ART Submission – Open Government Partnership: Transition from NAP1 to NAP2

Apr 30, 2018

The ART submission to the Open Government Partnership National Action Plan round 2 calls for some specific reforms to accountability and openness processes.

CONTENTS

1. WHY WE NEED A FEDERAL ANTI-CORRUPTION COMMISSION

  • What evidence of corruption is there?
  • Why do we need a National Integrity Commission?
  • Are the present defences adequate?
  • What good have Anti-Corruption Commissions ever done?

2. ELECTORAL INTEGRITY- Political Donations & Lobbying

3. PUBLIC SECTOR INTEGRITY – Matters arising from Consultation Document

4. ACCESS TO GOVERNMENT INFORMATION #1

  • Freedom of information (FOI)
  • Resourcing
  • Problems with the Office of the Australian Information Commissioner (OAIC)
  • Publication requirements
  • Exemptions from FOI
  • Fees and charges
  • Vigilance

5. ACCESS TO GOVERNMENT INFORMATION #2

  • 1. Background
  • 2. Our present FOI system – the issues.
  • 3.(a) The creation of our proactive system for the AIC Act 2010 releasing of government information, data and documents.
  • 3.(b) Performance of the proactive system.
  • 4. The performance of the OAIP after the 2014 – 15 Budget.
  • 5. The attempt to restore the resourcing of the OAIC. Addressing the issue and NAP1.
  • 6. Attempts to obtain performance of the specific commitment in NAP1
  • 7. Completing the implementation of NAP1 and preparing NAP2 – a critical challenge that needs to be addressed.
  • 8. Recommendations:

6. THE PROPOSED THEME “TRUST”

Open Government Partnership:  Transition from NAP1 to NAP2.  Government request for Civil Society responses. Response from the Accountability Round Table – Submissions and Comments

(a)  Government Integrity

WHY WE NEED A FEDERAL ANTI-CORRUPTION COMMISSION

      1. What evidence of corruption is there?

(a)        Allegations of bribery by Note Printing Australia (NPA) and Securency, which produced and sold bank notes both to the Australian and overseas governments.  These allegations date back to 1999 and continued up to 2011.  Evidence of bribes up to many tens of millions of dollars were made to tax haven accounts all over the world.  The companies are controlled by the Reserve Bank and reports reached the Reserve Bank Board, but nothing effective was done.

(b)        AWB (formerly the Australian Wheat Board, until 1 July 1999), and payments made contrary to international trade sanctions.

(c)        The Australian Public Service Commission State of the Service report (January 2018) on corruption in the Public Service, including that staff believe they work in a high corruption risk environment.

(d)       Allegations of systemic fraud in the Defence Department reported in the Age on 27 December 2017, sufficient to spark an Internal Audit.  This is the Commonwealth Government’s biggest spender, the allegations included Defence Department staffers colluding with contracting companies to design well-paid jobs for themselves, and the Department awarding contracts to companies without a competitive tender process and only flimsy justification.  The report found 80 procurements breached Department guidelines, 45 procurements were unable to be examined because of missing paperwork, and only 79 procurements met the Department’s internal rules.

(e)        Recent research arising from economic analysis by Price Waterhouse Coopers, for Transparency International, showed that the impact of corruption in Australia resulted in our GDP this year could have been $72.3 billion higher had Australia maintained its 2012 reputation for minimal corruption.

(f)        The activities of Eddie Obeid’s family in relation to the grant of mining licences in the Bylong Valley and the behaviour of former NSW Minister for Mining, Ian McDonald.

(g)        Corruption in Victoria’s Education and Transport Departments uncovered by IBAC.

(h)        Corruption in the Queensland Police and Government uncovered by the Fitzgerald Inquiry in the 1990s.

(i)         Corruption in the NSW municipal investigations in relation to land development decisions.

(j)         The emergence of the Panama Papers showing the amount of money held for Australian clients in tax havens, a potential source of information relating to corruption.

(k)        The amount of money donated by companies and individuals in uncontrolled political donations.

(l)         The Australian Government’s actions in 2004 while negotiating with the Government of East Timor.  During these negotiations, Australian agents installed listening devices inside the East Timorese cabinet room, enabling Australia to listen to Cabinet deliberations during the negotiations.  When East Timor discovered and launched proceedings in The Hague to have the oil and gas treaty declared void, ASIO officers raided the offices of the East Timorese solicitor in Australia, seizing their files on the matter and the passport of the ASIS officer who was to give evidence of Australia’s behaviour.  His passport was cancelled, preventing him travelling to The Hague to give evidence.  The behaviour of Australia’s officers, no longer denied, amounted to an indefensible fraud and grossly unethical activity.  If such behaviour had occurred during court proceedings in Australia, those responsible would unquestionably have been imprisoned for a very serious contempt of court.

(m)       The activities of the Commonwealth Bank over a considerable period, including laundering money on many occasions and multiple other offences.  The bank’s officers are not public servants, but no relevant Commonwealth agency appears to have picked up these activities until AUSTRAK did recently.  The activities of the Commonwealth Bank staff however is but an example of corrupt activity on a grand scale in the major Australian bank. To that

(n)        These questions are examined in the speech “Corruption More Than A Cancer”, delivered by the former UK Prime Minister David Cameron to Transparency International,  in December 2017.

      1. Why do we need a National Integrity Commission?

Corruption occurs where and when money, power and influence are found and persons pursue them in a criminal or improper way.  The largest quantity of each is found in Australia in Canberra.  Each year the Federal Government purchases tens of billions of dollars of goods and services.  One of the largest purchasers is the Defence Department which in 2009 alone sought tenders for more than $45 billion.  Corruption is usually well-hidden; it is difficult to discover and expose.  The Commonwealth is also a signatory of the United Nations Convention Against Corruption (UNCAC) and a member of the Open Government Partnership.  Article 36 of UNCAC requires a State Party to ensure the existence of bodies specialised in combatting corruption through law enforcement able to carry out their functions effectively, without any undue influence.  It is highly doubtful that Australia has complied with this obligation.

Political donations are made by many individuals out of a genuine desire to fund and support the political party of their choice, without any ulterior motive.  But most large donations are made as a means to obtain access and influence which is not available to the general community.  There is no adequate control in the Federal sphere of electoral donations.  The Federal system is the weakest of this nation’s electoral funding regimes.  There are no prohibitions on any class of donor, no caps on the size of donations and expenditure.  It is all but impossible for anyone to determine who has given how much to which politician or political party and for what purpose.  Donations can also be hidden by the use of bodies such as the Free Enterprise Foundation or the North Sydney Forum.

Nor is there any adequate regime in place to prevent Ministers, Members of Parliament or public servants leaving a position and moving to employment in private industry, taking with them their knowledge, experience and means of access. There is a high risk that whilst public officers they will make decisions favourable to prospective private sector employers who will later reward them with high value employment or other benefits.

There is little incentive on the part of public sector employees to complain about suspected corruption, in light of the seriously flawed rules for protecting whistle-blowers.  Freedom of information is also inadequately maintained in the Commonwealth area.

Risks of corruption have increased in recent years for a variety of reasons: the increase in governmental control of information; increased need for funding of political campaigns; methods employed by government and failure to enact legislation, to provide adequate controls and transparency; the commercialisation of government services and projects; the development of lobbying; and the failure to stop or control the flow of Ministers and their staff to the private sector.  Similarly the flow of Ministers and their staff to the lobbying industry on retirement from their positions.

All of the above are simply part of the reason for the distrust building in the community directed at Government and the Public Service.

      1. Are the present defences adequate?

(i)         The principal body claimed to make a National Integrity Commission unnecessary, is the Australian Commission for Law Enforcement Integrity (ACLEI).  Its role is to support the Law Enforcement Integrity Commissioner detecting and preventing corruption in law enforcement bodies, such as the Australian Crime Commission, the Department of Immigration and Border Protection (DIBP), the Australian Federal Police, Austrac and the Department of Agriculture.  The scheme of the Act requires the head of each department to report to the Integrity Commissioner any instance of corruption discovered in the relevant department, which will then be investigated by ACLEI, which has about 40 staff.  ACLEI does not have jurisdiction over most public servants, Members of Parliament, their staff, the judiciary or most Federal bodies or persons making decisions or providing services involving the expenditure of public funds in the Commonwealth.  Government’s approach to preventing corruption by this body has been that no single body should be responsible, rather that there should be a range of bodies and governmental initiatives to promote accountability and transparency.  The shared responsibility relies on the obligation imposed on each agency to refer misuse involving corruption to the Integrity Commissioner.

Since the Government’s approach to corruption involves no single body being responsible, it follows with shared responsibility that each body is likely to assume all is well because someone else is making sure nothing corrupt is occurring.  Corruption can fall through the gaps.  Relying on cooperation between a range of bodies covering only part of the activities of the Commonwealth was never a satisfactory approach to preventing corruption in the Federal area and has been shown to be completely ineffective.

(ii)        The Australian Federal Police

The AFP is principally concerned with criminality in the Federal area, and particularly such matters as drug trafficking and counter terrorism.  A Sydney Morning Herald investigation in 2011 led to the researcher, Linton Besser, concluding that the AFP were reluctant to deal with fraud matters and would only deal with official misconduct which touched on criminality at the top end of the spectrum, because it had other priorities.  There is no evidence of the AFP having discovered any serious examples of corruption, which, as previously noted, is usually hidden and difficult to discover.  It requires highly trained investigators with specialised knowledge and extensive powers.  The AFP is not a suitable agency to investigate corruption in the Federal area.  Indeed, the AFP is unlikely to be able to recognise corruption if it fell over it in a criminal investigation.

(iii)       The Australian Public Service Commission (PSC)

Substantially the same comments apply as with the AFP.  The PSC has a variety of functions, its principal obligation being to lead and shape a unified and high performing Australian Public Service (APS), to give advice to Government on the Australian Public Service, contribute to effective APS leadership and reporting on performance of the APS.  It is plainly not a body specialised in investigating corruption or an appropriate substitute for a unified NIC.

(iv)       The existing bodies do NOT provide adequate protection.  It is essential that there be a comprehensive independent integrity system incorporating a general purpose anti-corruption agency with educative, research and policy functions, and all necessary investigative powers, subject to Parliamentary oversight.

      1. What good have Anti-Corruption Commissions ever done?

(i)         The Painters and Dockers Commission (conducted by Costigan QC) in the 1980s exposed rampant corruption in the Bottom of the Harbour tax evasion scheme and in the Australian Taxation Office.

(ii)        The Fitzgerald Commission in the 1990s exposed very serious corruption both in the Queensland Police Force and the Queensland Government more generally.

(iii)       The NSW ICAC exposed the mining licence frauds in the Bylong Valley area, involving the Obeid family and the NSW Minister of Mines, and a series of corrupt activities in land development and municipal council decisions, as well as a variety of improprieties in election funding.

(iv)       The Victorian IBAC, at a time when most Victorians believed that their State was corruption free, exposed serious fraud in the investigation of both the Education and Transport Departments and serious police misbehaviour in Ballarat.

(v)        The Anti-Corruption Commissions in Hong Kong and the United Kingdom have both operated effectively for decades in their respective communities.

      1. Conclusion

The second National Action Plan should include a Commitment to build on Commitment 4.2  – National Integrity Framework in the first National Action Plan. The Commitment should be to establish a comprehensive and powerful corruption control agency with powers to investigate alleged corruption in in the exercise of any Commonwealth function or expenditure, to come into operation not later than 1 July 2020.

ELECTORAL INTEGRITY – Political Donations & Lobbying

The first National Action Plan raised the issue of confidence in Australia’s electoral system and political parties.  However, it appears action in these areas relate primarily to the work of the Joint Standing Committee on Electoral Matters (JSCEM), which is not an initiative of Australia’s Open Government Partnership (OGP) National Action Plan (NAP).

It is pleasing to see that the Government’s proposed Consultation for Australia’s Second Open Government National Action Plan 2018-2020 highlights public sector integrity as one of five areas it will focus on in the coming two years.  Unfortunately, the ideas put forward for addressing public sector integrity are extremely vague, but perhaps that is because the government intends to respond positively to suggestions from civil society before it broadens what will be addressed in NAP2.

In the interest of a truly robust open government partnership, in which National Action Plans deliver ambitious “action across a broad spectrum of important areas for government”, the Accountability Round Table (ART) anticipates that the final NAP2 will include a detailed and totally revamped approach to the Federal political campaign finance regime. This is necessary if a reformed regime is to deliver to the Australian community an “open, transparent and accountable” system that is capable of going some way to restoring public trust in members of parliament and the electoral system that grants them the privilege of representing the Australian people.

To assist in achieving the goal or restoring trust, ART wishes to see the NAP2’s focus in the area of public sector integrity considerably broadened.  For example, it must include an examination into all aspects of lobbying and lobbyists.

Consultation with civil society also needs to be improved in the NAP2.  In NAP1 interactions with civil society in the area of political donations was heavily reliant on inquiries conducted by JSCEM (submissions to and appearances before the JSCEM). There did not appear to be a meaningful attempt to extend the OGP’s reach so that it included the broader community.  This, ART argues, needs to be part of the NAP2.

      1. Matters and Issues arising from the Consultation Document

PUBLIC SECTOR INTEGRITY – Matters arising from Consultation Document.

This response takes up aspects of NAP1 Commitments 4.1 and 4.2 that will be considered within the Australia’s Open Government Partnership for inclusion in the proposed NAP2. It will be recalled that consultation is yet to occur between Government and Civil Society under NAP1 on those Commitments.

It is pleasing to see that the Government’s statement highlights Public Sector Integrity as an area for inclusion in NAP2. It is also pleasing to see that the material provided includes the two most serious corruption risk areas – the operation of our Government and the operation of our political campaign finance, election and lobbying systems.

The introductory paragraph in the statement provided by the Government on the topic states:

“Australia is a country with some of the highest standards of integrity in government, and we are taking effective action against the risk of corruption.”

We have many ways to prevent, detect, investigate and address claims or perceived corruption across the different parts of our government. This includes internal processes, laws, and appropriate powers to investigate wrongdoing.”

That statement is true but only because it includes States like Queensland and New South Wales which have robust anti-corruption bodies and reformed political donations regimes.  We will not, however, be putting forward proposals that relate to State and Territory governments, only for the Commonwealth. The task at hand is, and should be, to consider the Commonwealth system for addressing its two most serious corruption risk areas, the accountability of the Commonwealth Government and all elements of the Commonwealth election system and processes,

To meet our commitments under the Open Government Partnership Articles of Governance we must “fight corruption” (p. 2) and have “robust anticorruption policies, mechanisms and practices” (p. 21). We must also be “ambitious” and “go beyond” our “countries current practice” (p. 3).  Under the “Open Government Declaration”, we have also committed to having robust anti-corruption policies, mechanisms and practices, ensuring transparency in the management of public finances and government purchases, and strengthening the rule of law” (ibid, p 21 “)

All these are necessary if a reform regime is to deliver to the Australian community an “open, transparent and accountable” system and make any progress in restoring public trust in government, including the Members of Parliament and the electoral system that grants them the privilege of representing the Australian people.

If we are to achieve this, we must

      • examine the State and Territory Government’s anti-corruption systems as they relate to the accountability of their government and electoral systems
      • identify best practices in minimising the risks of corruption in those areas and
      • consider whether current practices can be improved.

We should also consider how best to ensure that the system introduced is kept under appropriate review.

There is considerable community concern at present about these matters.  The vast majority of our community, however, are unaware of the Open Government Partnership because they have not been informed adequately by Government, and the experience of the co-creative consultation to date has been confined to the very few organisations and individuals aware of our Open Government Partnership. These organisations were already known within government. The Open Government Partnership needs to reach beyond such organisations.

In preparing NAP2 the government and civil society members participating in the OGP should be giving serious consideration to how we can enable more Australians to become aware of our OGP Partnership and participate in it.

See also comments submitted in relation to the proposed task “Trust”

ACCESS TO GOVERNMENT INFORMATION #1

Freedom of Information

Background

Commonwealth FOI legislation was substantially amended in 2010. The principal reforms to the legislation were:A clearer and more explicit pro-disclosure bias;An emphasis on developing a ‘push’ scheme (whereby information is made available proactively) as well as ‘pull’ scheme (which relies on requests for access to information);A restriction on Ministers from issuing conclusive certificates;A reformulation of the public interest test weighted in favour of disclosure; andThe establishment of the Office of the Australian Information Commissioner.

While all these changes are welcome, there remains considerable work to do in improving FOI legislation and, in that way, strengthening Open Government in Australia. In the remainder of this submission we focus on enhancing the ‘pull’ nature of access to information.

Resourcing

A number of global economic developments have negatively affected the Australian economy. This has been combined with a tendency of Australian governments to refrain from increases in taxation. The Government therefore operates in context of budgetary restraint. This environment is characterised by continuing fluidity between public and private sector bodies and a lack of resourcing for government information regimes. This latter inclination has most graphically been demonstrated at Commonwealth level, where the new Office of the Information Commissioner was forced to operate from the outset without sufficient funding, resulting in considerable delays in the conduct of every one of its functions including, most importantly, in its review functions. Applicants for review of decisions to refuse them access to information waited months for their reviews to be completed, thus in many cases resulting in their receipt of information that was already out of date.

It is critical, therefore, that adequate up-front funding be provided to underwrite citizens’ access to governmental information.

The Office of the Australian Information Commissioner (OAIC)

Clearly, the most unwelcome development with respect to the operation of the FOI Act has been the Commonwealth’s attempt to abolish the Office of the Australian Information Commissioner. The abolition of that Office and the transfer of its review functions to the Administrative Review Tribunal would be a highly retrograde step. The Accountability Round Table has made many representations to the Attorney-General in relation to this matter. Partly as a result the legislation to abolish the Office has been withdrawn from Federal Parliament. But many obstacles to its effective operation remain.

See below for a detailed commentary on the current situation with respect to OAIC (pp. 29ff).

Quite apart from funding and political issues, the OAIC’s functioning could be improved by a number of simpler expedients. These might include:

      • Authorising the Commissioner to remit a matter to an agency for reconsideration.
      • Provide a clearer mandate to the Commissioner to resolve FOI review applications by agreement between the parties to a review.
      • Remove the prohibition in legislation with respect to the delegation of Information Commissioner review decision-making powers under s.55K of the Act.
      • Clarify the application of secrecy provisions in other legislation to Information Commissioner reviews.
        1. Renewed consideration should be given the continuing existence of the two-tier system of review. Instead, it would seem appropriate to make AAT reviews of decisions under the FOI Act available only on points of law, rather than on the merits.

Publication Requirements

Commonwealth and State FOI regimes contain important publication requirements, including requirements to publish information that has been provided to applicants, thereby augmenting and ensuring its broader dissemination. Publication requirements are crucial to making a much wider range of information to the public without the necessity to use FOI legislation to obtain access to information that should, properly, be publicly available, and at no cost.

A comprehensive review of agency performance in complying with publication revealed that most agencies had been successful at least in the development of comprehensive publication plans. However, agencies disclosed that less than half of agencies had established Publication governance structures and effective training arrangements. These plainly are essential to the attainment of significant improvement in the wider disclosure of governmental information.

A related issue is the association between information technology and possibilities for the use and re-use of government information outside the public sector. Internationally and nationally there is a growing recognition of the extent to which public sector information is a resource that should be managed like any other resource – that is in optimising its economic and social value. Flowing from greater information openness are issues, for example, of open licensing, discoverability and machine readability to enable data re-use. This will require continuous improvements in governmental web technologies to strengthen collaboration and break down barriers between government and the community.

The advent of new technologies is now also posing a significant challenge to the structure of FOI legislation. The problem is how to maintain a relevant and meaningful framework for access to government information in an era when the way in which information is recorded and shared is changing very quickly. This means that urgent consideration should be given to whether and how the existing focus of FOI legislation should shift from an emphasis on ‘documents; to an emphasis on ‘information’.

Another frontier for reform concerns the development of a strong administrative access framework to complement formal FOI access arrangements. The idea here is to reduce the burden on FOI by establishing preliminary mechanisms through which applicants and agencies could consider and discuss requests for information informally prior to embarking upon the FOI route. So, for example, one might encourage administrative access to information by allowing agencies a short period of time to discuss a request with an applicant before the FOI period formally commences.

FOI Exemptions

Class based exemptions (including Cabinet document exemptions) should be removed in favour of exemptions that focus upon the specific harm sought to be avoided.

There remain a significant number of exemptions in the Commonwealth FOI Act that are free from override in the public interest. The number of core exemptions in the legislation should be minimised in favour of conditional, public interest exemptions. This would avoid a situation in which an exemption is claimed where the likely harm to the governmental interest protected is small and clearly outweighed by the public interest in favour of disclosure.

Another cause of concern is the number of bodies that are exempted from FOI Acts. It is unclear that these bodies, including security and intelligence agencies, require an agency-based exemption when the existing exemptions in legislation already provide ample protection for their legitimate interests. If additional protections are considered to be necessary it would be better to include such exemptions as additions to the present scheme of exemptions rather than to exempt agencies as a whole.

Fees and Charges

Fees and Charges play an important role in the FOI scheme. It is appropriate that applicants make some contribution to the cost of processing requests. Charges also play a role in balancing demand by focusing attention on the scope of requests and regulating those that are voluminous and therefore burdensome to process. At the same time full cost recovery would be incompatible with the objects of the FOI Act and would unfairly prejudice large numbers of potential applicants.

The principles that should govern the administration of a charging regime are:

      • The democratic right of citizens to have access to governmental
      • The desirability of providing that access at the lowest possible cost.
      • The fees and charges framework should be clear and easy for agencies to administer.
      • The promotion of an informal process of administrative access to governmental information, and the encouragement of the conciliation of applications for review, in order to avoid the costs that will otherwise be incurred.
      • A fee and charging regime may be constructed as follows:Agencies should be encouraged to establish informal administrative access schemes.There should be no charge for the first five hours of processing time. The charge for processing time between five and ten hours should be a flat fee of $50.00.For processing over ten hours should be $20.00 per hour.An agency may in its discretion apply a $50.00 charge if a person makes an FOI request without first applying under an administrative access scheme that has been notified on the agency’s website.

Vigilance

Finally, there is a need for continuous vigilance in protecting the right of citizens to obtain access to government information and in holding government to account for its actions – in which FOI legislation plays a crucial part. Perhaps inevitably, FOI has become a contested mechanism in a contested political space. Attacks on FOI legislation whether by politicians or senior public servants are commonplace. It needs to be remembered and continuously emphasised therefore, that access to governmental information is quite simply a democratic right. It is not a right to be dispensed with, therefore, for simple political or bureaucratic convenience.

A clearer and more explicit pro-disclosure bias:An emphasis on developing a ‘push’ scheme (whereby information is made available proactively) as well as ‘pull’ scheme (which relies on requests for access to information);A restriction on Ministers from issuing conclusive certificates;A reformulation of the public interest test weighted in favour of disclosure; andThe establishment of the Office of the Australian Information Commissioner.

While all these changes are welcome, there remains considerable work to do in improving FOI legislation and, in that way, strengthening Open Government in Australia. In the remainder of this submission we focus on enhancing the ‘pull’ nature of access to information.

  1. Matters and Issues arising from the Consultation Document

ACCESS TO GOVERNMENT INFORMATION #2

1. Background

We endorse the Government’s introductory statements about information held by government, its value as a national resource and the need to manage it for public purposes.

After discussing the benefits of greater accessibility by people and computers with appropriate safeguards, it concludes

“Australia already has a system for proactively releasing government information and data and providing access to government-held documents in accordance with relevant laws.”

and then succinctly describes the task –

“How can we improve this system?”

and follows up with a specific question

“How can we make access to data easier and make the data itself easier to use”?

Bearing in mind that much of the ground sought to be covered in NAP1 remains to be considered and finalised, the proposal would appear to be that the Government and civil society to consider them for our NAP2 as well as other matters which warrant consideration.

2. Our present FOI system – the issues.

Is there significance in the reference to our proactive system for releasing government information, data and government? Is it that it is a strength and we should be looking at other issues? Or is it identifying it as something very important that we should be giving particular attention to in our FOI System?  Our analysis of the evidence available is that it is the latter and should be given immediate priority.

3.(a) The creation of our proactive system for the AIC Act 2010 releasing of government information, data and documents.

This system was created by the Australian Information Commissioner Act 2010

(AIC Act) and the accompanying amendment of the FOI Act 1982. These were major and positive reforms. Their objectives matched those of the OGP which came into existence shortly afterwards.

A key feature of the proactive system was, and is, the independent statutory body, the Office of the Australian Information Commissioner. It has the responsibilities to monitor, investigate, guide and report to government on the operation of the FOI system (FOI Act1982 –S 8F, and AIC Act 2010 – S8), including the proactive aspects of the system and its Information Publication Scheme.

3.(b) Performance of the proactive system.

In 2013, its performance was favourably reviewed by Dr Hawke  (available from https://www.ag.gov.au/Consultations/Pages/ReviewofFOIlaws.aspx). He suggested some improvements (see his recommendation 36) which are yet to be considered by Government.

4. The performance of the OAIP after the 2014 – 15 Budget.

The OAIC’s capacity to fulfil its legislative roles changed dramatically.

The Government attempted to abolish the OAIC and reduced its funding in anticipation of that event. The Senate refused to pass the Bill, but the reduced funding was continued. Since then, the OAIC has been unable to discharge most of its significant statutory functions and responsibilities –  including the operation of the proactive information disclosure system.  (See ANAO Report of Performance Audit – Administration of the Freedom of Information Act 1982; Summary and Recommendations, paras 12-13).

As revealed in the Performance Audit, by the ANAO (Administration of the Freedom of Information Act 1982– Figure 1.6 ) – the funding for the OAIC’s FOI functions was halved to approximately $2.5 million of the pre 2014-5 funding.

The Government also abandoned the key 3 Commissioner management structure (Information Commissioner, Privacy Commissioner, and FOI Commissioner) and replaced it with one person, (the then Privacy Commissioner, not legally qualified to be the FOI Commissioner but having a power under the legislation to exercise functions as Information Commissioner). It also closed the Canberra Head Office.

5. The attempt to restore the resourcing of the OAIC. Addressing the issue and NAP1.

In late 2015, the Turnbull Government re-committed Australia to the OGP and took up the preparation of Australia’s first National Action Plan.  During the consultation with civil society that followed, the issue was raised by members of civil society. This resulted in the inclusion of the following express Commitment in NAP1

“The Government is committed to ensuring the adequate resourcing of the O AIC to discharge its statutory functions and provided funding for this purpose over the next four years in the 2016 – 17 Budget. “

NAP1 was published on 7 December 2016. Despite its Commitment in NAP1, the Government has failed to restore the level of funding for the FOI functions of the OAIC and so failed to adequately resource the OAIC to discharge its statutory functions.

6. Attempts to obtain performance of the specific commitment in NAP1

In the implementation phase of NAP1, the Accountability Round Table (ART) has written to the Attorney-General and his Department (it being the lead agency for the FOI Commitment 3.1) seeking the honouring of the Government’s commitment to adequately resource the OAIC. The most recent request made to Attorney-General Porter is available from https://www.accountabilityrt.org/art-letter-to-new-attorney-general-re-lack-of-resources-office-of-the-australian-information-commissioner/ ; his reply is available from https://www.accountabilityrt.org/?s=Porter.

ART’s most recent letters to each Attorney- General contained recently published substantial evidence, including the above-mentioned recent Auditor-General’s assessment of the performance of the OAIC, confirming the inability of the OAIC to perform several its statutory responsibilities – in including the proactive disclosure system. In each case, the Attorney General maintained that further provision of resources is not necessary; no supporting information provided.

The Government has not suggested that the funding required could not be provided. This is understandable when it is appreciated that at the time the Government announced its attempt to abolish the OAIC, it foreshadowed that that would result in a budget saving of approximately $2.5 million per annum.

Over this period, increased funding has been provided to the OAIC for its Privacy functions.

7. Completing the implementation of NAP1 and preparing NAP2 – a critical challenge that needs to be addressed.

In the light of the above and accepting the importance of our FOI system for Australia, and the importance in it of our proactive information disclosure system, we submit that the present and future resourcing of the OAIC is a matter that should be given top priority in the formulation of our next National Action Plan. This would be so whether we were a member of the OGP or not. The facts only reinforce the need to act.

In addition, not only is the evidence of the deficiency clear, so too is the solution. It can be provided simply and quickly – and should be.

In doing so, we must consider not just the funding needed to support the proactive information disclosure system. It must be extended to all the statutory functions of the OAIC; for they are intended to support and strengthen all aspects of our FOI system and the effective monitoring and guidance of it by the OAIC. We must also take account of the additional resources needed to enable the OAIC to play its role adequately in

      • the final implementation stages of NAP1 (NAP1 requires OAIC to be engaged in nine of its 15 commitments, two as a lead agency),
      • the preparation of NAP2, and
      • the implementation of NAP2

To facilitate both the implementation of NAP1 and the preparation of NAP2, it is also critical that the additional resources are made available as quickly as is possible. We need to identify as quickly as possible the appropriate Government source for the additional funding resources.

8. Recommendations:

As quickly as possible –

  • (a) the FOI funding be restored to at least the level that existed prior to the 2014 – 15 Budget, to which should be added the resources needed to enable the OAIC to discharge its obligations under NAP1 and proposed NAP2.
  • (b) the three Commissioner positions be filled.

Conclusion.

Looking at Australia’s history in FOI, from 1982 onwards it was a leading nation.  With these matters being addressed satisfactorily, it will be possible for Australia to restore that reputation. Most importantly, however, it will also be an important step towards restoring the integrity of our Democracy.

THE PROPOSED THEME “TRUST”

 Matters and Issues arising from the Consultation Document

 The Consultation document opens with an acknowledgement of the decline in citizens’” trust in government and public officials and institutions”. After referring to opening up government as something that might rebuild the people’s trust and how institutions engage the public, it asks-

“So how can open government help reverse this decline in public trust? What would help build your trust in government and institutions?”

This was explored at the JAM held last year in the context of NAP1 Commitment 3.1. In the Report recently published on the performance of NAP1 (reported publicly on the progress of our 15 commitments), after noting that the aim of that meeting was “to come together to develop and co-design reform options to make access to, and management of, government information easier in the 21st century”, it went on to list four “common themes” raised by the participants. Two propositions of particular relevance to the “trust” issue were:

      • cultural reform is required to make systemic improvement to the creation and management of and access to government-held information.
      • It is important to recognise the Government holds information in trust on behalf of the public; Government should also consider how to give individuals greater ability to choose how and when information about them is shared.”

There has been a substantial cultural change in Government since the late 1970s. Then, those in government were conscious of their obligations that flow from the fact that public office is a public trust. For example, it was the guiding principle of a Report into the issue of conflicts of interest of members of Parliament (available from https://www.aph.gov.au/binaries/library/pubs/rp/1998-99/99rp02.pdf).

It is an ancient ethical principle. It is also a fundamental common law principle on which, among other things, our administrative law was developed, and a common-law crime was formulated –   misconduct in public office, the offence for which Mr Obeid was charged and convicted. The principle requires that those entrusted with public office place the public interest ahead of their personal interests (for a recent statement – Link Brennan lecture – and link to Lusty article)

For some time, however, that principle has been replaced by a culture of “whatever it takes”.  At the 2012 Woodford Festival,  Malcolm Turnbull commented to the audience that it had never been easier to lie and that members of Parliament treated the people with contempt(available from https://www.youtube.com/watch?v=VTOtpzMelyI). He expressly included himself.  Barry Jones has identified as a major factor the significant shift over that period in those seeking election from people who had pursued a career for some time outside politics before seeking election to people whose only career had been in politics (available from https://www.accountabilityrt.org/cairns-tropical-writers-festival-tim-smith-on-democracy-at-the-crossroads/).

Australia’s membership of the Open Government Partnership provides the opportunity to address the cultural problems; for its statement of objectives and the commitments requires member nations like Australia to give strong support to development of conduct which will honour and serve the public office public trust principle and has potential to rectify the culture of our democracies, thereby restoring trust in it.

So far, however, the material produced for the consultation process has generally not referred to our specific commitments as a member nation other than to mention the requirement that our proposals be “ambitious”.  One exception, however, is a statement by Sen Cormann in NAP1 (p. 3):

“the government recognises it must keep lifting the bar to ensure we meet the high expectations of Australians, who rightly expect Australia to be a leader in promoting transparency, integrity and public engagement, and to be at the forefront of technological innovation”.

If they had been in our minds, from the outset of our joinder of the OGP in 2013, and had continued there, they could have helped us to avoid breaching, and continuing to breach, for four years, two central commitments – “to promote transparency” and “promoting increased access to information and disclosure about governmental activities…” (pp. 2 and 20 Articles of Governance). This is discussed in a Comment by the Accountability Round Table on the proposed theme – “Access to government information”.

The public’s trust in government would also be enhanced by civic participation (Commitment 5.2, NAP1).

It could greatly assist our culture, and thereby our trust in government, if the Government (and/or our OGP Forum) placed on the website used for the present  consultation process (https://ogpau.pmc.gov.au) a list of the OGP member nation commitments in the OGP Declaration which Australia accepted  by joining the OGP.  It would also assist the co-creative partnership relationship.

 

Hon. Tim Smith AM QC

Chair, Accountability Round Table.

https://www.accountabilityrt.org/

 

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