The Principles provide a framework for government information management in Australia, setting out the "central values" of open public sector information ... that it be freely available, easily discoverable, understandable, machine-readable
The Principles were developed by the Office of the Australian Information Commissioner through a process of public consultation, drawing on "considerable work in Australia and overseas into best practice government information management".
The promo for the paper is as follows -
The paper poses questions about the national information regime as a foundation for access to justice. It aims to provoke discussion rather than to provide a report on work in progress, to offer definitive answers regarding legal and policy conundrums or to offer a formal analysis of a legal cause célèbre or exemplary text.
It's a right, Jim, but not as we know it
Australia is an 'information society' and an 'information state', ie one in which public administration and private life is predicated on ready access to information. We do not, however, have a comprehensive right to information. Interpretation of international agreements is contentious. A right to information, as distinct from an implied right of political communication, is not enshrined in the national constitution. The patchwork of Commonwealth, state and territory statute and case law regarding crown copyright, defamation, archives, discrimination, statutory deposit, freedom of information, privacy, confidentiality, suppression orders and national security is confusing and in places increasingly threadbare. That affects our access to justice.
Not a NIP in the air
What is the national information regime? Three decades ago Barry Jones and the technocrats dreamed of a national information policy that would refashion much of the patchwork. That NIP vision disappeared more quickly than Bernard Finnigan. National information policy under the current Government tacitly comprises only a 'Government 2.0' commitment for 'information sharing' (in practice e-publishing by agencies and e-transactions that obviate the need for agency premises outside the CBD) and a revamp of the Freedom of Information Act 1982 (Cth). From a justice perspective we can usefully ask questions about information provided by government and to government, with the conference paper highlighting some tensions in that broader information regime.
All that is solid melts into air
The FOI reforms remove application fees, substantially reduce exemptions and emphasise information as a resource for sharing in the absence of reasons for restriction. They are a beginning, rather than a triumphant outcome that – like the demise of Osama Bin Laden – allows us to declare victory and scuttle off home. They are a beginning because they fail to address the 'post-it note problem' and because they were not accompanied by strengthening of the Archives Act 1983 (Cth).
Archival legislation is significant for justice both as the basis for righting past wrongs, difficult if evidence is no longer extant, and as an indicator of how agencies misbehave. The past is a lens for the future. Enforcement of penalties under the Act resembles being gummed by an arthritic sheep, not a prospect to deter embattled agencies such as Immigration, Defence or ASIO. Disregard of the Act is encouraged by recent closure of National Archives regional offices, a closure than inhibits access to a range of information relevant to justice rather than merely history dissertations.
For the FOI Act to be meaningful it must be underpinned by a coherent, comprehensive and properly policed national records management system that addresses concerns regarding use of post-its, unrecorded meetings (an unwanted gift from cybervigilante Julian Assange) and electronic networks – as in one major ACT agency – that are not backed-up and are purged when positions are vacated. Irrespective of application or processing fees, you cannot access something that no longer exists.
Changing the postal rule
The Commonwealth Ombudsman, well-intentioned but sadly underfed, is as much an information mechanism as it is a mediation body. It functions by requesting information from agencies in response to complaints by members of the public. It relies on shaming, has no power to overturn decisions and in practice little scope for active investigation, instead acting as a glorified post box for transmission of messages between officials and citizens.
In giving effect to Lionel Murphy's vision of a bureaucracy and legislature that is truly accountable to the people we need to update that information system, for example by giving the Ombudsman the resources, statutory ability and willingness to actively investigate what is behind the grey walls of silence. In essence, it should adopt the ethos of the Australian National Audit Office rather than Australia Post.
The judicial voice
The conference is fortunate to be chaired by former High Court Justice Michael Kirby, a jurist who might best be characterized as the great articulator rather than as the great dissenter. Justice in a liberal democratic society is founded on community awareness, understanding and appreciation of the law and of the justice system. A recurrent criticism is that people do not understand legal processes, are ill-equipped to represent themselves in an environment where Commonwealth funding for legal aid amounts to around twenty cents per capita each week, and indeed may not be able to find the law.
From an information perspective one challenge is for the Commonwealth to commit meaningful and timely funding to AustLII, the only publicly-accessible (albeit user-unfriendly) database covering the Australian jurisdictions. Another challenge, taken up by individuals rather than by the judicature as a whole, is to articulate the law in ways that non-specialists can both understand and value. We might be skeptical about the Hora report's recommendation for a 'Media Judge' (a recommendation at odds with the SA Government's 'law & order' rhetoric but the machinery of justice can engage with the community without relying on fads such as Twitter, Facebook and other counterparts of the Big Brother house.
The many deaths of old media
Australia's identification – and, more importantly, understanding – of justice has historically been determined by the mass media, whether through accounts of Doc Evatt and Tegan Wagner or through comments by Keysar Trad, Derryn Hinch and Alan Jones. Fantasies about an informed, comprehensive and ethical 'citizen media' are just that. Disintermediation through demise of traditional media as a result of lower standards after capture by private equity should concern anyone with a commitment to justice, rather than merely journalists or MBAs. If your understanding of law comes from the press, what happens when the SMH channels Hinch?
If you can't see it, it's not there
Hyperbole in the Gruen Report and other documents regarding e-Government or the miraculous National Broadband Network should not obscure the reality of persistent digital divides exacerbated by the closure of government offices and the abandonment of print. A decade after the SOCOG accessibility dispute many people – blind, deaf, poor, with language or motor difficulties – still have difficulty going online. Even the digerati balk at over-long URLs, eg of a mere 247 characters, an identifier than inhibits access to information and thus to justice and that is found in the Attorney-General’s site. Mere mortals surrender when site-specific search engines display unintelligible results or links point to vanished pages.
Asleep in a warm bath of self-esteem?
In an era where the appearance of managerialism is a surrogate for substantive policy and where a political party's credibility is determined by the enthusiasm with which it is seen to eschew tax increases and worship at the shrine of the balanced budget it is unsurprising that governments have slashed funding of law reform and research bodies such as the Australian Law Reform Commission and Australian Institute of Criminology. Those reductions, and policy incapacity within the bureaucracy due to three decades of outsourcing and the erosion of independence within the bureaucracy, mean that more than ever parliament, government agencies and the wider community are in need of independent expert advice.
A key feature of Australia's national information regime is that academia is licensed to speak truth to power, offering insights, cautions, criticism and a sounding board for notions that may or may not come to fruition. The rise of the 'enterprise university' (in which 'value' is a function of flawed bibliometrics and the success with which researchers pursue grants and where the growth of research superstructure has overshadowed resources for substantive research) has seen academia increasingly talk only to itself in a 21st century version of Benda's trahison des clercs.
That abdication of responsibility for meaningful and independent critique is evident in the paucity of submissions by law academics to inquiries by the ALRC, parliamentary committees and bodies such as the Australian Media & Communications Authority and Australian Health Ministers Council. If we are concerned with justice academics need to be committed – and seen to be committed – in contributing information to government rather than talking only to ourselves and acting as passive (albeit often grizzling) recipients of information on high.