Administrative Appeals Tribunal asked to rule on Humane Society International FOI request

NSW Environmental Defender’s Office (EDO), 20 January 2017:

Humane Society International v Department of the Environment and Energy

Our client, Humane Society International (HSI), is seeking access to documents held by the Australian Department of the Environment and Energy on the adequacy of NSW’s biodiversity offsets policy for major projects ('the Policy').

HSI argues that the public has a right to know why the Australian Government believes, despite evidence to the contrary, that the NSW Policy meets national standards. On behalf of HSI, we are asking the Administrative Appeals Tribunal to find that it is in the public interest to release the documents under Freedom of Information laws. 

Background

Biodiversity offsets have become standard practice in the approval and assessment of major developments in Australia, even though there is little evidence that offset schemes achieve their intended purpose of protecting threatened species from extinction.

Biodiversity offsets allow developers such as mining companies to buy/manage land, or pay money into a fund, to compensate for the clearing of forests and areas containing threatened plants and animals.

Community groups such as HSI are concerned that the method for calculating biodiversity offsets in NSW, contained in the NSW Policy, does not properly protect the environment – including the plants and animals on the national list of threatened species and ecological communities.

The Australian Government, which is responsible for the national list of threatened species – and has international obligations to protect and conserve biodiversity in Australia – has stated that the NSW Policy meets national standards of environmental protection. However, analysis by EDOs of Australia shows clearly that the NSW policy provides weaker environmental protection than required under national environment policies.

With the Australian Government delegating more and more development approval powers to the states and territories under its ‘one stop shop’ policy, community groups fear that there will be fewer protections for our nationally threatened species and ecological communities.

HSI is therefore seeking access to documents detailing the Australian Government’s analysis of the NSW Policy. Access to this information is vital for the public to have confidence that important environmental protections are not being eroded.

Links

•        Offsets policies failing to protect threatened species, 5 May 2014
•        Federal handover of environmental approval powers to the states
•        NSW biodiversity offsets policy for major projects 

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Australian Law Reform Commission does online forum and phone-in on secrecy laws, 11-12 February 2009

Media Release 9 February 2009:

The Australian Law Reform Commission (ALRC) today announced a national two day phone-in and new online discussion forum as part of its commitment to engaging in widespread community consultation on reform of Commonwealth secrecy laws. 

Anyone who has ever been involved in handling Commonwealth information will have the chance to speak out about their personal experiences and concerns in a national secrecy phone-in on Wednesday 11 February and Thursday 12 February. The ALRC is also launching a new consultation vehicle through its Talking Secrecy online forum.

ALRC President, Professor David Weisbrot, said "Consultation is part of the ALRC's DNA and we are determined to use new technologies to expand that process. The online forum and national phone-in together comprise the next critical steps in the ALRC's consultation process following the recent release of the Issues Paper, Review of Secrecy Laws (IP 34, 2008). This paper seeks feedback about how to balance the need to maintain an open and transparent government, while still protecting some Commonwealth documents and information—for the purposes of national security, for example.

"The ALRC now has mapped over 500 secrecy provisions spread across 173 pieces of legislation and these—associated with a myriad of administrative, civil and criminal penalties—present a complex and confusing scenario of options for individuals handling Commonwealth information.

"Some secrecy provisions—normally pertaining to defence and security—regulate the activities of anyone, including the media, who comes into possession of Commonwealth documents or information, imposing obligations on them. If the individual handles the information incorrectly, he or she may face heavy penalties, including jail."

Commissioner-in-charge of the Secrecy Inquiry, Professor Rosalind Croucher, said that the phone-in will enable individuals to speak about their personal experiences with complete anonymity and will assist in shaping the development of proposals, and ultimately recommendations, for workable laws and practices.

"To facilitate more public discussion about secrecy laws, the ALRC's Talking Secrecy online forum will encourage interactive comments and debate that will run the course of the Inquiry. This is a first for the ALRC.

"The ALRC would like to hear people's views about a range of questions such as: do secrecy laws stop you from doing your job; what information, if any, should be kept secret; how easy is it to comply with secrecy laws; when should you be allowed to disclose Commonwealth information; and have you or someone you know been in trouble for breaching a secrecy law and, if so, what happened?"

To participate in the secrecy phone-in call 1800 760 291 between 8:00am and 8:00pm (EST) on Wednesday 11 February and Thursday 12 February 2009 (calls are free from landlines but calls from mobiles will incur a charge).

The Talking Secrecy online forum can be accessed at http://talk.alrc.gov.au.

More information about the Review of Secrecy Laws can be found in the Inquiries section of this website.

Freedom of Information Act vs Commonwealth secrecy laws - who wins?

The Federal Attorney-General has asked the Australian Law Reform Commission to riddle him a riddle as it reviews Australia's secrecy laws:

I, ROBERT McCLELLAND, Attorney-General of Australia, having regard to:

• the desirability of having comprehensive, consistent and workable laws and

practices in relation to the protection of Commonwealth information;

• the increased need to share such information within and between governments

and with the private sector;

• the importance of balancing the need to protect Commonwealth information and

the public interest in an open and accountable system of government; and

• previous reports (including previous reports of the Commission) that have

identified the need for reform in this area.

And here is the riddle:

1–1 In light of freedom of information laws and other modern moves towards greater openness and accountability on the one hand, and the current international security environment on the other, are secrecy laws still relevant and necessary?

Is a statutory duty on Commonwealth officers not to disclose information necessary or desirable?

Are general law obligations sufficient and appropriate ways by which the disclosure of Commonwealth information may be regulated?

1–2 Do federal secrecy provisions inhibit unduly the sharing of information within and between law enforcement agencies, governments, and between governments and the private sector?........................

Given that the Freedom of Information Act 1982(Cth) promotes open and accountable government, and secrecy provisions protect Commonwealth information, what should be the relationship between these two regimes?

The answer to these questions (due in October 2009) is of more than passing interest to the mainstream media, bloggers, current or former public servants and whistleblowers generally, as it relates to penalties under the Commonwealth Crimes Act and Criminal Code and intends to consider more widely than just taxation secrecy and disclosure provisions.

Given the inherent tension between a government's desire for secrecy, the democratic need for transparent governance, public interest and personal privacy (as well as the fact that the Rudd Government is not composed of true believers and could often be mistaken for the Liberal Party on some issues) this review and government's response need watching.

Review of Secrecy Laws issues paper can be found here.

Register an interest in receiving ALRC alerts and consultation papers here.

Should you wish to give your own views on the subject, submissions should be sent to:

The Executive Director

Australian Law Reform Commission

GPO Box 3708

SYDNEY NSW 2001

Email: secrecy@alrc.gov.au

Submissions may also be made using the online form on the ALRC's homepage:

www.alrc.gov.au

The closing date for submissions in response to IP 34 is 19 February 2009.

One step closer to the removal of a federal minister's right to deny access to information using a conclusive certificate

The Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008 is finally before the Australian Parliament and the text can be found at Com Law.

The primary purpose of the Bill is to repeal the power to issue conclusive certificates in the Freedom of Information Act 1982 (the FOI Act) and the Archives Act 1983 (the Archives Act) for all exemption provisions where certificates may be issued.

The proposal to repeal the power to issue conclusive certificates forms part of the Government's 2007 election commitments made in its policy statement, Government information: restoring trust and integrity.

The effect of the repeal of the certificate power will be that the AAT may undertake full merits review of all exemption claims.

This Bill does not seek to alter the exemption provisions in Part IV of the FOI Act or in Division 3 Part V of the Archives Act, except to the extent that it repeals the power to issue conclusive certificates. Where a document or record properly falls within an exemption category in those Acts (for example, documents affecting personal privacy or documents whose release could damage national security, defence or international relations), access may be refused.

Existing conclusive certificates will be revoked if and when a new request for access to a document or record covered by a certificate is received.

How do you spell pathetic? Answer: N.R.M.A.

Heard the saying that whatever the NSW Government can do, the NRMA can do better?

Well, the NRMA has proved that saying correct, yet again.

Sydney Morning Herald journo Matthew Moore, who has been on a very admirable mission to expose the NSW Government's shortcomings, nay hypocrisies, in relation to freedom of information (FOI) has revealed, courtesy of one very p*ssed off NRMA member, that the NRMA has been playing games with its so-called information.

In an article titled "Secrets under the hood" Moore does a very nice job for NRMA members to reveal just what a pack of incompetents (although some might say mischiefs, while others might go further and say something a whole lot worse) the current regime at the NRMA happens to be.

Moore writes:

"If you think it is only government departments that have secrecy and spin as the core principles in their mission statements, take a look at the country's biggest motoring organisation, the NRMA.

To understand how it operates, go back to January when its president, Alan Evans, called on the State Government to ditch plans for a cycleway on Epping Road.

Evans issued a press statement headlined, "NRMA plan for Epping Road: Don't bump motorists for bikes". It said the NSW Government was wasting $7.6 million on the Epping Road bike path even though only 25 cyclists used it daily.

Instead of wasting $300,000 a cyclist, the Government should widen the road to make more room for cars and trucks, it said. In the news vacuum that is often part of a Sydney summer, Evans's punchy comments got page one treatment in the papers, which mentioned the full NRMA case was set out in a submission to the Roads and Traffic Authority. One NRMA member and cyclist, Nigel Withers, thought he would like to read that submission and tried to get hold of it.

When he couldn't find it on the NRMA website, he wrote to Evans asking for a copy. Evans replied on January 16 but would not hand over the submission. He offered this laughable excuse: "NRMA's submission to the RTA is now an internal departmental document." Withers wrote back, but this time was ignored. Undeterred, he tried the NRMA's Open Road magazine, explaining he had twice asked Evans for the submission without success. "Perhaps Open Road could print the submission in question," he wrote optimistically. Not likely.

The editor-in-chief of Open Road, David Naylor, replied on February 8, telling him his letter had been passed to the head of "government relations and public policy". Nothing came back, so Withers changed tack.

In May he submitted a freedom-of-information request to the Roads and Traffic Authority seeking a copy of "the NRMA submissions regarding bikeways on Epping Road". At least the RTA replied, even if it was not what he expected: "There are no documents relating to your request," they said.

How could there be no submission when the NRMA president had released a summary of it and confirmed in writing there was one?

This week I rang the the NRMA's PR team to find out and got the Withers treatment. For days they promised to send me a copy but it never arrived. Still, the excuses were diverting: "We genuinely did not know what submission you were talking about … The guys who wrote the submission were in the country … Our guys were not back in 'til yesterday … "

Finally, the NRMA admitted the RTA was right. There is no submission. The closest thing is a three-page document sent to the RTA in August 2006, 17 months before that press release about useless cycleways.

We still haven't seen that three-page document. Nor have we seen the survey of bike-lane usage the NRMA now says was done many months after the 2006 submission.

If the NRMA expects to be taken seriously, it should adopt the levels of transparency demanded of government. If it is going to quote from "surveys", it should post survey reports online to be scrutinised. The same goes for so-called submissions. An organisation this size should not be relying on misleading press statements alone to influence public debates.