Parliament in top gear to protect its own from FOI scrutiny.

Government and Opposition senators were at one last night in voting to pass the Parliamentary Service Amendment (Freedom of Information) Bill to exempt from the Freedom of Information Act, the Department of Parliamentary Services, the Department of the House of Representatives and the Department of the Senate.The House had already passed the bill. As some legislation takes months or years to make it through this bill was supercharged, needing only one day in the House and two sitting days on the Senate bills list. The reasons advanced for the complete exemption from FOI  are totally unpersuasive.

Minister Senator Conroy for the Government, and Senator Scott Ryan for the Opposition were the only major party speakers. Both sang, albeit briefly and repetitively, from the same song sheet: legislation was necessary, presumably urgently, to restore the longstanding and previously understood position that the departments were not covered by the FOI act, that the discovery that they were covered had caused problems for the parliamentary librarian at least, that this issue be placed beyond doubt, and the move should be seen as an interim measure only.

All regardless of the fact that the terms of reference for the Hawke review of the operation of the FOI act include consideration of "the appropriateness of the range of agencies covered, either in part or in whole", Dr Hawke has completed the review and his report is expected shortly (Minister Conroy at one point, presumably by mistake said the report had been received) and that the three departments in a joint submission to the review did not argue for a complete exemption: 

As publicly resourced agencies, the parliamentary departments support the principle that the administrative documents of any taxpayer-funded agency should be open to scrutiny subject to any claim of appropriate immunity (which the FOI Act exemptions generally reflect).

Those points were put by The Greens Senator Rhiannon. 

Along with the more general argument that the accountability and transparency framework should apply to all government agencies in principle (and for anti-corruption purposes given the departments administer over $170 million in taxpayers funds); that some of this is spent on entitlements and support for members and senators; that FOI coverage of parliament is accepted in the UK, Scotland, South Africa, Scotland, India, Ireland, South Africa, Mexico and Tasmania; and that the Australian Law Reform Commission and former clerk of the Senate Harry Evans to name just two supported extension of the act to the departments. Then there's the Prime Minister's 2010 breezy, "let's draw back the curtains and let the sun shine in; let our parliament be more open than it ever was before.."

Given government and opposition unanimity on the issue it was destined to sail through the Senate.

The Greens senators, Senator Xenophon and the DLP Senator Madigan registered the only votes in support of a series of amendments proposed by Senator Rhiannon to try to salvage some element of credibility and a baseline for public trust in the parliament. 

But their 11 votes were no match for the combined 30 on the other side on each of these motions:
First shot:
That FOI coverage be limited to matters of an administrative nature, specifically:
a) statistical information about the activities of the Department; 

(b) information about the expenditure of public moneys; or

(c) information about payments to a Senator or member of the House of Representatives; or

(d) information about services and facilities provided to a Senator or member of the House of Representatives; or

(e) information about assets, resources, support systems and other administrative matters of the Department.

With all the things the government and opposition said they were worried about  also specifically excluded.

Hard to oppose? No, no dice.

Second shot: 
That the FOI act does not apply to any request for access  unless the document relates to matters of an administrative nature.

(2) For the avoidance of doubt, the reference to a document of an administrative nature  does not include research or advice provided to a Senator or a member of the House of Representatives by the Parliamentary Library.

A bit easier to support? No, no dice. 

Third shot:

That the Parliamentary Allowances Act be amended so that a member is only entitled to allowances if the member includes a link to the Department of Finance and Deregulation website in their biographical details on the Australian Parliament website; and the link directs the user to the individual expenditure report of that member.

Surely? No, no dice. 

At least on this one Minister Conroy acknowledged the amendments had merit, but "we believe they should be considered as part of a whole package and so we will not be supporting them."  

Three years ago the Belcher committee review of entitlements made many recommendations that dropped like a stone quickly thereafter including:

1. That the government’s decision to publish details of all expenditure on parliamentary entitlements administered by the Department of Finance and Deregulation be underpinned with a legislative basis.
2. That all senators and members be required to provide a link on their official parliamentary websites (at www.aph.gov.au) to their individual expenditure reports on the Finance website.
3. That the presiding officers be encouraged to publish on a regular basis details of expenditure on services and facilities provided to individual senators and members by the chamber departments.(Recommendation 11.)

As to when this or any parliament formed after the September election or beyond will return to the subject of this so-called interim measure, I won't be holding my breath.

Public confidence in politicians and parliament was at an all time low before this. To the extent the public come to know of this legislation, how low might it go?  

 

Rear guard rumbles over whistleblower protection

Rob Oakeshott sounded the alarm in Parliament late last night that the mix of years of enthusiasm and prevarication may come to nought unless the whistleblower protection bill progresses in these last two weeks of sittings. 

Will he be heard?

I rise tonight to talk about the Public Interest Disclosure Bill 2013 and trying to progress it over these final two weeks as a matter of priority and urgency. I am increasingly worried that we may not get there, for all the wrong reasons, such as senior executives within government potentially worrying that this is somehow an attack on them, is somehow going to encourage employees in the APS to run some sort of public sector revolution by leaking every single issue that they deal with, and in some way will lead to poorer government. On the contrary, the reason I rise tonight is to say that nothing could be further from the truth and to try and put in place some reminders about the first principles of the importance of whistleblowing reform for best practice within the public sector....

Oakeshott reiterated-if anyone was still wondering-the case for whistleblower protection, noting in addition, revelations in the US about PRISM:

That is of great concern and for that reason, as well as all the reasons of best standards within the public sector, we should not put ourselves in the position of just trusting government. We should invest in people as part of being government and by investing in people, through mechanisms like whistleblowing, we are doing the best that we can to minimise corruption and build a culture of a governance standard that taxpayers and Australian citizens quite rightly expect. My call tonight is to urge government to progress the public interest disclosure legislation. Do not let it lapse. This does matter. It is good practice. It sits well alongside existing reforms and it is a good opportunity to progress a long-lasting reform that really does matter.

Civil society engagement in G20.. and OGP as well?

With the chair of the G20 coming our way in September, welcome news yesterday that the Government is establishing the Australian Civil Society 20 (C20) Steering Group:

The Australian Government is strongly committed to ensuring that G20 deliberations in Australia next year are fully informed by the expertise and knowledge of civil society....
This year, Rev Costello and the C20 Steering Group will be engaging with Australian civil society, working closely with their counterparts in the C20 during Russia’s presidency, and developing a process that will facilitate effective and productive engagement between civil society and G20 leaders in 2014. The C20 must be civil society-owned and civil society-led...

The Group of 13 from across the CSO spectrum will be chaired by Tim Costello and includes Greg Thompson of Transparency International Australia.

In the light of this initiative, more than interesting to see what emerges as government seeks to engage civil society in development of Australia's National Action Plan, required in connection with our application to join the Open Government Partnership. The C20 initiative is recognition that more than consultation as per usual is required to fully realise the benefits of partnership and engagement in these endeavours.

Dr Hawke's FOI report may get lost in pre-election hubbub

My ears pricked up at the Privacy Reform and Compliance Forum in Sydney today when in answer to a question about the OAIC from the audience, Attorney General Dreyfus said in passing '"we are waiting for the report from Dr Hawke."

I had been working on the basis that Dr Hawke's report on the operation of the Freedom of Information Act had to be finished and the report submitted by 30 April and tabled in Parliament within 15 sitting days. In my mind this was any day in the next week or so.

Here is why. The text of the relevant section of the FOI act reads:
Review of operation of Act

             (1)  The Minister must cause a review of the operation of this Act to be undertaken.

             (2)  The review must:

             (a)  start 2 years after the commencement of this section; and

             (b)  be completed within 6 months.

Note:This section commences immediately after the commencement of section 3 of the Australian Information Commissioner Act 2010 .

             (3)  The Minister must cause a written report about the review to be prepared.

             (4)  The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives the report. 

But prompted by the Attorney General's comment, a close reading of the provision suggests the review must be completed within six months of commencement on 1 October, ie 30 April. 

However there is nothing that stipulates when the report must be submitted to the Attorney General thereafter.

It seems Dr Hawke has whatever time he likes or needs after completing the review, to write the report and hand it over to the Attorney General. Who then within 15 parliamentary sitting days must table it.

With Parliament to sit for eight days commencing on 17 June and perhaps not again before the September election, strictly speaking the Hawke report may not see the light of day until well after election day on 14 September.

Privacy cause of action: reference redux for ALRC

At 9 this morning I gave the Opening Address to the Privacy Reform and Compliance Forum in Sydney titled "Privacy Law Reform – Is that all there is?"

On the statutory cause of action for breach of privacy I said:

As part of the media reform package the Minister announced in March it was to be sent off to the ALRC, from whence it came, for further examination. Now presumed dead?  Not quite. But highly likely. Senator Brandis in a series of exchanges with Professor Croucher of the ALRC in Senate Estimates two weeks ago led with over 70 queries, corrections and challenges on where this stands at present. My short summary of all this:

'There has been discussion about terms of reference with the Attorney General's office and the Department in the context of the Commission's future work program; a draft or two was kicking around at some point; the reference may or may not eventuate, at the Attorney's call; and Professor Croucher is confident if it does, that it would involve more than simply a rerun of the same issue considered in detail in the Commission's 2008 report'...

I added:

Given the announcement last week of a new inquiry for the ALRC—a review of the Native Title Act 1993 -  and release of terms of reference for an inquiry into Legal Barriers for People with Disabilities, another ALRC look at this issue anytime soon seems long odds.  Ring Tom Waterhouse."

Great predictive powers! (Not).

At 10, Attorney General Dreyfus addressed the forum....
Announcing he has asked the Australian Law Reform Commission to conduct an inquiry into the protection of privacy in the digital era.The inquiry will address both prevention and remedies for serious invasions of privacy - a cause of action inquiry with digital age tags attached, if you like. In line with the intimation from Professor Croucher about the nature of any inquiry if the AG went ahead.

The inquiry isn't framed in terms of should we or shouldn't we - for this reason, sure to strike terror and alarm in Holt St-but to prepare a detailed legal design of a cause of action, among other innovative ways to address the problem of invasion of privacy in the digital age.

The commission has been asked for recommendations by June next year regarding:

1. Innovative ways in which law may reduce serious invasions of privacy in the digital era.
2. The necessity of balancing the value of privacy with other fundamental values including freedom of expression and open justice.
3. The detailed legal design of a statutory cause of action for serious invasions of privacy, including not limited to:
   1. legal thresholds
   2. the effect of the implied freedom of political communication
   3. jurisdiction
   4. fault elements
   5. proof of damages
   6. defences
   7. exemptions
   8. whether there should be a maximum award of damages
   9. whether there should be a limitation period
   10. whether the cause of action should be restricted to natural and living persons
   11. whether any common law causes of action should be abolished
   12. access to justice
   13. the availability of other court ordered remedies.
4. The nature and appropriateness of any other legal remedies for redress for serious invasions of privacy.

Australia, international relations and the OGP

Back in February I mentioned Samantha Power senior director for multilateral affairs and human rights in the White House had said President Obama has a personal interest in the Open Government Partnership initiative, having launched it in the UN General Assembly in 2011.

Power said at the time President Obama often brings the subject up, spontaneously, with foreign leaders and described the OGP as "President Obama’s signature governance initiative." 

I wondered if the Australian Embassy in Washington had twigged to this at a time when the issue of Australian membership of the OGP had disappeared off the radar and whether what Power had to say cut much ice in Foreign Affairs and Trade in Canberra.

Power is now the nominee for US Ambassador to the UN. Global Integrity describes Power as an architect of the OGP

A briefing note including some discussion points for the Australian Mission to the UN about our thoughts on the OGP now we have decided to join might be helpful when paths cross?

To quote Attorney General Dreyfus on the international dimension:

”Australia shares the values of the Open Government Partnership and we have a wealth of knowledge and experience to share with other nations in the partnership,” Mr Dreyfus said.
“We believe that greater openness and accountability in government promotes public participation in government processes and leads to better informed decision-making.
The Open Government Partnership provides an international forum for countries, civil society and the private sector to stand together to address the challenges of governance in the 21st century.....  
“Membership of the Open Government Partnership will complement Australia’s leadership internationally in promoting democracy, transparency and good governance,” Mr Dreyfus said. “It will also assist Australia to spread the values of transparency and accountability in our region.”

In Senate Estimates on  6 June Senator Faulkner asked DFAT about the OGP. They hardly sounded full bottle but the good news is that the department is "very supportive of the OGP."

The Hansard extract follows:

Australia's first shot at mandatory data breach notification

The Privacy Amendment (Privacy Alerts) Bill 2013 reached the second reading stage when introduced in Parliament last week but still has a way to go to get through the House and Senate. It has taken five and a bit years to get to this stage since legislation was recommended by the Australian Law Reform Commission. Hopefully the looming end of this parliament will be the prompt to passage not the cause of further delay. If passed the legislation will commence along with the broader reforms to the Privacy Act on 12 March 2014.

(Update: the bill passed second and third stages in the House on 6 June and is now before the Senate Legal and Constitutional Affairs Committee. In the second reading, Opposition front bencher Michael Keenan expressed support, reserving on amendments in the Senate and raised concerns about resources at the OAIC and the March 2014 start date for the reform package.)

The Attorney General in the second reading speech gave this broad overview:

The bill provides that when an agency or organisation has suffered a serious data breach, it must notify the affected individuals and the Australian Privacy Commissioner. Prompt notifications will allow individuals to take action to protect their personal information. Individuals will be able to reset passwords, cancel credit cards, improve their online security settings, and take other measures as they see fit. The notification requirement will provide an incentive to businesses to store information securely. No business wants a reputation for not keeping its customers' personal information safe.
Agencies and organisations will only have to provide notification of serious data breaches. A requirement to provide notification of all data breaches would impose an undue regulatory burden on businesses, and it would unnecessarily alarm many customers. The notification must include information such as a description of the breach, the kinds of information concerned, recommendations about steps that individuals should take, and contact details of the entity.
The bill provides that the commissioner may direct an agency or organisation to provide affected individuals with notification of a data breach. This is a necessary measure in cases where an agency or organisation is recalcitrant or has simply made the wrong decision.
The bill also contains public interest and law enforcement exceptions. These are necessary where there are countervailing interests that outweigh the need to inform individuals about the data breach.
Where there is a failure to comply with a notification requirement, all the commissioner's enforcement powers to investigate and make determinations will be available. This could result in personal and private apologies, compensation payments and enforceable undertakings.
In the case of serious or repeated noncompliance with notification requirements, this could lead to a civil penalty being imposed by a court.

I haven't seen anything from the Opposition, independents or The Greens. The Australian Privacy Commissioner welcomed the legislation. Publicly at least, responses from business have been hard to spot.  (Update: in the continuation of the second reading Labor backbencher Michelle Rowland said the bill had been "subject to consultation in a discussion paper in October 2012 with a number of key stakeholders" so don't know who that involved. Attorney General Dreyfus in summing up said the bill had the support of Microsoft, OzHub, the OAIC, Electronic Frontiers Australia and Choice, leaving unspoken the very big end of town.)

The bill doesn't measure up in a number of respects to what the Australian Privacy Foundation(pdf) advocates.

From a closer look at the bill:

NSW cabinet documents

Sean Nicholls in Fairfax papers on Saturday reminded NSW Premier O'Farrell of freedom of information commitments made in Opposition that haven't been heard of again in the two years since the government was elected:

... the ''proactive'' release of contemporary cabinet documents was a recommendation of a 2009 Ombudsman's inquiry into freedom of information laws. O'Farrell, as opposition leader, told parliament: ''The Coalition will implement the Ombudsman's recommendations regarding the proactive release of certain cabinet information.'' He also said: ''We believe that the quarantine period on cabinet documents should be reduced to the completion of two terms of Parliament - that is, eight years. In other words, we strongly believe that cabinet information should be out of the public domain for only eight years.''

NSW was first to put a 10 year limit on the application of the FOI act to cabinet documents way back in 1989. There things have stayed while Queensland, the ACT and South Australia have nudged a little further.

Bipartisan support for overkill, and a shared blindspot in quarantining parliament from FOI

Fairfax papers gave prominent coverage - "Secrecy law veils MP perks" the front page lead in the Sydney Morning Herald and elsewhere on Saturday - to the other result of the outbreak of bipartisanship in Canberra last week: legislating without dissent in  the House to exclude the departments that support the Parliament from the Freedom of Information Act

Not in the 11 minutes that it took to debate and pass the bill in the House last week, or elsewhere publicly since has there  been any attempt to explain why the legislation is needed now as an interim measure a year after the situation emerged. And with the report on the operation of the FOI act by Dr Hawke still under wraps but due to be tabled any day soon..

Nor why the exclusion is total and retrospective when in a joint submission to Dr Hawke, the three departments argued for less than what the bill gives. Simply for FOI coverage to be restricted to matters of an administrative nature , along with a few other specific amendments.

Something less than the proposed Government-Opposition complete FOI wipeout might be acceptable although you have to wonder how they've coped at Westminster with the full nelson for the last eight years (no, we know the answer, uncomfortably-see Robert Hazel), and in parliaments also subject to FOI in Scotland, Wales, Northern Ireland and elsewhere.

I'm wary of  the inclusion/exclusion "in relation to matter of an administrative nature" because these words used in a number of exemption provisions are being interpreted narrowly in the courts. Decisions regarding the Governor General's office and the FOI act for example in effect mean (paraphrasing) any document that relates to supporting, assisting, facilitating, or implementing what the Governor General does as part of her functions is beyond the reach of the FOI act. The Federal Court  in that case said the bright new shiny objects of the act were not relevant, so there was no leaning in favour of a broad interpretation of words such as this to assist the exercise of rights of access, and scrutiny of decision making. (There is an application for leave to appeal to the High Court awaiting to be heard.) 

A turf war over what "matter of an administrative nature" means in the context of the parliamentary departments is to be avoided. Certainly where payments to, for, in support of or on behalf of  parliamentarians are concerned.

A better approach if there is to be a carve out would be to legislate with some degree of specificity what is or isn't subject to the act . And ensuring payments to members and senators, and expenditure incurred in providing support are part of the publication requirement. Something recommended generally as a transparency initiative by the Belcher committee way back in 2010:

1. That the government’s decision to publish details of all expenditure on parliamentary entitlements administered by the Department of Finance and Deregulation be underpinned with a legislative basis.
2. That all senators and members be required to provide a link on their official parliamentary websites (at www.aph.gov.au) to their individual expenditure reports on the Finance website.
3. That the presiding officers be encouraged to publish on a regular basis details of expenditure on services and facilities provided to individual senators and members by the chamber departments.(Recommendation 11.)

Last time I looked two only of the many Belcher committee recommendations, and not No 11, had been acted upon.

Back to Parliament and the FOI act.....

In an interview on ABC Radio AM on Saturday Keith Breene asked what could be potentially hidden as a result of the FOI move:

PETER TIMMINS: Well, these three departments have an allocation of about $170 million-odd a year, so I guess like any government department there are important scrutiny issues about how government agencies go about making decisions, spending public money, letting contracts. In this case, some of this money is spent on our parliamentarians.

A lot of that information about their entitlements is published by the Department of Finance, but there are other payments made by the Department of the Senate and the Department of the House of Representatives to our parliamentarians, and I guess that's a bit of a strange anomaly in the system, that that should be given special protection by not being subject to the FOI Act.

KEITH BREENE: Are there any reasons apparent to you why these three departments should be treated differently to other parts of the Parliament or the government?

PETER TIMMINS: No, not really, and there's some very strong reasons why they should be subject to scrutiny. I mean, we live in a democratic society; in a democratic society, transparency and accountability are important values.

Public scrutiny is essential for anti-corruption purposes. The Government has on the record an open government declaration of 2010, and importantly, on the day that the Prime Minister formed government - Julia Gillard formed government in 2010 - she said that day, and I quote: "let's draw back the curtains and let the sun shine in, let our Parliament be more open than it ever was before."

So all this seems to be a rather strange move at this stage.

KEITH BREENE: And what do you think it says about the attitude of Parliament to openness generally?

PETER TIMMINS: I think it sends a pretty strong message that they'd like to leave things the way they used to be, and in the modern context, I think the demand for transparency and accountability runs quite counter to that idea.

This is the source of that quote from Prime Minister Gillard (7 September 2010) which reads

Throughout this process of forming a new government we've been open with the Australian people. To quote Rob Oakeshott, sunshine is the best disinfectant, and we've agreed to far-reaching reforms that make me as Prime Minister and our government and how it functions more accountable to the Australian people. So, let's draw back the curtains and let the sun shine in; let our parliament be more open than it ever was before. That's real reform, and that's the direct result of the election.

 The Prime Minister also said that day:

 Well this is an opportunity for the nation.. to listen to what the Australian electorate told us at this election. I've heard the message loud and clear. People do wanna (sic) see us more open, more accountable, more transparent. I am going to be held to higher standards of accountability than any Prime Minister in the modern age. I'm well aware of that, and I'm going to focus on being up to that challenge. And I'm also well aware that when we go to the polls next time in 2013, Australians are going to hold me to account and I wouldn't have it any other way.

Ah, those were the days:

AGD business as usual approach to OGP may not cut the mustard

It may have just been the end of a long day at Senate Estimates for the Attorney General's Department- 7pm by the time the Open Government Partnership cropped up. 

Officials may have been understandably tired and a bit short of briefing material and thinking time following the recent decision that Australia join and AGD carry the load.

However David Fredericks Deputy Secretary, Civil Justice and Legal Services Group who responded to questions hardly sounded brimming with enthusiasm or fully across some of the implications of signing on to a government-civil society partnership.

In response to questions from Senator Rhiannon, Mr Fredericks said no, there was no specific budget allocation for the OGP; staffing is yet to be sorted; and consultation on development of a national action plan would be as per the usual way AGD deals with stakeholders. But as to the detail, and content issues such as the Extractive Industries Transparency Initiative, it was too early to say. The Hansard extract appears below.

Fair enough on content, although AGD thinking on this front late last year was jumping ahead, narrow and limited in ambition. 

But on development of the National Action Plan, the OGP Articles of Governance include guidance that suggests something very different from business as usual consultation, at least of the dry as dust old-style kind we saw recently with the AGD supporting Dr Hawke's FOI review.

I'm sure Mr Fredericks has this back at the office. Other readers may find it of interest:

ADDENDUM C: GUIDELINES FOR PUBLIC CONSULTATION ON COUNTRY COMMITMENTS

OGP participating governments commit to developing their country action plans through a multi-stakeholder process, with the active engagement of citizens and civil society. Taking account of relevant national laws and policies, OGP participants agree to develop their country commitments according to the following principles:

• Countries are to make the details of their public consultation process and timeline

available (online at minimum) prior to the consultation, providing public notice at least two weeks in advance of any given consultation, to maximize public participation.

• Countries are to consult widely with the national community, including civil society and the private sector; seek out a diverse range of views and; make a summary of the public consultation and all individual written comment submissions available online

• Countries are to undertake OGP awareness raising activities to enhance public

participation in the consultation

• Countries are to consult the population with sufficient forewarning and through variety of mechanisms —including online and through in-person meetings— to ensure the accessibility of opportunities for citizens to engage

•Countries are to identify a forum to enable regular multi-stakeholder consultation on OGP implementation—this can be an existing entity or a new one.

Countries is (sic) to report on their consultation efforts as part of the self-assessment, and the independent reporting mechanism is to also examine the application of these principles in practice.

The Hansard extract follows:

Delays at OAIC amount to failure to deliver administrative justice

At Senate Estimates this week Australian Information Commissioner Professor John McMillan confirmed the sorry reality that faces those who seek review of decisions on Freedom of Information applications: the commitment to transparency and accountability is nothing more than rhetoric when resource constraints mean timely external review is simply not available.

Professor McMillan explained privacy complaints, FOI complaints and Information Commissioner reviews have been increasing by at least 10 per cent a year. When the proposals for FOI reform and the creation of the office were going through the parliament it was projected that the office would have 100 staff. Staff numbers are currently around 64 and will probably stabilise in the next financial year at around 70.

It takes roughly seven months to just designate someone in the office to undertake an FOI review and a lesser but still substantial period to allocate FOI and privacy complaints. Once allocated, time to completion varies but the longest unresolved cases are now over two years old.

While the backlog is reasonably steady at the moment, there are just over 400 Information Commissioner reviews that are unresolved.

This is not what was promised or expected. 

Dr Hawke's review report must be tabled within 15 sitting days of 31 April and is awaited with interest.

The Hansard extract  follows:

House passes legislation to remove parliamentary departments from FOI scrutiny

On the day the deal between the major parties on election funding started to unravel, another instance of hands across the aisle in common cause didn't encounter difficulty. The Parliamentary Service Amendment (Freedom of Information) Bill 2013  sailed through the House of Representatives yesterday in 11 minutes flat. Not a query or concern from any quarter. If they stick together the two major parties have the numbers to push this through the Senate.

The bill amends the Parliamentary Service Act 1999 to remove the parliamentary departments and office holders from the Freedom of Information Act 1982. Completely and retrospectively.

The Australian Information Commissioner in 2012 had issued guidance that the departments were agencies subject to FOI, and had been since 1999, something overlooked by all and sundry until the Commissioner dug deep.

So much for the accountability and transparency framework for the three departments that combined were allocated around $175 million in the Budget, and separately from entitlements paid to and on behalf of members and senators by the Department of Finance and Deregulation, spend a fair chunk of that on services for parliamentarians.

Leader of the House Albanese, and Bronwyn Bishop for the Opposition were the only speakers in the House.

The legislation and the speed and urgency attached to it despite a crammed legislative agenda was unexpected and came as a surprise to this outsider at least. In June last year then Attorney General Roxon mused about fixing "the anomaly" just as Fairfax Media was digging documents out through FOI from the Department of House of Representatives on then speaker Peter Slipper's expenses. That moment seemed to pass.

The issue then cropped up again late last year in the Hawke Review which received submissions on the subject. The terms of reference included examination of the scope of the act sufficient to cover this issue.  The report has been in the Attorney General's hands since the end of April and must be tabled soon.

Why the rush days before the Hawke report appears and a year after Professor McMillan published his finding?

Minister Albanese ran the line that action was warranted as the parliamentary departments "are now subject to an act which was not designed to take into account the constitutional position of the parliament." (Really? Tell it to Westminster. And there are plenty of other examples.)

The minister explained it was "an interim measure to preserve the right of the parliament to make a deliberate decision about the FOI status of the Department of the Senate, the Department of the House of Representatives and the Department of Parliamentary Services." An option for the future, the minister said, might be for FOI to apply to information held by the parliamentary departments on administrative matters but I'll bet any action to rewind the blanket exclusions is now way off in the distance.

The only specific concern raised was the need to place beyond doubt protection of confidential advice from the Parliamentary Library to members and senators, information reasonably well protected in any event by exemptions.

As to whether FOI scrutiny of these departments is warranted, in another context in February (and there appear to have been further significant positive chages since) Senator Faulkner said the Department of Parliamentary Services had been "the worst administered department I had seen in all my time in parliament, and I have had plenty of experience on both sides of the table and dealt with plenty of what I think might be inadequate administrative practices. Nothing comes close to what we were facing in the Department of Parliamentary Services. Yes, it has improved, and I think everyone on this side of the table is grateful for that, but there is still a very critical issue here about oversight and how we got to the situation that we did." 

And the arguments about why the parliamentary departments should be subject to FOI?

For starters, the fundamental importance of transparency and accountability in a democratic society, public scrutiny is an essential anti-corruption measure, the government's Open Government Declaration of 2010, and the Prime Minister's words that fateful September day:"let's draw back the curtains and let the sun shine in; let our parliament be more open than it ever was before."

Those who research and think about these things like the Australian Law Reform Commission recommended extending FOI to the parliamentary departments in1995; those who advocate best practice internationally think it's part of the package these days, and parliaments as varied as the UK and Mexico accept it.

As to the argument that there is something unique about extending FOI beyond the executive branch to government agencies that support the legislative arm, FOI since commencement has applied to the third arm of government, the courts, regarding matters of an administrative nature, and in addition to overseas jurisdictions, Tasmania enacted this in 2009.

Quite apart from the case for a high standard of transparency for payments by the parliamentary departments that go directly or indirectly to the benefit of parliamentarians, 700-800 public servants beaver away in these departments, carrying out the routine and not so routine public functions, the same or similar to counterparts in executive government agencies. The latter have been subject to FOI transparency obligations for the last 30 years. The former, knowingly for about a year, but that looks as if it is now coming to an end.

Surely the principle is same function, same public money, same transparency standard to apply?

Ah you've got to love them. 

(Update: Daniel Hurst, Fairfax Media 31 May.) 

(More in this later post.)

Mooted ALRC privacy cause of action inquiry not officially dead yet

On and on and on went the questions in Senate Estimates this week from Shadow Attorney Senator Brandis to Professor Croucher, President of the Australian Law Reform Commission, about the reference on a statutory cause of action for breach of privacy, announced in March as part of the media reform package, but before the package fell in a heap. I thought it had disappeared along with the rest. That still may be the case. The short summary from the Q&A:

there has been discussion about terms of reference with the Attorney General's office and the Department in the context of the Commission's future work program; a draft or two was kicking around at some point; the reference may or may not eventuate, at the Attorney's call; and Professor Croucher is confident if it does, that it would involve more than simply a rerun of the same issue considered in detail in the Commission's 2008 report.

You like me might find water torture creeping into your consciousness if you wade through the Hansard extract:

An email to my local member

 You too may feel this way -  get it off your chest. My email was headed Red hot.

Mr Turnbull,
Appalled at the deal on election funding and the half hearted "improvements" to the disclosure regime. John Faulkner's shame comment fits all party to this deal. Disclosures from business should be banned in exchange for public financing. If that's going too far, donations should be capped and all over $1000 disclosed in close to real time, not nine months later. Trust is hard won and easily lost. With tough times ahead it shouldn't be frittered away like this.
Peter Timmins.
Potts Point 2011.

Privacy no hindrance to CCTV camera go-ahead for NSW local councils

Filling the "loophole" that NSW Premier Barry O'Farrell and Attorney General Smith discovered as a result of the ADT decision that the operation of Shoalhaven Council's CCTV cameras breached aspects of privacy legislation turned into a reasonable size excavation instead. 

The Privacy and Personal Information Protection Amendment(CCTV) Regulation 2013 introduced to fix "the problem" digs another pothole in legislation riddled with them.

The Regulation exempts local councils from provisions of the Privacy and Personal Information Protection Act 1998 relating to:

• the collection of personal information, by using a CCTV camera installed for the purpose of filming in a public place if the camera is positioned so no other land is filmed (unless it is not reasonably practicable to avoid filming the other land when filming the public place)-Section 11; and
• the disclosure to the NSW Police Force of that information by way of live transmission-Section 18.

Local councils no longer have to take such steps as are reasonable in the circumstances to ensure the personal information collected in this way is relevant to the purpose of collection, is not excessive, but accurate, up to date and complete. Or worry at all about providing a live feed to the Police - who are not subject to the privacy act except in the exercise of their administrative and educative functions, and in the Shoalhaven case were shown not to comply with their own rules regarding access to the computer that received the feed at the local station.

The Greens unsuccessfully moved a disallowance motion in the Legislative Council yesterday (the hour long debate starts at page 5 of Hansard). 

Government and opposition speakers were heavy on the law enforcement and crime prevention benefits from allowing councils to operate CCTV largely unhindered by privacy act obligations. The Greens pointed to the absence of evidence, and the finding to this effect by the ADT, citing in support a letter from Parliamentary Secretary for Justice, David Clarke on behalf of the Attorney General recounting that the government had refused to fund cameras for a local council because "there is limited evidence to support CCTV as an effective crime prevention tool." 

David Shoebridge's concluding remarks captured it pretty well:

Of course there are circumstances where closed-circuit television is useful. For example, out the front of a licensed hotel where there have been instances of assault is a great spot to put high-quality closed-circuit television to identify miscreants. If people know they are going to be recorded closed-circuit television can be a deterrent but it can also assist police to gather evidence to nail people for crimes of violence in particular. It is also entirely appropriate to have them out the front of automatic teller machines if there has been a spate of violence or a robbery. High-quality closed-circuit television monitoring hot spots can have a valid use in fighting crime.

Its use would also be entirely appropriate in cases such as surveillance inside police cells and surveillance inside police stations where footage can be used to protect police from false claims and also to protect people from excessive violence by police. There are clearly cases where closed-circuit television has a valid use, but it is not valid to install second rate closed-circuit television cameras to cover public streets and effectively use them as a very poor sieve of people who go about their ordinary business. This issue is not about stopping councils from using closed-circuit television where it is appropriate, fit for purpose and where it serves a legitimate purpose. It is about making sure that local councils comply with the Privacy and Personal Information Protection Act, that if they roll out closed-circuit television and spend thousands and thousands of ratepayers' money, that it is fit for purpose, competent and addresses one of the core issues of local council. A merits hearing in the Administrative Decisions Tribunal determined that the cameras used by the Shoalhaven Council did none of that. Rather than improving the operation of the closed-circuit television cameras in Nowra, the Government moved to exempt all closed-circuit television operations from the Privacy and Personal Information Protection Act, which is poor public administration. It is a matter of not agreeing with the umpire's call and then changing the rules afterwards.

Lawyers Hunt & Hunt agree in this respect: 

... the Regulation was not required as the Tribunal found that Shoalhaven City Council did not comply with the PPIP Act. It failed to use the footage collected for law enforcement purposes and failed to monitor the security safeguards Shoalhaven City Council had in place to protect the personal information collected. All Shoalhaven City Council had to do was to get its own affairs in order to comply with the PPIP Act.

Privacy advocates point out that exceptions to the collection principle in s 11 are rare, and require a judgment that privacy intrusive practices are so beneficial that they should trump other considerations, with evidence lacking in this case. But are somewhat relieved the pothole isn't as big as it might have been.

As to available evidence about CCTV there is plenty out there -  case in point this from the Surveillance Studies Center at Queen's University in Canada.