorney general in the position of government wide influence on decision making through the issue of guidelines in the stead of the independent commissioner.)

Item
Public Service Commissioner John Lloyd claims FOI laws are "very pernicious", have gone beyond what was intended, and hopes government will do something about it.
(The Mandarin)

Item
Secretary of the Treasury John Fraser laments Freedom of Information has led the public service to greater reliance on oral communication in order to be candid. It's 'sad' he said, acknowledging "writing things down is a great discipline." (The Mandarin. Source here.)

Item
Secretary of Attorney General's Department Chris Moraitis  revealed:
"a surprisingly casual attitude towards creating and retaining records of important discussions with other senior public officials. Asked about a particular phone call with attorney-general George Brandis on February 2, and a meeting with Human Rights Commission president Gillian Triggs the following day, the obviously uncomfortable secretary said he took some notes of both but could not find them....He couldn’t recall what else was discussed in the hour-long meeting other than “a variety of issues”, even though it took place just weeks before the hearing. Triggs did not take notes either, and Moraitis did not ask her to endorse the accuracy of his. Under further grilling, Moraitis’ testimony became convoluted. A notepad became a couple of pieces of paper to jot down some points. At one point he told Labor senator Sarah Hanson-Young:
“I had those notes for a while and unfortunately I have travelled to three countries in two weeks and I have lost those notes, losing my briefcase by mistake. I am sorry.” He later said losing the briefcase was irrelevant; he took the notes out of it before going overseas and left them “somewhere where I have not been able to locate them”. Needless to say, it was not a good look.
(The Mandarin.)


Item
Anecdotal of course but agencies seem to be retreating on the transparency front. One indication is that some ( Finance, Veteran's Affairs, Health for example) are dragging out old favourites 'Frank and Candid' to argue that release of deliberative material will inhibit or compromise provision of advice in future, impact negatively on relations with the minister, or similar foreboding. Attorney General's in this example managed to soak up sixteen months with this line of argument before releasing most of the document when challenged. By that time it was three years old. They then opened up a new front - that attachments to the document were not part of the document they were willing to release- and alas, won.

It seems a far cry from the High Court 35 years ago in Commonwealth v Fairfax (1980) 147 CLR 39 per Mason J [51]:
it can scarcely be a relevant detriment to the government that publication of material concerning its actions will merely expose it to public discussion and criticism. It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticise government action.
And the comprehensive work-out Frank and Candid received in Deputy President Forgie's monumental  decision (in pre 2010 reform days) McKinnon v Secretary Prime Minister and Cabinet [2007] AATA 1969.

Almost six years ago,
 Senator Brandis said:
The coalition’s commitment to open, responsible government is well known. It was the Liberal Party which pioneered freedom of information legislation in Australia. The Freedom of Information Act.. is the act of a Liberal government—the Fraser government. It is a vital measure to ensure that government remains open, responsible and accountable for its decisions.....The true measure of the openness and transparency of a government is found in its attitudes and actions when it comes to freedom of information. Legislative amendments, when there is need for them, are fine, but governments with their control over the information in their possession can always find ways to work the legislation to slow or control disclosure. That is the practice we are seeing now under the Rudd government, whose heroic proclamations of commitment to freedom of information are falsified by the objective evidence of their practice.
Ministers in the Liberal government and senior public servants who read the message including between the lines and then contribute to the tone themselves, appear to have lost their voice on this topic.

They've also lost touch with:

The Freedom of Information Act
The Parliament intends, by these objects, to promote Australia's representative democracy by contributing towards the following: (a) increasing public participation in Government processes, with a view to promoting better-informed decision-making; (b)  increasing scrutiny, discussion, comment and review of the Government's activities.
 The Public Service Act and APS values
The APS is open and accountable to the Australian community under the law and within the framework of Ministerial responsibility.
The APS is apolitical and provides the Government with advice that is frank, honest, timely and based on the best available evidence.
The Australian Public Service Commissioner's Directions: 
Upholding the first mentioned value includes:
(b)  being open to scrutiny and being transparent in decision making;
(c)  being able to demonstrate that actions and decisions have been made with appropriate consideration;
(f)  being able to demonstrate clearly that resources have been used efficiently, effectively, economically and ethically;
Upholding the second includes
(d) understanding the needs of the Government and providing it with the best objective, non‑partisan advice based on the best evidence available;
(e) providing advice that is relevant and comprehensive, is not affected by fear of consequences, and does not withhold important facts or bad news;
 The Australian Public Service Commission elaboration in APS Values and Code in Practice:
Good advice from the APS is unbiased, evidence-based and objective. It is politically neutral but not naïve, and is developed and offered with an understanding of its implications and of the broader policy directions set by government.....
Good recordkeeping is also essential to accountability. All significant decisions or actions need to be documented to a standard that would withstand independent scrutiny. Proper recordkeeping allows others to understand the reasons why a decision was made or an action taken and can guide future decision makers....
Building and maintaining a constructive relationship with Ministers and their offices is a key responsibility of APS employees. Consistently working to the APS Values is crucial to such relationships, as are a sound appreciation of the respective roles and a spirit of cooperation and good communication....
Although not all communication needs to be written, it is good practice to provide advice on key issues in writing, addressed to the Minister. File notes on significant decisions should also be created and retained.
The Australian National Audit Office Better Practice Guide Public Sector Governance (Chapter 4)
Good records management ensures that decisions and the processes that lead to them can stand up to scrutiny. It is particularly important that accurate and relevant records are accessed and used when making decisions. An entity's records also reinforce the transparency and accountability of its activities, strengthening stakeholders' confidence in the entity. Effective records management practices can also strengthen an entity's ability to comply with obligations to respond to requests for information under the Freedom of Information Act 1982 and to manage personal information in accordance with the Privacy Act 1988.
To meet transparency and accountability obligations under the Public Service Act 1999, officials need to create records that document key decisions and actions in support of their entity's legal and business needs. For most Australian Government entities, requirements for the retention of public records are established under the Archives Act 1983. Each entity should establish robust systems and procedures to support good records management practices. 
The Australian Archives Managing Your Agency Records
When you create a record you are documenting your business. A record can be a range of different things: a map, written report, email, film or sound recording. The format of the record you create doesn't matter. What is important is that evidence of your activities is recorded in a way that supports your agency's business needs.
FOI needs positive words from the top
For example stamping all over the suggestion the FOI act is 'very pernicious.' No one in government has said a word since Lloyd's remarks in March.

As well as deeds consistent with the message:
An independent statutory office charged with oversight and leadership of the open transparent, accountable government cause.

And for the benefit of the Secretary of The Treasury and others, a public reminder that important aspects of the decision making process must be recorded, not communicated in whispers, chinese or otherwise.

Accompanied by a clarion call that Frank and Candid are not optional extras dependent on continuing secrecy but an expected element in communicating 'truth to power.'  

There may be compelling public interest considerations against FOI disclosure of certain documents at a particular time for example during the 'thinking space' before decisions are made.

However the prospect of scrutiny after the event and the reality that citizens exercise their right to know under the FOI act is not to be an impediment to providing advice of the requisite standard: frank, candid, relevant, comprehensive, not affected by fear of consequences, covering important facts and even bad news.


Friday, May 22, 2015

Victorian FOI Commissioner 'under investigation'

 This report in The Mandarin is all I know:

Secretary of the Department of Premier and Cabinet Chris Eccles  told the the Public Accounts and Estimates Committee:
“There were certain matters that were brought to my attention — and it’s not appropriate to disclose the detail — which I consider to be sufficiently serious to call upon the Public Service Commission to initiate an inquiry. “That inquiry is on foot, and the matter is before government.” A government spokesperson told The Mandarin: “The Secretary of the Department of Premier and Cabinet commissioned a review of the Office of the FOI Commissioner by the Victorian Public Sector Commission, after receiving certain allegations. The review was led by the former Public Sector Standards Commissioner, Mr Peter Allen. The review’s findings are currently under consideration by the Government.”

Tuesday, May 19, 2015

'Dire year' for press freedom in Australia but you won't read about it in the media

Two reports on press freedom -The Freedom House world wide Freedom of the Press 2015 Report and the Media, and the Entertainment & Arts Alliance (MEAA) 2015 annual report on the state of things in Australia Going After Whistleblowers, Going After Journalism  - present different assessments of the situation here reflecting differences in the depth of inquiry and when the surveys were undertaken.  

The Freedom House report provides a worldwide snapshot based on a survey undertaken last year. The MEAA report focuses on Australia with some coverage of the regional big picture, provides more comprehensive examination of issues and includes developments up to publication on 1 May. 

Freedom House concludes generally "conditions for media freedom deteriorated sharply in 2014 to their lowest point in more than 10 years." 

Australia is rated overall "Free" and receives a numerical score of 22 on a scale of 0 (the most free) to 100 (the least free), about where it has hovered since 2007. In the first survey in 1995 Australia's score was 7. There is no Australia country report.The score puts Australia at 31 in the global rankings (Report p 22). New Zealand with 19 points is at 26.

CEO Paul Murphy in the MEAA report describes "a dire 12 months for the state of press freedom in Australia." 

The report (in the first 47 pages) highlights concerns over the government’s three tranches of national security laws that were passed by the Parliament with by-partisan support, the failure to act to improve whistleblower protection, the undermining of journalist shield laws and Freedom of Information developments.

The section on Freedom of Information (p46) recounts matters raised in submissions to the Federal and NSW governments and reiterates the need for a comprehensive review of the kind Alan Hawke wasn't in a position to undertake.

Looking ahead the MEAA sees
The way forward from this point is a complete, comprehensive review of Australia’s counter-terror legislation and a concomitant review of Australia intelligence, surveillance and law enforcement agencies. The aim should be to introduce meaningful media exemptions from the excesses of these laws so that the vital work of public interest journalism can continue unheeded.

There must also be a rethinking of the role of public disclosure, freedom of information, open government and whistleblowers in our society so that these things are not feared, undermined and even attacked but are embraced as a necessary part of a healthy functioning democracy. To do otherwise means the war on journalism that has become a subset of the war on terror is fought and lost on the home front. And that is too dreadful an outcome to contemplate.” 
But if press coverage is any guide the media is struggling to get this message across. Two Australian outlets carried something about the Freedom House report but neither found the pages that included Australia's score or global ranking so this didn't get a mention in either. 

The MEAA report (dry as dust IMHO) attracted the attention of the Communist Party Of Australia Guardian but that seems to be it.

Maybe the woes of the media wouldn't have much impact on public thinking in any event given media types aren't rated highly.

In The Roy Morgan 2015 Survey of public opinion concerning ethics and honesty in the professions, Newspaper journalists came in at 19 of 30 ( rated highly by 18%), Talk back radio announcers at 21 (16%), and TV reporters 22 (15%).

At least ahead of State MPs 23 (14%) and Federal MPs 25 (13%).

Nurses as usual came in tops - 92%. 

Addendum: those reports don't feature but the SMH editorial "Free speech and democracy v metadata and Telstra" explains why it's not just journos who should be concerned about our metadata:
..the new laws give the authorities a comprehensive picture of the physical movements, interests, contacts, connections and digital trails of everyone in the country who has a smartphone or uses the internet. The implications are vast, and not just for private citizens who are uneasy about the potential for misuse of a vast digital dossier that collects their every move...
The Herald believes the new laws will have a chilling effect on public interest journalism which often relies upon leaks of government information by public servants. As it stands, whistleblowers have no protection at law, even when their leaks are indisputably in the public interest. Disclosing government information of any kind is a crime punishable with two years jail. Exposing official secrets will get you up to seven years. So whistleblowers, including those attempting to remedy official misdeeds, have only had the secrecy of their communications with journalists to protect them from prosecution.
Now, armed with straightforward access to two years of the communications data of everyone including public servants, MPs and journalists, the Australian Federal Police and related agencies will find it relatively simple to identify the source of leaks, effectively gagging bureaucrats who might otherwise have made significant revelations in the public interest. Waste, fraud, incompetence by public officials will go unexposed. Our democracy is much the poorer for it.

Thursday, May 14, 2015

FOI gets a run in debate on Tribunal Amalgamations bill; Senator Ludwig rides a hobby horse

Freedom of Information cropped up in debate in Parliament this week quite apart from mutterings in the corridors about the revelation in the Budget papers that the government in providing some funding for 2015-16 stands by its intention to proceed with the Freedom of Information Amendment (New Arrangements) Bill that would abolish the Office of Australian Information Commissioner.

Both houses passed the Tribunal Amalgamations Bill 2014. The bill's primary purpose is to merge the Social Security Appeals Tribunal, Migration Review Tribunal and Refugee Review Tribunal into the Administrative Appeals Tribunal. As a result of a Labor amendment the AAT as newly constituted will include a Freedom of Information Division.

And In a somewhat surprising choice of priorities given the FOI issues on the table or that
should be on the table, former minister now Labor back bencher Senator Joe Ludwig introduced a private members bill, the Freedom of Information Amendment (Requests and Reasons) Bill 2015. 

The bill would require government agencies and Ministers to publish online the exact wording of freedom of information requests and the statement of reasons for the decision to allow or refuse release, and require information in released documents to be available for downloading from the web. 

(Comment: Interesting, but not the top of my wishlist of reforms that parliament might consider. And if Senator Brandis who since October has baulked at bringing the bill to abolish the OAIC on for a vote in the Senate in light of its likely defeat, you have to wonder whether the combined forces of Labor, The Greens and the cross-bench might do him, the commissioners and staff and the rest of us a favour by moving the bill, voting it down and turning attention to ensuring executive government adequately funds the office that oversights parliament's FOI reforms of 2010. Whether Senator Ludwig's bill gets attention beyond the Second Reading speech remains to be seen.)

Australian Information Commissioner 
The bill to abolish the OAIC did come in for comment in debate on the tribunal bill in the Senate on Tuesday before the budget presentation that night and in the House on Wednesday, with Labor on both occasions affirming its opposition.

Senator Jacinta Collins said Labor moved the AAT FOI division amendment
to deal with the fallout from the government's Freedom of Information Amendment (New Arrangements) Bill 2014, which would abolish the Office of the Australian Information Commissioner and make the AAT the first port of call for those seeking independent review of FOI decisions. We oppose that bill and the crossbench opposes the bill. The government has been unable to explain, in the face of its failure to pass the ill-fated measure from last year's budget, how it will proceed. If the government is happy to undertake now that it will withdraw its freedom of information bill, the need for this amendment will fall way. But whilst the government persists with that bill this amendment is necessary. If the AAT is to be the main jurisdiction for handling FOI appeals, we must support the AAT to develop sufficient expertise, experience and specialisation in handling those matters. This amendment would go some way towards achieving that, though we are clear that the best case scenario is the withdrawal of the freedom of information bill itself
 Senator Brandis responded
The government is happy to support this amendment. We think it is not strictly necessary. What it does is establish in addition to the six core divisions of the tribunal an additional division dealing with Freedom of Information Act matters. Senator Collins refers to the government's proposal to abolish the Office of the Australian Information Commissioner. Although this is perhaps not the place to have that debate, can I respond to the observation you have made, Senator Collins, by pointing out the anomaly in the existing law that, unlike almost every other area of merits review, there was a double level of merits review in relation to FOI matters. If the government's other legislation would be passed, there would be a single level of merits review, and that merits review would be conducted by the AAT. You propose that there be an FOI division. We would have thought that that could be perfectly well accommodated within the general division of the AAT. Nevertheless, rather than have a fight about it, if you are of the view that there should be an FOI division, as well as the other six divisions, of the AAT, we are happy to support your proposal."
(Comment: As the Attorney General said this was not the place for the wider debate. But yes, the FOI merits review functions could do with some rethinking, something that shouldn't be left to those in the Attorney General's Department. However any changes that might be warranted could be achieved without removing from the scene entirely the independent monitor, champion and advocate for more open, transparent government; abolishing the non-litigious free external merits FOI review process, and moving this function exclusively to lawyers' territory at the AAT where the application fee for those who do not qualify for a concession is $861 at present and to rise in line with the CPI from 1 July; fracturing the synergies established only four years ago between FOI, privacy and broader policy on information management in the digital age; and placing the attorney general in the position of government wide influence on access decisions through the power to issue guidelines in the stead of the independent commissioner.)


In the House of Representatives on Wednesday Shadow Attorney General Dreyfus said:
Members will be aware that the government's Freedom of Information (New Arrangements) Bill 2014, presently in the Senate, would confer responsibility for determining disputes about FOI applications in the first instance on the AAT. At present, the specialist body the Office of the Australian Information Commissioner fulfils that role. We oppose that bill. It is nothing less than an attack on the FOI system, and the government has, thankfully, not been unable to pass it through the Senate. Embarrassingly, in the recent budget the government has been forced to reallocate funding to the Office of the Information Commissioner a year after announcing that office's abolition. Nonetheless, we want to take this opportunity to ensure that the AAT is better able to handle FOI disputes whether the government's FOI bill passes or not. Accordingly, we moved in the Senate to amend the bill to create a specialist division of the AAT to deal with FOI matters.
(Thanks Open Australia for the Hansard links.)

Wednesday, May 13, 2015

Budget allocates transitional cash to Office of Australian Information Commissioner

Enough to continue to carry out its Freedom of Information functions at a reduced level for a period at least. But the fine print reveals the government hasn't given up on plans to abolish the office.

You find nothing about the OAIC in the Attorney General's Media Statement on Budget Measures.

The Portfolio Budget Statement (pdf) reads as if the government has reversed the decision in last year's budget to abolish the office.

The PBS refers to the OAIC as is, outlining the freedom of information and privacy functions and explains (emphasis added):
In the 2014–15 Budget, the Australian Government announced that the OAIC would cease operation and new arrangements for privacy and FOI regulation would commence from 1 January 2015. The new arrangements included the establishment of an Office of the Privacy Commissioner; the right to external merits review of FOI decisions to lie directly with the Administrative Appeals Tribunal; and complaints about FOI administration to lie directly with the Commonwealth Ombudsman.
Funding transfers to other entities to facilitate these changed arrangements occurred as part of the 2014–15 Budget.
As the legislation giving effect to these changes has not passed Parliament, the OAIC remains responsible for privacy and FOI regulation. Additional resources will be provided to the OAIC for the exercise of FOI functions, and the funding appropriated to the Australian Human Rights Commission for privacy functions will instead be appropriated to the OAIC in 2015–16.
The allocation in 2015-16 is around $12 million, with average staffing of 72 compared to 64  in 2014-15.

There's a hint about the real situation in the fact that nothing is included in the forward estimates for the three subsequent years.

Over to Budget paper No 2 where we find 
"transitional funding of $1.7 million will be provided to the Office of the Australian Information Commissioner for its functions in 2015‑16, pending the implementation of the measure Smaller Government — Privacy and Freedom of Information functions — new arrangements." 
This is the bill that has been before the Senate since October. All the indications are that it does not enjoy majority support. (The Ministerial Paper on Smaller Government issued last December makes only a passing reference to legislation to 'divide' the office but no comfort from that. Monday's Smaller Government Reform agenda doesn't mention it at all)) 

The government plans to send the OAIC into 2015-16 with the same constraints and uncertainty that made 2014-15 a horror year. 

And a step backward in the long journey towards transparent accountable government.

Budget Paper No 2 also reveals:
  • an allocation of "$4.2 million over four years for the Privacy Commissioner to provide oversight of privacy implications arising from the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 and the Counter‑Terrorism Legislation Amendment (Foreign Fighters) Act 2014." 
  • an allocation of $254.7 million over four years from 2015‑16 to support the initial implementation of the Digital Transformation Agenda, which will deliver a better user experience for individuals and businesses engaging with government, reduce red tape and increase the efficiency of government service delivery. This measure includes the provision of $95.4 million over four years from 2015‑16 to establish the Digital Transformation Office (DTO) as a new Executive Agency within the Communications portfolio.
No mention anywhere of the Open Government Partnership. 

In tallying winners and losers from the budget, despite Minister Turnbull's hopes for the DTO, count open transparent government as a loss.

Media coverage:
 IT News

Social Media

My tweet in the early hours is also floating around out there with welcome retweets:

OAIC gets some petty cash while clings to bill to abolish the office












 

Monday, May 11, 2015

Victoria to rebrand FOI commissioner and extend powers.

In its first budget the Andrews government in Victoria transfers privacy regulation and the Freedom of Information Commissioner from Justice to the Premier's portfolio to be part of the Department of Premier and Cabinet Public Sector Integrity output. 

Special Minister of State Gavin Jennings in a Media Statement said
"The Budget also contains $15.9 million to establish and administer the Office of the Public Access Counsellor, which will support Victorians’ rights to access vital Government information previously hidden from view. The new, independent Office will maintain all existing powers of the Freedom Of Information Commissioner, and will gain the authority to review Departmental and Ministerial decisions, including those on the grounds of Cabinet-in-Confidence."
That $15.9 million is $16 million on page 92 of Budget Paper 3 and of course it's spread over four years.

The Counsellor will also set FOI professional standards currently set by the Attorney General.

Legislation will be necesssary to create the Office and confer powers. 


The Freedom of Information Commissioner's modest output measures are on page 309 of BP 3.

Here's what Labor said about this before last year's election “LABOR’S FOI CHANGES TO END NAPTHINE’S SECRET STATE”


The title 'Public Access Counsellor' is new here -  Illinois has the only one I could find.
Maybe someone's study tour included Chicago?

A comprehensive review of the Victorian FOI act - which shows all the signs of 1983 thinking - should be on the list of priorities but yet to hear anything along those lines.

Budget 2015-16: time to right the wrong of last year's attempt to abolish information commissioner

All eyes on Canberra and the budget on Tuesday night to see if 'good policy' and 'fairness' extend to ending the government attempt to abolish the Office of Australian Information Commissioner. 

And for signs after 18 months of mostly war on this front that the government can connect the dots to move ahead not backwards on open transparent and accountable government.

OAIC
The lack of evidence in support  of abolishing the OAIC was clear from the time the announcement was made a year ago, the government has produced none since and there is no majority in the Senate to pass the bill necessary to achieve its purpose.

 The Public Eye in The Canberra Times 7 April put it succinctly:
FOI farce drags on
What follows is not new news, but we note it precisely because there has been a despairing lack of news. It's been almost a year since the Abbott government announced it would abolish its information watchdog, and three months since its regular funding was scheduled to end. Nothing has happened. Information Commissioner Professor John McMillan's Canberra office has closed and most staff have left, but he continues to fulfil his statutory obligation to oversee freedom of information law, mostly from his home.

He was on leave when his office last fronted up to an estimates hearing, so Privacy Commissioner Tim Pilgrim had to explain that McMillan and a handful of staff were "triaging" FOI reviews to ration out their scant resources. "At the moment, we are working on the basis that we have, if I can put it this way, cash reserves to be able to maintain the status quo as we have it now, through for some months to come," Pilgrim said.

Attorney-General's Department executive Matt Minogue said last year that, if the bill to wind up McMillan's office and give his powers to other agencies did not gain Senate backing in February, "the government can make a decision in light of that". Time is well up. If there's no crossbench support for the bill, end the farce now and reinstate the office.
The Accountability Roundtable is among those looking forward to Attorney General Brandis getting things back on even keel. 

So too I imagine the thirty-five information commissioners from 25 countries meeting in Santiago, Chile last month who “expressed concern” regarding challenges to the right to information including the lack of adequate funding, support and maintenance of the organs of supervision. (Thanks Freedominfo.org

Open government in the digital age
The budget will include funding for the Digital Transformation Office in the Communications portfolio.

Minister Turnbull in a speech last week spoke about our big picture intentions:
We should aim to become the world's leading digital economy.....
Governments across the world are at varying stages of their digital transformations so the DTO has an opportunity to collaborate with the world’s leading digital economies. These include, but are by no means limited to the D5 - Estonia, Israel, New Zealand, South Korea and the UK, as well as state and local governments in Australia. I have spoken to Victor Dominello, the NSW Minister for Innovation, and we’re on a unity ticket on the need to collaborate. We will also make myGov available to all other state and local governments at no cost, other than those associated with the initial onboarding.
The DTO, and all other parts of government for that matter, should never be arrogant enough to believe that Canberra has all the answers.

The movers and shakers in this field are all members of the Open Government Partnership including all nine countries ranked above Australia (10th) in the World Wide Web Foundation Open Government Index 2015-UK, US, Sweden, France, New Zealand, Netherlands, Canada, Norway and Denmark.
 
 
A government serious about such things must quit dithering about joining and fully participating in the OGP. We were asked to join almost four years ago but Finance Minister Cormann has said for over a year the Abbott government is still 'considering.' 

In an opinion piece in The Australian recently Minister Turnbull said Australia would join the D5.

The D5 Charter (pdf) at 3.5 requires members to belong to the OGP. 

Signs in the budget of reaffirmation of the importance of the OAIC and a commitment to participation in the OGP would be timely welcome indications that the dots on the way to more open transparent government have been joined.

Tuesday, April 28, 2015

Vietnam vet with a good cause enters difficult territory with broad FOI applications

In Q&A on ABC last night questions were raised about government policy regarding veterans pensions, drawing acknowledgement from panelists including former Deputy Prime Minister Tim Fisher that more has to be done to get things right. 

As reported in The Australian Vietnam veteran Don Tate also "questioned the faith Australians could place in accounts of the nation’s military history. He claimed a number of omissions by The Australian War Memorial, including the existence of one platoon he fought in, had led to further stress over the subsequent years."
Private Don Tate, Vietnam-ABC 7.30 Report

Mr Tate referred to Administrative Appeals Tribunal Freedom of Information proceedings in which the Australian War Memorial refused him access to information sought about the "D&E Platoon” in which he served, and claims by others in the light of the secrecy that he had lied about his participation in the Vietnam War.

The decision he referred to is Tate and Director Australian War Memorial [2015] AATA 107
handed down by Deputy President Tamberlin in February. 

The Tribunal upheld the agency decision that the work involved in dealing with two applications by Mr Tate would involve substantial and unreasonable diversion of resources. The evidence was that one application would require at least 150 hours of processing time after taking into account the work involved in producing 90 documents already furnished to the Applicant and at least 48 hours for the second application.

(The issue about the D&E platoon seems to be whether it existed as a discrete unit. It has been widely canvassed previously.)

I'm sympathetic to Mr Tate's cause, the more so as he represented himself in the case, up against the Australian Government Solicitor's office, but the Tribunal decision on substantial and unreasonable diversion of resources appears sound. 

All inclusive applications unbounded by time periods such as these (see below) will always raise the substantial and unreasonable diversion of resources question. Mr Tate declined the opportunity to narrow his applications other than exclude his own correspondence when properly consulted about ways the requests might be revised in an attempt to remove the practical refusal reason.

The FOI act (s 24AA (3)) provides that in deciding such matters no regard is to be had to any reasons that the applicant gives for requesting access so Mr Tate's submissions in this regard were not considered.

Here are examples of how to run into difficulty if FOI requests are framed in the broadest catch all terms, difficulties that arise even before the agency dives into the exemption provisions:

Thursday, April 23, 2015

They'll be talking about Australia at two international conferences this week

But it's unlikely to extend to praise or admiration for leadership and performance in the open, transparent and accountable government space.

On the contrary the lead question when Australia is mentioned at the Open Government Partnership Steering Committee Meeting in Mexico will be "what's going on down there?" And at the Ninth International Conference of Information Commissioners in Chile, "where are they?"

Australia's dithering about membership of the OGP won't escape attention at the meeting in Mexico.

And those attending the information commissioners gathering in Chile are certain to be puzzled at the absence of anyone from the Office of Australian Information Commissioner, let alone the explanation: that the government has been unsuccessful in achieving its plan announced last year to abolish the office with the bill stuck in the Senate without majority support since October, and that the freedom of information functions of the office have been unfunded since 1 January.

Open Government Partnership
At the OGP Steering Committee Meeting in Mexico, a ministerial level meeting from 21-23 April, the agenda item Criteria & Standards includes discussion of a proposal clarifying OGP rules on how to deal with delays in developing new Action Plans. The proposal looks into what should be done where countries do not meet OGP process requirements.  

A related agenda item is an update on several countries, including those that received letters at the end of last year for being late with their Action Plans.

Australia is one of these countries.

The OGP Support Unit wrote to the Department of Finance in November last year pointing out that Australia had acted contrary to the OGP process in failing to meet deadlines for lodgement of a national action plan.

In March Finance Minister Cormann told a Senate committee the government was 'positively inclined' to join the OGP but the minister stuck to the still under consideration line.

For those like Prime Minister Abbott who aspire to 'good government' OGP membership and participation should be a walk up. After all
"The Open Government Partnership (OGP) is a multi- stakeholder initiative focused on improving government transparency, accountability and responsiveness to citizens. OGP brings together government and civil society champions of reform who recognize that governments are much more likely to be effective and credible if they open their doors to public input and oversight."
Sixty four countries have joined the OGP or are in the process of doing so. Australia was invited to join in September 2011. OGP countries represent one third of the world’s population and have made more than 2,000 open government reform commitments.

Documents (pdf) released under Freedom of Information reveal Prime Minister Abbott in October last year wanted to see the detail of what Australia might commit to in a national action plan before deciding whether Australia should join the OGP.

In a letter to Finance Minister Cormann, Prime Minister Abbott instructed that no announcement of Australia's position on the OGP should be made "until a draft national action plan is submitted for my consideration. The action plan must give effect to practical measures that align with the Government's overall policy objectives in this area and that take into account the work of the (Redacted: s 34(3) Cabinet) and the timeframes for Government decisions on that work."

A brief to Minister Cormann advised that Finance had commenced work on a draft plan scheduled for completion by the end of November, Finance in March refused access to the draft plan citing those great old time APS support players "Frank and Candid" who are getting a heavy workout in agencies these days.

The redacted words in the PM's letter and the briefing note might refer to work that led to the announcement by the Prime Minister and Minister for Communications Turnbull in January of the intention to establish the Digital Transformation Office. Minister Turnbull in launching the office two weeks ago reaffirmed "one of the commitments of our government is greater transparency and accountability" and in answer to a question said Australia intended to reach out globally for ideas and to assist others. He later indicated Australia would join the D5. 

The D5 is a network-United Kingdom, South Korea, Estonia, Israel and New Zealand- that will "meet annually to work together and showcase the best digital government activity around the world."All D5 countries are members of the OGP. (Update: it's no accident. Thanks to the NZ reader who points out the D5 Charter (pdf) at 3.5) requires members to belong to the OGP.)

In fact the movers and shakers in this field are all members of the OGP including all nine countries ranked above Australia (10th) in the World Wide Web Foundation Open Government Index 2015-UK, US, Sweden, France, New Zealand, Netherlands, Canada, Norway and Denmark.

Membership and participation in the OGP and a genuine partnership in developing a national action plan that results in commitment to improved transparency, more open government and increased citizen participation should be high on the government's 'good government' list.

Information Commissioners.
But that list shouldn't include abolishing the Office of Australian Information Commissioner, a move out of step with best practice internationally and among the Australian states and territories. 

The Federal government's unprecedented plan will be a talking point in Chile on 22-23 April where one of the topics for discussion is “Access to Information Enforcement Bodies: Institutional Design, Jurisprudence and International Exchanges.”

If anyone's there from the Information and Privacy Commission NSW, the Office of the Information Commissioner QLD, the Freedom of Information Commission Victoria, the Office of the Information Commissioner WA, or the Office of the Information Commissioner NT, maybe they can give Federal Attorney General Brandis a short summary of best practice on return. 

It won't include removing the independent office that oversights FOI, undertakes non litigious review of agency decisions and champions transparent, accountable, open government.

Ditching the bill, and adequately funding the office while engaging minds inside and outside government on how to deliver the goods in an efficient and effective manner should be the next step in this ill fated saga.