BY PETER TIMMINS

The voters aren’t happy.

While there is no single antidote for this winter of discontent, the way government governs is a contributing factor.

The government tells us that belief in democracy is a shared Australian value and as part of a new approach to citizenship for those who seek to join us, that newcomers will be tested to demonstrate their commitment.

Yet forty per cent of Australians are not satisfied with the way democracy is working.

Only five per cent trust government.

And the majority of Australians think their politicians are corrupt.

Calls for reform propose steps to make decision-making more transparent and politicians more accountable for their actions; for politicians to get serious about cleaning up public life; and for more collaboration between government and citizens in policymaking, regulation and operational delivery.

Submission of Australia’s first OGP National Action Plan

In a development that has received little public attention the Turnbull government has committed to a package of reforms that represent a small step in this direction.

In December 2016, the government submitted its first national action plan to the Open Government Partnership (OGP), an international initiative now with 75 member countries.

The OGP is a multilateral initiative that aims to secure concrete commitments from governments to promote transparency, empower citizens, fight corruption, and harness new technologies to strengthen governance.

In the foreword to the Australian plan, Minister for Finance Senator Cormann said the government:

understands the importance in a democracy of open government to a strong and fair society. Open government also fundamentally supports the Government’s goal for Australia to become a more agile, innovative and collaborative nation…

The reform measures to which the government is committed include:

• better legislative protections for whistle blowers that report misconduct in the tax and corporate sectors;

• better access to government-held information and data, with release of high value datasets and reforms to our information access laws;
• strengthening the national integrity and anti corruption framework;
• undertaking an inquiry into political donations and other electoral matters; and
• improving the way the Commonwealth engages with the public on policy development, service delivery and decision-making..

The plan represents a start, not the final word in delivering more open government:

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.

The OGP requires more than words.

The rules of the OGP stipulate that an independent review of the process to develop the plan is required as well as a report on the outcomes and results. And a new plan must be developed every two years.

The Open Government Partnership Explained

The OGP was launched in September 2011 when the eight founding governments (Brazil, Indonesia, Mexico, Norway, the Philippines, South Africa, the United Kingdom and the United States) endorsed the Open Government Declaration, and announced their country action plans.

Since 2011, 67 other governments have joined the Partnership.

Participating countries endorse a high-level Open Government Declaration that requires a shift in norms and culture to ensure genuine dialogue and collaboration between governments and civil society.

Members are committed to the principles enshrined in the Universal Declaration of Human Rights, the UN Convention against Corruption, and other international instruments related to human rights and good governance. Specifically, to increase the availability of information about governmental activities, support civic participation, implement the highest standards of professional integrity, and increase access to new technologies for openness and accountability.

The Declaration acknowledges that open government is a process that requires ongoing and sustained commitment:

We commit to reporting publicly on actions undertaken to realize these principles, to consulting with the public on their implementation, and to updating our commitments in light of new challenges and opportunities.

In addition to domestic reforms, members pledge to lead by example and contribute to advancing open government in other countries:

We commit to espouse these principles in our international engagement, and work to foster a global culture of open government that empowers and delivers for citizens, and advances the ideals of open and participatory 21st century government.

In notifying the OGP of Australia’s membership, Prime Minister Turnbull stated“the goals of the OGP directly align with Australia’s long proud tradition of open transparent government.”

Australian involvement

Australia finally joined the OGP in November 2015. Getting to that point involved a long, on again, off again journey.

Australia had been invited to join the OGP as a founding member in August 2011, by the then United States Secretary of State, Hillary Clinton. .

It failed to respond to that invitation and showed little enthusiasm for the cause until May 2013 when following strong representation within from Senator John Faulkner and from without by civil society organisations, then Attorney General Mark Dreyfus announced Australia’s intention to join.

Little was done to give effect to the decision before the election in September 2013.

Thereafter Prime Minister Abbott showed no enthusiasm whatsoever. The Abbott government announcement in its 2014 Budget that the Office of Australian Information Commissioner was to be abolished was directly inconsistent with a commitment to broaden and deepen open government. Excessive secrecy seemed a hallmark of the Abbott era.

Minister for Finance Cormann told Estimates hearings on a number of occasions in 2014-2015 that membership of the OGP was under consideration. These assurances were reminiscent of the Yes Minister script where Sir Humphrey explained this meant ‘we have lost the file.’ According to Sir Humphrey the phrase ‘under consideration’ can be contrasted to ‘active consideration’, which meant ‘we are trying to find it.’

A Freedom of information application made to Department of Finance in 2015 revealed the Prime Minister’s Office had instructed the Minister and agencies to take OGP matters no further until the full ramifications of the type of initiatives that might need to be undertaken once Australia joined the Partnership were cleared with the Prime Minister.

A change of leadership brought a change in perspective.

As Minister for Communications, Malcolm Turnbull had spoken often about the digital information age, the power of open data and had established the Digital Transformation Office to lead on new ways to deliver government services.

When he assumed office as Prime Minister, responsibility for open government-related matters was transferred to his department.

In November 2015 he announced Australia would proceed with membership of the OGP. 

Australia’s National Action Plan commitments

Australia’s first National Action Plan contains 15 commitments across a broad range of issues concerning open government, anti-corruption, public integrity, and citizen participation.

The breadth and scope of the commitments is welcome—a far cry from the limited vision shown by government when public consultation began.

There are some disappointments, particularly the limited commitment to what are high priorities for civil society- political donations reform and gaps in the national integrity framework, particularly the absence of a broad based anti-corruption commission.

Nevertheless, the commitments that have been made are important. For example, one on the ‘high hopes’ list of open government advocates is the commitment to develop “Information management and access laws fit for the 21st Century”:

Australia will ensure our information access laws, policies and practices are modern and appropriate for the digital information age. As part of this, we will consider and consult on options to develop a simpler and more coherent framework for managing and accessing government information that better reflects the digital era, including the Freedom of Information Act 1982 (FOI Act), the Archives Act 1983 (Archives Act) and, where relevant, the Privacy Act 1988 (with primary focus on the Archives Act and FOI Act), which is supported by efficient and effective policies and practice.

Australian freedom of information (FOI) law and practice is out of date and not up to international standards. In the Centre for Law and Democracy Right to Information Rating survey, the the Commonwealth Freedom of Information Act 1982 (FOI Act) received 83 points out of 150 in an assessment of global laws, placing it 58 of 111 laws surveyed.

The internet has had a dramatic effect on public expectations concerning access to information.

First generation FOI laws are based on a process of lodging of an application, a delay while the application is considered, and a decision to grant access to all or some requested information often on condition of payment of a fee.

For those who consult Dr. Google many times a day, this must seem arcane. In some Australian jurisdictions, for example New South Wales and South Australia, FOI applications are still only accepted if received by post or delivered at the relevant agency in person by the applicant, accompanied by a cheque or money order.

Second generation laws have included important advances, prescribing more extensive obligations to proactively publish certain government information. There is still a long way to go to build on this in many countries, including Australia where reforms at the Commonwealth level in 2010 were something of a start in moving in this direction.

Third generation ideas are emerging. Information commissioners in Canada and Scotland have talked about “Transparency by Design.” Record management professionals raise the idea that new records management systems should include a public interface that would provide more and better information about government information holdings to encourage and facilitate requests for access.

Need for a comprehensive review of access regimes in Australia

Before we get to new frameworks however, a comprehensive review is needed of what we have learned from 35 years experience since the commencement of the Commonwealth FOI Act in 1982.

The importance of culture change and ongoing leadership is at the top of the list.

Any review should include but not be limited to the recommendations of the statutory review by Dr Allan Hawke in 2012-13 of the FOI Act and the Australian Information Commissioner Act 2010 (Cth).

None of Dr Hawke’s recommendations, including the need for a comprehensive review of the kind he was unable to undertake, received a government response.

The Hawke review sits alongside many other recommendations put forward over the years by the Australian Law Reform Commission, information commissioners, parliamentary committees and experts for improvement in law, policy and practice, but not acted upon

Conclusion

Action to implement commitments made in the initial OGP National Action Plan is now underway under the watchful eye of an Interim Working Group of government and non government representatives established by Department of Prime Minister and Cabinet in August 2016.

This interim group will be replaced in July by a permanent body, the Open Government Forum, to include up to 16 members.

The OGP Independent Reviewer, Daniel Stewart of the Australian National University, is yet to report on the adequacy of government efforts to engage with civil society in development of the first plan, and will report again in 2018 on outcomes and results.

Open government is a journey not a destination.

Australian membership of the OGP provides an invaluable road map for the journey.

Peter Timmins is Interim Convener of the Australian Open Government Partnership Network and a member of the Interim Working Group established by Department of Prime Minister and Cabinet.

Suggested citation:  Peter Timmins  ‘Australia’s commitment to open government reform‘ on AUSPUBLAW  (11 July 2017) <https://auspublaw.org/2017/07/australias-commitment-to-open-government-reform/>