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Thursday, January 29, 2015

Tony Fitzgerald's prescription for good government

On ABC 7.30 last night Tony Fitzgerald who headed the inquiry into corruption in Queensland 25 years ago said the LNP Newman government represented the low point for best practice government in all the years since. 

Fitzgerald has written a more comprehensive critique on The Drum.

He has put forward four principles of good governance, now picked up by others as in this Open letter, asking political parties for a commitment and a clear explanation how they would be implemented if elected:
  1. Govern for the peace, welfare and good government of the State;
  2. Make all decisions and take all actions, including public appointments, in the public interest without regard to personal, party political or other immaterial considerations;
  3. Treat all people equally without permitting any person or corporation special access or influence; and
  4. Promptly and accurately inform the public of its reasons for all significant or potentially controversial decisions and actions. 
You might wonder where's the hard part here, but it was proving a big task for the LNP until Premier Newman murmured yes during last week's Leaders Debate.The implementation details are in short supply, surprise, surprise.

As Fitzgerald explained, the principles are simply asking politicians to behave democratically
"They're really requirements of what we call representative democracy, which is a system in which a parliament is elected to represent the people and to govern on behalf of the people. Whereas the political parties of today see it rather as a contest in which whichever one wins does pretty much what it likes. And so I suppose if we're ever going to get back to the proper representative democracy, it will have to come through pressure from the public to force the parties to acknowledge these requirements and it seemed appropriate in the present circumstances to start that pressure going forward."
Fitzgerald acknowledged the principles can't be legally enforced."To be held accountable, they can be held politically accountable." That's a collective responsibility for us at the ballot box and thereafter as well.

The Fitzgerald principles should be waved in front of contenders for political office at all levels of government starting with those contesting the NSW election in March. And before those already exercising legislative or executive power in the people's name.

For our government in Canberra, determinedly keeping its head down on the whole range of integrity, transparency and accountability issues except its plan to abolish the Office of Australian Information Commissioner, Fitzgerald had this to say about the need for a federal anti-corruption agency, something the government opposes:
I think it's self-evident. The people who go into State Parliament, who go into the major political parties are the same people who go into those parties and go into Federal Parliament. I don't think they're any different in one group or the other. They're people who, for one reason or other, are prepared to buckle down and do what the party wants, to advance the interests of the party, to advance the ideologies of the party and to advance their own interests. I can't understand why they'd be corrupt at one level - or be corruptible at one level and not at the other. So, that's not to say I know of any corruption in the federal system at the moment, but I'm pretty sure you'd find that if the digging started, there'd be bones at the bottom of the hole, you know.
Finally Fitzgerald on the skills and experience of the political class:
.. I'm concerned on a wide range of things about government in Australia, but in particular, the idea that the people who are now running politics are professional politicians, learning all the bad habits in political office. Nearly all members of Parliament now will have done a stint in the party office, a minister's offers or an associated entity's office. We need to get people who are independent, who've taken - who've learned and exercised values outside the political system. So that's my broad concern

Wednesday, January 28, 2015

OAIC continues to operate while bill to scrap it awaits the return of the Senate.

The Office of Australian Information Commissioner wouldn't be in business these days if the government had its way in the Senate late last year. 

But as the OAIC explains, it is soldiering on with reduced resources still in anticipation of closure because the bill to abolish the office remains on the Senate Notice Paper and Attorney General Brandis apparently intends to bring it on for debate after Parliament resumes on 9 February:
The Bill proposing the closure of the Office of the Australian Information Commissioner (OAIC) on 31 December 2015 was not considered before the end of the 2014 parliamentary sitting period. The OAIC continues to process Information Commissioner reviews and Extension of time applications. We are operating with reduced resources in anticipation of closure and we will continue to review our processes to provide a limited service within our reduced capacity.  The Commonwealth Ombudsman will continue to handle all FOI complaints. The OAIC continues to administer the Privacy Act 1988 (Cth) (Privacy Act).
Australian Information Commissioner Professor McMillan told Senate Estimates in December that the OAIC Canberra office had closed and he was working from home. The same day Freedom of Information Commissioner Dr Popple was appointed to the Administrative Appeals Tribunal from 1 January.

At that hearing it emerged the OAIC while it continued to operate had available the resources allocated in the budget including $1.4 million surplus from the first six months of operation, and around $2.7 million for the Privacy Commissioner for the second half of the year, funds that would transfer with those functions to the Australian Human Rights Commission if/when the amendment bill passed.

At the time AGD FAS Matt Minogue said the Department was in discussions with Professor McMillan as to how best to deal with the consequences arising from the fact the Bill had not been considered by the Senate. "(W)e are in discussion with Professor McMillan" about the best way to deal with external review mechanisms "given that it is not just the interests of the department or the office but the interests of applicants as well. And those conversations are continuing." He later referred to ongoing discussions about the retention by the OAIC of the surplus funds held by the Office as at 31 December 2014.

I lodged FOI applications today with Attorney General's and the OAIC for documents concerning these discussions including proposals for funding and staffing and any agreement or understanding reached on these and related matters. 

Disclosure would contribute to public discussion about an important topic, the exercise of citizen rights of access to government information. That's a weighty public interest consideration. Let's see what they say.

Friday, January 23, 2015

Justinian's take on AG's plan to take down OAIC

Richard Ackland in Justinian - News Desk Special Monday 19 January 2015.
(Republished with permission.)

FOI still wagging

The end of last year saw more hopelessness from AG Soapy Brandis.

He was supposed to guide through the Senate the Freedom of Information Amendment (New Arrangements) Bill, but failed to do so.

The legislation seeks to abolish the Office of the Australian Information Commissioner from January 1. Under the plan announced in the budget the AG's department is to take over the task of "guiding" FOI policy, while the AAT will handle merits reviews -  $861 fee for starters.

The Privacy Commissioner is to be transferred back, as an independent statutory officer, to the government's pet punching bag, the Australian Human Rights Commission.

This jiggery-pokery was said to save $10 million over four years.

The Bill passed the House in October and was sent to a hurried Senate committee inquiry, which reported on November 25.

There was a strong Labor and Greens minority report opposed to the government's changes, with the Coalition Senators waiving it through.

It never looked as though it was going to get the support of six crossbenchers consequently it didn't come on for debate.

Since the budget announcement the FOI side of the OAIC shop has been in wind down
mode. The commission had only been funded until December 31, but because the Bill did not pass it still has statutory responsibilities.

Soapy made no effort to sell the proposal, but probably will have a crack at using his magnificent persuasive powers in February to get the legislation through.

In the meantime, the FOI commissioner Dr James Popple has been appointed to the AAT.

According to Peter Timmins, the lawyer and blogger who follows these things, that leaves FOI law being overseen by one man working from home.

The whole thing is a frightful mess. The Information Commissioner Professor John McMillan told the senate committee:

"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."

Update: A shorter version appeared in Richard Ackland's Gadfly column in The Saturday Paper 24 January

Thursday, January 22, 2015

Amid the stench of political donations, a whiff of reform

 Well in some places at least.

You may have missed the final report delivered to NSW Premier Baird on 24 December on options for long term reform of political donations by a panel chaired by Dr Kerry Schott.

By Martin Kingsley from Melbourne, Australia (Cashmoney) [CC BY 2.0 (], via Wikimedia Commons
NSW already has the strictest election funding laws in Australia, but the report puts forward 50 recommendations for legislative change and a new more vigorous approach to implementation of the law and oversight by the regulator.

 Nicole Hasham in the Sydney Morning Herald said the report revealed 
"a political donations system riven with loopholes, weaknesses and corruption opportunities. ...The panel ... found "systemic failures" in laws that govern electoral funding disclosure, spending, caps and bans. It called for an immediate review. The archaic, paper-based system of delayed donation disclosures should be replaced by an online system where disclosures were made in real time, allowing meaningful scrutiny of potential relationships between donations and government decisions, the panel said.

No media release from the Premier accompanied publication but Hasham reports Premier Baird said "the government would consider the report and respond before the March election" adding that it "is understood that most recommendations will be supported."Nothing from Labor so far but NSW Greens welcomed most recommendations

NSW with an election on 28 March, ten Liberal members of parliament sidelined by the party because of revelations about breach of the donation rules as a result of revelations in ICAC last year, and Labor carrying the dead weight of former ministers Eddie Obeid and Ian McDonald, the integrity issue is unlikely to sink from sight in NSW as is the fate of most Christmas period releases. 

Some Schott recommendations are subject to the outcome and impact of a High Court decision later in the year in the McCloy case which is challenging an existing NSW prohibition on donations by developers.

That case has the potential to slow down national action on political donations also, something the Panel regards as essential for meaningful reform. (Alas the Federal government is yet to show a flicker of interest in this or anything else on the integrity front.)
As long as the rules governing political donations differ across Australia, there is a risk that any NSW law will be circumvented. The evidence brought to light by the ICAC in Operation Spicer shows how the lack of regulation of political donations at the federal level can be exploited to avoid the bans and caps on political donations that apply in New South Wales. We note that the Premier has recently introduced a new anti-circumvention provision targeted at those who deliberately seek to avoid the election finance laws, as recommended by the Panel in its Interim Report. The federal structure of some political parties creates opportunities for avoiding NSW restrictions on political donations. We believe that the Premier should support greater co-ordination of election funding laws across jurisdictions. A co-ordinated approach to disclosure would be a useful start. We recommend that the Premier seek to put the issue on the agenda at COAG. We also recommend that the Premier report to the NSW Parliament on progress against implementation of our recommendations, to ensure that the current momentum for change is maintained.
Labor and others are pushing integrity and accountability issues in the Queensland campaign leading to the election there on 31 January, just prior to this conference  on the subject in Brisbane on 9 February. Plenty of big donations are being accepted by the LNP Newman government from companies pushing controversial resource developments, caps on donations have been scrapped and disclosure thresholds increased twelvefold.

Unlike NSW and Queensland, Victoria does not regulate political donations and disclosure except for a cap of $50,000 on donations from casino proprietors. But on the good news side perhaps the Andrews government includes Special Minister of State Gavin Jennings listed third in the cabinet line up who will oversee government transparency, accountability, integrity and public sector administration and reform, supported by the Department of Premier and Cabinet.

In addition, the department portfolio now includes providing support in relation to the Auditor-General, the Commissioner for Privacy and Data Protection, the Freedom of Information Commissioner, the Independent Broad-based Anti-corruption Commission, the Local Government Investigations and Compliance Inspectorate, the Public Interest Monitor, the Victorian Electoral Commission, the Victorian Competition and Efficiency Commission, and the Victorian Inspectorate.

Political donations, lobbying, getting the BACC fit for purpose, and long overdue freedom of information reform have to be in there somewhere.

Friday, January 09, 2015

Timely reminder:“Democracy dies behind closed doors.”

David Cole, the Honorable George J. Mitchell Professor in Law and Public Policy at Georgetown University Law Center writing in The New York Review of Books reflects on drone strikes and surveillance, and given the incredible extension in what technology can deliver, the importance of transparency. 

Professor Cole while acknowledging secrecy is sometimes necessary, ticks various boxes about the extent to which a degree of forced transparency has had a subsequent restraining influence on US policy and programs, but needs to go further:
We won’t have a chance to arrive at defensible policies on surveillance and targeted killing if the questions are not fully and fairly debated. When the balance between individual rights and security is struck in secret one-sided determination, as has been the case with both drone killing and electronic surveillance, as well as the CIA’s enhanced interrogation program, it will inevitably be skewed. Increasingly, our governments seem to be insisting that our lives be transparent to them, while their policies remain hidden from us. For the sake of democracy itself, we must do all we can to resist that impulse.
Australian readers might ponder the situation here in light of this Business Insider list in June 2014 of what the world learned in a year of Snowden leaks.

We had or are having something of a debate about the powers given to Australian security services, metadata and data retention. 

But as Martin Place and Paris are sure to raise questions about the need for ever more information about all of us in the search for the deranged, driven and malevolent, let's plug for Professor Cole's full and fair debate. 

Something we missed here following revelations for example about Australian involvement in those drone strikes and the PRISM and XKeyscore programs, spying on our friends and in this case their lawyers, the shared arrangements we have entered into to pool information about citizens, and who here in government let alone the rest of us knows what is going on.

More from Professor Cole here:

Friday, January 02, 2015

Annual release of cabinet records - our ancient history not all fit for public consumption

The 1988-1989 cabinet records released on 1 January provide plenty of interest for the buffs and interesting pickings for the mainstream at a slow news time of the year.

As to the admittedly small amount of information still withheld after all these years, a plus that no document is withheld in its entirety.

But still plenty of room for head scratching.

What passes for usual (see last year), parts of various documents concerning Antarctica are withheld. All interested parties no doubt guess those parts don't sit well with our sovereignty claim. 

What officials judge shouldn't be revealed about what cabinet and senior officials knew then concerning the South Pacific, Papua New Guinea, Indonesia and China is another matter, probably to do with spooks and intelligence matters. 

Clearly that's the case with withheld parts of "People's Republic of China intelligence services activities in Australia" and "Eastern European and Cuban intelligence activities in Australia." As to the withheld part of the title of the submission "Measures to improve Australia's High Frequence (HF) Signal Intelligence Capability.." - any guesses?

Parts of submissions still relevant to the current Mr Fluffy asbestos problem in the ACT and NSW are disclosed but other parts of Memorandum 6034 and Submission 6037 on the subject are withheld for a range of reasons. Including yes, believe it or not, because of likely damage Australia's security, defence or international relations.  legal privilege not outweighed in the judgment of officials by the public interest in disclosure.

Parts of "Cape York spaceport – Commonwealth support" are withheld because of damage to security, defence or international relations.

You have to wonder at what point officials are comfortable for our ancient history to become our publicly known and acknowledged ancient history.

From National Archives Australia, the section dealing with withheld records:

Wednesday, December 24, 2014

Best wishes

"Sydney Opera House Night". Licensed under CC BY-SA 3.0 via Wikimedia Commons -

Whatever you celebrate at this time of the year!

Thanks to readers for your interest and hats off to those who stood and shouted in the right direction about the government plan to abolish the office of information commissioner. You helped slow and hopefully halt this backward step for open transparent and accountable government.

I have a drafts file with loads of things started but not finished so I'll be back sometime soon. In the meantime, all the best.

Tuesday, December 23, 2014

Union interest in FOI sparked by government plan to abolish office of information commissioner.

Tony Sheldon of the Transport Workers Union in an op ed in the Sydney Morning Herald yesterday mainly responded to an editorial that criticised the union over FOI applications seeking access to ministerial travel costs. But he also rightly labelled the government attempt to abolish the Office of Australian Information Commissioner "a blatant attack on the right to information now enjoyed by Australians."

My Letter to the Editor apparently hasn't made the cut, but for your edification:
Tony Sheldon ("FOI follies prove that the powerful hate disclosure" December 22) was on the money pointing out the folly in the government plan to abolish the Office Of Australian Information Commissioner.

Apart from shifting review of decisions to refuse access from the OAIC where it is free to the tribunal which will cost $861 as flag fall without a concession, the government would wipe entirely the role of the commissioner as the independent monitor, advocate and champion of open transparent and accountable government. On that journey we have a long way to go despite 30 years of trying to move in the right direction, boosted to a degree by the 2010 reforms that created the office that the government plans to abolish. The law reform commission had identified this as an impediment as long ago as 1995.

The commonwealth model that faces the chop is similar to that in place in Queensland, NSW Victoria, and Western Australia where no one is talking like this, and accords with international good practice, something the government ascribed to at the G 20 in Brisbane.

The government announced these plans in the budget in May, introduced the bill in October, but did not bring it on to a vote in the Senate because Labor, the greens and most if not all the cross benchers intended to vote against it, but by which time most FOI staff had left and the Canberra office closed.

It should use the break to consider how to improve the system. The first step is to adequately resource the office to provide immediate relief to that poor commissioner working alone at home.

Peter Timmins.

Potts Point 2011
Quite a few comments online include some that take issue with the union spending time and energy on FOI.

Interestingly the union movement was a strong advocate in the seventies for the introduction of an FOI act and part of the Freedom of Information Legislation Campaign Committee that pushed the issue along in those days.

Unfortunately the unions and business have played virtually no role since in the public discussion and debate about open transparent and accountable government. 

The bipartisan campaign for good government could do with a hand.

Human Services not alone in darting and weaving when it comes to FOI

The report by Australian Information Commissioner Professor McMillan of an investigation into the freedom of information processing practices at the Department of Human Services received a good going over in Fairfax Media ( Markus Mannheim), The Canberra Times (Noel Towell) and The Mandarin (David Donaldson). Understandably the focus is on shortcomings in how they do things there.

However the report is of wider significance. Professor McMillan said the
"findings should be heeded by all agencies. The FOI processing environment analysed in this report is not dissimilar to that in many agencies.
In October when the own motion investigation got underway, it must have looked like a last gasp for the commissioner given it coincided with the introduction of legislation to abolish his office. Contrary to these expectations it's still in existence if not in great shape.

The commissioner's findings of wide import include
  • in DHS and probably elsewhere there is resistance to and ignorance of the objective of the act to ‘facilitate and promote public access to information, promptly and at the lowest reasonable cost’ (s 3(4)). The Procedures Manual for use by staff in DHS does not refer to the objects, and FOI training materials detail the procedural and exemption provisions. Only the most recent training program dated August 2014 explicitly refers to the broader role of FOI and the objects thus "providing necessary context for the procedural and exemptions provisions."  The commissioner recommends a message from senior management to this effect. Presumably it hasn't occurred to anyone to convey the importance of FOI along these lines for yonks if at all.
  • the preoccupation with technical legal formality in interpreting and processing FOI requests. DHS has lawyers heaviliy involved in the process.
"A central purpose of FOI legislation is to facilitate prompt and inexpensive public access to government held information. The Commissioner is concerned that a legal and technical approach to FOI can be counterproductive by inhibiting the release of non-sensitive information, creating or extending disputes with clients, and increasing the cost of FOI administration. The department's focus on technical and legal compliance appears to be a significant cause of the rising review rate the department has experienced over the last three years. While a compliance focus may make decisions more defensible on review, combining it with an outcome-based focus is likely to reduce review rates." 
In responding to the department's view that FOI decision making is "a legal process" the Commissioner said
"FOI decision-making, like many functions of government, operates under statute. And the FOI Act confers important information access rights on members of the community that are legally enforceable. But that is not the whole picture. The FOI Act operates within and complements a broader service culture within government. Providing information upon request to members of the public must be informed by principles of legality, but it must also be guided by customer-service principles and the objects of the FOI Act that encourage public participation, scrutiny, discussion, comment and review of government activity. In a high volume decision-making environment where senior officers cannot review each action of every staff member, the principles expressed in policies, procedures and training will have an important and guiding influence. The Commissioner’s impression formed in this investigation is that the department’s approach has moved from a predominately pro-disclosure and outcome-based focus, towards an emphasis on technical and legal compliance."
(This post two years ago on why FOI shouldn't reside in the legal area followed disclosure of how Immigration processed FOI applications also with heavy reliance on lawyers. I've expressed the view previously that the information management environment (not that of spin or the law) where a public management/service to the public ethos prevails might be a better place to locate FOI than the legal area, the practice in many Federal and state government agencies.) 
  • small practical steps can make an important difference. The recommendations in this report contain many specific suggestions on how the department (and potentially other agencies) could improve FOI Act processing. They're mostly about adopting the revolutionary idea that a response to a request for information is a customer service issue.
  • performance measures are essential for gauging whether the reasonable expectations of FOI applicants are being met. In  DHS where the reported statistics turned out to be wrong there is a lot of sheltering behind the number of requests answered within the statutory time period. Period!

Wednesday, December 17, 2014

Privacy tort could enhance press freedom protection here, according to UK media law expert

Wikimedia Commons
Given the long concerted campaign by many media outlets led by The Australian (most recently here) to head off a privacy tort or cause of action, you're unlikely to see much of this in those pages.

From "Enhancing Press Freedom through Greater Privacy Law: A UK Perspective on an Australian Privacy Tort" by Associate Professor Paul Wragg, University of Leeds and Visiting Fellow at the University of Sydney, (Sydney Law Review Volume 36 No 4 December 2014):
"In light of previous inquiries identifying areas of concern in Australia’s privacy law provisions, the Australian Law Reform Commission (‘ALRC’) recently devised a new tort that, if implemented, would better protect individuals from serious invasions of privacy. Although the tort was designed principally with new technologies in mind, there has been vociferous concern that such a tort might unduly inhibit press freedom. This response is familiar to United Kingdom (‘UK’) commentators who have seen the press, in particular, react similarly to common law developments in privacy law. Yet that experience has not been entirely unfavourable to the UK press; indeed, the jurisprudence discloses a generous treatment of the term ‘public interest’, which has kept interference with press activity to a minimum. In light of the reference to press freedom within the ALRC’s proposed tort, and given the absence of an express constitutional provision protecting Australian press speech, this article argues that the UK experience shows how, counter-intuitively, the ALRC’s proposed tort could actually enhance, rather than diminish, press freedom protection in Australia. Consequently, it will be argued that the collectively dismissive response by the press to the ALRC’s inquiry represents a significant missed opportunity. As the ALRC warns, the common law may develop organically to better protect privacy interests. As will be argued, this prospect presents the obvious risk that press interests are not as fully protected as they would be under the ALRC’s proposals.
Dr Wragg dismisses as surprising, ill judged, difficult to fathom, out of touch with popular sentiment and detached from the reality of what is proposed, claims such as those made by News Corp Australia that "the threat to freedom of speech and communication posed by a cause of action, regardless of how it is structured, will undermine our ability to report in the public interest, to the detriment of the Australian public and Australia’s democracy."

However as privacy is one of those freedoms Attorney General Brandis doesn't talk much about, on this aspect is reported to have said "the Government has made it clear on numerous occasions that it does not support a tort of privacy" and the media generally rushes to close the book on the subject, the issue seems destined to remain in the lost cause vault.

Common law development is likely to be slow, contested but as Dr Wragg points out not necessarily to the media's liking.

While our two-soon to be one- national information commissioners battle on working from home....

The UK counterpart is subject to a triennial review, examining whether there is a continuing need for its functions and whether it should continue to operate in its current form; and in Canada the commissioner is under the hammer, although she still has an office to go to, support staff and a budget to get by somehow in the new year. 

On the other hand in New Zealand, the Chief Ombudsman, so far immune is picking up the pace, looking into how agencies and ministers deal with requests for information and asking ministers about 'unwritten' directions to the troops.

"As with all triennial reviews, the review of the Information Commissioner’s Office (ICO) will examine whether there is a continuing need for its functions and whether the organisation should continue to operate in its current form, considering whether services could be provided more effectively and efficiently. If it is determined that there is a continuing need for the organisation in its current form, the review will assess whether the ICO’s control and governance arrangements continue to meet the recognised principles of good corporate governance. The review will also consider the organisation’s structure, efficiency and performance."

(Something along those lines before he reached a conclusion to abolish the office might have helped Attorney General Brandis' case here. The only one to look, Dr Hawke concluded the Office was doing a good job.)

Vincent Gogolek writing in the Huffington Post Canada recounts testimony by the information commissioner to a parliamentary committee that the number of complaints her office receives from people being denied access to documents by the federal government has shot up 30 percent over the past year, and that her budget has been reduced by 11 percent over the past four years. Gogolek looks with dismay at the Australian government's attempt to abolish the office altogether, suggesting Canada might at least be confident that the government there wouldn't go that far in an election year.

New Zealand
The New Zealand Chief Ombudsman announced a major review of the practices of government agencies in processing Official Information Act requests, something the Australian Information Commissioneer didn't get around to in four years, although I expect funding constraints not the lack of concern about what goes on were responsible. The aim of the NZ project is to assess the quality and integrity of OIA practice across the public sector and to address any issues that are found.
“The effective operation of the OIA is crucial to our system of open and democratic government, and this review will scrutinise how things are currently operating and set out a framework for systemic improvement where deficiencies are identified.”
In this interview Dame Beverley said in recent months, there had been allegations in the media that OIA processes have been circumvented for a variety of reasons, and that had the potential to erode public confidence in the OIA throughout the core public sector.

Survey documents are going out including to ministers' offices. I liked this question:
Are there current or recent unwritten directives issued by the Minister or senior management to office or agency staff about the operation or implementation of the OIA (including guidance to an agency on notifying or consulting the Minister regarding OIA requests / proposed OIA responses / finalised OIA responses / Ombudsman investigations of OIA complaints)? If yes, please provide details.

Monday, December 15, 2014

CIA torture revelations reveal transparency and accountability differences as well

The redacted Executive Summary pdf (525 pages) "Study of the CIA's Detention and Interrogation Program, "describes in more than 500 pages a dysfunctional agency so unprepared to handle suspected terrorist detainees after 9/11, that the CIA bought into private contractors' proposals for torture, and then lied to Congress, President Bush, the Justice Department, the public, and to itself about the purported effectiveness of the program." (National Security Archive).

US reaction
" welcomes the long-overdue release of the Executive Summary of the (report). We were appalled by the 11th-hour attempt to intimidate Senator Feinstein and the Intelligence Committee out of releasing the report, and relieved that she resisted that pressure. The argument that government abuses cannot be revealed because of their severity is incompatible with the First Amendment, the rule of law, and accountable government.
As Senator Claire McCaskill said yesterday, this was “gut check time for our democracy.”’s Executive Director, Dr. Patrice McDermott, stated, “the suppression of the report would have ended the last, best hope of ending the unjustified secrecy regarding CIA torture. Instead, we have taken a meaningful first step towards restoring oversight and democratic accountability.”
 UK reaction
Tony Blair to face grilling over CIA torture as his own Labour party calls for evidence
Tony Blair and his former ministers face a grilling over what they knew about CIA torture as their own Labour party demanded they come clean. A chorus of senior Labour figures yesterday said the former Prime Minister along with Jack Straw and David Miliband should appear before the parliamentary committee examining whether Britain was complicit in the brutal US interrogation programme. It came as Sir Malcolm Rifkind, chairman of the Intelligence and Security Committee (ISC), gave the strongest signal that the trio would be called before him. But pressure was also growing for a full judicial public inquiry to investigate the claims...
Australian reaction
Professor George Williams Blood on many hands in CIA torture scandal
There is no suggestion that Australian officials used torture. Instead, we were complicit in the US torture program. In contrast to the UK, which successfully demanded the return of its citizens from Guantanamo Bay, Australia failed to take action to protect Habib and Hicks, despite emerging evidence of their mistreatment.  The problem was not merely one of silence and acquiescence. Australia's political leaders, including Prime Minister John Howard, were some of the strongest international supporters of US actions at Guantanamo Bay. Despite irrefutable evidence of what occurred there, this support has never been retracted.
In other nations, the harm done to citizens at the hands of the US has led to wide ranging inquiries. By contrast, Australia's leaders have shown no appetite to investigate these matters. Both sides of politics have resisted any inquiry that could determine whether Hicks was tortured, and whether Australian officials bear responsibility for the treatment of him and Habib.
America has a lot of soul-searching to do about its departure from the most basic standards of decency. We also need to come to terms with our involvement in these programs. It is past time that a judicial inquiry was held to ascertain how Habib and Hicks were treated, and whether any compensation is due to them. The public has a right to know the truth of what occurred, and to know that measures will be taken to ensure that our leaders do a better job of protecting Australian citizens in the future.

New call for more openness from former top public servant

Former head of Department of Prime Minister and Cabinet Terry Moran delivering the 'Weary' Dunlop lecture last week (The Mandarin)
We are also at risk of forgetting the value of disinterested public service advice to government. No one seriously believes that the public sector should be the only source of advice to government — and I doubt it ever really was. Greater scrutiny and contestability of the advice that departments provide to their ministers would be a good thing and New Zealand demonstrates just how far greater openness can go without destroying the Westminster system of government.

Terry Moran delivering a speech while Secretary Department of Prime Minister and Cabinet in 2009:
"The public service, Dr Shergold said, provides ministers, that is the executive government, with frank, fearless and robust policy advice — and it does so in a confidential manner. I believe, as does (predecessor) Peter, (Shergold) that the confidentiality of advice is critical to our ability to be professional."
Life long learning, a wonderful thing.

Thursday, December 11, 2014

Freedom of information law overseen by one or two men working from home

I thought my heading of the report of the Senate Estimates hearing "Government champion of open government reduced to working from home" clearly captured where openness and transparency rate with the Abbott government. Fairfax Media with "Freedom of information law overseen by one man working from home" and The Guardian "Freedom of information laws upheld by two men working from home" similarly saw this as the main take away.

It's two at the moment, soon to be one with the appointment of Freedom of Information Commissioner Dr Popple to the AAT from 1 January 2015.

Either way you cut it it's a disgrace.

Government champion of open government reduced to working from home

And the government plans at this stage to wait to see what happens to the Freedom of Information Amendment (New Arrangements) Bill when the Senate returns in February-the bill still "reflects the government's intentions."

No transcript available yet (update-transcript here) but this from the live broadcast of questions in Senate Estimates this morning, mostly asked by Labor's Senator Jacinta Collins:
  • the Canberra office of the Office of Australian Information Commissioner closed last week;
  • the Office continues to operate in 'awkward' circumstances to carry out its statutory functions;
  • the Australian Information Commissioner Professor McMillan and the Freedom of Information Commissioner Dr Popple are the only remaining Canberra based officers and are working from home;
  • there will at some point only be one as Attorney General Brandis announced that Dr Popple is being appointed to the AAT as a Senior Member;
  • there were 25 Canberra based staff at one stage. Total staffing now entirely Sydney based mainly dealing with privacy related matters but assisting the commissioners with FOI is 62. In July this year it was 79;
  • complaints about FOI administration are all being referred to the Ombudsman;
  • there are 200 plus FOI reviews still before the Office, with new review applications per month down from 55 in May to 21 in November;
  • following the announcement of closure in May, many review applicants were given the option to take a matter to the AAT. Some did, others didn't;
  • the Office since May adopted a more liberal practice regarding this option for media applicants. Not all wish to go down that path;
  • 80% of IC review applications historically are resolved by agreement shortly after receipt;
  • the Office is in discussion with AGD about the funding situation. Currently surplus funds of $1.4 million remain from the six month budget allocation for FOI functions, as does $3.3 million that would have gone to the Human Rights Commission on 1 January to fund relocated privacy commissioner functions remain with the OAIC;
  • the FOI amendment bill reflects government intentions. It is not appropriate to consider fully re-establishing the Office until such time as uncertainty is removed regarding passage of the bill when Parliament resumes in February;
  • when asked, Attorney General Brandis said the bill had not come on for Senate consideration before the adjournment because of the 'heavy legislative schedule' and competing priorities. When it was pointed out that the Senate only dealt with one bill on the last sitting day, he said that was for others to explain. (The unstated real reason of course was to avoid defeat on the floor of the Senate.);
  • the AGD took on notice questions about whether the commissioner model was international best practice or accepted as such by comparable jurisdictions. ( I can save them the trouble, in short it is an international trend, and yes.)
  • in response to questions about international best practice and the Open Government Partnership, AGD said this was 'entirely' a matter for Finance.

Wednesday, December 10, 2014

Chance for some probing questions about the OAIC

With Canberra fast approaching lock down Senate Estimates, underway since October, still has unfinished business.

The Senate Legal and Constitutional Affairs Legislation Committee will hold a hearing tomorrow on agencies in the Attorney General's portfolio including the Office of Australian Information Commissioner and the Attorney General's Department.

Great opportunity for questions about the government decision to close out the OAIC on 31 December, thwarted when the bill was not brought on for consideration in the final weeks of the sitting; what is being done to enable the office to continue from 1 January, the end of its budget allocation; and what the Attorney General meant by the statement this week from his office that the "Government is committed to implementing its budget measure to streamline arrangements for the exercise of privacy and freedom of information (FOI) functions."

And maybe some answers.

Broadcast on Channel 109/Radio 91.1 (in Parliament House) or

Freedom of Information Social Drinks, Sydney

If you were agitated, engaged or just concerned about the Federal Government's recent unsuccessful attempt to abolish the Office of Australian Information Commissioner, join a group of like minded for a drink and mix around, no formalities, before such thoughts are replaced by summer torpor.

The back room Woolpack Hotel, 229 Chalmers St Redfern, 6pm next Monday 15 December.

You can RSVP here, more privately by sending me an email or what the hell, just turn up, although the back room won't cope with hundreds and might struggle with 50, but we're sure to cope.

Thanks to Matthew Landauer and Henare Deegan of Open Australia Foundation for organising.

On the OAIC, some may not have seen the statement from the Attorney General's office that he intends running legislation next year to streamline FOI and privacy functions.

Tuesday, December 09, 2014

"Do you support the abolition of the Office of the Information Commissioner?"

iTnews is conducting a poll.

I wouldn't even try to influence your vote, just go ahead and do it.

Here and scroll down to Polls on the right hand side.

I think it conforms with democratic values - one vote one value.

They're also polling trust in privacy protection.

Monday, December 08, 2014

OAIC: Attorney General Brandis needs to wheel out the heart starter V2

Sorry folks, but in trying to update this page I lost the lot and can't seem to get it back!!! If you notice it floating around the blogosphere please send it home.

The updated summary is that the Office of Australian Information Commissioner will continue to operate after 1 January, obviously with some difficulty given the budget allocation is to 31 December, and most/many/ just about everyone in the non privacy part of the shop other than the commissioners have left the place. 

According to the OAIC website "We are liaising with the Australian Government about transition arrangements for freedom of information matters."

What really needs to happen is ithe OAIC is funded and put back in operation as quickly as possible to start to repair the damage done by seven months of uncertainty and turmoil since the announcement in May on Budget night of the plan to abolish the office. 

The government then dawdled until October to introduce legislation, and proceeded to plough on despite expert opinion never previously sought, and clear signs of formidable opposition that could prevent passage of the bill. Until the last week of parliamentary sittings when it chose not to bring the bill on for consideration in the Senate.

But iTnews reports
..mercy will likely be short lived for the agency, with the office of Attorney-General George Brandis today confirming to iTnews that the Coalition still intends to pass its bill in the new year. “The Government is committed to implementing its budget measure to streamline arrangements for the exercise of privacy and freedom of information (FOI) functions,” a spokesman for Brandis said.
"Streamline arrangements" should always be on the cards but the process should start with fact finding, evidence, consultation, and development of workable ideas and options, leading to a conclusion that is the best in the circumstances. That shouldn't be too hard to organise early next year as the first step perhaps in acting on the Hawke Review that sits untended in government intrays with a recommendation for a comprehensive review of the FOI act.

Surely the Attorney General intends to do more than simply change the date in the bill that failed to win support this time round? 

Friday, December 05, 2014

Office of information commissioner still ticking

And (finally?) to confirm, the Senate did not consider the Freedom of Information Amendment (New Arrangements) Bill before in the early hours of 5 December it adjourned until the end of February 2015. 

The bill would abolish the Office of Australian Information Commissioner, funded until 31 December, from 1 January 2015. 

A big job tidying up for all involved after someone's poorly conceived thought bubble that first appeared on Budget night in May; that led to legislation introduced in parliament in October but ran into stiff opposition from Labor, the Greens and crossbenchers; and finally sank from sight in the last frantic days of Senate sittings.