Open and Shut

Calling "damage to international relations", with mixed results

Posted: 19 May 2013 07:25 PM PDT

Agencies other than Foreign Affairs and Trade get to try their hand from time to time at Section 33 of the Freedom of Information Act and whether disclosure would, or could reasonably be expected to, cause damage to the international relations of the Commonwealth. With contrasting results as seen in two recent review decisions by the Office of Australian Information Commissioner. The Australian Broadcasting Corporation, in the unusual position of being against disclosure, unsuccessfully argued that damage would result from release of information about a Solomon Islands media assistance project it manages for AusAID. The Bureau of Meteorology on the other hand provided enough evidence to convince the Acting Freedom of Information Commissioner to affirm its decision to refuse access to documents concerning a peer review undertaken of a NZ government research agency report on temperature changes.

In Wake and Australian Broadcasting Corporation [2013] AICmr 45 the applicant sought access to documents concerning the Solomon Islands Media Assistance Scheme including the program’s overall effectiveness, the number of consultants used, the number of people trained and any evaluation of its effectiveness. The Solomon Islands Government is a key stakeholder in SOLMAS and the ABC submitted that public disclosure of the documents could adversely affect its relations with the Solomon Islands Broadcasting Corporation and the Ministry of Communication and Aviation. Acting Commissioner Pirani was unimpressed:

I have read the twelve documents subject to this IC review. I do not consider that disclosure of these documents would, or could reasonably be expected to, damage the relationship between Australian and the Solomon Islands. The documents report on the activities and effectiveness of SOLMAS in strengthening the media sector in the Solomon Islands and cover the period from October 2008 until December 2010. The documents contain candid assessments of the strengths and weaknesses of individuals and media organisations in the Solomon Islands. Given the nature of the material, the aims of SOLMAS, and the collaborative nature of RAMSI, I do not consider that release of these documents would, or could, reasonably be expected to damage Australia’s relationship with the Solomon Islands Government.

The Acting Commissioner noted [21] some of the documents contain comments critical of identified individuals. "To the extent that these documents contain personal information which would be unreasonable to disclose and the release of which would be contrary to the public interest, I consider it is appropriate for this material to be edited before the documents are released to Ms Wake."

In AA' and Bureau of Meteorology [2013] AICmr 46 the documents in question were about a review conducted by the Bureau of the ‘Seven-station’ temperature series report prepared by the New Zealand National Institute of Water and Atmospheric Research Ltd (NIWA), a NZ government research and consultancy agency. In response to legal action initiated in New Zealand with respect to the accuracy of the temperature data series, NIWA asked the Bureau to undertake a review of the methodology and documentation of its report.

Acting Commissioner Pirani accepted there are scientific conventions of confidentiality and anonymity associated with peer review, that the Bureau’s review was a peer review, as understood in the scientific community, that assurances of confidentiality had been given, and that disclosure would be contrary to s 33:

I consider that damage to the relationship between the Bureau and NIWA, and between the Bureau and other international research organisations, is damage to the international relations of the Commonwealth. This view is consistent with Part 5.30 of the Guidelines.
I have considered the Bureau’s and NIWA’s submissions and have decided that if any information provided to the Bureau by NIWA, any information about the peer review, or any information revealing the identity of staff working on the peer review is disclosed, it could reasonably be expected to damage the relationship not only between the Bureau and NIWA, but also between the Bureau and other international research organisations. The damage that could reasonably be expected to result from disclosure is a loss of trust in the Bureau as the holder of confidential material which would have the effect of reducing the willingness of NIWA and other international organisations to consult with the Bureau.

Much ado, to no avail, about the records on "true heir to the throne of Iran."

Posted: 19 May 2013 02:15 PM PDT

There is an angle but nothing of significant Freedom of Information interest in this Federal Court decision. However it is hard to go by Justice Gray's first sentence without a peek. The decision runs to 100 paragraphs.To cut to the chase, Ms Fard failed in her application and had costs awarded against her.

This is the strangest case I have encountered in almost 29 years as a judge. The applicant, Ms Fard, was born in Iran in 1947. In 1987, she fled to Turkey to avoid persecution of those of the Baha’i faith, of whom she is one. She was granted a visa to come to Australia. She arrived on 25 May 1988. She claims that the respondent, the Minister for Immigration and Citizenship (“the Minister”) holds documents that state falsely that Ms Fard is the mother of a man called Sohyle Lagheyefar or Sohail Laghaifar (or some variant of those spellings). She says that, in consequence of the existence of these false records, she has suffered various forms of harm and persecution in Australia. She wishes the Minister to cease to hold those records, or to correct them.

There is in Australia a man who has been known by the name Sohyle Lagheyefar or Sohail Laghaifar (or some variant thereof). He denies that Ms Fard is his mother and denies that that is his name. He claims to be his Imperial Majesty Soltan Qeumars Shah Qajar, the grandson of a Shah who was deposed in 1925, and the true heir to the throne of Iran. For convenience, I refer to him as Mr Qeumars in these reasons for judgment, as I did at the trial.

There are indeed many documents in the records held by the Department of Immigration and Citizenship (“the Department”) in which it is stated that Ms Fard is the mother of a son whose name is spelt in one or other of the ways referred to in [1] above, or some variant of either of those spellings. A number of those documents were tendered in evidence by pro bono counsel for Ms Fard, along with evidence intended to demonstrate the falsity of the documents to the extent that they represent that Ms Fard has a son who bears the name in question (and sometimes in other respects). The case put on behalf of Ms Fard appears to be that documents were falsified deliberately, in order that Mr Qeumars could be brought to Australia, given a false identity, and kept here.

No OGP joy in budget, all eyes on EITI in Sydney this week

Posted: 18 May 2013 09:59 PM PDT

Nothing in the Portfolio Budget Statements for Attorney General's Department, Office of Australian Information Commissioner or Department of Foreign Affairs and Trade-the three likely suspects - to indicate that Australia will be moving into 2013-2014 with a funded initiative to take us into the Open Government Partnership.

Sigh.. But ever hopeful, maybe it means we are moving inexorably towards membership, thinking it won't cost a cracker, or nothing more than can be found within funds allocated for the normal course of business. Or something has been squirrelled away in that line item of $463 million for budgeted items yet to be announced?

However the OGP financial ground rules are changing.The minutes(pdf) of the meetings in London in April reveal that a request is coming in June for a voluntary financial pledge in 2013 by all members of at least $25k, with mandatory annual contributions from 2014. Members of the Steering Committee who always had to dig deep are to be asked for an annual contribution of between $100 and $300k.

The $25k would be no big deal but other costs are involved.The OAIC months back flagged it would need two extra staff if it was to be the lead agency, which may or may not prove to be adequate. Factor in as well the cost of doing something meaningful in developing a National Action Plan and reaching out to civil society to get there, and participating fully in international and regional activity and it means more will be needed than the key to the petty cash tin.

So here we are in late May 2013 with the Australian Government's intentions still unknown. Notwithstanding former Attorney General Roxon's proposal to ministerial colleagues in 2012 that we join, Senator Faulkner's conviction in February that the OGP was exactly the sort of thing Roxon's successor Mark Dreyfus stood for, Foreign Minister Carr's indication at that time of in principle support, and Australian Information Commissioner Professor McMillan's observation that Australian membership was "inevitable only a matter of time."

There is the opportunity this week for an announcement at the Extractive Industries Transparency Initiative Global Conference in Sydney with Minister Gray and Assistant Treasurer Bradbury scheduled to speak to the 1300 delegates. That will raise a cheer from where I'll be sitting and I'm sure I won't be alone.

Continued silence will mean that Senate Estimates commencing 27 May provide another opportunity for those senators interested to probe process, which DFAT Secretary Varghese assured in February would be speedy. Senator Faulkner left off then saying he would be watching. I'm sure officials are looking forward to Estimates as much as I am.

misconduct at ITSA

Monday 20 May 2013

Open and Shut

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