The Open Government Partnership, an international effort to secure commitments from governments worldwide ” to promote transparency, empower citizens, fight corruption and harness new technologies to strengthen governance” was signed up to by the Turnbull Government in November of last year. The question is, given its potential to clean up governments and to promote greater trust in the political process, why is it so little known or promoted?
Tim Smith, David Harper and Stephen Charles, of Accountability Round Table probe the reasoning in the following article published in the Canberra Times on April 8th. What does our Open Government commitment mean for the present government’s abolition of the information commissioner’s office and its lack of support for Freedom of Information?

Did Australia sign up to the Open Government Partnership knowing it won’t keep its commitments?

Tim Smith, David Harper and Stephen Charles
Published: April 8, 2016 – 11:26AM

As community disenchantment with the state of Australian democracy grows, there has been a major development with the potential to bring about the biggest positive changes in our systems of democratic government since Federation.

Very few people are aware of it. Neither the government of the day or the media have drawn public attention to it. This is unfortunate because its success will depend on serious long term involvement by members of the community and the media.

The development was made official for the Turnbull government on 17 November 2015 when it reported on its website that it had decided to commit to Australia’s participation in the international body, the Open Government Partnership (OGP).

What is the OGP? It is “a voluntary, multi-stakeholder international initiative that aims to secure concrete commitments from governments to their citizenry to promote transparency, empower citizens, fight corruption, and harness new technologies to strengthen governance”. (OGP Articles of Governance, p 2 )

Its stakeholders, comprise participating governments, civil society and private sector entities that “support the principles and mission of OGP.” It was created in 2011 by a group of nations including the UK, USA and Indonesia and now has 69 nations as members.  Obama and Cameron have been strong supporters.  Australia was invited to join by the UK and USA in 2011.
OGP member nations are required to produce a National Action Plan (NAP) every two years by a consultation process within their government/community partnerships.   They must be “ambitious” in their action plans. (OGP Articles of Governance, p 3 )

There must also be government and community consultation during implementation of each NAP.  The performance of the member nations is reviewed by an Independent Reporting Mechanism (IRM) which issues annual reports assessing progress in both the development and implementation of the NAPs. It is overseen by an International Expert Panel.  (OGP Articles of Governance, p 33). The OGP also has a Support Unit to assist civil society participants.

Australia’s involvement has been a drawn out saga. It began in 2013 when the Gillard government committed Australia to the OGP.  Departmental work commenced on Australia’s draft NAP in 2013 and continued with the then change of government.  But as Prime Minister Abbott advised the Accountability Round Table in October 2014, the government did not want to “rush” the matter. No community consultation had taken place.

At the same time, his government had introduced legislation to abolish the key independent open government body, the Office of the Australian Information Commissioner (OAIC).  You may well be wondering whether there was a link between that and the lack of action on Australia’s commitments to the OGP.  For how can Australia honour its obligations as a member of the OGP to open and transparent government while simultaneously seeking to abolish this crucial body?

The creation of the OAIC was a best practice reform enacted by the Commonwealth Parliament in 2010 to address the then failed state of the Commonwealth Freedom of Information system.  The OAIC was given statutory authority and responsibility to receive and consider complaints, review refusals of access to information, monitor and guide the FOI system (including providing guidelines) and provide independent advice to government.

The Abbott Government was unable to secure the passage of its abolition Bill through the Senate.  But its 2014-15 budget was passed and its provision for the OAIC was based on the assumption that the OAIC  would be abolished by the Parliament before Christmas. The Government left the Bill on the Notice Paper and did nothing to restore the resources that the OAIC needed to discharge its functions.  You may remember the Information Commissioner having to close his Canberra office and working from home?

By its actions, the Government returned the Freedom of Information system to its failed 2010 state.  It has maintained that strategy despite serious questions having been raised in the community about its constitutionality including by the International Commission of Jurists.

On 9 February this year, the Attorney-Gen stated at a Senate Committee hearing “The government’s position has not changed” (Transcript p.45  This position cannot be reconciled with our Australian OGP commitments. In particular, under the terms of the OGP, we have acknowledged that “governments collect and hold information on behalf of the people, and citizens have a right to seek information about governmental activities” and  we are committed to “promoting increased access to information and disclosure about governmental activities at every level of government” and providing “effective remedies” including “ effective  oversight of the recourse process”. (Articles, p 20)

In its recent draft Vision Statement for our NAP consultation, the government has expressly committed “to improved democratic practices …. to promote transparency, fight corruption, empower citizens …to make government more effective and accountable. ” (Open Government Partnership Australia: Vision for Open Government in Australia) .

The Attorney-General’s February statement cannot be reconciled with that commitment or our Prime Minister’s letter of 24 November 2015 to the OGP advising that the Australian government would “work with civil society to develop the Australian government’s national action plan” and stating that “The goals of the partnership are directly aligned with Australia’s long and proud tradition of open and transparent government”. (Open Government Partnership Australia)

The reality is that Australia’s OGP commitments, and our Government’s promises, require that the Bill to abolish the OAIC be withdrawn and the OAIC be given adequate resources to enable it to perform its statutory role in supporting open government.

This should be done now and independently of the Australian NAP.  If it is not, it must be addressed in the development of that NAP.  If we, the government and civil society, fail in our Open Government Partnership to act, it will be a profound failure on our part and embarrassing for Australia; for we have no credible justification to put to the OGP.

What has been happening? Is it a “stuff up or a conspiracy “?  Perhaps with the ongoing drama of federal politics and the media attention elsewhere, the government has overlooked the obvious and extreme conflict between its publicly stated position on the OAIC and its obligations and commitment, on our behalf, to the OGP. Alternatively, since 9 February it may have done so, and it is on the list of matters to be corrected in the budget process.  Let us hope that the Prime Minister, whose ultimate responsibility it is, and the Attorney-General, will ensure that this matter is corrected.

Tim Smith, David Harper and Stephen Charles are former justices of the Supreme Court of Victoria, and members of the Accountability Round Table.

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