Australia, New Zealand & the Pacific Airline and RPT Rumours & News in Australia, enZed and the Pacific

Merged: Senate Inquiry

Old 7th Dec 2013, 01:13
  #1641 (permalink)  
 
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Questions, from the man at the back of the room.

The curious, orphan - FOI-EF 12-8481, - is proving to be quite 'a three pipe problem'. It is curious because:-

It emanates from the then DoIT. The response time from Beaker was 23 minutes (a personal best).

It never saw the light of day in the Pel Air inquiry. But someone, presumably associated with calling the inquiry on, requested a whole raft of associated correspondence documents, this being the only one to escape. It escaped the mass cull under S47 F, being the only one released for the requested period. Further time records were broken by the incredibly short length of time it took to find and analyse the three years of correspondence requested, process elimination protocols, edit the volume, decide to claim sanctuary under S 47, provide a response; and then top it all off by setting a new, world best time to get it onto the FOI disclosure log. Wow.

Aye, it's a puzzle all right; it may go some way to explaining why NX dragged the Information Commissioner into play. So to the questions:-

Was there a serious game of push and shove in the schoolyard going on?

Was Pel Air just being used as a football in serious points scoring manoeuvre and the inquiry was simply never, ever expected to go the distance it did ?

Why was the DAS and other addressees responses not provided in the package?

What sort of truth is it that makes taking the shellacking dished out by the Senate a better proposition than having "it" exposed?

And yes, I am now officially curious. The cock up barrow can only be pushed so far. Clues ? Skeletons ? – anyone????? -.
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Old 7th Dec 2013, 22:06
  #1642 (permalink)  
 
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Sundy DIY renovations while watching the cricket...!!

Just to fill in a few gaps with back filler before the cricket starts....

Kharon:
Aye, it's a puzzle all right; it may go some way to explaining why NX dragged the Information Commissioner into play. So to the questions:-

Was there a serious game of push and shove in the schoolyard going on?

Was Pel Air just being used as a football in serious points scoring manoeuvre and the inquiry was simply never, ever expected to go the distance it did ?

Why was the DAS and other addressees responses not provided in the package?

What sort of truth is it that makes taking the shellacking dished out by the Senate a better proposition than having "it" exposed?
Yes it is a puzzle and one that on the face of it is quite bizarre... However when did the schoolyard bully wars ever really make sense when we were all growing up??

Anyway back to filling in the gaps while the missus slumbers...

To my mind it has always been in the timing, so let's start with the infamous email from DoIT with Beaker's {dobber} email reply comment...("with the exception of anonymous rumour sites and some tendentious bloggers"...), was first put up on FF's disclosure log on the 5th November 2012, see here: Comment: We can only guess at who "specified persons" were but otherwise the original FOI request (presumably from NX) seems pretty straight forward so why the attempted cover-up by FF using section 47F (see below) of the FOI Act? One would have to assume that there was much more correspondence than that one email? Hmm...I also wonder if a DoIT identity was on the list of specified persons?? If not I find it very hard to imagine that DoIT, as a 3rd party to the FOI request, would approve for that email request to be released and subsequently published on the FF disclosure log...very 'passing strange'??

Oh well onwards and err..backfilling on the timeline of intrigue..

Albo's senior adviser from DoIT refers to a "motion" by NX but as we all know the calling of the AAI inquiry was made the next day (13th September 2012). When the SA says that..."We are opposing this motion"... he is simply referring to Albo and the former governments minions in the Senate and the motion by Sen X was in NOTICES (12/09/2012):
Senator Xenophon to move:
That the following matters be referred to the Rural and Regional Affairs and Transport References Committee for inquiry and report by 29 November 2012:
(a) the findings of the Australian Transport Safety Bureau into the ditching of VH-NGA Westwind II, operated by Pel-Air Aviation Pty Ltd, in the ocean near Norfolk Island airport on 18 November 2009;
(b) the nature of, and protocols involved in, communications between agencies and directly interested parties in an aviation accident investigation and the reporting process;
(c) the mechanisms in place to ensure recommendations from aviation accident investigations are implemented in a timely manner; and
(d) any related matters.
Hmm...there was not a lot of opposition to NX's motion was there?? What I find disturbing is that DoIT was so submissive of the Senator's call for inquiry and was quite prepared to kibosh the issue and go into cover-up mode on a matter that really should have had little direct impact on the department. Even more disturbing is the fact that such proposed actions by DoIT would appear to be in direct conflict with Albo's mantra at the time that..."aviation safety is my number one priority"!

Hmm...all quite bizarre and a truly strange puzzle to mull over while watching the cricket.."go Davey get your ton mate!"..it seems that DJ, MQ, BA and NX (at the time) quite unwittingly stepped into a schoolyard brawl, a brawl that is still a long way from being sorted and has very little to do with AVIATION SAFETY.....FFS!
Public interest conditional exemptions--personal privacy
General rule
(1) A document is conditionally exempt if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).
(2) In determining whether the disclosure of the document would involve the unreasonable disclosure of personal information, an agency or Minister must have regard to the following matters:
(a) the extent to which the information is well known;
(b) whether the person to whom the information relates is known to be (or to have been) associated with the matters dealt with in the document;
(c) the availability of the information from publicly accessible sources;
(d) any other matters that the agency or Minister considers relevant.
(3) Subject to subsection (5), subsection (1) does not have effect in relation to a request by a person for access to a document by reason only of the inclusion in the document of matter relating to that person.
Access given to qualified person instead
(4) Subsection (5) applies if:
(a) a request is made to an agency or Minister for access to a document of the agency, or an official document of the Minister, that contains information concerning the applicant, being information that was provided by a qualified person acting in his or her capacity as a qualified person; and
(b) it appears to the principal officer of the agency or to the Minister (as the case may be) that the disclosure of the information to the applicant might be detrimental to the applicant's physical or mental health, or well-being.
(5) The principal officer or Minister may, if access to the document would otherwise be given to the applicant, direct that access to the document, so far as it contains that information, is not to be given to the applicant but is to be given instead to a qualified person who:
(a) carries on the same occupation, of a kind mentioned in the definition of qualified person in subsection (7), as the first-mentioned qualified person; and
(b) is to be nominated by the applicant.
(6) The powers and functions of the principal officer of an agency under this section may be exercised by an officer of the agency acting within his or her scope of authority in accordance with arrangements referred to in section 23.
(7) In this section:
"qualified person" means a person who carries on, and is entitled to carry on, an occupation that involves the provision of care for the physical or mental health of people or for their well-being, and, without limiting the generality of the foregoing, includes any of the following:
(a) a medical practitioner;
(b) a psychiatrist;
(c) a psychologist;
(d) a counsellor;
(e) a social worker.
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).
Comment: Think we now all know why NX called on the IC to appear, he was quite obviously severely pissed that his perfectly reasonable FOI request was obfuscated by FF and their use of section 47F. In the end the obfuscation mattered for naught as it all came out in a flood in the Senate confessional box!
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Old 8th Dec 2013, 18:59
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Can of worms. (from the worm farm).

Cheers Sarcs – now the big question can the 'worms back into the can' team muzzle Fawcett, Hefferan etc. through party lines. I expect NX will keep hammering away, perhaps Stearle will run with Xenophon (even if just to annoy and score points off the LNP cop out). I expect time will tell as the good work done is diminished by time, overshadowed by disinterest and industry keeps bending over, accepting the crumbs dropped from the masters table.

So many worms, so little time. Insert Creamy's (now legendary) Chook noises.
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Old 8th Dec 2013, 21:14
  #1644 (permalink)  
 
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HoP intended 'rules of engagement'!

Note: HOP abbreviation for 'Head of Panel'

Compliments of the MMSM:
Safety panel no place for rage: David Forsyth

INDUSTRY players making submissions to the federal government's review on aviation safety regulation need to leave the vitriol at home and respond constructively, panel chairman David Forsyth warns.

In an exclusive interview with The Australian, Mr Forsyth also advised people to be patient about airing their views during the next five months of the inquiry.

Submissions open today and the panel is expecting a similar number to the roughly 300 made to Labor's aviation white paper.

Mr Forsyth and fellow panel members Roger Whitefield and Don Spruston have been poring over previous reports on the industry and will kick off the investigations in Australia next week when they visit major airlines and general aviation airports in Sydney, Melbourne and Adelaide.

But the chairman emphasised this would be just the start to a long process that would take shape with a visiting program once submissions had closed on January 31.

"We will get to other people and particularly we encourage people to put submissions in," Mr Forsyth said. "The better their submissions, the more likely we're going to be talking to them at some point and expand on what they've put in their submissions.

"The submissions are important, and I think February and March and possibly some of April we're going to be pretty busy talking to people."
Deputy Prime Minister Warren Truss announced the review last month as a systematic and strategic examination of how well Australia's regulatory system was positioned globally.

Mr Truss said yesterday the aim was to make sure Australia remained at the forefront of aviation safety. "The general and regional aviation sectors, in particular, have told the government they are concerned about the costs of regulatory compliance and how our regulatory system compares to other countries.

"This review will place us in a strong position to ensure our aviation safety standards remain up to the challenge of meeting the predicted expansion of aviation over the next 20 years."

The committee on Monday and Tuesday will visit Canberra to meet departmental officials as well as those from the Australian Transport Safety Bureau, the Civil Aviation Safety Authority and Airservices Australia.

They will be in Sydney on Wednesday, Adelaide on Thursday and Melbourne on Friday, when they will meet operators as well as visit Bankstown, Parafield and Moorabbin airports.

Mr Forsyth said the committee would aim to finish a draft report by the end of April so it could submit the final document to Mr Truss before the end of May.

"That's our timeframe and at this stage, although it's early days, we're hopeful of sticking to it."

He said the panel was open to anything industry players wanted to tell it; however, Mr Truss had been clear in the terms of reference that he wanted a strategic review that did not re-examine investigations or look at individual complaints.

The investigation would be in three major parts. "The first bit is the relationship between the agencies, which (Russell) Miller had a look at in 2007, and clearly there are still some questions surrounding the relationship, particularly between CASA and the ATSB," Mr Forsyth said.
"So we'll be having a bit of a look at that.

"The second part, which is a fair bit of work, I think, is to look at the regulatory reform program.

"We've already had a few people give us some interesting leads about how that could be improved, so we're going to be looking at that fairly early in the piece.

"There's lots of things: the way the regs are put together, the way they're written and the issue of why it takes a long time in the consultation program and so forth.

"And that regulatory review thing has been going on for 20 years; it's a bit of a saga.

"The third main plank is CASA's audit and surveillance program of industry. And that and the second piece is where a lot of the vitriol is."

He said he understood some smaller operators were particularly cranky about the way CASA operated, but that the panel was not a witch-hunt and he would be seeking CASA's viewpoint.

"As with all of these things there's never any one fault," he said. "When you've got a relationship breakdown it takes at least two and sometimes three, so it will be interesting to hear both sides of it."

Admitting that managing the review would need "a fair bit of diplomacy", he said people would need to recognise that the panel was attempting to try and improve the situation. Being vitriolic about CASA or other players was not going to be seen as being particularly helpful.

"The panel obviously wants to get to the meat of these things and deal with it and maybe look at some options for improvement," he said "It isn't here to sit down to hear people rant and rave so people need to be measured in the way they put their responses together."

Commenting on his high-powered panel, the Qantas engineering veteran, chair of Safeskies Australia and former Airservices chair said his fellow panellists would be available to provide valuable insights into the Australian industry.

Mr Spruston is a former director-general of civil aviation at Transport Canada as well as an ex-director general of the International Business Aviation Council. Mr Whitefield is a former head of safety at British Airways, a former UK Civil Aviation Authority board member and was a safety advisor to Qantas.

Both men are pilots.

"I think it should be a good panel," Mr Forsyth said. "I've spoken to them both on the phone a few times and they're both very knowledgeable guys and will be able to give us that litmus test or benchmarking, if you want to call it that, of the regulatory situation here and the agency situation here coppered to at least two other jurisdictions. So I think that will be very helpful."
From 10 o'clock today the true 'rules of engagement' should start to be sorted :
RRAT Committee Meetings:

Senator McEWEN (South Australia—Opposition Whip in the Senate) (15:39): At the request of Senator Sterle, I move:
That the Rural and Regional Affairs and Transport References Committee be authorised to meet during the sittings of the Senate for private briefings, as follows:
(a) on Monday, 9 December 2013, from 10 am; and
(b) on Tuesday, 10 December 2013, from 4 pm.
Question agreed to.
After that, coupled with the government response to the PelAir report, the 'chook shed' battle lines will be officially drawn and we will either be resorting to civilized fowlomacy or a guerilla cockfight!

Media brief NX (Chicken Little) scenario one:

Chicken Little: "Today is a new day, today is a new day..."

Media brief NX scenario two:

Chicken Little: [repeated line] "The sky is falling!"

[YOUTUBE]

Last edited by Sarcs; 8th Dec 2013 at 21:38. Reason: Waiting on word from Chicken Little..?
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Old 9th Dec 2013, 19:10
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2008 and all that

Interesting study is journalist and tendentious blogger Mr. Farmer (No not calendar one, 'tuther one). Before the great white elephant paper disappointment following the colossal industry effort for reform in 2008, he published several very good articles. The extracts from the one below (Our air traffic control insider writes: Jul 14, 2008 12:00AM) was typical, he has been relatively quiet since then on matters aeronautical. Probably same as the rest of those who contributed in good faith, only to see their efforts rewarded with the Albo, soft white paper elephant – disgusted. Now we have the vicars tea party scene from the Forsyth saga to look forward to. Are we ever to hear the minuscule response to Pel Air?, may be Barnaby Joyce could deliver it – maiden speech and all that??

It would appear that the first independent review of TIBA from an ATC point of view has concluded that TIBA is not as safe as it would appear on paper. Well, we at the “coal face” are shocked. Shocked that all it took was one simple visit to work out what the controllers have been saying has substance. Where have CASA been? 300+ closures/reductions in the year and they finally take a look after media pressure. CASA is a joke.

Bruce Byron stated last week that he didn’t want to hear about controller shortages next year and appears to have given the CEO of ASA, Greg Russell, an ultimatum; Bruce, tip for you, we aren’t 19 short we are 75 short. We are going to lose 20-odd before Christmas, so the 35 people currently being trained, assuming that they all get a licence (which they won’t) will still leave us 60 Short; I guess that’s only 4 short under the fuzzy maths that is being used now by the ASA executive. Bruce, it takes 18 months from off the street to getting a licence, add six months for recruitment.
We are in a heap of pain — and there is much more to come.

When “Big Tony” (the Minister) takes his broom out, maybe Bruce Byron should go too along with Greg Russell and the ASA Board; it’s a joke that a first world nation has less ability than most 3rd world nations relating to air traffic control coverage.
Great vintage was 2008 and can only improve with time.
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Old 10th Dec 2013, 04:56
  #1646 (permalink)  
 
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250 million shades of grey..??

Dick Farmer (of the Crikey variety):
When “Big Tony” (the Minister) takes his broom out, maybe Bruce Byron should go too along with Greg Russell and the ASA Board; it’s a joke that a first world nation has less ability than most 3rd world nations relating to air traffic control coverage.
Hmm..wasn't one Mr Forthright from the TASRR panel on the ASA board back then while being the Chair on Safeskies??

So let's see Byron went, Russell eventually went but what happened to the ASA board??

And Safeskies well...?? Taking a look at some of the presentations from 2011 (if you can bear it.. ) you will see some of the usual suspects...

Safeskies 2011 webcast

You'll see Beaker tripping the light fantastic with his beyond all sensible reason mantra... ...coupla of quotes..

..."Don't get me wrong: we pass information from all the occurrence reports we receive to CASA on a daily basis and this informs their regulatory scrutiny of the system of safety. That's as it should be. My point is more that the concepts of just culture are embedded in the overall system of safety and how roles are allocated within it..."

&

..."We're getting better at putting our investigative attention where it should be, at scoping our investigations and completing them more quickly without reducing quality. And we're heading towards a sustainable level of investigation activity - and some reasonable prospect of giving each significant occurrence the attention it deserves..."

& the first signs of the 'Beyond reason' methodology..:

.."While we issued recommendations, the key point here is that there is no single party that is able or can be held to account for fixing a set of issues that start with design and certification, move through operator-specific configuration decisions to maintenance procedures and their oversight and extend to flight training and procedures.

The no-blame investigator can specify the problem, but we need to find better ways of getting all the relevant parties alerted to the issue and active in resolving it. We've got to get beyond recommendations to communicating safety issues in a compelling way...."

The current DAS surprisingly looked a bit like a roo in the headlights but he stuck to the task and prattled on about the introduction and safety advantages of new technology..(GNSS/ADSB etc), UAVs and interestingly enough the GA Task Force.....err a coupla quotes:

"In recognition of the significant changes and challenges facing the general aviation sector in Australia, today and in the future, CASA has established a General Aviation Task Force to review regulatory issues affecting activities and participants within the GA Sector..."

&

"The task force’s engagement with the industry is intended to complement and supplement CASA’s existing consultative and outreach mechanisms, not to supplant or supersede those activities..."

As for Mr Professional Chair well the jury is still out (till at least May 2014) but he certainly makes an excellent MC..

This year's safeskies conference has yet to publish key note speeches etc but it is interesting to look at who made presentations (besides the usual suspects..), see here: Safeskies 2013 Speakers

On the 'Safe to report to us', PP article this quote obviously comes from an IOS bored member (probably the Chair would be my bet..):
A cynical viewer from the industry whose views we respect, isn’t so sure:
“Well, we’ll see. The Panel acknowledges that all the submissions including confidential submissions may be made available to ‘interested government departments and government instrumentalities under certain circumstances.’ I personally think [CASA] are so thick-skinned, and so full of the ‘we’re the authority, so you can all get lost’ attitude, that they won’t care how open it is, because it will never get to the politicians and the general public in a way that will say ‘this is corrupt conduct.’ There are subtle ways they can shaft even somebody who’s made a genuine submission and set out all sorts of genuine and provable problems, but CASA can still just keep doing what they’ve done before: ‘Oh! This bloke’s got such a problem that we’d better conduct a special audit,’ and we all know that a lot of his problems are actually found in a special audit and draconian limitations put on his business. That’s the real problem the panel faces.”
Got my vote at the next AGM...

Question Mr PC..what about a couple of public hearings in the mix??

Maybe the Senate Committee could facilitate that? After all R 13 suggested..

..."The committee recommends that a short inquiry be conducted by the Senate Standing Committee on Rural and Regional Affairs and Transport into the current status of aviation regulatory reform to assess the direction, progress and resources expended to date to ensure greater visibility of the processes...."

That way people who feel they need confidentiality will get it by being able to give evidence 'in camera'...just a thought?? Hate to think we would have to revisit R13 at a later date just to salvage the integrity of the Minister...now that would be a waste!
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Old 10th Dec 2013, 07:30
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Ahhh yes....

the GA Task Force gets a mention. A few Qs....
Is still going? did it produce a "report"? How many man hours dollars involved.
Is it a secret?

Or is it like so many other CAsa upchucks.....fades away to nothing.?

Any news?
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Old 13th Dec 2013, 00:27
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IOS: "So where's your response Minister??"

Ben's latest brings the spotlight back on the matter of the Govt response to PelAir report..tick bloody tock! :
ATSB chopper emergency inquiry contradicts Pel-Air report

Ben Sandilands | Dec 13, 2013 10:24AM | EMAIL | PRINT

This is another reminder to the Minister for Transport, Warren Truss, that the two aviation authorities for which he is now responsible did not carry out their duties according to law, or fairly, and have left in place a Pel-Air crash report that is an embarrassment to Australia and detracts from its reputation for air safety oversight and administration.

The ATSB has contradicted its decision making in the case of the Pel-Air crash in 2009 near Norfolk Island in a final report just released into an incident involving a helicopter at Barrow Island, WA, in February this year.

The Barrow Island incident which can be studied here involved a night training flight in a Super Puma whose pilots were mislead by a weather forecast that was not amended when conditions deteriorated.

The Super Puma was left without sufficient fuel to land at an alternative location, but was able to return safely to its base with less than legal fuel reserves remaining.

The notorious Pel-Air crash involved an air ambulance flight that flew past its point of no return to alternative runways between Apia and Norfolk Island when the weather deteriorated so badly that the captain ditched it in the sea in the dark, where all six people on board were eventually rescue by a fishing boat.

A Senate inquiry into the ATSB handling of that crash investigation discovered that CASA had withheld from the investigator documents that showed the crash could have been avoided had it carried out its duties of oversight over Pel-Air.

The ATSB also totally discounted the relevance of the weather information provided to the Pel-Air flight as it approached Norfolk Island to refuel, and refused to recover the data recorder from the wreckage, which is recoverable for the sea floor where it remains to this day.

Instead, the testimony given to the Senate committee into air accident investigations indicated that the ATSB and CASA conspired to frame the blame for the crash entirely on the pilot whose decision making and skills saved all on board, despite flying a jet that Pel-Air ought never have deployed on the mission it was undertaking, under inadequate CASA rules that persist to this day.

Comment This is another reminder to the Minister for Transport, Warren Truss, that the two aviation authorities for which he is now responsible did not carry out their duties according to law, or fairly, and have left in place a Pel-Air crash report that is an embarrassment to Australia and detracts from its reputation for air safety oversight and administration.
There is a compelling case, added to by the Super Puma report, for the Pel-Air report to be set aside and redone. There is also a case, based on the testimony given to the Senate by the chief commissioner for the ATSB, Martin Dolan, and the Director of Air Safety for CASA, John McCormick, to be variously censured or terminated for what they admitted to in those proceedings.

The all party committee which wrote the Air Accident Investigations report included a detailed account of its reasons for not having confidence in the testimony given by Mr Dolan, something rare if not unprecedented in the history of Senate relations with the public service.

The issues are summarised in this report, which includes hyperlinks which will lead the curious back to additional material.
No comment needed...
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Old 13th Dec 2013, 18:32
  #1649 (permalink)  
 
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Sweet nothings.

No wonder the Forsyth Saga cast is aimlessly wandering about the country side, desperately seeking something positive to report.

Sandilands : "[This] is another reminder to the Minister for Transport, Warren Truss, that the two aviation authorities for which he is now responsible did not carry out their duties according to law, or fairly, and have left in place a Pel-Air crash report that is an embarrassment to Australia and detracts from its reputation for air safety oversight and administration.
The stark unpleasant facts are all there; we could save a shed full of time, tears and public money if the Minuscule would get off his cushion and reply to the Senate inquiry, give the hapless review panel the Senate briefing and say (in suitably miniscule tones) start there boys and work backwards ten years; no need to look forward, nothing to see there.

A display of internal political fortitude and some respect for a financially crippled, legally hide bound, administratively embuggered industry would be a fine place to finish an otherwise lacklustre career. Or, better still, turn Barnaby loose, now that would be worth watching.
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Old 14th Dec 2013, 23:14
  #1650 (permalink)  
 
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Using the Freedom of Information Act.

Two of our associates working from the testimony provided by the Information Commissioner during the recent Senate inquiry into the Pel Air began an exploration of the way in which the FoI system operates and how it may best be used. Initial enquiries began with a detailed examination three individual cases, the results prompting further examination of an additional four cases from within the group.

To expand the analysis we would like to establish contact with those within the wider community who have experienced difficulty satisfying their requests for documents made under the FoI Act. Particularly those who have been refused access to documents under the following sections :-

42. (Documents subject to legal professional privilege).

47F. (Public interest conditional exemptions—personal privacy).

47G. (Public interest conditional exemptions—business).

Should you wish to participate, please make initial contact through the PPRuNe PM system. Please note that we do respect your anonymity and there will be no discussion related to an event on PPRuNe, or any other public forum. It is intended that the final report will be of a statistical and 'generalised' nature rather than personal (case by case) analysis, primarily focused on sections 5.134 through to 5.138.

The ‘real harm’ test

5.134 Agencies are advised not to claim exemption for a document under s 42 unless it is considered that ‘real harm’ would result from releasing the document. A ‘real harm’ criterion is not an element of the common law doctrine of legal professional privilege, but has been acknowledged within government as a relevant discretionary test to apply in FOI administration.101 The phrase ‘real harm’ distinguishes between substantial prejudice to the agency’s affairs and mere irritation, embarrassment or inconvenience to the agency. However, an agency’s decision on the ‘real harm’ criterion is not an issue that can be addressed in an IC review. Section 55L of the FOI Act provides that the Information Commissioner cannot decide that access should be given to exempt matter in a document.102. Copies or summary records

5.135 Records made by officers of an agency summarising communications which are themselves privileged also attract the privilege. Privilege may also attach to a copy of an unprivileged document if the copy was made for the dominant purpose of obtaining legal advice or for use in legal proceedings.103

Exception for operational information
5.136 A document is not exempt under s 42(1) by reason only of the inclusion in that document of operational information of an agency (s 42(3)).

5.137 Agencies must publish their operational information under the information publication scheme established by Part II, s 8 of the FOI Act which commenced on 1 May 2011. ‘Operational information’ is information held by an agency to assist the agency to perform or exercise its functions or powers in making decisions or recommendations affecting members of the public or any particular person or entity or class of persons or entities (s 8A). For further information see Part 13 of these Guidelines.

Severance
5.138 If only part of a document contains material that is privileged under s 42, s 22 requires disclosure of the part that is not privileged.104
P18. a.k.a. Blind Freddy.

Last edited by PAIN_NET; 15th Dec 2013 at 00:34.
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Old 15th Dec 2013, 23:04
  #1651 (permalink)  
 
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Bureaucratic obfuscation of the FOI and the PAIN initiative??

Although Fort Fumble are not on their own in taking the Mickey Bliss when it comes to the FOI Act, they are perhaps close to the best at it and have a long and checkered history of doing so...why?? Put simply they have much to hide and protect from the prying eyes of 'Joe Citizen' and many members of the IOS.

The FOI Act has a relatively short history (1982) but much like the RRP it is very much convoluted, debated, reformed...err deformed and reformed.... So much so to actually outline a full history timeline would put most on here to sleep....by first session drinks on day four of the Ash's test.

Therefore let's just go back half a decade to the year 2009 where there was a Rudd government initiative, message from (former) Cabinet Secretary Senator Faulkner....

"....A key Government election commitment was to restore trust and integrity in the use of Australian Government information, and to promote greater openness and transparency.

One of the ways the Government intends to deliver on this commitment is through major reforms to the Freedom of Information Act 1982.
Both in practice, and as a symbol, ‘freedom of information’ represents the pinnacle of citizens’ right to know: a legal requirement to give the Australian community access to information held by the Australian Government....

....To fulfil the rest of our election commitments the Government will later this year introduce further bills into the Parliament containing broader reforms. These bills will deliver the first substantial overhaul of the Freedom of Information Act since the Act’s inception in 1982.

Information held by the Government is a national resource and should be managed in the public interest. Access to government information increases public participation, and leads to increased scrutiny, discussion, comment and review of government activity.

Given the importance of the FOI Act in making this possible, it is essential that these proposed reforms are discussed and evaluated as widely as possible.

To this end, I am pleased to release exposure drafts of the Information Commissioner Bill 2009 and the Freedom of Information Amendment (Reform) Bill 2009 for public comment...."

{Note: There were 45 FOI reform exposure draft submissions, some of which are well worth a read...}

This initiative led (amongst other things) to the introduction of the Office of the Australian Information Commissioner (OAIC), however the jury is still out on whether we are left with a better functioning and principled FOI Act as per Senator Faulkner's message??

Trolling the submissions I came across one in particular (ps Thanks to the IOS member who pointed me in the right direction....) which is significant in light of the PAIN request: Whistleblowers Australia (my bold)...
"... The first problem was that the bureaucrats were given extra ordinary discretionary powers which enabled them to deny or frustrate public access to information. Exemptions were claimed because they were available, and not because they were "necessary for the protection of essential public interests".

In fact, most exemptions claimed were simply for the protection of bureaucrats, and in some cases, their political masters. Or in other words, the exemptions were persistently claimed to avoid transparency and evade accountability.
But simply claiming exemptions for those matters would highlight those accountability issues and attract attention to them. In so doing, it would actually cause questions to be focused on those particular exemptions. So the trick used by bureaucrats was to claim every exemption possible, thereby burying the specific accountability issues in a forest of other exemptions.

The second and more important problem was that there was nothing to stop bureaucrats from following this course of action. It was not an offence to wilfully and deliberately obstruct access to information which should have been provided under the act...."

And this is where it gets interesting (i.e. PAIN initiative) so hang in there...

"...The 1986 Brazil Direction was a direction of Cabinet. It required that “agencies are not to assert legal professional privilege unless real harm would result from disclosure of the information (see Brazil Direction). The phrase real harm distinguishes between substantial prejudice to the agency’s affairs and mere irritation, embarrassment or inconvenience to the agency.”

The direction was binding on all agencies and it remains in force (see FOI Memorandum at PMC web site).Yet it has been totally ignored by agencies since 1986. Agencies flagrantly disobeyed that direction at will. As a consequence that unchallenged disobedience has rendered impotent the powers of the Parliament, Cabinet, Ministers, and the courts and tribunals. Yet not one bureaucrat has been held to account for a breach of that lawful direction. This conduct is clearly a breach of the Code of Conduct yet no disciplinary action has been taken against any bureaucrat for breaching that code.

This is a single but powerful example of the contempt shown by bureaucrats for directions, policy statements and guidelines issued by the Government, the Cabinet and Ministers.

Because bureaucrats or agencies were never sanctioned for non compliance with lawful directions they have continued to flagrantly ignore the Objects of the Act, the FOI guidelines and Memoranda, the model litigant policy and/or the directions under the Judiciary Act.

There is no record of any bureaucrat being held to account under the Code of Conduct for abuse of process under the FOI Act. This is despite repeated complaints by the courts and the media and the public about the abuse and misuse of the FOI Act by bureaucrats.

Neither of these problems have been resolved in the Exposure Draft. Most importantly, the Information Commissioner has been denied powers to directly act against such misconduct...."

History will show that the WBA submission and recommendations (like so many other excellent, insightful, constructive, submissions in similar type consultation processes..), was duly ignored by the powers to be andthe Exposure Draft was largely left untouched/ unamended. Subsequently the WBA prognosis/ prophecy, as outlined above, has come into fruition.

In the case of Fort Fumble's obfuscation of the FOI Act, we went from loading up a train of sometimes totally irrelevant exemptions, to a case of selective interpretation of individual but still largely irrelevant FOI exemptions to thwart the possibly embarrassing release of certain FOI requested information. How we progress..not..

Therefore I fully support the PAIN initiative, you have to start somewhere and S42 (LPP), S47F, S47G is as good a place as any....

{Comment: Might I suggest that 47E (see below) should be added as I came across a disturbing case where (once again) the smoke screen of the mystique of aviation safety has reared its ugly head, in this case the Information Commissioner was a victim of MOAS Syndrome...more to follow on that fairy tale}
47E Public interest conditional exemptions—certain operations of
agencies
A document is conditionally exempt if its disclosure under this Act
would, or could reasonably be expected to, do any of the
following:
(a) prejudice the effectiveness of procedures or methods for the
conduct of tests, examinations or audits by an agency;
(b) prejudice the attainment of the objects of particular tests,
examinations or audits conducted or to be conducted by an
agency;
(c) have a substantial adverse effect on the management or
assessment of personnel by the Commonwealth, by Norfolk
Island or by an agency;
(d) have a substantial adverse effect on the proper and efficient
conduct of the operations of an agency.
Note: Access must generally be given to a conditionally exempt document
unless it would be contrary to the public interest (see section 11A).
Addendum: Link for pdf - FREEDOM OF INFORMATION ACT 1982:FUNDAMENTAL PRINCIPLES AND PROCEDURES (ref: Brazil Direction Appendix 2)
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Old 16th Dec 2013, 18:01
  #1652 (permalink)  
 
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A coffee with TOM.

Had a chance to coffee with P7 TOM and asked about the PAIN analysis of FOI; "not deeply involved" (evil grin) "but a couple of the others have been chipping away for a while now". Picture me sat thoughtful like, he with a half smile and a challenging eyebrow cocked. "Ok" say I "tell me you old bugger". "Not your cup of tea old son" he says, so I gives him 'the look'. "Well" says the oracle with a sigh; "seems some folk have been having problems, the Senate got about 13 truckloads of useless information and had to ask twice, with threats to get to the stuff they knew was there; a lot of the information buried or incorrectly filed". "Other folk, like the ABC were told a fee of AUD $10,000 would apply for the information they wanted, lots of other people get messed about, endless delays, extensions etc". "But, the big ticket issue is the slightly jaundiced application of the exemptions and the spin CASA can get on the regulatory ball".

So that, in a nutshell is the problem the boys are tackling. Where the analysis may best be used was not discussed, but the IC review facility was. It seems that when the hurdles of waiting, extension and fees have been cleared, and the avalanche of reasons and exemptions have been considered; if you are still unable to get the information there are a couple of options. Do what the Senate did and use your parliamentary clout, or you can seek a review.

It seems the IC review has extensive waiting lists, which in its self is interesting. But be warned - a review may not necessarily reverse a decision. All in all, it seems you can spend a lot of time waiting about and still not achieve satisfaction.

Linton Besser

FoI Review.

Quote from Besser and Department of Infrastructure and Transport: "On 1 November 2010, Mr Linton Besser applied to the Department for access to (amongst other documents) all internal audit reports undertaken by the Department during a specified period. Mr Besser added that he was seeking material ‘which examines cases of fraud, corruption or other serious cases of non-compliance or breaches of protocol, by [Department] employees and its contractors and consultants.’ He also requested that ‘any processing costs beyond the preliminary five hours are discounted on the grounds of the public interest’."
And, doing a Sarcs – the words above are a passage from a Besser review, the subject, by the by, is not about acquiring the requested documents, but about how much the information will cost to gain.

The text below presents a fair example of what you may expect when and if you ever decide to have the IC review a departmental decision, affecting your business or career. It begs the question - can the regs only ever be interpreted as all aviators are proven criminals; guilty unless you can prove otherwise. Reference ‘Y’ and Civil Aviation Safety Authority [2013] AICmr 42 (12 April 2013).
Certain operations of agencies exemption (s 47E)

13. Section 47E provides that ‘[a] document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to…(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency’.

14. The long title of the Civil Aviation Act 1998 (as was in force on 3 February 2010) provides that it is ‘[a]n Act to establish a Civil Aviation Safety Authority with functions relating to civil aviation, in particular the safety of civil aviation, and for related purposes’. The Civil Aviation Act 1988 further provides that one of the central functions of CASA is to issue certificates and licences.2

15. Regulation 5.04 of the Civil Aviation Regulations 1988 (as were in force on 3 February 2010) provides that it is a requirement of a flight crew licence (including a commercial pilot licence) that the holder of that licence has a medical certificate that is appropriate to that licence. Regulation 5.04(3) further provides that the appropriate medical certificate for a commercial pilot is a class 1 medical certificate.

16. Table 67.150 to Regulation 67.150 of the Civil Aviation Safety Regulations 1998 (as were in force on 3 February 2010) details the criteria for a class 1 medical certificate, including a mental fitness criterion.

17. Regulation 67.265 of the Civil Aviation Safety Regulations 1998 further provides that the holder of a class 1 medical certificate and a flight crew licence is required to notify CASA of any medically significant condition that he or she may have where the condition would impair his or her ability to do an act authorised by the licence.

18. Regulation 67.230 provides that where CASA has concerns about whether the holder of a medical certificate continues to meet the relevant medical standard, CASA may direct the holder of the certificate to submit to examination by a medical practitioner, specialist psychiatrist or clinical psychologist.

19. In submissions to this office, the applicant argued that ‘…taking an unsolicited “complaint” from the member of the public about their perception of a pilot’s medical condition’ is neither part of CASA’s operations nor of such importance to CASA’s operations that disclosure of the complaint would have a substantial adverse effect on the proper and efficient conduct of these operations.

20. In light of the provisions of the Civil Aviation Regulations 1988 and Civil Aviation Safety Regulations 1998 mentioned above, I am satisfied that it is a function and operation of CASA to both issue licences and medical certificates and investigate possible breaches of such licences and medical certificates, whether at CASA’s initiative or following a complaint from a member of the public. I am also satisfied that it is a particular function of CASA to ensure safety of civil aviation in Australia, including by ensuring that those holding such licences and certificates are medically fit to do so.

21. In this case, I am satisfied that the complaint raised concerns about civil aviation safety by bringing into question whether the applicant had met the medical requirements of their licence.

22. I agree with CASA that disclosure of complaints about possible breaches of licence conditions could discourage others from raising legitimate public safety concerns and therefore impede CASA in both the exercise of its functions and its ability to test and respond to such concerns. I consider that this would impair CASA in the exercise of its particular function relating to the safety of civil aviation.

23. In this case, the complainant provided the information about a possible breach of the applicant’s licence conditions on the understanding that it would be used to investigate any breach but kept confidential. When providing the information to CASA, the complainant requested that the information be treated confidentially and in its acknowledgement of the complainant’s correspondence, CASA confirmed that it would treat the information confidentially.

24. I am satisfied that disclosure, under the FOI Act, of this type of information would affect the willingness of others to make similar safety-related complaints in the future. This would have a substantial adverse effect on the proper and efficient conduct of CASA’s licencing and certification operations as it would be likely to result in safety concerns not being reported to CASA and, therefore, not being investigated by CASA. If potential air safety issues, including those related to pilot licensing and certification, are not considered and, where necessary, remedied by CASA, then CASA would not be able to fulfil its functions in relation to the safety of civil aviation.

25. Accordingly, the documents sought by the applicant are conditionally exempt under s 47E.

26. Because the document sought by the applicant is conditionally exempt under s 47E, it is not necessary for me to consider the application of s 47F (personal privacy exemption). However, I do note that, having examined an unedited copy of the document, it would not be possible to provide an edited copy of the document to the applicant without disclosing the personal information of the complainant.
TOM was right. All a bit too much for my wooden head, but there it is.

Last edited by Kharon; 17th Dec 2013 at 00:29. Reason: Mad a boo boo. - Boo hoo>
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Old 17th Dec 2013, 07:49
  #1653 (permalink)  
 
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Folks,
The above discussion on the FOI, or more to the point, the bureaucratic misuse of the law, is nothing new.

Indeed, there is nothing new about the behavior of the bureaucracy in completely subverting the intent of the Senate inquiry into PelAir, or any of the many other inquiries into CASA and its predecessors, which, big and small, number more than twenty over twenty five years or so.

This including the biggest parliamentary inquiry since Federation, the Morris inquiry, which sat for over 300 sitting days.

The Rule of Law Institute and Robin Speed also receive well deserved honourable mention from time to time in these pages.

But there is nothing new, and Lord Hewart of Bury, Lord Chief Justice of the United Kingdom in the 1920s, even wrote a book about it in 1929: "The New Despotism". In fact, everything Robin Speed says about the "rule by law", as opposed to the "rule of law" is said by Hewart in the above book.

Lord Chief Justice Hewart enunciated "Hewart's law" , which, slightly paraphrased, says: "the aim and intent of the bureaucracy is to subordinate Parliament, to evade the Courts, and to render the will, or the caprice, of the Executive unfettered and supreme".

As a review of the book, The New Despotism" says:

THE NEW DESPOTISM, a book of quite exceptional importance, is, in effect, the sequel to that speech. Every citizen of this country, from the least to the greatest, is directly and personally concerned with the encroachments of bureaucracy on public life. "Very few laymen are aware of the wide difference which exists between the rights of these parties (the Crown and the subjects of the Crown) as they survive to this day under the traditions of antiquated law and practice; and still less do they realise the gross injustice not infrequently inflicted upon individuals by the harsh and unconscionable exercise of certain rights which Executive Departments enforce, and which the Courts of law are powerless to disallow. . . . The existence of the fundamentally false and unconstitutional idea that the bureaucracy are a privileged class, not amenable in their official acts to the jurisdiction of the courts, is a danger to our traditional liberties which is obvious," said *The Times* in a leading article, and it is "these wide differences" and "this danger to our traditional liberties" which the Lord Chief Justice examines and condemns.
THE NEW DESPOTISM is fully documented and deals with these vital questions in a technical as well as a popular manner.

<https://archive.org/details/LordHewart-TheNewDespotism1929>

Does all of the above sound a bit familiar ??

Tootle pip!!

PS: Hewart is also responsible for one of the most common quotes on the law, frequently misquoted as "Not only must justice be done, but must be seen to be done". The original was far stronger, " ----- but must be seen to be well and truly done">
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Old 17th Dec 2013, 19:33
  #1654 (permalink)  
 
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… and to render the will, or the caprice, of the Executive unfettered and supreme.
And what is ‘the Executive’ old chap?

It’s the government!

And successive governments have been very happy with the way in which CASA and ATSB have rendered the government’s will and caprice. For example, the regulatory and investigatory response to Pel Air was a very neat and tidy answer to some very messy political problems.
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Old 17th Dec 2013, 20:13
  #1655 (permalink)  
 
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Perhaps should be read in the full text, you omitted "to subordinate parliament".

"the aim and intent of the bureaucracy is to subordinate Parliament, to evade the Courts, and to render the will, or the caprice, of the Executive unfettered and supreme".
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Old 17th Dec 2013, 22:02
  #1656 (permalink)  
 
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I did read the full text. And, unlike some others, I understand what it means.

The point of His Honour’s statement is that the bureaucracy does its best to ignore and avoid the Parliament and the Courts, preferring instead to do what pleases its political lords and masters. i.e. the executive.

The regulatory and investigative outcome of Pel Air was very pleasing to the executive.
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Old 18th Dec 2013, 02:05
  #1657 (permalink)  
 
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Subordinate: 1. the lesser order or importance, 2. under the authority or control of another; (a subordinate functionary). 3. a person or thing that is subordinate. 4. to put in a lower rank or position. 5. to make subservient.


Ref: Collins English Dictionary. Third Edition circa 1991.


Given my Dictionary is hopelessly out of date and obviously not to be relied upon for accuracy I concede illiteracy on the understanding that the "real" and "legal" definition be applied by someone so articulate, as yourself perhaps, (or Sir Humphrey), for us mortals not privy to the legal phraseology.


But I'm not a Lawyer. (yellow smilie with band aid over mouth).
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Old 18th Dec 2013, 02:36
  #1658 (permalink)  
 
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Your dictionary is correct. The word “subordinate” in the context of Leaddie’s paraphrasing of Lord Hewart’s statement is a verb, meaning to “put in a lower rank or position” or “to make subservient”.

What’s your point?

The outcome is still as I (and Lord Hewart) have described.

How do you reckon CASA and the ATSB get away with “subordinating” the Parliament? The answer is that CASA and the ATSB enjoy the protection of the executive (i.e. the Minister and his Department, and the rest of the government), while ever they don’t affect the political fortunes of the government.

Last edited by Creampuff; 18th Dec 2013 at 04:15. Reason: Typo "Stewart"
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Old 18th Dec 2013, 05:27
  #1659 (permalink)  
 
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Hon Justice Kirby, Sir Humphrey and the FOI seven deadly sins!

From a thread drift of bureaucratic (in particular Fort Fumble..) obfuscation of the FOI to Executive government's deliberate promotion of bureaucratic obfuscation generally??? Hmm...personally it is a bit out of the league....of a simple knuckle-dragger but I'm up for it so let's bring it on!

Let's start by referring to a certain former HC Judge speech back in '97 (the Hon Justice Michael Kirby), to the Poms section of the International Commission of Jurists. Although long winded in parts and given over 16 years past, IMO this speech should be read and analysed in context of the now long history of the RRP & the many (as Leadie refers in his post) subsequent inquiries into the administration of aviation safety in this country. All this for very little gain in improving aviation safety while decimating GA in the process..

Ok to Kirby's speech and a quote of relevance perhaps..

.."It is true that in many things, in government, the law, in literature and sport, England has taught the nations of the world. But it also taught them the business of bureaucracy. It was a stern lesson. Its officials throughout the Empire were almost wholly uncorrupted. After the 1850s they were chosen by open, competitive examinations. They followed steady routine. They observed the rule of law, not the whim of rulers. But they also followed a regime of high secrecy. However suitable that regime of the 'Official Secrets Act' was for imperial and colonial times, it became seriously unsuitable for times in which political theory, egged on by information technology, preached that the century of the common man had arrived..."

Kirby's speech was primarily focused on the Poms, who were about to enact the FOI in Parliament. Kirby was pointing out the pitfalls, lessons learnt (so far) from the Australian experience. Hence the title of his speech..'FREEDOM OF INFORMATION: THE SEVEN DEADLY SINS'


So to the sins, with some quotes..

Sin 1 Strangled at birth:
The first sin is the danger that this brave but novel idea could be strangled at birth. One of the most popular of British television exports has been Yes Prime Minister! In Australia it was said that Prime Minister Hawke and the Head of his Department, Sir Geoffrey Yeend, used to watch it together each Monday night. They were observed to laugh; but at distinctly different times. All of us have seen the way the unforgettable Paul Eddington portrayed the intermittently idealistic politician, Jim Hacker, as an occasional proponent of FOI legislation. How frequently, and comparatively easily, Sir Humphrey led him on. Only to win the last battle on grounds of supposed principle, urgent economy or the dangers of political embarrassment.
Sin 2 Retaining secrets:
The second deadly sin is to pretend to FOI but to provide so many exceptions and derogations from the principle as to endanger the achievement of a real cultural change in public administration.
Sin 3 Exemptions {relevant to the PAIN inquiry}:
The third deadly sin consists of surrendering to too many requests for exemption from the application of FOI legislation.
Sin 4 Costs and fees:
The fourth deadly sin is to render access to FOI so expensive that it is effectively put beyond the reach of ordinary citizens. This is a development that is becoming of concern in Australia. The critics of the administrative reforms in Australia (of which FOI was one) tend to find ready allies in the government of the day.
Sin 5 Decision-makers:
A fifth deadly sin to watch is the threat of undermining the essential access to an independent decision-makers who can stand up to government and require that sensitive information be provided
Sin 6 Interpretation
The sixth deadly sin is one for which the judiciary, and not the politicians, may be accountable. Judges also grew up in the world of official secrets and bureaucratic elitism. Sometimes they may share the sympathies and the outlook of the Sir Humphreys of this world. In the way in which the common law often follows a course harmonious with statutory law, it is desirable that judges, in their decisions, should also embrace the culture of FOI. It is a culture which asks not why should the individual have the information sought, but rather why the individual should not - at least where the information concerns the government of that individual's country or documents in some way relating to the individual personally.
Sin 7 Changing administrative culture:
This brings me to the to the seventh deadly sin. This is the notion that the passage of FOI legislation is enough of itself to work the necessary revolution in the culture and attitudes of public administration. Going on Australian experience, it is not. In a series of lectures in 1994 and 1995, Sir Anthony Mason, the past Chief Justice of Australia, confessed to a doubt that a "significant change in the administrative culture" and "an improvement in the quality of administrative decision-making" had actually been achieved as a result of the administrative reforms in Australia, including FOI. Apart from anything else, if little is done to promote knowledge of the FOI facility and to enhance the citizen's view that this is a right (and not an exceptional petition), an FOI Act is unlikely to be put to general use.
Hmm..multi-guess question: So was Kirby a ; (a) great sage or; (b) a prophet or maybe; (c) he carried a crystal ball in his robes..?? If in doubt my pick would be; (d) none of the above!

Comment: Kirby is a very astute learned gentleman, who had the wisdom, experience and knowledge of many years of the vagaries of various, numerous new Acts/ Amended Acts & laws going from theory, to draft, to legislated, to becoming live laws of the land. Therefore his summary of the pitfalls of the FOI (the seven sins) still stands the test of time...well sixteen years at least..

Question: I wonder if the AG Senator Brandis has considered the potential 'can of worms' he may open by initiating last week's inquiry referred to the ALRC (reference: post #283 from RR thread)??

Last edited by Sarcs; 18th Dec 2013 at 05:40.
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Old 18th Dec 2013, 08:45
  #1660 (permalink)  
 
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Hmm..multi-guess question: So was Kirby a ; (a) great sage or; (b) a prophet or maybe; (c) he carried a crystal ball in his robes..??
Out of the alternatives you’ve nominated, the correct answer is (a).
Question: I wonder if the AG Senator Brandis has considered the potential 'can of worms' he may open by initiating last week's inquiry referred to the ALRC.
Wonder no more. He knows precisely what he’s doing.
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