Open and Shut

FOI transparency and accountability for parliamentary departments an "anomaly"?

2012-05-30T10:36:00.002+10:00

Well, according to the Attorney General, it seems so.

Sean Parnell reports in The Australian today that the departments of the House of Representatives, the Senate, and parliamentary services are understood to have challenged the OAIC interpretation that they are subject to the Freedom of Information Act, have taken the issue up with Attorney General Roxon, and that she supports their view that the act was not intended to extend to these bodies:

"It has been long-accepted practice that the parliamentary departments are exempt from FOI," a spokesman for Ms Roxon said yesterday. "The government is currently considering its options to correct this anomaly."

This will be interesting, at a time when regard for politicians and parliament is at a low ebb, and "integrity" in public life in some respects at least seems missing in action. And when parliamentarians are only asked "voluntarily" to certify that use of entitlements is in accordance with the rules, and 52 still haven't done so for the period January-June last year.

The Greens Senator Rhiannon has fired off a media release this morning expressing concern about what may be coming:

“Public money is what keeps the House of Representative and the Senate functioning and the public have a right to know how that money is spent. Parliament should not be beyond the reach of FOI...“Greater disclosure of the workings of parliament and the work of MPs is critical to a healthy democracy...“The Australian Greens have welcomed the news that the Australian Information Commissioner has found that parliament is subject to FOI laws, and that has been the case for the past decade...“While it is good news that the FOI laws apply to parliament, the information still needs to be made more accessible for the public. All parliamentary department websites should include up to date, easily searchable records of expenditure by MPs,” Senator Rhiannon said.

Couldn't agree more-that raises the unacted upon recommendations of the Belcher committee report as well.

But of course all it needs is for the major parties simply to vote together to amend the law to put the parliamentary departments beyond the reach of the FOI act. The opposition when in government between 1996 and 2007 did nothing to advance openness, but are yet to say anything on this one.

However while the OAIC opinion came as a surprise, arguing that the parliamentary departments should be exempt from FOI should require at least passing attention to the following:

1. The Australian Law Reform Commission recommendation in Report 77, December 1995, that the parliamentary departments be made subject to the FOI Act. The relevant section of the report reads:

1.8 The parliamentary departments are currently excluded from the coverage of the FOI Act.[23] In 1979 the Senate Standing Committee expressed the view that the 'parliamentary departments should be encouraged to act as if the legislation were applicable to them'.[24] DP 59 proposed that the parliamentary departments should be brought within the scope of the FOI Act on the basis that documents that warrant protection would be adequately protected by the exemption provisions, for example s 46 (parliamentary privilege).[25] A number of submissions, including that of the Clerk of the Senate, support the proposal.[26] The Department of the Senate has, in any case, always acted as though it were subject to the FOI Act, releasing documents unless they would have fallen within an exemption. In contrast the Department of Parliamentary Reporting Staff considers that it should remain outside the Act because it does not have a public policy role or provide services to the public. It claims that extending the FOI Act to the parliamentary departments could expose them to lengthy and costly legal challenges in respect of material they would claim to be exempt under s 46.[27] The Department of the Parliamentary Librarian also opposes extending the Act to the parliamentary departments for similar reasons.[28] The Review is not persuaded by these arguments. It remains convinced, particularly in light of the experience of the Department of the Senate, that there is no justification for the parliamentary departments to be excluded from the Act and that being subject to the Act will not cause any greater inconvenience for them than is caused to other agencies subject to the Act. Accordingly, it recommends that the parliamentary departments be made subject to the FOI Act.

2. Why the law should apply to the executive and judicial branch (in respect of matters of an administrative nature) but not the agencies that support the work of the legislative branch.

3. Why the Federal Parliament should remain outside the act while one jurisdiction that engaged in a wholesale review of the kind yet to be undertaken in Canberra, Tasmania, extended its act to cover state parliament on matters of an administrative nature.

4. Why the parliament should be excluded while respected bodies that promote accountability and transparency internationally such as the Carter Center advocate as a standard that all three branches of government should be subject to FOI law. The Australian FOI act was marked down on this in an international survey last year that saw it ranked 39 of 89 laws examined. And why in contrast to the home of Westminster, and elsewhere where parliaments are covered, our's should be beyond the scope of FOI.

5. Why expenditure by parliamentary departments of funds allocated or administered on behalf of other agencies, around $230 million in this year's budget, by my reckoning (see 1.20), should not be subject to the same accountability and transparency requirements as other government agencies. Apart from what the 800 plus employees of the three departments do with public money, the allocations appear (it's murky territory) to include funds for salaries and electorate allowances of parliamentarians, additional salaries of parliamentary office holders, superannuation entitlements, resettlement allowance payments, and services and facilities to support parliamentarians in Parliament House including the cost of office accommodation, computing and other equipment, telephones, newspapers and stationery. And perhaps while the Speaker Mr Slipper who is accountable for the Department of House of Representatives is under investigation regarding travel as an MP, travel and entertainment for office holders such as the speaker and deputy speaker when on business connected to that office.

Let's hope common sense and good public policy prevails.

Privacy law reform stage 1 in parliament's safe hands

2012-05-28T12:42:00.001+10:00

Attorney General Roxon introduced the Privacy Amendment (Enhancing Privacy Protection) Bill 2012 in Parliament last week, outlining some of the changes in a second reading speech and this media release- Ensuring your right to privacy prevails (pdf)

Media headlines were mostly positive, although you wonder how many made it beyond the media release to the 236 pages of amendments that have to be read in conjunction with the act to make sense of it all. (Admission-I didn't get through to the end either.)

The marketing industry doesn't like what it sees. Most other commentary welcomes the bill as a (exceedingly slow) step forward on the issues the government carved out as "first stage" reforms from the ALRC report delivered four years ago. With the notable exception of the Australian Privacy Foundation.

While the Attorney General says the "bill will bring Australia's privacy protection framework into the modern era" and will tighten up the rules around how companies and organisations can collect, use and disclose personal information, the APF describes it as a backward step, and sets out why the 'Anti-Privacy Bill' Should be Scrapped (pdf).

I doubt if there will be many takers for that option. The bill is yet to pass the House and then face the Senate. Let's hope it's somewhat familiar territory there, although in Senate Estimates last week Shadow Attorney General Senator Brandis had a bee in his bonnet about the size of the ALRC report, regardless of its scope and the complexity of the issues:

It has seemed to me for quite a long time now that, although the Australian Law Reform Commission does wonderful work of the very highest standard, it does, if I may say so, somewhat overcapitalise its research. Let me give you an example of what I mean. The privacy report of a few years ago was nearly 2,700 pages long. I am not aware of anyone—academic, government body, think tank; any institution in the world—that has produced a 2,700-page document about privacy.

Provisions in the bill as passed won't come into effect until nine months after assent. E-health is being dealt with separately and other major issues await stage 2 consideration including exemptions including for smaller business, media organisations in the conduct of journalism and political parties, serious data breach notifications and a statutory cause of action for serious invasion of privacy. Privacy law reform still has a long way to go.

Summary and comment on the bill by the law firms may be of interest- Corrs Chambers Westgarth, King&Wood Mallesons, Middletons, MinterEllison and Ashurst Privacy amendment legislation finally tabled (Privacy Update, Australia, 24 May 2012) pdf )

The bill proposes a single set of privacy principles to apply to both Commonwealth agencies and private sector organisations, new credit reporting provisions, privacy codes, and powers and functions for the Privacy Commissioner to assist in resolving complaints, conducting investigations and promoting privacy compliance. On this, the Attorney General said

"..the Privacy Commissioner will be able to make a determination to direct an organisation to take specific steps to stop certain conduct, or take reasonable action to redress any loss or damage suffered. The commissioner will also be able to obtain enforceable undertakings from an organisation. A court can then make appropriate orders, including orders for compensation. The commissioner will also be able to apply to the court for a civil penalty order against organisations. Penalties range from 200 penalty units—$22,000 for an individual and $110,000 for a company—to 2,000 penalty units, which is $220,000 for an individual and $1.1 million for a company. For serious and repeated breaches of privacy, the penalty will be 2,000 penalty units. This is another remedy for consumers and will encourage compliance with the Privacy Act. The Privacy Commissioner will also be able to direct agencies to perform a privacy impact assessment, and will be able to conduct privacy performance assessments to check that agencies and organisations are complying with the Australian Privacy Principles. This bill will make dispute resolution simpler, quicker and cheaper. The commissioner will have a new power to recognise and approve an external dispute resolution scheme for credit reporting disputes. There are new conciliation provisions, so that conciliation can be a dispute resolution option. In essence, the Australian Privacy Commissioner will have new powers, including the power to seek enforceable remedies for consumers who have had their privacy breached."

The APF says "the improvements concerning the Privacy Commissioner are of little use unless complainants can require that the Commissoner make formal decisions under s52 of the Act. The Commissioner has made one s52 decision in 6 years, and says complainants have no right to formal decisions. Government proposals to allow such complainants to go direct to the Federal Court have been dropped."

With regard to cross-border disclosures an organisation will need to include in the privacy policy statement whether it is likely to disclose an individuals’ personal information to overseas recipients, and if so, the countries in which such recipients are likely to be located. Freehills outlines other aspects of these changes:

Under the new cross-border disclosure regime in the Bill, Australian entities that disclose personal information to overseas recipients will generally be liable for privacy breaches committed by those recipients—although the Australian entities may have recourse through their contracts. As the government acknowledges, this reflects a shift away from the ‘adequacy approach’ seen in NPP 9 and the EU to an ‘accountability approach’, as adopted by APEC and Canada. The government also comments that the ‘chain of accountability’ is not broken simply because an overseas recipient engages a subcontractor.There will be some exceptions to the ‘reasonable steps’ and accountability obligations. One of these is where the recipient is subject to a law or binding scheme similar to the APPs which gives appropriate enforcement rights to the individuals. Guidance from the OAIC is anticipated on this point. Notably, contractual provisions will no longer be sufficient alone to avoid accountability. Consent will also provide an exception, but must be more explicit than under NPP 9.
Some concerns have been raised in the media that the new APPs will significantly reduce the use of offshore cloud computing services. It is hard to see this being the case. While retaining data in Australia or a jurisdiction with similar laws will be more attractive in that it will overcome the accountability issue, we expect to see cloud computing customers seeking to use contractual measures to protect themselves in case they are held liable for a breach by the provider.
It should also be noted that APP 8 is not intended to apply ‘where personal information is routed through servers that may be outside Australia.’ Entities will however need to take reasonable steps to ensure that personal information routed outside Australia is not accessed by overseas recipients as this will be considered disclosure."

The APF says these changes mean "personal information of any Australians can now be sent to countries with no privacy laws at all, with victims required to prove breaches occurring there."

Other deficiencies in the Bill listed by the APF include:

• Not one of the 13 new Australian Privacy Principles (APPs) is an improvement

on the existing NPPs and IPPs, and 8 of 13 are worse for privacy protection.

• For example, the existing right to anonymous transactions has been destroyed.

• The consumer’s right to ask ‘Where did you get my name?’ can be avoided

wherever it is ‘impracticable’ for a business to do provide an answer.

. Exemptions from some of the APPs can be created by the Privacy

Commissioner without any public hearings, notice or opportunity for public

scrutiny, unlike the existing Public Interest Determination procedures.

. The credit reporting industry is being given the right to share information about

Australians who have never had a credit default, a backward step for the

privacy of every person who has ever had a loan or a credit card.

• Codes of Conduct have completely failed for 12 years, yet the government is

embarking on a futile effort to breathe more life into their corpse, instead of

concentrating on genuine reforms.

• The Commissioner can refuse to investigate complaints wherever he thinks

investigation ‘is not warranted’, an unwarranted and unappealable discretion.

• The Commissioner can recognise another dispute resolution scheme to

substitute for the Privacy Act, even if it provides lesser remedies than the Act.

• The Commissioner’s powers to require Privacy Impact Assessments (PIAs)

from agencies are defective in not requiring an independent or public PIA.

Knowledge of subject and FOI both needed in reaching decisions on access

2012-05-27T22:16:00.001+10:00

In the Senate Estimates hearing last week with the Department of Prime Minister and Cabinet, Australian Greens Senator Ludlam raised the handling of his freedom of information application for documents including communication with the governments of the United States and Sweden on the potential extradition or temporary surrender of Julian Assange.

The request had been refused on the basis that processing would involve the substantial and unreasonable diversion of agency resources. The decision maker, Mr Peter Docwra, then the chief information officer had been deputy head of the WikiLeaks task force set up in PM&C following "cablegate". This wasn't mentioned in the FOI correspondence with Senator Ludlam who said he found out from the newspapers about Docwra's previous involvement.

(Update: Philip Dorling of Fairfax has obtained some heavily redacted documents.)

Senator Ludlam queried whether a decision on an FOI application should be made by the same person who authored the documents or was substantively involved in the matter in question, and in any event whether such an "interest" should be disclosed to the FOI applicant.

As officers and the minister at the table Senator Evans explained, the usual approach is for a request to be directed to the senior executive service officer most familiar with the subject matter who is then required to manage an effective search for documents and make a decision on access.

So it is common for the decision maker to have been involved in work of the department that is reflected in the documents which are subject to the request. That said, a decision maker, in order to perform their functions properly, needs to be in a position to meet all the requirements of administrative law, including bringing an impartial mind to their functions. So, from time to time, if the subject matter of a request goes particularly to the personal involvement of the decision maker, the decision maker might say that they do not think it appropriate for them to make a decision. In that case, we would look for an alternative decision maker.

Senator Evans added it would be unrealistic to exclude anyone involved in a matter from consideration of an FOI request but the point raised about disclosure of a connection with the events themselves was a reasonable one that he would refer top the responsible minister (the attorney general.)

I do not think that it is an unreasonable point you raise and I am happy to refer to the minister for FOI the issue. I think it is the case though that where there is some expertise in a department the request tends to go to the officer with that expertise or in that particular section. To exclude people who have worked on those policy matters from being involved in an FOI request is, I think, unrealistic, particularly in small departments. The other thing I would say is I have had a concern, as have other cabinet ministers, that sometimes these decisions have been made at too low a level of officers without the appropriate sort of experience and broader understanding both to refuse and to release—and a couple of them have come as great surprises to the ministers who have not been told they had been released. But I think the point about potential conflict of interest is a fair one and I suppose I am happy to raise it with the minister. I do though make the point that in a smaller section everyone would have been involved in dealing with the issue. If you have got a section of four people who have expertise in the area they all would have been involved in dealing with it, so it is not quite as simple as might first appear. But I am happy to do that. I think it is a reasonable point. I think the officer was explaining that it is a sort of decision that the officer themself made and I guess you are looking for reassurance that that is the appropriate way of dealing with it.

Deputy Secretary Leon had the last word:

I only wanted to make the general point that the officer does not make this decision on their own. They are in regular communication and in receipt of advice from the FOI experts in the department led by Mr Amson who carefully explain to the decision maker the application of the act and the way the relevant exemptions have to be interpreted, so it is not a decision that a person is taking in the absence of guidance about the FOI Act itself.

It's one of those great debates-whether FOI decision making should be centralised with officers steeped in FOI but without necessarily much background in the subject matter of requested documents who do this sort of thing on a regular basis, or decentralised with responsibility resting with officers familiar with the subject matter but perhaps limited knowledge of FOI and who may make an FOI decision infrequently.

The decentralised PM&C model makes sense in most instances-along the way to making the management of information access a routine function across the public service. Disclosure of previous involvement in the issues at hand however might remind decision makers to the need for objective decisions that will withstand scrutiny, and alert applicants to look for signs of self-interest in any decision to refuse access.

Lack of inquisitiveness in Canberra about parliamentarians' entitlements

2012-05-27T21:23:00.001+10:00

Who's surprised?

Questions asked in Senate Estimates of the Department of the Senate and Department of Parliamentary Services about accountability and transparency of payments to and on behalf of parliamentarians, about the many recommendations for reform in the Belcher committee report commissioned two and a half years ago and released in April last year that have received no response from the government or parliament to date, or about the implications arising from the surprise recent news from the Australian Information Commissioner that both departments are subject to the Freedom of Information Act despite years of denials:

(This space intentionally left blank.)

Questions asked in Estimates of the Department of Finance and Deregulation about anything to do with parliamentarians' entitlements administered by that department, or the Belcher reform proposals, or for any explanation offered by 52 members, senators and former parliamentarians (including Senator Conroy, Tony Abbott and Joe Hockey to name just three) who have still not certified that their entitlements usage for January to June 2011, the first period covered by the decision to publish certification information, was in accordance with the provisions legislated for each entitlement. Or even more puzzling, why certification of proper use should remain "voluntary" :

(This space intentionally left blank.)

Senate estimates a breeze for OAIC

2012-05-24T22:12:00.003+10:00

Nothing remarkable from the Office of Australian Information Commissioner half hour appearance before Senate Estimates on Wednesday. Resources are tight, about three quarters of what was promised, and the review backlog was 356 cases at mid-may, with the longest outstanding on the books for 15 months. Overall Professor McMillan is pleased with agency performance. As to concerns:

Among the problems that have been raised with us are publication only of details of information and not the documents online. Secondly, there is the problem—not so much under the disclosure log but under the Information Publication Scheme—of information that was one published being taken down. We are investigating a couple of complaints about that at the moment to see whether it was just part of normal archival practices within the agency or whether there was something more sinister, as the complaint alleges. We have also had complaints, particularly from journalists, about same-day publication under the disclosure log—that is, documents published on the disclosure log on the same day that they are released to the journalists. The complaint is that they can lose the benefit of their request. And we have had agencies raise with us the practical challenges they face in converting hard-copy documents into a web-accessible online form, particularly the costs. So they are among the challenges that have been raised.

On cultural change:

I think there have been substantial moves across government. If one looks, for example, at the disclosure logs and at the type of information that is now published; if you look at the changes in agency practice—for example, the Defence practice of now proactively releasing its Hot Issues Briefs; if you look at the staffing levels in agencies, in terms of both the number of staff and the seniority of staff now devoted to FOI and publication; if you look at the level of engagement of senior agency officers now in FOI and publication issues, I think there has been a large cultural change. But, wherever one draws the line between openness and secrecy, you can always move it just a little further towards greater openness, and that is our perpetual challenge.

In some agencies more than "just a little further" seems necessary.

Privacy Commissioner Pilgrim had it easy-no questions-although he had a big day on the other side as the Privacy Amendment (Enhancing Privacy Protection) Bill 2012 was introduced in the House of Representatives,.Just two and a half years after the government announced its "first phase" acceptance of many of the recommendations of the ALRC 2008 report.

Information Commissioner NSW and Administrative Decisions Tribunal differ over "right to appear and be heard"

2012-05-23T08:11:00.003+10:00

A significant difference emerged late last and earlier this year between the Information Commissioner NSW and the NSW Administrative Decisions Tribunal concerning the commissioner's role in cases before the tribunal. It's not known whether the Commissioner is sticking to her guns that her rights are broader than two tribunal members envisage, and resolution of the issue by the courts is problematic. But applicants may find themselves without the same level of support than hitherto particularly in those cases where the Commissioner prior to ADT consideration undertook a review, and would bring that knowledge and a view about the merits of the case to the table.

The GIPA act (s 104) provides that the Information Commissioner (and the Privacy Commissioner in review cases that concern a privacy-related public interest consideration) "has a right to appear and be heard" in matters before the tribunal. (Unique I think in Australian FOI schemes, as are other aspects of the NSW review model.) The act and the Administrative Decisions Tribunal Act do not mention the commissioners in listing those who are parties to proceedings, although the tribunal (ADTA s 67) may make any person a party in certain circumstances.

The issue is whether the "right to appear and be heard" is subject to implied limitations. In separate decisions the tribunal has said the Commissioner's right does not extend to making submissions in relation to the merits or contentions of a review application. Or to be given access when evidence is given in the absence of the applicant, the applicant's legal representative and the public. The tribunal in both cases ruled the commissioner's role is limited to submissions in relation to the applicable law and policy to assist the tribunal in the conduct of a review.

In neither however did it undertake detailed analysis or cite precedents to support its interpretation.The Information Commissioner in a submission in a later case argued the right goes further than making submissions relating to questions of law and extends to adducing evidence relevant to the application. The published decision in that case contains no mention of the the issue although the points raised certainly deserve consideration. The Commissioner hasn't said anything publicly about the matter as far as I'm aware.

The commissioners had a couple of hours on Monday with parliament's Ombudsman and Police Integrity Commission Committee so interesting to see, when the transcript emerges, what came up there.

In the first ADT decision, Hurst v Wagga Wagga City Council [2011] NSWADT 307, Judicial Member Molony said:

While the Information Commissioner has a right to appear and be heard in a Tribunal review, it is for the applicant and the agency to determine how they will argue their respective cases. Given the structure of the GIPA Act, and the provisions of s 105(2) ..., I think that the Information Commissioner's role in not one which should descend to the merits. Rather, the Information Commissioner's role is to assist the Tribunal with respect to the applicable law, relevant polices and guidelines, and on issues of interpretation of the Act. I do not read s 104, in the context of the Act as a whole, as envisaging the Information Commissioner's role as being one that descends to merits arguments and contentions.

I am reinforced in this conclusion by the provisions of Division 3 of Part 5, which operate so that the Information Commissioner is not a party to a Tribunal review of a decision that has been the subject of review by the Information Commissioner. The Act provides that when conducting a review the Information Commissioner makes recommendations, which can then be considered by the agency on reconsideration under s 93. The decision then made is that of the agency, not that of the Information Commissioner. If there is then a Tribunal review, it is the applicant and the agency that are parties to that review: not the Information Commissioner. The fact that the Information Commissioner is not a party to such proceedings, reinforces the point that the legislature did not intend the Information Commissioner's role in Tribunal review to be one in which that office would argue the merits.

Deputy President Higgins in Black v Hunter New England Local Health District [2011] NSWADT 295 used the same reasoning and words [51-53] before concluding that there was "no clear support" for the commissioner's contentions that the right to appear and be heard extended to the right to be privy to evidence received and heard in the absence of the public, the applicant and the applicant's representative pursuant to subsections 107(2) and (3). The Deputy President said she understood "that the Information Commissioner may be assisted in her role in being provided with a copy of the information in dispute. However, that is a matter to be resolved between the agency and the Information Commissioner."

"I stress that the Information Commissioner's role before the Tribunal is not that of an advocate for an applicant, or indeed a respondent. The role of the Information Commissioner is clearly one of impartiality. If not, it is arguable that its role as a reviewer of decisions of an agency may become compromised.

The Commissioner in a submission in a later case seen by Open and Shut contends that the respondents arguments, based on Hurst, about the limits on the right to appear and be heard, were incorrect. The submission and issues raised were not mentioned in Judicial Member Isenberg's decision.

In the submission the Commissioner addressed the points raised by the respondent as follows:

a. the absence of express terms in the GIPA Act extending the Information Commissioner's role to the "merits" ( The Commissioner argues: "Words with a broad meaning are to be given that meaning in the absence of express words limiting the breadth of that meaning. There is nothing in the express words of s104(1) to limit, nor is there any basis in the language, context or scheme of the GIPA Act on which to imply limits, on the Information Commissioner's right to appear and be heard in the way suggested by the Tribunal.)

b. principles developed in the context of adversary justice that it is for the parties to argue their respective cases and the courts to determine them on that basis: ( "The Tribunal is not bound by the rules of evidence and procedure and is expressly empowered to conduct "inquisitorial" proceedings (s73(2) & (3) of the Administrative Decisions Tribunal Act)

c. the Information Commissioner not automatically being a "party" to any Part 5 Div 4 application under the GIPA Act in which she may appear and be heard. ("The Information Commissioner's status as a party under s 67 of the ADT Act is not relevant to determining the content of her right to be heard under s104(1) of the GIPA Act. In the absence of a statutory description of the content of that right, the following comprise the general law factors which may be relied on to determine the scope and content of a right to be heard:
a. the rules of the Tribunal (Russell v Duke of Norfolk (1949) 1 All ER 109) ("Russell');
b. the statutory context within which the application is made (Mobil Oil AustraliaPty Ltd v Federal Commissioner of Taxation(1963) 113 CLR 475 at 503-504) ("Mobil');
c. the nature of the party or affected or interested person's interest in the application (Kioa v West (1985) 159 CLR 550) ("Kioa");
d. the circumstances of the individual application (Kioa)..

In accordance with these common law factors, it is submitted that the content of the
Information Commissioner's right to be heard in Part 5 Div 4 applications to the Tribunal
will be affected by:
a. the Tribunal's procedural obligations under the ADT Act;
b. the framework established by the Government Information (Information Commissioner) Act 2009 ("the GIIC Act"), GIPA Act and ADT Act in relation to external review and powers and functions of the Information Commissioner;
c. the nature of the Information Commissioner's interest in the appearing;
d. circumstances peculiar to the application under consideration.")

The submission goes into further detail on each of these points.

All worthy of an airing and resolution, but if, who, how and when remains to be seen.

Climate change innuendo beats dull law issues every time

2012-05-22T09:52:00.001+10:00

The barbs continue to fly concerning media reporting of threats made to climate scientists, in this round, sparked by access to documents as a result of the decision by Privacy Commissioner Pilgrim that 11 documents held by the ANU were not exempt under the Freedom of Information Act, with Jonathon Holmes on Media Watch last night concluding

One news outlet comes out of it, in our opinion, almost unscathed: Fairfax Media's The Canberra Times. The ABC doesn't look so great, and The Australian looks worst of all.

Chris Merritt Legal Editor at The Australian (subscription) isn't letting go:

Holmes also criticised The Australian, but the basis of his criticism was in error.
Holmes gave the impression that the newspaper's reports debunking death threats at the ANU had extended to other alleged death threats at other universities.
The Australian's reporting of the issue has focused on tracking the progress of Mr Turnill's FOI request, which focused only on ANU.
Holmes also mistakenly asserted that The Canberra Times had not reported there had been death threats at ANU. But articles to the contrary were published by that newspaper on June 4 and 5 last year.
The June 5 report, which is available online, says: "Security has been tightened at the Australian National University in Canberra after several climate change scientists received death threats."

(Update: And kept on in the days since.)

Silly old me-weeks ago when the OAIC decision was published I thought the comparative law issue was interesting. It hasn't attracted a mention in the back and forward since.

Transparency given the bum's rush in Budget papers

2012-05-22T09:25:00.002+10:00

SMH

Ross Gittins economics editor Sydney Morning Herald provides this assessment:

The hiding of the headline deficit is just one example of the way the budget papers are becoming less informative rather than more, and the way the government's spin doctors are turning them into an exercise in media management rather than transparency and accountability. The budget speech used to be a thorough and trustworthy exposition of the new measures announced in the budget; these days it's a made-for-television rave about the budget's good points....
Spin doctors work on the assumption journalists are both dumb and lazy, meaning they'll focus on whatever news you give them and not think to go looking for the things you conceal. They also assume journalists who benefit from background briefings and selective leaks won't be game to complain publicly about the way they're led around by the nose.
Journalists turn a blind eye to the rank hypocrisy of the Treasurer and Finance Minister piously refusing to comment on what may or may not be in the budget, while the Prime Minister's press office leaks much of its content to selected journalists, then quietly confirms the story's accuracy to those journos who missed the exclusive.
Unfortunately, there are head office-based journos who aren't part of the club and so feel no such inhibition. There are also, believe it or not, economists and even the odd private citizen who read the budget papers in the hope of enlightenment. They're getting the bum's rush.

Make your own, against the Declaration of Open Government of July 2010 that commences

The Australian Government now declares that, in order to promote greater participation in Australia’s democracy, it is committed to open government based on a culture of engagement, built on better access to and use of government held information..

Heather Brooke in Sydney

2012-05-17T22:17:00.002+10:00

Today's session at the Sydney Writers Festival with Richard Aedy facilitating a discussion with Heather Brooke from the UK and veteran journalist Alex Mitchell about journalism in the digital age was terrific. Brooke enjoyed it, tweeting it was great. You can catch an edited version on Radio National's Media Report tomorrow Friday at 5.30pm or anytime thereafter.

Austen Tayshus-Manly Daily

Mitchell's story about donning the budgie smugglers to run dead in a swimming race with Idi Amin in order to get an interview is hilarious. I presume someone explained "budgie smugglers" to the non-plussed Brooke afterwards.

Brooke's later session with Waleed Aly posing the questions, was less successful. Aly seemed keener for an intellectual arm-wrestle than a conversation about the advertised privacy related topics. All a bit of a struggle.

At both sessions Brooke while welcoming the advent of WikiLeaks, poured a bucket on Julian Assange, on the basis of her dealings with him-difficult, devious, dictatorial, reckless- someone who fails to live up to the standards he expects of others. This Guardian review- a paper incidentially that Brooke thinks has to go broke because of its "free" on-line business model-of The Revolution will be Digitised, gives the flavour.

Brooke acknowledged some aspects of what WikiLeaks does might constitute journalism but that it is best described as a source/publisher. Mitchell, an old school, shoe leather, contact book journo who thinks there is much more to the craft than sitting at a computer screen or regurgitating what is put on the desk, didn't express a view but it was pretty clear that what Assange does is a million miles from journalism as Mitchell practiced it.

No one seemed to have the heart to mention that the MEAA gave Assange a Media Alliance union card, "confirming that he is a member in good standing with the Australian journalists." And that Wikileaks received the Most outstanding contribution to journalism award
at last year's Walkleys.

Sydney Writers Festival

2012-05-17T08:20:00.003+10:00

I'm ducking into a few sessions at the Sydney Writers Festival at Walsh Bay over the next few days, including two today featuring Heather Brooke of UK "expense scandals" fame: one free at 11.30 at Sydney Dance 2 with Alex Mitchell talking about journalism in the digital age; the other at 2.30 at Pier 2/3 Main Stage on privacy related challenges.

ASIO secrets mean indefinite legal limbo for refugees

2012-05-17T07:53:00.002+10:00

Wikimedia Commons-Phillip Halling

Instances of lack of transparency can give rise to groans and moans here and there from the likes of me but often the issue doesn't amount to a row of beans.

Others however have life-changing effects. This example is truly shameful.

As Professor Spencer Zifcak in last Friday's Australian (subscription) reminded us, 50 or so people judged to be genuine refugees are now in indefinite detention after receiving an adverse security assessment from ASIO.

"They are not permitted to know the evidence on the basis of which the assessment is made. Nor are they permitted to know the reasons for it."

The criteria for assessment is also not publicly available.

"Adverse assessments, therefore, are made by reference to secret criteria applied to secret evidence."

As non-citizens they have no right to AAT review. And

"Judicial review is impractical because the courts cannot order the production of material upon which adverse assessment decisions have been made.

There is little or no prospect that a third country will accept any such person for resettlement, given that the person has been determined to be a security risk. That is why, following the High Court's deplorable decision in al-Kateb, detention may be indefinite, perhaps for life. In a very real sense, this is Kafkaesque. The Attorney-General, Nicola Roxon, should lift this scandalous abuse of human rights to the top of her list."

Last month the Joint Select Committee on Australia's Immigration Detention Network (Chapter 6) reached a similar conclusion- "The impossible situation these people are in is perhaps one of the greatest challenges currently facing the immigration detention system."
And "The evidence before the Committee outlines why .. legal experts specialising in security, human rights and refugee law have concluded that Australia is in breach of its obligations under international law." Professor Saul, from the University of Sydney for example, contended that not providing evidence upon which the assessment is based is a violation of article 9(4) of the International Covenant on Civil and Political Rights (ICCPR):

Where detention is purportedly justified by a State on security grounds, the requirement of substantive judicial review of the grounds of detention under article 9(4) necessarily requires a judicial inquiry into the information or evidence upon which a security assessment is based. Without access to such evidence, a court is not in a position to effectively review the substantive grounds of detention.

But the government record in staring down the intelligence/national security/international relations agencies to insist the line be drawn at necessary and appropriate secrecy and not a jot further, regrettably isn't impressive.Just another example- in a separate case, the Attorney General is poised to certify that the case for access to 34 year old records from the Australian Embassy in Jakarta, not released by Archives, revealing shocking conditions in East Timor can't be argued in the AAT in the presence of the applicant or his lawyer for unspecified security, defence or international relations reasons.

On the refugees:

6.122 The Committee notes ASIO's view that disclosing reasons behind a negative assessment to the individuals in question could impact on ASIO's ability to gather reliable background information. However, the Committee is not convinced that disclosing relevant information to a security-cleared third party, or a security-cleared legal representative of the individual, would be so detrimental as to justify detention without charge for the term of the individual's natural life.
6.123 Furthermore, being aware that a number of refugees have received permanent visas and are living in the community despite adverse security assessments, the Committee believes that ASIO is able to discern varying levels of risk posed by individuals with adverse security assessments.
6.124The Committee is of the view that the government should take immediate steps to resolve how best to afford refugees an opportunity to appeal the grounds for their indefinite detention without compromising national security...

In conclusion, the committee

resolutely rejects the indefinite detention of people without any right of appeal. Such detention, effectively condemning refugees who have not been charged with any crime to detention for the term of their natural life, runs counter to the basic principles of justice underpinning Australian society. For this reason, the Committee urges the government to find a solution which will protect national security whilst also protecting the rights of refugees under international law.
6.149. The Committee notes that ASIO already, on occasion, reviews particular cases if additional information comes to light and/or on referral from DIAC. The Committee is of the view that ASIO could partly address community concerns by establishing periodic reviews of its adverse refugee security assessments.... The Committee suggests that 12-monthly reviews are a positive starting point.
6.150. Fundamentally, however, the Committee believes that extending the right of merit reviews to refugees with adverse security assessments is the most straightforward way of protecting against indefinite detention and ensuring probity. Provisions effectively barring refugees from appealing adverse security assessments were inserted into the ASIO Act in 1979 and were designed for a different time, a time when Australia was not grappling with the challenges presented by large numbers of asylum seekers in detention. Those provisions have regrettably resulted in some dramatic, potentially life-shattering consequences for refugees who receive adverse security assessments. The Committee is firmly of the view that the ASIO Act can be amended to allow for refugees and other non-citizens currently in indefinite detention to have access to relevant details of their case without impinging on national security. Merit reviews are currently available for Australian residents who receive similar adverse security assessments. On the balance of evidence gathered during the course of this inquiry, the Committee sees no compelling reason to continue to deny non-residents the same access to procedural fairness.

6.151 The Committee recommends that the Australian Government and the Australian Security Intelligence Organisation establish and implement periodic, internal reviews of adverse Australian Security Intelligence Organisation refugee security assessments commencing as soon as possible.

6.152 The Committee recommends that the Australian Security Intelligence Organisation Act be amended to allow the Security Appeals Division of the Administrative Appeals Tribunal to review the Australian Security Intelligence Organisation security assessments of refugees and asylum seekers.

Attorney General Roxon is in the US this week being feted for her anti-tobacco stand and wasn't available to respond to questions on this subject from The Age which also reports the ALP national conference last year passed a resolution calling for an independent review of ASIO assessments.

It's complicated of course but primarily requires looking secrecy in the eye and saying, all things considered, nay. I'm afraid there is nothing to engender great confidence.

In another context the Attorney has on her desk an application from the National Archives Authority to issue a certificate under s 36 of the Archives Act that would require evidence regarding an application for review of a decision to refuse access to 34 year old documents held by the NAA to be given in secret, in the absence of the applicant and his legal representative. (This ABC report and others in March didn't quite get it right.)

The documents, requested by Dr Clinton Fernandes of the University of NSW, are communications from the late Tom Critchley then Australian Ambassador to Indonesia following a visit to Indonesian administered East Timor in 1978 that gave rise to press reports at the time of shocking conditions. The certificate was sought on grounds that disclosure would prejudice the security, defence or international relations of Australia-take your pick as to which applies.

Fernandes' reply dated 3 May to the letter from the AG's department seeking comment about the application reads:

I am aware from prior experience that you will accept whatever advice the intelligence agencies give you. You will issue the public interest certificate reflexively. You should be aware, nevertheless, that in the 1970's the people of East Timor suffered the largest loss of life relative to population since the Holocaust. You will effectively be blocking information about genocide.

Allan Kessing on display

2012-05-14T12:58:00.002+10:00

By Yiyang Liu-with permission.

Allan Kessing has plenty to be disappointed about, but not this outstanding piece. He and the artist Yiyang Liu are philosophical that it didn't make it into the Archibald Prize this year or even the Salon des Refuses. Currently on display at Sydney's Tap Gallery, next step is a crack at the Moran Portraiture Prize.

Of course Kessing has plenty of experience with raw deals-charged and convicted under a draconian law that in this form should have been erased from the statute book years ago; disclosures after the event of information that should have been made available to his lawyer during the trial and appeal, and if made available would have materially affected the way the case was handled; years of maintaining his innocence of the offence as charged, but an admission after his conviction that he did pass on information to the office of a then opposition parliamentarian, now a government minister, about a report on the parlous state of security at Sydney Airport that had languished in his boss' in-tray for two years ; continued silence from some who know the full story of the disclosure to journalists at The Australian that led to his conviction, and incidentally, to urgent attention to the security issues identified, to the tune of $200 million; and with some reluctance, to apply for a pardon in 2009 and to have the issues raised publicly by Senator Xenophon in 2010 and listed in the incoming brief for the attorney general that year as a "Hot Topic", to be left wondering as it disappeared from sight ever since.

Kessing told me some time ago he is past caring, "happy" to smell the wattle instead. The rest of us need to do both.

Nothing can right the wrongs, but it would help if Attorney General Roxon called for the file, and asked questions about the Kessing case. Here is a reminder what the ALP was saying about the importance of whistleblower protection and Kessing-in 2007! Come to think of it Special Minister of State Gray who appears to be struggling on the corporate memory front should be interested in that as well.

A win in the Moran for Yiyang Liu who accurately portrays Kessing as a proud, courageous man would be icing on a bittersweet pardon cake.

Best wishes.

Australian Information Commissioner accused of lacking "teeth and ticker"

2012-05-14T08:17:00.002+10:00

The 2012 Report on Press Freedom in Australia released by the Media Entertainment and Arts Alliance, Kicking at the Cornerstone of Democracy (see the full report here pdf), includes four articles on Freedom of Information. One unattributed (p 22) and one by academic Johan Lidberg (p 29) make reasonable points about shortcomings in the law and the system. Another by Christian Kerr of The Australian (p 20) provides a couple of FOI war stories. Then there is an article by Michael McKinnon, FOI Editor at the Seven Network (p 26) that makes some valid critical comments about the state of play but over-reaches in a couple of respects.

Michael McKinnon

McKinnon, a Walkley award winner in 2009 for leadership in this field, (and a winner for investigative journalism as well) has a great record as a vigorous applicant, has blazed many FOI paths, and is an exceedingly able advocate in his own cases in the tribunal and courts. He knows his FOI oats, so his observations about the state of the game deserve attention. However...

The heading, "An Unwelcome Freedom Rider" (probably not McKinnon's doing), is one of those ambiguous sub-editor smarty jobs, but in the context of what follows comes across as a personal shot about lack of ticker:

Freedom of information requests are all too often subject to unwarranted delays, bureaucratic wrangling and nit-picking refusals, writes Michael McKinnon The reformed FoI Act announced three years ago was to have its own watchdog, the Commonwealth information commissioner. But Seven Network’s FOI editor Michael McKinnon has found the watchdog lacks both the ticker and the teeth for the job

The watchdog could do with more teeth for sure in the form of powers to lay down the law and pull some out there on board, or in line. But the lack of "ticker" charge is unwarranted.

As to the article itself, the Commissioner Professor McMillan doesn't need me to defend his administration, or his views, but the following is a summary of what McKinnon had to say, with a few counter-points of my own.

(I notice Professor McMillan responded to recent commentary about the charges review by Perrin Brown of Monash University on The Conversation,. He is welcome to respond to this, as is Michael McKinnon.)

McKinnon's first shots concern OAIC processes and decisions:

The OAIC has failed to ensure a timely appeals process, delivering slow decisions often supporting secrecy. It’s also wasting resources on appeals that should be referred to an alternative, far better credentialed system in the Administrative Appeals Tribunal.

Taking this a point at a time:

Too slow

No argument on this score-way too slow. McKinnon says 82% of the decisions published took longer than 20 weeks and others a little more or a little less than a year. I agree reviews delayed are reviews in effect denied particularly in those cases where information sought has a relevance that passes with time. The OAIC starts off with unambitious KPIs: 80% of FOI reviews to be completed within six months, and 80% of FOI and privacy complaints to be finalised within 12. (See OAIC Portfolio Budget Statement). Things seem to get worse from there. The targets set, even if achieved, are almost designed to ensure a level of dissatisfaction. Fifty percent resolved in one month and 80 in three months might be in with a chance.

However you can't snatch targets out of the air like that. Realism rather than idealism needs to rule here.

While OAIC review processes may or may not be as simple, practical and cost efficient as they might be, this is only part of the story. The size of the task and the resources available are also relevant. The number of review applications are way up on pre-scheme estimates and resources are less than promised. And they are about to shrink further as a result of the budget.

Freedom of Information Commissioner Dr Popple in a briefing last Friday week said 551 review applications were received between November and the end of April. Two hundred and four were finalised in that time and 347 remained on the books. Dr Popple who had identified resource problems in Senate Estimates in February, mentioned a number of initiatives underway to attempt to more effectively manage the list.

Professor McMillan

As McKinnon himself notes (and Dr Popple put this on the record also in February), the Australian information Commissioner Professor McMillan "warned that refusal to adequately fund oversight of Freedom of Information legislation was undermining the government’s declared commitment to increased transparency and more open government." Christian Kerr in his article refers to the resources problem as well. "Professor McMillan has complained that the Office of the Australian Information Commissioner only has three quarters of the staff foreshadowed when it was created at the end of 2010. He has warned the 2.5 per cent efficiency dividend may lead to staff losses."

The OAIC (and for all but a handful of other government agencies) the efficiency dividend to be delivered in 2012-2013 is 4%, not 2.5%. The total appropriation for the OAIC for the coming year is $14.871 million compared to $17.275 million last year, an amount that included a one-off capital injection of $2.16 million. The year ahead will see a reduction of around $300k in resource levels that proved insufficient in 2010-2011.

Some of McKinnon's ire should be directed, in part at least, at those who determine the budget allocation-at ministerial level, in the Department of Finance and in the Attorney General's department.

Decisions often support secrecy

McKinnon supports this by reference to his analysis of 17 published OAIC review decisions that shows "more than two in three decisions agreed with the original agency decision to keep information secret. Only five of the 17 decisions were set aside and substituted with a different decision, with only one decision wholly in the original applicant’s favour."

There isn't much difference between his stats and those provided by Dr Popple at the recent briefing, but as McKinnon knows, published final decisions also are only part of the picture. According to Dr Popple, of the 204 reviews finalised, 50 had been closed by the Commissioner on the grounds they lacked substance, and 90 were withdrawn or varied through negotiation or concession before final decision, presumably in some/many cases satisfying the applicant. Of the 24 finalised by published decisions, 14 affirmed the agency decision to refuse access, one affirmed a decision to grant access despite a third party objection, and nine set aside the agency decision or substituted another-one supporting non disclosure for a different reason, the other eight changing the agency decision in some respects.

It's a bit rich to claim as McKinnon does that all this means the OAIC "too often, back(s) secrecy." He overlooks the fact that OAIC review is a merit review process. The Commissioner has to determine the correct or preferable decision but can't make up the law or decide that a document containing exempt matter should be disclosed.

I differ on some points with the various published decisions of the OAIC, for example the decision on Australian Honours guidelines, but hey, that decision has now been confirmed by the AAT (but may be going on appeal to a higher authority).

However the "backing secrecy" charge goes too far.

Dr Popple told the recent briefing that he understood that two of the eight OAIC decisions that overturned agency refusals of access have been, or are to be, appealed to the AAT by the agency concerned. In both cases it is the ABC, that rare combination of government agency subject in part to the act, but also a media organisation that employs journalists who use it.

The bigger problem at the root of this is the state of the law that the OAIC has to interpret and apply and in some instances the binding precedents that apply until legislation changes things. Since 2009 some of us have harped away about opportunities missed, and gaps and weaknesses that should have been addressed during the limited review of the FOI act in 2009-2010. Some related issues have surfaced in the published OAIC decisions, for example the limits on FOI coverage of documents held by a minister, one of the "excessive secrecy" decisions referred to in McKinnon's article.

The shortcomings won't get attention now until the two year review due to commence before the end of the year.

In the meantime the OAIC and the rest of us are stuck with what we've got.

Should refer matters to the AAT

McKinnon says "Professor McMillan is on the record as saying he will not allow direct appeals to the Administrative Appeals Tribunal, which he can under Section 54W(b) of the Act." The law generally requires OAIC review before a matter can proceed to the AAT.

I haven't seen Professor McMillan on the public record on this. In fact McKinnon's claim doesn't sit well with the FOI act and published OAIC Guidelines. The Commissioner can decline to undertake a review if satisfied that the interests of the administration of the [FOI] Act make it desirable’ that the AAT consider the review application (s 54W(b)). The OAIC Guidelines state " It is intended that the Information Commissioner will resolve most applications, but the Commissioner may consider it desirable to have an AAT ruling where, for example, there is an important or contested issue, or an apparent inconsistency between earlier IC decisions and AAT decisions."

McKinnon presumably is grumpy that some of his own review applications have not been referred. He seems to be suggesting that inability to handle the case-load within reasonable time should be another reason why OAIC referral to the AAT might be desirable.

How speedy the tribunal would prove to be in any event is an open question. The AAT took a $2 million hair cut in the 2012-2013 budget, down to $43 million. And its KPIs are a little puzzling but certainly don't hold out the prospect of instant action: for matters finalised without a hearing, a first conference will be held within 13 weeks in 85% of cases ; for matters finalised with a hearing, 60% of cases will progress to a hearing within 40 weeks. (PBS -p59).

Far better credentialed Tribunal

McKinnon who usually represents himself in proceedings, may be talking up his forum of choice in suggesting the reintroduction of a right to go direct to the AAT. At present OAIC review is a mandatory requirement before AAT review in most cases. The OAIC pursues informal, non-adversarial processes usually without hearings.

McKinnon loves putting public servants in the witness box and rightly, taking them to task on "end of the world" claims in support of refusal of access decisions.

He argues that in the pre-reform era, lodging an AAT application had a more salutary effect on agencies and encouraged concessions to the applicant.

I don't know if there is evidence that agencies react differently to an external review application depending on the review forum. I'd be surprised if as claimed agencies ignore the fact that an application has been lodged with the OAIC. According to Dr Popple's stats, the lodgement of a review application appears to have some effect, with a significant number of OAIC reviews in effect settled between the parties. This plus the fact that about one third of decisions have been overturned in final decisions, at least in part, suggests the OAIC record is about the same as the pre-reform record of the AAT.

McKinnon may be missing the blood sport to be had with public servants in the AAT witness box. But while he may prefer the tribunal at $770 a pop, others who have to pay their own way probably welcome the (so far) free review available from the OAIC.

The priority should be improving its game.

Other issues raised in the article include:

Failure to investigate systemic problems

McKinnon says the OAIC "has failed to investigate agencies refusing to deal with FoI applications until a deluge of complaints finally motivates it, many months late, when information is potentially very out of date." Only one own motion investigation has been launched by the OAIC, into the Department of Immigration and Citizenship, in part at least it would seemas a result of McKinnon's experiences.

I'm sure the OAIC knows other agencies where FOI performance warrants close examination. It could have done more, and more quickly, to get the point across to poor performers-they know who they are- that it is on the job with whatever stick it has available with more than one own motion investigation in the first 18 months.

FOI to be subordinate to spin doctors

McKinnon says the review report on FOI charges now under consideration shows Professor McMillan "wants FoI laws to be subordinate to department and ministerial spin doctors."

This is over-reach pure and simple.

The charges review report proposed more extensive use of administrative access to provide free access to information. This has nominally been a part of the FOI scheme since inception, but to little effect for many of those years. Far from changing the FoI Act "to a Spin Doctors’ Access Act (that) would just add cost or delay to an applicant", as McKinnon asserts, a scheme that more strongly links FOI to broader access to information avenues might prove beneficial for most applicants.The formal avenue for FOI access to documents would remain. As Professor McMillan explained what is being proposed is a link between administrative and FOI access, with encouragement to pursue informal access as a first resort:

An (FOI) application fee of $50 would be payable only if an agency establishes and publicises an administrative access scheme that can be used to request information or documents, and a person uses the FOI Act ahead of the administrative access procedure. An FOI Act request could be made free of charge 30 days after the administrative access request (or perhaps earlier in many cases). The report acknowledges this to be a contentious recommendation that could only be implemented after further planning and reassurance that it will make it easier for people to obtain information without having to battle through formal FOI Act requirements.

I would argue for incentives and disincentives as well as a bit more OAIC stick to push agencies to deliver on the promise of free and informal access. It's a system that is widely advocated and operating to some extent already in Queensland, NSW and Tasmania although it's hard to assess how well it is working. Integrating non-FOI and FOI access avenues into an information management bundle might break FOI free from the iron grip of lawyers over the FOI function, still the case in too many Commonwealth and other agencies. That would amount to an added bonus.

McKinnon obviously despairs of culture change ever transforming the public service into a helpful honest provider of requested information as a matter of routine. On that, plenty more needs to be done and FOI push and shove will always be needed.

Prompt, reliable information access needs to become an integral part of what public servants do. But it's not a hopeless cause, at least not yet. Ensuring spin doctors and others in government operate in accordance with legal and ethical standards should be the priority.

Charges review generally

FOI fees and charges are a contentious issue, always have been, always will. I'm for free/low cost access rights- a small application fee, and no charges in most cases, or if a charge is imposed, a flat rate graduated system would be my first preference. It is pretty close to what Professor McMillan proposes.

Cost can't be put in the irrelevant basket, but responding to requests for information is a cost of doing government business in a democratic society. The public have rights and cost should not be a significant barrier that stands in the way. (Surely the public also has a right to enjoy lowish costs as one of the dividends flowing from the hundreds of millions spent on improved information management systems within government over the years. In fact there should be another dividend- access to tools that assist in knowing more about what information government holds, to better inform requests from outside the loop.)

McKinnon says what is proposed is an attempt to "gut the FoI Act"; points to "an appalling provision allowing politicians and their departments to stop any request over 40 hours without appeal on important policy issues", and suggests it "aims to stop politicians, media and community organisations investigating complex policy and programs."

In my view ,there is a lot in the review report that makes sense-simplifying the whole charges regime in particular. The allegations of sinister motive seem misplaced.

However, the proposed flat 40 hour cut off, without more, needs rethinking. As Professor McMillan is still interested in hearing views, hopefully some useful dialogue will ensue.

The proposal is an attempt to put more certainty around the substantial and unreasonable diversion of resources provision that has been in the FOI act since it commenced. It's origin is a NSW ADT decision years ago that interpreted similar words in the NSW act to mean that anything that involved 40 hours processing time was getting into substantial diversion of resources territory. However it was not a strict rule and other factors, including the nature of the information sought needed to be considered.

I'm not sure if McKinnon is advocating no limit should apply. Some upper limit on resource use seems necessary if for no other reason than resources devoted to one person's large FOI request, at some point, after tens, hundreds or thousands of hours, become resources used in a way that disadvantages other applicants waiting in line. The "unreasonable" tag needs to remain in the equation somewhere allowing the nature of the application to be taken into account, and consideration given to factors such as the public interest in making the application before enabling an agency to pull the diversion of resources plug.

Now where was I ??????

History of commitment to whistleblower protection airbrushed?

2012-05-11T08:59:00.001+10:00

Special Minister of State Gary Gray made the following reference to public sector whistleblower protection in his second reading speech in March in introducing the Public Service Amendment Bill 2012:

Whistleblower reports
The act currently provides protection for whistleblowers in the APS. The regulations provide the framework under which whistleblower reports are handled.The bill makes two small amendments to the scheme. It provides a specific regulation-making power and allows for matters to be excluded from inquiry, including those that relate to an employee's own employment. Such complaints are better directed to the existing review of action scheme.

There has been no further debate.

The minister can buy an argument with the first proposition.

What is proposed are changes to processes associated with a whistleblower who reports a breach of the APS Code of Conduct. There are more than two proposed changes but the minister's reference to "small changes" was well chosen. "Comprehensive" or "far-reaching" would not have come to mind- see below for relevant extracts from the Explanatory Memorandum.

Of course major inadequacies in the Public Service Act protections, including the absence of any protection for public disclosures, were the reasons why much time and energy was spent since 2008 examining comprehensive whistleblower protection legislation

Minister Gray's four sentences air-brush the following history:

ALP commitment to act on whistleblower protection prior to 2007 election. (They also talked then about justice for Allan Kessing, but that's another incomplete story.)
House of Representatives Standing Committee on Legal and Constitutional Affairs (Dreyfus) asked to examine models in 2008 and reported in 2009.
Government responded to the recommendations in March 2010 in a reasonably positive manner and went a bit further than the committee in some respects, including on public disclosures. Then attorney general McClelland said at the time “The Government supports a pro-disclosure culture in the Australian public sector, underpinned by enhanced whistleblower protection mechanisms, as part of its commitment to integrity in Australian governance. Whistleblower protection is about ensuring that there are appropriate processes in place, and protections offered, to facilitate the disclosure of wrongdoing, misconduct and corruption. The Government is committed to providing best-practice legislation to achieve this end. The Government will develop legislation reflecting this Government response for introduction during this year.(ie 2010). A further announcement about the legislation will be made in due course.”
The Gillard agreement in September 2010 with Andrew Wilkie to enable formation of her government included a commitment that parliament would pass the law by July 2011.
The Australian Public Service Commission State of the Service Report 2010-2011 released in November 2011: "The government is finalising the Public Interest Disclosure Bill. The legislation is intended to set up a scheme that provides for the investigation of unacceptable conduct in the Australian Government sector and extend the protections available to people reporting wrongdoing. The legislation is expected to be introduced to parliament in 2011."

In March 2012 "two small amendments" proposed to the existing scheme, and nothing since.

What gives???

Explanatory Memorandum

Item 52—at the end of section 16

Item 52 proposes to insert sections 16(2) to (6) to require Agency Heads to establish procedures for an APS employee to make a whistleblower report and for Agency Heads to deal with those reports.

Whistleblower reports made to Agency Heads etc.

Proposed paragraph 16(2)(a) requires that an Agency Head must establish procedures for an APS employee to make a whistleblower report of an alleged breach of the Code of Conduct to an Agency Head or a person authorised by an Agency Head to receive whistleblower reports. An APS employee may make a whistleblower report to any Agency Head.

Proposed paragraph 16(2)(b) requires that an Agency Head must establish procedures to deal with a whistleblower report.

Proposed subsection 16(3) requires that the procedures established by an Agency Head under proposed subsection 16(2) must comply with basic procedural requirements (if any) prescribed by the Regulations.

Proposed subsection 16(4) is included to assist readers, as the procedures under proposed subsection 16(2) would not be a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 .

Whistleblower reports made to the Commissioner or MPC etc.

Proposed paragraph 16(5)(a) provides a regulation-making power to prescribe procedures for an APS employee to make a whistleblower report of an alleged breach of the Code of Conduct to the Commissioner or the MPC or to a person authorised by the Commissioner or the MPC to receive whistleblower reports.

Proposed paragraph 16(5)(b) provides a regulation-making power to prescribe basic procedural requirements that are to be complied with by the Commissioner or MPC in dealing with whistleblower reports.

Circumstances for declining to inquire, or discontinuing an inquiry, into a whistleblower report

Proposed subsection 16(6) provides that the Regulations may prescribe circumstances in which Agency Heads, the Commissioner or MPC may decline to conduct, or may discontinue, an inquiry into a whistleblower report.

Item 53—paragraph 50(1)(a)

Item 53 repeals the current paragraph 50(1)(a) and replaces it such that it is a function of the MPC to inquire, subject to the Regulations, into whistleblower reports made to the MPC or to a person authorised by the MPC to receive whistleblower reports (see proposed amended section 16 above).

Item 54—subsection 50(2)

Item 54 proposes to extend the current provisions which apply to inquiries under paragraph 50(1)(c) to inquiries under the proposed paragraph 50(1)(a) as part of the MPC’s functions to include whistleblower reports (see proposed section 16). The proposed amendment would give the MPC equivalent powers to those currently available to the Commissioner when investigating whistleblower reports. The functions performed by the Commissioner and MPC in relation to APS whistleblowing are identical, and the current arrangements are inconsistent.

Surprise, as parliament within FOI scope all along

2012-05-10T17:39:00.001+10:00

Well it turns out I have been off the money for years, bemoaning the fact that the Department of the Senate, the Department of the House of Representatives and the Department of Parliamentary Services, the three agencies that service the parliament and parliamentarians, are outside the scope of the Freedom of Information Act. And arguing that they should be brought within scope as recommended by the Australian Law Reform Commission in 1995.

The departments have never been listed in any annual report on the operation of the act. No-one ever suggested I was off-target.

Bill Hoffman of the Sunshine Coast daily as recently as March was being rebuffed in attempts to get hold of documents concerning Peter Slipper's time as deputy speaker, the Sergeant at Arms as head of the House department telling him that details of expenditure for services provided to individual members would not be released.

But out of the blue, revised Guidelines today by the Office of the Australian Information Commissioner include this paragraph for the first time (Part 2-Scope)

2.5 Three of the Commonwealth Parliamentary departments (the Department of the House of Representatives, the Department of the Senate and the Department of Parliamentary Services) are subject to the FOI Act because they were established by, or in accordance with, s 54 of the Parliamentary Service Act 1999 and they have not been exempted. The fourth Commonwealth Parliamentary department, the Parliamentary Budget Office, is exempted because it is expressly deemed not to be a prescribed authority (s 7(1) and Division 1 of Part I of Schedule 2.)

No explanation, but perhaps the penny was dropping as legislation for the establishment of the Parliamentary Budget Office developed to insistent cries that it be specifically exempt from FOI. Of course legislation to this effect was necessary because a parliamentary department otherwise was a prescribed authority, a body corporate established for a public purpose by, or in accordance with the provisions of an enactment, and subject to the FOI act unless otherwise exempt.

As mentioned in previous posts these departments pay in addition to entitlements paid by the Department of Finance and Administration, salaries and electorate allowances of parliamentarians, additional salaries of parliamentary office holders, superannuation entitlements, resettlement allowance payments, and for services and facilities to support parliamentarians in Parliament House including the cost of office accommodation, computing and other equipment, telephones, newspapers and stationery.

Of particular current interest is what documents held by the departments might reveal about payments to or on behalf of office holders such as the speaker, including perhaps travel, entertainment and other services when on business connected to that office.

And what other hitherto tightly held documents about expenditure for and on behalf of all other members and senators might reveal.

The FOI applicant queue starts here.

If parliamentary leaders or Special Minister of State Gary Gray had been ahead of the game they might have headed all this off ages ago with moves toward pro-active disclosure along the lines advocated here rather than sitting on most Belcher committee recommendations for years. The Scottish model -on-line, comprehensive, searchable records of expenditure by parliamentarians still beckons.

More transparency for the private sector should be on the cards, not just for trade unions

2012-05-08T17:31:00.000+10:00

In the light of what members of the HSU didn't know the Federal Government plans to force trade unions to be more open:

The Government has announced that it will take action to enhance the accountability and transparency of registered organisations and to strengthen penalties, and improve Fair Work Australia’s investigation processes following the conclusion of the Fair Work Australia investigation into the National Office of the Health Services Union.

Good stuff, but a broader issue concerning the adequacy of transparency obligations of private sector bodies generally cries out for attention as well.

As Johan Lidberg of Monash University concludes his piece on freedom of information in the 2012 MEAA Press Freedom report (pdf) (p 29):

However 2011 saw no movement at all in the most challenging areas of independent information access – corporate information. This is noteworthy as actions of big corporations arguably have as much influence (at times more) over our daily lives, as do governments. Access to corporate information remains the final frontier in the information access battle .

Elsewhere, almost on cue, George Monbiot writing in The Guardian yesterday tried to fire this up in the UK, reflecting on News International's previously tightly held secrets:

In this column I will make a proposal that sounds – at first – monstrous, but I hope to persuade you is both reasonable and necessary: that freedom of information laws should be extended to the private sector.....
The purpose of this monstrous proposal is not just to shine a light into the rattling cupboards of private companies, but to change the way in which they behave. A body that acts as if the world is watching presents less of a threat to the public interest than a body that knows it won't get caught. Would News International have acted as it did if its emails could have been revealed as a matter of course rather than a matter of chance? If it is true that "governments don't rule the world, Goldman Sachs rules the world", should we not be entitled to know what Goldman Sachs is up to? Is that not the only means we have of preventing its unelected power from becoming tyrannical?

It's not that monstrous. Readers might recall that a gutsy minister of our own raised the issue of FOI for the private sector in 2009.

In a post last June (and this earlier post in January 2011) I gave a rundown on Senator Faulkner's attempt to give the issue oxygen through an ALRC reference when he was Special Minister of State. The publicly announced cabinet decision to take that step came to nothing once Faulkner went to Defence that year. Then Attorney General McClelland showed no interest, and the public service in advising on ALRC references, said "move on."

No one in government or the opposition has said a public word on the topic since.

Examination of transparency standards and how disclosure of information held by the private sector could enhance public knowledge and debate on issues of importance to the community should be on someone's agenda, given:

the power corporations exercise over the every day life of most of us,

the privatisation of functions previously in the hands of government but now carried out by the private sector,

the emergence of new private sector services that resemble public utilities in their scope and importance,

the adequacy/inadequacy of available information about private sector environmental impacts, or public health and community safety issues,

sectoral issues concerning, for example, disclosure by financial institutions that governments effectively guaranteed as a result of the GFC, and other corporates that might be in the "too big to fail "category.

Any takers? Not holding my breath.

MEAA makes valuable contribution to press freedom discussion

2012-05-08T17:19:00.001+10:00

The 2012 Report on Press Freedom in Australia by the Media Entertainment and Arts Alliance released last Friday provides a valuable summary of the state of play on a wide range of topics and is well worth a read. (See report here-pdf)

Kicking at the Cornerstone of Democracy devotes plenty of space to the Finkelstein and Convergence reviews and associated media ownership and diversity issues. But it also highlights that the high ideals and reforming zeal evident when Labor took office is hard to spot now in some key related areas. Two cases in point are the two years (and counting) silence on the ALRC Secrecy Laws and Open Government in Australia report with more than 60 recommendations for dealing with the crazy crowded secrecy quilt consisting of 506 secrecy provisions in 176 pieces of federal legislation, including 358 distinct criminal offences; and the oft promised still to be delivered protection for public service whistleblowers with the last in a long line of missed deadlines, June 30, 2011.

The states have plenty to do as well particularly regarding an improved framework for court suppression orders.

The summary of submissions to a NSW statutory review of defamation law by Joseph Fernandez is the first coverage I have seen of this.

Several articles include some welcome balance on the privacy front and others cover Freedom of Information developments-I'll pick up on the latter in separate posts.

AAT pulls the shade on FOI access to Australian Honours guidelines

2012-05-04T12:24:00.001+10:00

Administrative Appeals Tribunal Deputy President Hack in Kline and Official Secretary to the Governor General [2011] AATA 247 upheld the decision by Freedom of Information Commissioner Popple that documents sought concerning the operation of the Australian honours system were not subject to the Freedom of Information Act.

For shades of Sir Humphrey, read on.

Ms Kline had sought access to documents concerning unsuccessful nominations by her of another person for an award in 2007 and 2009, and two other categories of documents: "Working manuals, policy guidelines and criteria related to the administration of awards within The Order of Australia", and "Documents relating to review processes i.e. right of appeal in cases of maladministration."

The issue before the Tribunal was whether the Office was required to deal with the application in the light of s 6A: the act "does not apply to any request for access to a document of the Official Secretary to the Governor-General unless the document relates to matters of an administrative nature." If the application came within s 6A a separate question not raised in this case would arise concerning any relevant exemptions.

Deputy President Hack rejected what he described (without elaboration) as "sophisticated arguments" on the applicant's behalf, that the words relate to "matters of an administrative nature" should be interpreted broadly. He preferred to use his words, a "simple answer": any documents that relate to any substantive functions of the Governor-General including the award of honours are outside the scope of s 6A. :

".. documents generated in connection with the conferral of honours do not ordinarily relate to matters of an administrative nature...While it is possible to conceive of exceptions to this general proposition (correspondence with the supplier of medals and insignia, or with a caterer providing refreshments at the awards ceremony come to mind), the documents in question do not relate to this sort of matter. If the Act was intended to apply to documents generated in connection with a wider view of the Governor-General’s functions, it would have done so using clear words.

(Comment: An even simpler approach might be that "relates to matters of an administrative nature" means "relates to matters of management and administration" but we won't go there.)

In reaching his decision Deputy President Hack drew on the decision of Justice Gray in Bienstein v Family Court of Australia, a Federal Court case involving s 5 and the same FOI limitation as it applies to documents held by the courts. The Deputy President saw similarities between the functions of the Governor General in making decisions on award nominees, and those of a judge exercising a judicial function. In both cases closed doors were necessary.

22. Choices have to be made between the nominees, and unsuccessful nominees may be upset when they are overlooked. Making those choices is akin to a judicial function that involves the exercise of delicate judgement. The Governor-General has the benefit of the advice of the Council of the Order when making her decisions; the Council is comprised of independent persons who bring a range of experiences and perspectives to bear on their work. That frank advice is essential to the process. While judges give reasons for their opinions, the decision in Bienstein confirms the courts are not expected to expose internal documents that might compromise the integrity of the process in the public mind, if only because they could be misunderstood or muddy the waters. That approach applies equally to documents held by the Official Secretary in relation to the system of honours.
23. The award of honours remains part of the Governor-General’s function, and – like a good deal of the work of the Governor-General – that process has occurred behind closed doors for good reason.

if Deputy President Hack is correct in taking a narrow view of s 6A, this analogy may be correct as far as it goes, putting beyond FOI reach documents held by the Office concerning individuals nominated for awards.

But the reasoning doesn't explain how this "closed doors" imperative is a relevant consideration when it comes to the manuals, guidelines and criteria for awards, and any documents held concerning review procedures. Why such documents need protection because disclosure would impact on "frank advice", "compromise the integrity of the process in the public mind" or "muddy the waters" remains a mystery. Au contraire, disclosure might have a positive rather than a negative impact.

I understand the applicant in this case has preliminary legal advice that there are grounds for appeal.

The broader public policy issue that deserves further consideration is why criteria and guidelines used in determining Australian Honours awards are not published or accessible.

Arguably documents of this kind are the type that Parliament intended should be made publicly available by every government agency. "Operational information" (defined in s 8A to include rules, guidelines, practices and precedents relating to decisions and recommendations) must be published as part of each agency's Information Publication Scheme- unless exempt.(Government House has no published operational information.)

In line with this decision the Office of Official Secretary won't have to bother dealing with any application for documents for anything to do with the Governor General's substantive functions.

It raises the question how properly to categorise Honours manuals, guidelines and criteria and any similar documents held at Government House if they are not policy or related to matters of an administrative nature? Contributions by sir humphreys welcome.

That said it reminds of the exchange on the BBC's Yes Minister program as Sir Humphrey and the minister darted and weaved to avoid questions before a parliamentary committee- by distinguishing policy and administration.

Betty Oldham: Look, Sir Humphrey, whatever we ask the Minister, he says is an administrative question for you, and whatever we ask you, you say is a policy question for the Minister. How do you suggest we find out what is going on?
Sir Humphrey Appleby: Yes, yes, yes, I do see that there is a real dilemma here. In that, while it has been government policy to regard policy as a responsibility of Ministers and administration as a responsibility of Officials, the questions of administrative policy can cause confusion between the policy of administration and the administration of policy, especially when responsibility for the administration of the policy of administration conflicts, or overlaps with, responsibility for the policy of the administration of policy.

Privacy law reform on the agenda, again

2012-05-03T10:29:00.001+10:00

Attorney General Roxon's Media Release yesterday about privacy law reform received a good run in the media but the detail will only be apparent when the legislation foreshadowed for the winter sittings is introduced. The Senate Finance and Public Administration Committee made 59 recommendations in its reports last year on the Exposure Draft of the Australian Privacy Principles . and the Exposure Draft on Credit Reporting and there were plenty of other suggestions raised in consultations. The Attorney's release doesn't go into explanation of what has been accepted or rejected, simply listing these benefits to consumers:

clearer and tighter regulation of the use of personal information for direct marketing

extending privacy protections to unsolicited information

making it easier for consumers to access and correct information held about them

tightening the rules on sending personal information outside Australia

enhancing the powers of the Privacy Commissioner to improve the Commissioner’s ability to resolve complaints, conduct investigations and promote privacy compliance

The Government will also modernise credit reporting arrangements. Benefits for consumers include:

making a clear obligation on organisations to substantiate, or show their evidence to justify, disputed credit listings

making it easier for individuals to access and correct their credit reporting information

prohibiting the collection of credit reporting information about children

simplifying the complaints process by removing requirement to complain to the organisation first, complaints can be made directly to the Privacy Commissioner, and by introducing alternative dispute resolution to more efficiently deal with complaints."

In a separate release Australian Privacy Commissioner Timothy Pilgrim elaborated on what the proposed extension of his powers will allow:

Accept a written undertaking from an organisation that they will take or refrain from a specified action. This will be enforceable in the Federal Court or Federal Magistrates Court.
Make a determination following an investigation conducted on the Commissioner’s own initiative. Currently, the Act only allows a determination to be made when investigating a complaint from an individual about an act of practice.
Seek civil penalties in the case of serious or repeated interferences with privacy.
Conduct performance assessments of private sector organisations handling personal information. Currently the Commissioner can only conduct audits of government agencies and credit reporting agencies.

I'm sure the Attorney General didn't mean to make it sound as if this is game set and match on privacy law reform:

These changes.... will implement the Government’s response to the Australian Law Reform Commission’s report – For your information: Australian Privacy Law and Practice."

The first stage response more like it.

As the government said way back in 2009 a whole raft of other ALRC recommendations were to be considered in stage two including exemptions generally and in particular removal of exemptions for small business and political parties and tightening up the media exemption; mandatory data-breach notification; a statutory cause of action for serious invasions of privacy (on which there has been a consultation of sorts); telecommunications privacy; decision making issues (such as authorised representatives and children’s privacy); and further national harmonisation. We aren't anywhere near done with a process that kicked off in 2006 with the reference to the ALRC.

Can the media make a good fist of self-regulation?

2012-05-01T20:52:00.000+10:00

The Finkelstein review report released in February didn't think so. It said the media had had the opportunity regarding print, had failed, and showed no sign of interest or capacity to address shortcomings. Separately it concluded that ACMA’s co-regulatory processes for television and broadcasting were cumbersome and slow. "The problems with both the external and self-regulatory mechanisms are inherent, and cannot be easily remedied by piecemeal measures." Hence a recommendation that a new statutory authority, the News Media Council, be established to set journalistic standards and handle complaints made by the public when those standards were breached.

End of the world headlines that followed included:

"Media fears for freedom as watchdog unleashed" in The Australian

"Watchdog a 'threat to free press'" in The Australian

"Put simply, mooted muzzle would not work" in The Australian

"Bringing the media to heel" editorial in The Australian

"Media union to fight government control" in the Herald Sun

So this week, the Convergence Review in its final report stepped back from the Fink, suggesting the media be given another go, this time to achieve something even more complex than previously attempted, a self-regulatory scheme for all big news professional players regardless of platform (except the public broadcasters):

The Review proposes that the government first test the effectiveness of a self-regulatory arrangement that operates across all platforms. Under this approach, content service enterprises would be required to join and adequately fund an independent self-regulatory industry body which would develop self-regulatory standards for news and commentary and adjudicate complaints. As stated, this body would be predominantly funded by industry with some government contribution. The news standards body would set clear goals to be achieved within a specified time frame. If, on review, this industry-led body was not effective, the government would have the last resort option of introducing some direct statutory measures.

The Finkelstein stick has been transformed into the threat of a statutory regulator if they don't get it right this time. As Margaret Simons in Crikey (subscription) writes:

The Convergence Review Report has effectively concluded that Ray Finkelstein got the diagnosis right but the prescription wrong when he recommended statutory regulation for news media.

Perhaps the stick is worth waving but who would predict with any degree of confidence that a government three to five years hence would ever use it, regardless of how the proposed standards body performs?

Government money might be something of an incentive to media leaders to move along recommended lines. So too the prospect of legal privileges being linked to such arrangements, although stronger language than "could" might make the point more effectively:

Membership of the news standards body could be a condition of retaining legal privileges currently provided for news and commentary in Commonwealth legislation. In particular, it seems reasonable that only those organisations that have committed to an industry self-regulatory scheme for upholding journalistic standards of fairness and accuracy should be entitled to the exemptions from the provisions of the Competition and Consumer Act 2010 concerning misleading and deceptive statements and from the obligations of the Privacy Act 1988 that would otherwise apply to those organisations. However, there is not the same argument for applying this requirement to laws protecting journalists’ sources. These laws apply to information collected by individual journalists, who might be freelance journalists rather than employees of an organisation.

The proposed communications regulator would have a role in the scheme including oversight of the adequacy of codes and capacity to act in the case of persistent or serious breaches. Chapter 4 of the Final Report has the details.

Given media hostility to the Fink, the proposed scheme reeks of pragmatism and realpolitick, and comes with a load of qualifications about the prospects for real improvement in media standards. But given the state of play in Canberra it's unimaginable that the tough Fink line was ever a goer regardless of how you see the merits.

Media reaction to the report is, well a shade less alarm, although there is some of that, but in some instances, positive support. Chair of the Australian Press Council Professor Julian Disney welcomed the report, and wants prompt government action. The MEAA likes what it sees but thinks the recent strengthening of the Press Council with increased funding and commitment is already a big step in the right direction. Fairfax and some other players say yes, let's talk.

No prize for guessing News Limited says no way. It is yet to agree there is a problem, let alone articulate a better way forward. Its leadership credentials have been somewhat diminished by developments elsewhere in any event but it is far and away the biggest funder of the Press Council.

Comment from academe on The Conversation suggests it's all a far cry from what is really needed to lift standards.

Martin Hirst of Deakin University:

At best this suggested change amounts to a new set of dentures for the existing publisher’s poodle. It will be able to accept sanitised government funding in ways that will not upset the old-guard in the newspaper industry who see Armageddon in every attempt at regulation by government. There is no indication in this 170+ page report that there is any real problem or issue with media accountability and standards in Australia. This is a whitewash of the highest standard.

Alexandra Wake of RMIT

There are some strong recommendations which deserve to be applauded, but the bottom line is, the recommendations of the Convergence Review will likely do little to solve the problems that prompted public concern in the United Kingdom and in Australia about news organisations their culture, ethics and practices..Unless forced, I doubt the new standards body will be able to agree to enforce a common media code aimed at promoting fairness, accuracy and transparency.

Parliament sails above expected standards of transparency

2012-04-29T21:15:00.003+10:00

Amid all the hubbub about Speaker Slipper, sure not to die down anytime soon despite his decision to step aside for the moment, I've been wondering when the mainstream media would notice that reams of material about his (or any parliamentarians') expenditure of public money seems to be available from the Department of Finance and Deregulation, either in published form or in response to Freedom of Information applications, but nothing from the Parliament itself about payments made to or on his behalf.

Parliament not Finance pays salaries and electorate allowances of parliamentarians, additional salaries of parliamentary office holders, superannuation entitlements, resettlement allowance payments, and services and facilities to support parliamentarians in Parliament House including the cost of office accommodation, computing and other equipment, telephones, newspapers and stationery. And perhaps travel for office holders such as the speaker when on business connected to that office, but who knows, this is murky territory.

But hallelujah, this in an editorial in the Sydney Morning Herald on Saturday:

The case also raises the issue of transparency. Parliament is not covered by freedom-of-information legislation. It should be. It is no breach of Westminster tradition: the British Parliament is covered by it, as was shown by the recent expenses scandal. Given that Parliament has a budget of $180 million to spend on its members, there is significant public interest in ensuring it is spent properly.

I won't go back over years of pointing out that the Australian Law Reform Commission recommended this, ahem, 17 years ago. (Well I will actually.)

Or that no government or parliamentary leader has given a response since.

Or that I've been ranting on for yonks about gaps in transparency for payments to parliamentarians most recently last week, further back last November or even further back, a year ago.

Or that parliament has been fiddling but not acting to establish the position of parliamentary integrity commissioner?

Has anyone asked minister for integrity issues/parliamentary entitlements, Special Minister of State Gray?

Or the presiding officers of parliament?

Wait a minute, one of those is Speaker Slipper who retains the position despite the fact he has stood aside from chairing parliamentary debate.

Ah you've got to love 'em!

Differences in FOI acts in protecting against harassment or intimidation

2012-04-29T13:34:00.001+10:00

Privacy Commissioner Pilgrim in 'I' and Australian National University [2012] AICmr 12 (the first published review decision in which he rather than Professor McMillan or Dr Popple exercised powers under the Freedom of Information Act) set aside a decision to refuse access to emails sent to climate change scientists at the ANU that had been the basis of earlier media reports that death threats had been made against them. (Update: Christian Kerr in The Australian on 3 May provided a racier account, the ANU has since decided against appealing the decison, and Chris Merritt found scope for some point scoring against Fairfax.)

Of interest is that the Commonwealth act contains no counterpart to provisions found in Queensland,Tasmanian and NSW acts that provide grounds for refusal where, with regard to matters of this kind, the likely effect of disclosure falls short of a reasonable expectation of harm to life and safety. Those state acts throw the risk or likelihood of harassment or intimidation into the harm mix.

Access in this case had been refused by the University on the basis of Section 37(1)(c) of the FOI act, that disclosure would, or could reasonably be expected to endanger the life or physical safety of any person, and Section 47F, the conditional exemption for personal information. The latter claim failed because the applicant was not seeking information that would reveal the identity of the individuals sending or receiving the emails in question.

Commissioner Pilgrim was satisfied that disclosure of the content of the documents could not be expected to endanger life or physical safety of any person. His decision was that edited copies (with information removed that would identify the individuals sending or receiving the emails) should be released to the applicant.

The Commissioner found on reading the 10 emails that they did not contain threats to kill or threats of harm. "They contain abuse in the sense that they contain insulting and offensive language." Another email contained a recollection of an exchange which occurred during an off-campus event sponsored by members of the Climate Change Institute and other governmental agencies. The University had treated this as a security threat at the time.

Commissioner Pilgrim concluded that the exchange as described in the email "could be regarded as intimidating and at its highest perhaps alluding to a threat.... I consider the danger to life or physical safety in this case to be only a possibility, not a real chance."

The FOI exemption issue however required a judgment about the effect of disclosure of the document:

15. The question is how release of the documents could reasonably be expected to endanger the life or physical safety of any person. In other words, the question is whether release of the documents could be expected to create the risk, not whether the documents reflect an existing credible threat. Even if the threats were highly credible, the question would be how release of the documents would add to the expected threat.
16. In my view, there is a risk that release of the documents could lead to further insulting or offensive communication being directed at ANU personnel or expressed through social media. However, there is no evidence to suggest disclosure would, or could reasonably be expected to, endanger the life or physical safety of any person.

Commonwealth /state law comparisons

Section 37(1)(c) remains as it was when the Commonwealth FOI act came into operation in 1982, unaffected by the 2009 reforms.

The formulation in the act was generally replicated by the states in their Mark 1 versions of FOI legislation that followed, except in the case of Queensland where the FOI act (section 42(1)(ca)) provided an exemption if disclosure could reasonably be expected to endanger a person's life or physical safety, or "result in a person being subjected to a serious act of harassment or intimidation." The replacement Right to Information Act (Schedule 3, section 10(1)(d)) retains an absolute exemption for information of this kind. (Coincidentally the RTI exemption was the subject of this decision, Richards and Gold Coast City Council, by Information Commissioner Kinross recently.)

In their FOI law rewrites in 2009/10, NSW and Tasmania generally followed the Queensland lead.

The Tasmanian Right to Information Act (S 30) exempts information the disclosure of which would "endanger the life or physical, emotional or psychological safety of a person, or increase the likelihood of harassment or discrimination of a person." There is no public interest test.

The NSW Government Information (Public Access) Act (Table, s 14 Note 3) lists as public interest considerations against disclosure, that release could reasonably be expected to "expose a person to a risk of harm or of serious harassment or serious intimidation." Uniquely, these considerations must be weighed against any public interests that favour disclosure before reaching a conclusion on whether there is an overriding public interest against disclosure. In the usual circumstances significant weight would be attached to the harm factors, unlikely to be trumped in most instances to my mind.

Commissioner Pilgrim's observation that release of the emails in the ANU case could pose a risk of " further insulting or offensive communication being directed at ANU personnel or expressed through social media" gives rise to speculation about what might be the situation if this type of content was relevant to an application being dealt with under the state laws. In the case of Queensland and NSW, disclosure even without names, might constitute a risk of serious harassment or intimidation of an individual or individuals, or under the Tasmanian act, increase the likelihood of harassment, sufficient potential harm in each case to attract exemptions that don't exist in Commonwealth law.

Who has the balance right on this one?

Privacy Awareness Week

2012-04-24T15:09:00.000+10:00

Privacy Awareness Week kicks off on 30 April at breakfast in Sydney with Privacy Commissioner Timothy Pilgrim leading a panel discussion about data breaches and privacy best practice. Australian Information Commissioner Professor John McMillan will also launch the OAIC's revised Guide to Handling Personal Information Security Breaches at the event. Initiatives such as this and other events scheduled for the week by the OAIC, and the Northern Terrritory, Queensland, NSW and Victorian regulators to raise awareness are to be applauded.

Meanwhile consideration of the case for a legislated requirement for notification of a serious breach of data security presumably grinds on.

Privacy law reform generally, identified by the federal government as long ago as 2006 as an issue, has moved at glacial pace since the government's announced response in October 2009 to the Australian Law Reform Commission report of a year earlier. First stage reform issues such as the proposed new form Australian Privacy Principles are still unfinished business.

Slipper saga reminds of lack of transparency concerning payments to parliamentarians

2012-04-23T11:50:00.002+10:00

7 News

Plenty to read about House of Representatives Speaker Peter Slipper, some courtesy of documents obtained under Freedom of Information by News Limited publications from the Department of Finance and Deregulation, which manages most entitlement payments to members and senators.

But details of payments and related information concerning use of entitlements by Mr Slipper for which the parliament itself is responsible haven't featured so far. That sort of information about parliamentarians isn't available. See this post from last November about gaps in the system of accountability and transparency and recommendations for change, yet to be acted upon by parliament or the government, that have been floating around for years.

Long before it became an issue attracting national attention, Bill Hoffman at the Sunshine Coast Daily was on the Peter Slipper expense case. In March he detailed his unsuccessful effort to access information about payments by the parliament while Mr Slipper was Deputy Speaker last year.

Hoffman's article included this response from House of Representatives Serjeant-at-Arms Robyn McClelland which referred for the first time to future consideration of a public reporting regime for such payments, On past form don't expect to hear much from parliamentarians about the subject, or prompt action on much-needed improvements to the system:

Dear Mr Hoffman,

I refer to previous emails. The department has considered your request.

We have not previously had a request to our knowledge for % (sic) release of details of expenditure for services provided to individual members. Such details have not been released previously and we do not propose to make the details that you have requested available to you at this time. We will consider a public reporting regime involving publication of expenditure details. Any development of a reporting regime will involve considering the information available, developing a consistent approach across the parliamentary departments, and consultation with members. We will write to inform you if the information becomes publicly available.

NBN Co FOI performance review won't examine broader exclusion issues

2012-04-20T16:36:00.002+10:00

Attorney-General Nicola Roxon announced this week that what has ensued since June 2011 when NBN Co commenced operating under the Commonwealth Freedom of Information Act (albeit with coverage limited to documents that don't concern commercial activities) will be reviewed by a yet to be named eminent person.

The review stems from an agreement between the government and The Greens reached at the time the amendment was passed to bring NBN Co under FOI law a year ago. The Greens were wary that the government formulation of the NBN Co exemption, along the lines of long standing exemptions enjoyed by other GBEs and similar bodies, left too much room for avoiding disclosure, hence the agreed review of performance in return for their votes. At the time Malcolm Turnbull of the Opposition was convinced The Greens had been conned, and that the legislated formula provided too much hiding room for NBN Co. We'll see what has happened when the review report is tabled in parliament in June. I'm assuming, knowing all along that the review was to happen, that NBN Co has been reasonably well behaved.

Broader issues

The review notwithstanding, the justification for special exemptions afforded to a range of organisations and the inelegant form of words used in s7 and schedule 2 to achieve this will remain matters for another day. Along with the justification for exclusion of an unknown number of government owned corporations similar to NBN Co in structure, such as the National Electronic Health Transition Authority, that carry out important public functions with large allocations of public money.

Similar issues, rarely explored in most instances, also exist at state level.(Tasmania may be an exception because of the broad definition of public authority in s 5.)

Queensland Attorney General showed interest in scope issues in opposition

In Queensland last year the Supreme Court ruled Special Purpose Vehicles were not subject to the Right to information Act. Then Opposition Member for Kawana, Jarrod Bleijie introduced the Right to Information (Government-related Entities) Amendment Bill into Parliament in September, partly in response to the court decision. Mr Bleijie is now Attorney General, minister responsible for the RTI act.

His 2011 bill, which lapsed when parliament was dissolved prior to the election in March, would extend the RTI act to cover "any corporation supported directly or indirectly by government funds or other assistance, or over which the state, a minister or a department is in a position to exercise control."

The RTI act currently (s 16) provides for extension of the act by regulation to such entities, but Labor made no move in this direction. Mr Bleijie in opposition saw merit in legislating in a job lot for such bodies to be subject to the RTI act but it remains to be seen whether the view from behind a ministerial desk takes on a different hue-as so often is the case.