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Tips and rumours

Aug 11, 2017

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From the Crikey grapevine, the latest tips and rumours …

Corruption in the ranks. If the government is going to persist with its current “Jail Bill Shorten” campaign, then it needs to be a little clearer in its wording. Yesterday in question time, Peter Dutton got a Dorothy Dixer on the government’s efforts “to protect Australian families from dangerous non-citizens, including criminal gang members, and keep us all safe”, which was — surprise! — actually a cue for J. Edgar Tuber to attack Shorten’s union history and how he is in thrall to a rogue’s gallery of union thugs. “What happens,” said Dutton, “is that the Labor Party is dictated to and run by the CFMEU. They’ve donated, over the last five years, $8 million to this Leader of the Opposition and this Labor Party.” 

Now, that’s a very dangerous accusation to make — that a donor, instead of making a political donation, instead simply gave money to an individual. That’s tantamount to corruption. It was so egregious that Speaker Tony Smith immediately pulled Dutton up and instructed him that “he needs to withdraw the accusation that they donated personally to the Leader of the Opposition”. Dutton then tried to change tack and claim he actually meant they had donated to Shorten’s campaign instead. Smith was having none of it. “The minister will withdraw,” he repeated, forcing Dutton to retract the comment. And you’d never pick it, but did Dutton — whose Australian Border Force has this week been revealed to have corruption in its ranks — have anything to say about the Victorian Liberal leader Matthew Guy having dinner with an alleged criminal gang member for the purposes of securing donations? Nary a word, curiously.

People power.The Australian Power Project has been getting a fair bit of attention in the media since popping up in January this year. Australian Power Project CEO Nathan Vass has been cropping up in articles and writing opinion pieces about the energy debate with regularity — on Tuesday he decried the “state-owned” monopoly of Ergon Energy in north Queensland, which led to people “cutting back on food, heating, and air conditioning just to afford their electricity bills”. Indeed, back in January, he caught the eye of  economist John Quiggin in these very pages. Quiggin described Vass’ opinion piece in The Australian about carbon capture technology advancesas “an exercise in misdirection worthy of a professional conjurer, managing to give an entirely false impression without saying anything that’s actually untrue”. In that same piece, Vass praised then-resources minister Matt Canavan for the pledge that coal would remain “a core part of the energy supply mix”.

The Australian Power project describes itself on its slick website as “a leading advocacy group calling for a balanced and sustainable approach to achieving a clean energy future”.  

Interestingly, there is a subtle difference in the wording between this and how Australian Power Project is described in, say, the Townsville Bulletin — the crucial word iIndustry” is inserted between “leading”and “advocacy”. One thing that barely ever seem to get mentioned, though, is Vass’ professional history.

Before starting the Australian Power Project in as a “personal project” in response to the South Australian blackout, Vass was head of media and investor relations officer for AGL Energy, “Australia’s largest owner of renewable energy assets”. His affection for “clean coal” seems to currently put him at odds with his former employer. Which may explain why he happily gave comment to a July story from The Daily Telegraph — which called him an “energy advocate”, for those keeping score at home —  accusing AGL (among others) of “price gouging”.

Recorded for quality control purposes. The world of freedom of information requests throws up mostly a lot of blacked-out boxes, but sometimes there’s a gem in the mix. The Department of Defence’s disclosure log — where all documents released under FoI are available to any curious member of the public, reveals that a Fairfax journo requested under FOI any documents relating to his media request, which was made about the service history of Human Services Department secretary Kathryn Campbell. Also included as “documents” are recordings of the phone calls made by the older-sounding journo, who says he has a Saturday column for which he needs the information. Early on in the recordings journos can relate to the frustrating requests for all correspondence to be put in an email — even questions asking why his email hasn’t been answered. But the following phone calls get heated — and it’s all out there to see. And the Department of Defence even provides a transcript for accessibility reasons. The name of the journo is redacted throughout the documents, but his former job title isn’t — it doesn’t take more than one Google search to work out who it is. You can listen to the call here.

Fashion wars. Is former PM Tony Abbott trying to beat his successor Malcolm Turnbull at his own game? In a move worthy of Mean Girls, Abbott has posed for a portrait by ABC photographer Nick Haggarty in a kangaroo leather jacket, as part of a story about the line of jackets designed by a former SAS soldier. Abbott has obviously moved on from passive-aggression to good old-fashioned aggression.

*Heard anything that might interest Crikey? Send your tips to boss@crikey.com.auuse our guaranteed anonymous form or other ways to leak to us securely

Federal

Jun 19, 2017

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What do you get after more than a year of waiting for Border Force to respond to a freedom of information request? Not a lot, it turns out.

In April 2016, Crikey filed an FOI request for footage taken during Border Force’s trial of GoPro cameras. As we reported at the time a “small number” of GoPro cameras were issued for specific situations where Border Force agents board vessels at sea, and a second batch of cameras were bought “to evaluate the capability and to examine associated legislative, technical, training and other issues”.

The agency took over 12 months to respond and last week provided a DVD with just one, 32MB, two-minute video with one minute of footage from the trial:

Another eight videos identified by the department were blocked from release. Four of the videos were of border patrol operations prior to the launch of Operation Sovereign Borders (OSB) but contained “tactics and operational procedures” relevant to OSB. 

[What are they hiding? The widespread denial of FOI requests]

“This pertains to the national security of Australia,” the department said. “The operations of the assets captured on the video footage form part of the maintenance of the security of the Commonwealth… Australia’s national interests are threatened by any unauthorised arrival of people and the Australian Government has responsibility for the lawful and orderly entry of people into Australia, along with ensuring that only those foreign nationals who are appropriately authorised are allowed to enter and remain.”

The release of the footage would compromise the security of the Commonwealth, the department argued. Other reasons for blocking the release of the rest of the footage include that officers could be clearly identified in some of the footage. The full list of reasons can be found here

The delay in the release of the footage is not surprising considering that as one of the most secretive agencies, the Department of Immigration and Border Protection receives more FOI requests than any other government agency, and potentially more than the other agencies combined. In 2014-15, the Office of the Australian Information Commissioner reported that DIBP, Human Services and the Department of Veteran Affairs received more than 75% of the total of FOI requests to Commonwealth agencies. Between October 2013 and February 2017, DIBP received 59,817 FOI requests. The department has just 81 full-time equivalent staff — a plainly inadequate number given the volume of requests — and an annual budget of $6.7 million to deal with all the requests.

[On-water matter or just bureaucracy? Why FOI requests are languishing]

Typical requests for information should take just 30 days, and the department recently told a Senate estimates committee that it did “attempt to meet these legislative timeframes to the extent possible within the limits of our operational and administrative capacity”. In the last financial year, of the 22,913 FOI requests finalised, 15,710 were finalised within the expected timeframe, but as of February this year 3905 of the 4059 active requests with the agency were outside the statutory timeframe for response.

These aren’t considered “overdue” because under FOI law, failure to respond in the timeframe can be treated as a refusal and then escalated for review at a higher level.

The release of the footage under FOI does show that such footage can be requested, meaning footage from other events in Immigration can be requested — such as, say, the Good Friday incident CCTV footage the government and Andrew Bolt claim backs Immigration Minister Peter Dutton’s statements about what sparked the tensions on Manus Island.

The department was still evaluating the use of GoPro cameras on Border Force officers, and said at the time last year that a wider roll-out of cameras that had both audio and video recording could be in breach of state, territory and Commonwealth privacy legislation if used onshore.

Federal

May 29, 2017

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The office of Human Services Minister Alan Tudge has refused to release more than a dozen documents related to his decision to release personal information on a critic of his robo-debt notice system on the grounds it is legally privileged and would disclose personal information.

After months of searchingCrikey finally managed to track down the advice Tudge was relying on when his office released the personal information of blogger Andie Fox to a Canberra Times journalist, but now his office won’t hand it over.

In Parliament in late February, Tudge appeared to quote from legal advice that suggested he was able to disclose the information to correct the record:

“In cases where people have gone to the media, with statements that are incorrect or misleading … we are able to, under the Social Services Act, release information about the person for the purpose of, as I quote, ‘correcting a mistake of fact, a misleading perception or impression, or a misleading statement’.  That is what the law allows.”

In response to a freedom of information request filed with Tudge’s office, his chief of staff Andrew Asten found 14 documents and 48 pages worth of emails and briefings, but despite, as Michael Bradley suggested, Tudge waiving legal privilege by reading from the document in Parliament, Asten claimed all of the documents were exempt from release due to legal privilege.

“I am satisfied that the minister’s statement [in Parliament] does not constitute a waiver of [legal privilege] as it amounts to ‘limited disclosure’,” Asten said.

To make this argument, Asten relied on the High Court’s 2008 judgment in Osland v Secretary to the Department of JusticeIn that case, a woman convicted of murdering her husband filed an FOI request for legal advice given to ministers regarding their decision to refuse her petition for mercy after the ministers advised of the outcome of the advice in a media release. The High Court ruled that the limited disclosure in the press release did not constitute waiving legal advice.

Legal experts Crikey has spoken to suggest the government is on shaky ground in relying on this High Court decision to block the release of the documents. In the Osland case, the ministers just said that the advice put them in the clear legally, whereas Tudge directly quoted from the advice, thus potentially waiving his legal privilege.

Asten said that Tudge’s statement “revealed very little about the legal advice in question; and the purpose of providing the statement was to satisfy the public that due process had been followed and the minister had taken a proper course in obtaining and considering advice from appropriate persons”.

It is arguable that Asten is incorrect that the public has been satisfied that due process has been followed, with at least one senior barrister publicly stating that the release of the information was in breach of the law, and Labor referring the matter to the Australian Federal Police for investigation after Tudge made the statement in Parliament.

Asten also said it would be unreasonable to release the documents about why it was legal for release information about Fox’s personal affairs because the documents in question contained information about “an individual’s personal affairs”.

Linday Burney, opposition human services spokeswoman, told Crikey in a statement that the justification for blocking the request was absurd.

“Alan Tudge believes that private information about Centrelink clients should be put into the public domain but not the legal advice which he says allows him to leak it. That is not just ridiculous, it’s totally hypocritical,” she said.

“If he believes his legal advice authorises him to leak private information about clients to the media then that is something the public should be able to see.”

Fox’s case does not appear to be an isolated incident. The Department of Human Services told a Senate estimates committee in response to a question on notice last week that a total of seven times between September 2016 and March 2017 had “initiated action to consider the disclosure of limited customer information to a journalist to correct the record in the media”. The department had also highlighted “notable” social media posts of interest on the robo-debt issue to the minister. Burney said Centrelink seemed more likely to release a client’s personal information to a journalist than to the client. 

“To get information about themselves from the Department Centrelink clients have to spend hours waiting on the phone – after the Andie Fox case it seems they might be better placed putting in a media request.”

Crikey has sought a review of the decision with the Office of the Australian Information Commissioner. The Senate committee examining the robo-debt issue has held its last hearing, and will report back to Parliament soon, but with the Department of Human Services appearing before estimates this week, officials from the department are likely to be grilled on it yet again.

On Friday, at a $300-a-head lunch at the Hilton Hotel in Sydney, campaign group GetUp organised for a table full of welfare recipients and people who had been targeted by the robo-debt notice system to question the minister after he delivered a speech on reforming the welfare system. One victim, Emma Gordon, said at a press conference beforehand that she had been issued with a false debt by Centrelink two weeks after her house burned down, and she couldn’t fight the debt because documents proving Centrelink was wrong were lost in the fire.

“I’m still paying that debt to this day,” she said.

Federal

May 15, 2017

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The Australian Taxation Office’s bizarre claim that it couldn’t process freedom of information requests because of workplace health and safety concerns has been rejected by the Information Commissioner.

In mid-2016, the ATO announced to the transparency website Right to Know — a service that allows people to file FOI requests to Australian government agencies publicly — that it would no longer process FOI requests from the website.

This was, they claimed, because of a series of incidents over the previous few months where the ATO had to request the removal of documents or ATO staff names from requests (Right to Know complied with all but one of these). The ATO has been telling people to file their FOI requests directly with the agency rather than using the website.

The ATO’s general counsel Jonathan Todd informed the Office of the Australian Information Commissioner (OAIC) in July last year that the agency had decided to ignore all requests from Right to Know on “workplace health and safety” grounds, alleging that there was one matter on the Right to Know site that had caused “harm to the health and welfare of ATO officers in the form of stress, anxiety and public damage to professional reputation”.

One of the administrators of Right to Know, Ben Fairless, sought to overturn this ban by seeking a ruling from the OAIC on one of his own requests, and last week the Information Commissioner Timothy Pilgrim found that the ATO’s excuse was not good enough. He said that requests made via the Right to Know website were valid requests under the Freedom of Information Act and recommended that the requests now be processed. 

Fairless welcomed the ruling in a blog post on the OpenAustralia Foundation website, stating that Australia is fortunate to have the OAIC — otherwise Fairless would have to take such an appeal to the Administrative Appeals Tribunal, which would have cost him hundreds of dollars on the application alone, let alone the legal costs incurred fighting the case. He did, however, express concern at the time it took for the OAIC to resolve the case — something facing many people seeking reviews of FOI requests, largely due to the low funding the agency gets.

In last year’s budget, the government abandoned its plans to shut down the OAIC, throwing it a funding lifeline to the tune of $34.1 million over four years.

The next hurdle will be ensuring that the ATO actually does what the OAIC has recommended, and processes the FOI request. The OAIC’s powers are relatively weak in being able to force the ATO to comply with the request. Pilgrim said in his letter that if he is not satisfied by the ATO’s response, then he can issue an “implementation notice” to implement his recommendation, but if the ATO then ignores that implementation notice, the OAIC’s next course of action is to write a report to the minister responsible for the ATO, and a copy of that report would be required to be tabled in Parliament.

There is no sign that the ATO intends to comply with the order at this stage. A spokesperson for the agency told Crikey in a statement that it was “considering its position”:

“The ATO takes its obligations to comply with FOI and workplace health and safety legislation very seriously.”

The ATO said people could still file FOI requests directly to the ATO, and anonymous applications can still be made via email or via the paper form.

Federal

Mar 20, 2017

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The release, after three years, of Attorney-General George Brandis’ diary might be the biggest anti-climax in Australian political history.

The normal processing time for a freedom of information request is 30 days; the Brandis diary saga took well over a thousand days and cost tens of thousands of dollars in court time and taxpayer-funded lawyers to fight the case in the AAT and two levels of court. Six months since the last court decision, and just as Labor was preparing to take the nation’s highest law officer back to court for contempt of court proceedings, Brandis quietly handed over his diary to shadow attorney-general Mark Dreyfus over the weekend. Dreyfus’ office released it to some media outlets on Sunday night.

The 34 pages of Outlook diary entries spanning from the time of the 2013 election to the week before the deeply unpopular 2014 budget are heavily redacted for irrelevant data, personal data such as mobile numbers, and for public safety reasons. Brandis’ chief of staff, James Lambie, cushioned the release of the document and the subsequent response from Labor that it proved Brandis had failed to meet with community legal centres before gutting their funding in the budget by stating that the diary was not a complete document. Spontaneous meetings, meetings organised by Brandis himself and telephone meetings were not recorded, according to Lambie.

 The resulting document is 34 pages of generally what you would expect the AG to do in his first three months in government. In addition to the regular sitting week schedule — estimates hearings, question time, cabinet meetings (with sandwiches) — there are regular warrant signings, meetings with his department and his counterparts in the states, and his full schedule of his first trip to the United States, including meetings with FBI director James Comey and then-head of the CIA John Brennan.

As arts minister, Brandis also regularly attended arts-related events, including seeing a performance of Hamlet, attending the ARIA Awards, and dinners at the Art Gallery of New South Wales. Coincidentally, the release of Brandis’ diary comes as the new Arts Minister Mitch Fifield, gutted Brandis’ “vanity project”, the Catalyst arts funding program, of $80.2 million and returned the funding to the Australia Council.

There had been speculation that Brandis might seek to avoid releasing his diary until his expected departure from the ministry and Parliament later this year. Last week, Brandis said on Sky that persistent rumours of him going to London were “old gossip” . In the same interview, Brandis tried to claim he had no oversight over the FOI process for his diary, but his chief of staff was the officer charged with processing the request. The full (redacted) diary can be read here

Prime Minister Malcolm Turnbull and Fifield have taken The Australian and Crikey, respectively, to the Administrative Appeals Tribunal seeking to avoid handing over their diaries.

Federal

Feb 10, 2017

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If you’re not a George Brandis fan, the thought of the Attorney-General’s final bow being taken in the form of proceedings against him for contempt of court is almost too enticing for words.  But lawyers are never stuck for words.

A brief chronology to start:

May 2014 Shadow attorney-general Mark Dreyfus issues Freedom of Information Act (FOI) requests for George Brandis’ ministerial diary covering the period September 18, 2013 to May 12, 2014.

June 2014 Attorney-General’s Department refuses the FOI request.

December 2015 On an application by Dreyfus, the Administrative Appeals Tribunal (AAT) sets aside the AG’s refusal and orders it to deal with the FOI request.

September 2016 Rejecting the AG’s appeal, the full Federal Court upholds the AAT decision.

February 2017 (and counting) no further progress.

The Brandis diary’s contents remain a mystery, matched only by the silence emanating from the Attorney-General’s Department regarding whether, if ever, it intends handing them over. Is the Attorney-General in a spot of bother?

As it happens, this 21-month (so far) extremely expensive legal dispute adds up to four-fifths of bugger all. Dreyfus wanted a print-out of Brandis’ Outlook calendar showing his appointments — because the May 2014 budget had included the defunding of environmental defenders’ offices, and Dreyfus wanted to see whether the Attorney-General had bothered to meet with any of the affected parties before the cuts.

So it was all just a minor political point-scoring exercise, hardly likely to ruffle the national ennui. Still, Brandis has proved himself highly adept at applying the resources of the Commonwealth in inverse proportion to the importance of the issue at hand.

[We might yet get a peek into Brandis’ diary as AG loses Federal Court case]

When confronted by the Dreyfus FOI request, Brandis’ chief of staff, Paul O’Sullivan, refused to hand over the diaries (containing 1930 entries) on the grounds that the work required would “substantially and unreasonably divert” the AG’s resources from its important daily work.

O’Sullivan calculated that it would take up to 630 hours to do everything required to handle the request. Most of this involved personally contacting every single person identified as having had a meeting with Brandis, to ask them whether they objected.

The AAT, noting that almost all the diary entries disclosed only who met Brandis and when they did it, couldn’t see the fuss. It declared the AG’s argument to be utter rubbish and ordered Brandis’ team to go back and process the FOI request properly.

Fast-forward (legal joke) another nine months, and the Federal Court rejected Brandis’ appeal. That’s where the legal fight came to a rest. The original obligation, requiring Brandis’ department to review and respond answer Dreyfus’ request, remained in place.  

[Brandis heads to court to try to keep diary secret]

Five months on, nothing. Dreyfus has taken his frustration public again:

“Time’s up, it’s time for him to comply with the orders of the court and the tribunal. It’s an extraordinary thing, not only for the Attorney-General to be even in the position where he might be in contempt of an Administrative Appeals Tribunal order, it’s an extraordinary thing, for an Attorney-General to have flouted an act he is meant to be responsible for.”

True, Brandis is the minister responsible for the freedom of information law, so the irony is rich. But is he in contempt? Or was Dreyfus’ insertion of the “might” a hint that he’s laying it on a bit thick?

“Contempt” is one of the few words that can actually turn a lawyer’s blood cold (legal joke). It’s as ancient as the courts, a weapon of unlimited reach designed to deter all of us from treating the legal system with anything but complete respect.

An easy way to explain contempt of court is to say that everything Donald Trump tweets about judges and courts are perfect illustrations of it. For example, when he called the federal judge who put a stop to his Muslim ban a “so-called judge”, that’s contempt.

Any refusal or unexcused failure to comply with an order made by a court is, on its face, a contempt of that court.  The punishment for contempt is in the hands of the court; the principle is that the miscreant may be exposed to whatever sanction is necessary for the contempt to be cured. A journalist who defies a non-publication order can expect a big fine or even prison time (see Hinch, Derryn). A civil litigant who ignores a compulsory order to do or not do something, likewise.

But is Brandis in contempt? No, and here’s why. The actual order made by the AAT and upheld by the Full Court was this: that the original decision by the Attorney-General refusing the FOI request be set aside and replaced by a decision that the stated grounds for refusal didn’t exist.

The tribunal did not order Brandis to hand over his diary. The effect of its order was that his basis for refusal was gone, but that meant that he had to go back and deal with the request properly. He could still refuse it, if a legitimate reason existed.

Under the FOI Act, all this was supposed to be done within 30 days, or at the outside 60 days if an extension was needed and communicated to Dreyfus (which it wasn’t). Whatever the story, the time for compliance ended months ago.

One detail not mentioned by Dreyfus — failure to make a decision on a request within the requisite time is deemed to be a refusal. That appears to be what’s happened here; the AG has simply sat on the FOI request, and the effect is that it’s been refused altogether.  

The next step in this endless exercise in legal tedium is for Dreyfus to take the deemed refusal to the Information Commissioner, then back to the AAT, etc, giving Brandis three or four fresh opportunities to spend our money raising silly arguments about how it’s beyond the capacity of the Commonwealth to export his calendar from Outlook into Word and press Print.

Does Brandis’ recalcitrant refusal to just deal with this tiny issue constitute a contempt of court? No. It does, however, comfortably fit the definition of a different, non-legal type of contempt. See “Politicians; public loss of regard for.”

Australia

Feb 8, 2017

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The Department of Human Services is using every excuse possible in order to avoid releasing information on Centrelink’s controversial online data matching debt system, with many freedom of information requests refused or delayed, with different excuses each time.

Crikey put a request into the department in December after breaking the news that the system was systematically targeting people who did not owe debts to Centrelink, thanks to a flawed system of data matching using Australian Tax Office data. The department first asked for an extension of 15 days over the Christmas holiday period (an extension that is not granted to those receiving debt notices from the agency). Then DHS stated there were no documents relating to the online compliance intervention system — the very terms used by DHS media staff in statements given to Crikey. “I cannot identify the documents you want and I am asking you to provide us with more specific details about the documents you are seeking,” the letter read.

When asked for phone contact details or a person to speak to, the department then offered the explanation that a request including “external communication” would include customers and would likely be refused on a practical basis — that there were just too many documents. Suddenly the documents that couldn’t be found did exist. This email used the term “automated data matching”. When the ABC’s Ashlynne McGhee made a request for documents related to “Centrelink’s data matching/debt recovery scheme” she was told “it is not clear which program or scheme you are referring to in your request”.

Following a revised request, the department again refused Crikey‘s request on practical refusal grounds because the request involved too much work for the department.

DHS, which does not name its freedom of information staff in correspondence with journalists and the public, has a number of excuses for refusals and delays, as shown through requests made on the Right to Know website. The freedom of information guidelines state that departments should take “reasonable steps” to assist applicants with their requests, including where applicants may have a lack of knowledge of the structure of government and agency functions — applicants being unaware of internal terminology for programs or systems would fall under this guideline.

After asking Ben Fairless to define “IT incidents” or “bug reports” in his request, DHS has asked for an extension because it must ask a third party (the ATO) for permission to release the information.

Journalist Jackson Gothe-Snape requested “the document that was first approved by the Minister that proposes the policy of establishing or implementing Taskforce Integrity”. DHS says it needs a 30-day extension because the release would cover “Commonwealth-State relations”.

Anthony Baxter also received a refusal saying his request was too much work. Baxter asked for:

“all documentation and internal communications related to the testing and evaluation process around the Centrelink online compliance scheme, in particular around the processes to minimise the risk of issuing incorrect debt notices caused by averaging annual earnings across a year.”

The department’s correspondence with him estimates there would be 15,000 pages to look through in that request — after saying earlier in January that no such documents exist.

Justin Marilyn Warren has requested a review of his FoI request after being told that documents registering risks in the Taskforce Integrity project did not exist.

There has been a spate of freedom of information requests to the department following continued reporting and pressure on the government and the department over the automatic debt notices, which are targeting people who do not owe debts and sending debts to debt collectors. Wait times to speak to Centrelink’s review officers also means it is difficult for people to challenge their debts. When asked about the system in question time yesterday, Minister Alan Tudge quoted a story about a man who declared income of $5000 over two years instead of the $100,000 he had earnt — dodging the whole issue of mistargeted notices. Labor and the Greens have are set to move for a Senate Inquiry into the system, where perhaps some of these questions will be answered.

Federal

Jan 27, 2017

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Communications Minister Mitch Fifield has been ordered to hand his diary over to Crikey after a year-long battle to get transparency over the meetings the minister held in his first months in the job.

On Wednesday Information Commissioner Timothy Pilgrim ordered the minister’s office to hand over 15 pages of Fifield’s diary from the last three months of 2015, his first three months as Communications Minister in the Turnbull government.

In January last year, Crikey filed a freedom of information request for the Outlook calendar to learn whom the minister had met with. Fifield’s office refused the request, stating that the diary contained deliberative matter and was a work planning tool, rather than something designed to be made public.

Crikey appealed the decision to the Office of the Australian Information Commissioner. Fifield’s office attempted to suppress the release saying that his office was busy, and there were a limited number of staff to process the request, but Pilgrim said that at just 15 pages, it would not be a complex task.

The office also tried to suppress it by arguing that the dates of when cabinet or executive council meetings were held — even if there was no information in the notes about what was in the meetings — could allow someone to figure out the discussion of the cabinet meeting. Pilgrim also rejected this suggestion.

Fifield’s office then tried to argue that disclosing where the minister was travelling to and when could put his public safety at risk, but entries about the minister’s travel and accommodation were excluded as part of the request, so this excuse too was rejected. Pilgrim noted however that the office “did not address why disclosure in this case could reasonably be expected to cause the minister to become a target of violence, nor did it provide any supporting evidence”.

Pilgrim also rejected Fifield’s claim that the diary could change at any time and was unreliable as to what he actually did on a particular day, stating that the “document is simply a record of the minister’s scheduled meetings and events”.

Shockingly, the office had argued that Fifield’s meetings with industry stakeholders being revealed to the public would “disclose information concerning the business or professional affairs of a person (or concerning the business, commercial or financial affairs of an organisation or undertaking). Such disclosure could reasonably be expected to affect the person adversely in respect of their business or professional affairs (or that organisation in respect of its business, commercial or financial affairs).” 

Pilgrim again rejected this, stating that it was speculative. 

“The minister’s office has not provided any reason for the expectation, beyond the mere assertion that affected third parties would object to the release of information relating to their meetings with the minister.”

Fifield’s office has 28 days to appeal or hand over the diary to Crikey. Last week the Prime Minister’s Office announced its intention to appeal to the Administrative Appeals Tribunal a similar OAIC decision made in The Australian‘s favour for just one day of Prime Minister Malcolm Turnbull’s diary from the day he became prime minister.

Attorney-General George Brandis has been ordered by the full Federal Court to process a similar request from shadow attorney-general Mark Dreyfus back in September last year for some of his 2014 diary. More than four months later, Brandis has yet to process Dreyfus’ request.

Former chief of staff to Tony Abbott Peta Credlin argued on Sky News earlier this week that ministers should not be required to publish their diaries to the public, stating it would just create two sets of diaries and indicated she believed politicians in the US to be much less transparent than our politicians. Former US president Barack Obama maintained a visitor log book naming who visited him and when (with some exceptions) on the White House website.

Federal

Dec 21, 2016

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Centrelink’s new automatic debt generation computer system is generating 20,000 debt notices a week, despite more and more stories emerging about obvious problems with the system.

Since July, Centrelink has run an Online Compliance Intervention system, which matches income data provided to Centrelink by recipients to income data provided to the Australian Tax Office. If the amounts don’t match, people are told they need to update their details with Centrelink, and many are coming away with debts of thousands of dollars.

The system does not take into account people who were not receiving a Centrelink payment for a full financial year, or it picks a certain time period and averages out earnings for the full financial year — which can be wildly inaccurate for those doing seasonal, casual or contract work. Under the previous manual system of data-matching, 20,000 debt notices were issued annually. Crikey and other media outlets have reported on many people who believe they have been unfairly and incorrectly targeted by the system, and disputing debts is difficult and stressful.

Social Security Rights Victoria (SSRV) runs a phone advice service for people with issues related to social security law — and in the six months since the new automated debt notices have come into effect, people with debt issues with Centrelink have gone from half of their cases to 90%.

The first step in disputing a debt with Centrelink is to ask to speak to an authorised review officer (ARO), says Graham Wells, principal lawyer and clinical program supervisor at SSRV. This can be done through the MyGov system, over the phone or in person, and it basically means a more senior person in Centrelink will assess the case.

The ARO will look at why the debt has been raised and a person can provide evidence or new information in an attempt to reduce or strike out the debt. There’s no time limit to appeal a debt to an ARO, but repayments will still need to be paid during the review period.

Wells says it’s important to get a receipt number from the ARO to make sure you have evidence that the appeal has been lodged, and something to refer back to in subsequent dealings with Centrelink.

The Guardian has reported that those trying to dispute their debt have been told all compliance issues must be dealt with online, and the Department of Human Services is claiming that only a small number of people have had issues with the online system and that there has been no increase in the number of appeals about debt notices.

If you are unhappy with the ARO’s decision, the next step is to dispute the debt with the Administrative Appeals Tribunal — the Social Services and Child Support Division deals with Centrelink issues. This also doesn’t have a cost to the person bringing the complaint, unless they hire a lawyer. This is called the first review, and if it doesn’t go your way, it’s possible to have a second review through the AAT’s general division. The AAT released a fact sheet last month on what information it needs and how it makes a decision.

“Our experience is that at least 90% of them [debt cases] have problems, they are either wrong completely or there is legal merit to have them reduced,” Wells said. Most cases are resolved at an earlier stage than the AAT, but Wells says most cases he has been involved with at the AAT are successful. If appeals at the AAT have been successful, disputing a Centrelink debt could even go to the Federal Court, but Wells says he discourages people from going down that route as it is expensive.

It’s also possible to request information that Centrelink holds about you through freedom of information laws.

“There seems to be some sort of policy direction to claw back whatever debts they can, however they can,” Wells said. “The problem is there is no fact checking going on.”

Wells says he would welcome “any opportunity to talk to the minister’s representative to work through a better way of doing things”.

He is most concerned for people on Centrelink payments who are also in public housing. If their debts are removed from their payments, their rent is also not being paid and they face eviction. “It’s emotionally incredibly hard for people to tell their kids they can’t buy whatever they want for Christmas because they are having enough trouble feeding them or keeping a roof over their heads.”

“I’m not saying that to be hostile, it’s just that there has to be a better way of doing things.”

Independent MP Andrew Wilkie has called on the government to suspend the automatic system, telling Crikey: “Centrelink is treating people as guilty until proven innocent, rather than saying ‘there’s a reason to suspect a problem’ they are just saying ‘you have to pay the money back unless you can prove otherwise’.”

Tips and rumours

Nov 3, 2016

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While Attorney-General George Brandis has steadfastly refused to release his diary of meetings, his own department appears somewhat more compliant with the freedom of information law it administers. In response to a request released last month, the department released calendar events of meetings between agencies about the promosed plebiscite.

Plebiscite meeting note

The result (unfortunately not online, because AGD insists it can’t upload FOI docs to its disclosure log because it doesn’t meet accessibility guidelines) is not that exciting and just shows inter-departmental meetings with the Office of Parliamentary Counsel, Finance, PM&C, Treasury, and the AEC about the plebiscite in the lead-up to the introduction of the legislation.

But the simplicity of the response could potentially pave the way for Brandis to ultimately produce his own calendar diary in response to shadow attorney-general Mark Dreyfus’ FOI request from 2014. Brandis’ office has insisted the request was too much work, and there were national security risks, but he lost a full Federal Court case in September, and the deadline for him to file an application to the High Court to appeal the decision lapsed last month. Brandis’ office is now required to process the two-year-old FOI request. Dreyfus’ office also recently filed an FOI request for Brandis’ meetings with groups supportive of and opposed to same-sex marriage in a bid to validate Brandis’ claim that he had had meetings with all sides before the introduction of the plebiscite legislation.