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Thursday, June 22, 2017

After 18 years,NSW to get a full time Privacy Commissioner

Attorney General Mark Speakman has announced the proposed appointment of Samantha Gavel as NSW Privacy Commissioner. The Joint Parliamentary Committee on the Ombudsman, the Law Enforcement Conduct Commission and the Crime Commission gets  to confirm the appointment... or otherwise.

And the good news, many years late, is that the government will make the position full time. 

The Commissioner has  been part-time since the first appointment in 1999  and for long periods there was an Acting Commissioner, including 2003-07 and 2009-2011. 

“Ms Gavel is a leader in privacy protection who is currently the National Health Practitioner Ombudsman and Privacy Commissioner, and was previously the Private Health Insurance Ombudsman for six years,” Mr Speakman said in a Media release 

Paris Cowan in IT News in February recounted how privacy regulation everywhere around the country is under resourced.

Budgeted expenditure for the Information and Privacy Commission in 2017-18 is $5.6 million, a 1.3% reduction. 

Looks like expenditure on a full time commissioner will involve a snip elsewhere.

Thanks for managing a tough assignment to departing Privacy Commissioner Dr Elizabeth Coombs. 

Wednesday, June 14, 2017

Some private hospitals are safer than others, but we don't know which

 Professor David Ben-Tovim, Flinders University

The recent jailing of British breast surgeon Ian Paterson after performing multiple unnecessary operations has highlighted the issue of hospital safety.

Paterson’s unnecessary surgeries included some performed in private hospitals, which prompted UK doctors to call for private hospitals to report similar patient safety data as public hospitals, including unexpected deaths and serious injuries.

This example shows how little we know about patient safety and quality in our private hospitals, not only in the UK, but also in Australia.

What do we know about hospital safety and quality?

In Australia, one of the best places to look for information on hospital safety and quality is the MyHospitals website, a commonwealth department site run by the Australian Institute of Health and Welfare.

The Australian Institute of Health and Welfare is provided with data about every patient treated in an Australian hospital, both public and private. Using that data, you can look up measures of safety and quality, as well as emergency department performances. You can compare public hospitals on all the performance measures, but private hospitals are excluded from the performance reports.

Further reading: Which are better, public or private hospitals?

Another good source is the New South Wales Bureau of Health Information, which allows you to compare information about the safety and quality of public hospitals in NSW. Private hospitals are not included.

Private hospitals are not all the same

Private health insurance allows you to choose your treating doctor and the hospital at which you’re treated. But how do you choose the right hospital, or the safest one? As our research shows, not all private hospitals in Australia are equal.

In 2009, the Australian Health Insurance Association (now called Private Healthcare Australia) asked me and my colleagues to look at the outcomes of care in private hospitals. We looked at death rates and the numbers of people who died during their stay in hospital, and a range of other safety and quality outcomes.

We were given access to three years of detailed data from a national sample of patients treated in 58 private hospitals. We did not know the names of the hospitals, nor patients’ names.

Our research showed some private hospitals were safer than others, but from the data we analysed we couldn’t tell which. from
Many kinds of hospital outcomes, such as the likelihood of dying in hospital, or contracting a serious infection, are influenced by factors such as a patient’s age, and the range of conditions that brought them to hospital. We tried to take those factors into account and published our findings on the Private Healthcare Australia website.

We found a group of hospitals that, each year, seemed to have much lower death rates than average for all the private hospitals. Those, or other hospitals, also had lower than average rates of a variety of non-fatal incidents. There was also a group of hospitals that each year had higher than average death and adverse event rates. The greater than average death rate group included hospitals where death rates were consistently up to 90% higher than average.

If you are choosing a hospital, you’d want to know which hospital was which. But that information is not publicly available. You’d also want to know if there were more recent statistics, but there is no reported follow-up study. Without better public access to such facts and figures, we’re still in the dark.

What do other countries do?

Other countries do things differently. In the US, several groups provide extensive and detailed information on a range of hospital safety and quality outcomes for almost all US hospitals, including private hospitals. The groups, which do not always agree, include commercial (Healthgrades) and not-for-profit organisations (The Leapfrog Group), and public and government bodies (such as Medicare Hospital Compare).

And in England, it is easy to look up the Care Quality Commission’s detailed reports about public and private hospitals. The reports provide an easy to read, “blow-by-blow” account of their inspections of all types of hospitals, and make a variety of judgements on what they find. They are backed up by detailed statistical reports, but only for public hospitals.

Why don’t we do this in Australia?

A representative from the Office of the Australian Information Commissioner tells me that, provided individuals are not identified, there would be no breach of privacy if private hospital safety and quality data was made public. And no-one from a state health department has yet been able to say whether such a publication would be against any law.

Private Healthcare Australia, the peak body for health insurers, says it represents:
over 12.9 million Australians who choose better quality health care services and to put their health care needs first.
Private hospitals and private health insurers are in competition with each other for the 12 million or more Australians covered by some form of health insurance. So, it is in their commercial interests to avoid bad publicity.

The ConversationSurely it is the role of both state and commonwealth governments to balance these commercial interests against the public’s right to know which hospital is providing safe, high-quality care.

David Ben-Tovim, Professor, Clinical Epidemiology & Process Redesign, Flinders University
This article was originally published on The Conversation. Read the original article.

Tuesday, May 23, 2017

Press Council awards 2017 Press Freedom Medals

Media Release  APC 19 May 2017.

"The Australian Press Council has awarded its Press Freedom Medal to two outstanding individuals for their major contributions to ensuring a free and open society:
Peter Timmins - Australian Open Government Partnership Network
and Michael Cameron - News Corp Australia.

The 2017 Press Freedom Medals were awarded at a special ceremony in Sydney on 19 May. As well as members of the Press Council, journalists and guests from a variety of organisations attended.

Peter Timmins is a well-known advocate of improved standards of transparency and accountability and Australia's leading expert on Freedom of Information (FOI) policy and privacy, as well as being a leader of the Australian Open Government Partnership Network and publisher of the Open and Shut blog.

Michael Cameron is the National Editorial Counsel for News Corp Australia. He leads an in-house legal team, which he established, whose members have appeared in dozens of matters involving challenges to suppression orders, injunctions, defamation actions and so on, advocating for transparency and open justice.

"The purpose of the Australian Press Council is to promote responsible journalism to inform the Australian public and support effective democratic institutions. This year's winners have been exemplary in their tireless pursuit of the critical principle that citizens have a right to know, and so governments, and other important public and private institutions, must operate in an open and transparent manner," said Chair Professor David Weisbrot.

"Although the Press Council did not set off with this intention, this year's Press Freedom Medal winners prove the point that free speech and press freedom are not only reliant on brave and capable editors and journalists, but also on lawyers, activists and others who fight to preserve and extend these freedoms."

Michael Cameron said: "I'm honoured to accept this award on behalf of the editorial legal team at News Corp Australia, whose tireless work enables the publication of articles that would be otherwise be barred by our unduly secretive courts system and plaintiff-friendly defamation laws. Special thanks goes to Larina Mullins, our senior litigation counsel, who has appeared at close to 100 suppression hearings in the last three years."

Peter Timmins said: "This is a great but unexpected honour, a tribute to the many individuals and organisations including the Press Council that believe strongly in open, transparent and accountable government and joined the network to seek to ensure the government lives up to its Open Government Partnership commitments. Pursuing reform to improve our democracy is a never-ending journey."

The Press Council has awarded Press Freedom Medals in earlier years, but it was reserved for people affiliated with the organisation. It was decided last year to revitalise the award and open it up to people who, through their work as journalists, legal practitioners, community activists or advocates, help ensure the preservation of free speech, press freedom and open and transparent government.

In May 2016, Kate McClymont of Fairfax Media and Paul Maley of News Corp Australia received the first of the medals awarded under the new criteria, to great acclaim.
Read the award citations here."


Thursday, May 11, 2017

Mark Colvin, thanks and farewell

Vale Mark Colvin, a great sense of sadness at his death.

I met him once. when he looked like this.

In the 1980s he interviewed me for a Four Corners program on the Freedom of Information Act, whether it was working or not.

All the footage of that interview ended up on the cutting room floor.

I never held it against him.

Probably great editorial judgment about what to leave out of the program that went to air!

But what a wonderful companion by remote for years particularly for the last 20 at 6pm during dinner preparation.

Wednesday, May 10, 2017

Budget 2017: No boost in funding for Australian Information Commissioner.

The appropriation for the Office of Australian Information Commissioner in the 2017-18 Budget is $10.368 million, down from $10.618 million. (An 'efficiency dividend' counts for a reduction of $160,000.) Total funds available in 2017-18 (counting funding available from previous years and other revenue): $19.345 million compared to $19.045 million in 2016-17. 

The average staffing level, 75 is unchanged.

In the three 'out years' appropriations drop to $10.265 million, $8.999 million and $9.042 million.

For outcomes measurement purposes the office functions are lumped together in  a single outcome in the Portfolio Budget Statement with budgeted expenses at $14.4 million ($14.988 million in the current year) for
"Provision of public access to Commonwealth Government information, protection of individuals’ personal information, and performance of information commissioner, freedom of information and privacy functions."
The office has extra responsibilities coming in February 2018 when mandatory data breach notification requirements will extend to all entities covered by the Privacy Act. Currently notifications are voluntary other than where My Health Records and eHealth are concerned.

As in previous years you have to wonder about performance measures (pp 251-252) that set 12 months as the target for dealing with some matters. For example

Handling privacy complaints
80% of privacy complaints are finalised within 12 months (on track to meet target).


Provide a timely and effective Information Commissioner review function
80% of Information Commissioner reviews are completed within 12 months (on track to meet target).
Handling FOI complaints

Providing an Information Commissioner review function

Handling FOI complaints

80% of FOI complaints are finalised within 12 months (on track to meet target).

80% of Information Commissioner reviews are completed within 12 months.
80% of FOI complaints are finalised within 12 months.

Who measures what here?
Promoting awareness and understanding of .. information access rights in the community

FOI education and information products meet stakeholder needs (on track to meet target).

Some targets may not be met:
Handling voluntary and mandatory data breach notifications (DBNs)
80% of DBNs are handled or escalated to CII within 60 days (on track to meet target).
80% of eHealth DBNs are handled or escalated to CII within 60 days (not on track to meet target)

Conducting assessments
The median time for the completion of assessments is six months (not on track to meet target).

Providing a public information service
100% of enquiries are finalised within 10 days (not on track to meet target).

Own motion FOI investigations get a mention in the performance measures table which may mean something is in the works:

Conducting FOI Commissioner-initiated investigations
80% of FOI CIIs are finalised within eight months.

Two investigation reports have been published since the office was established in 2010, one in 2012, the most recent in 2014.

Tuesday, March 21, 2017

People are talking about integrity; governments should be listening and acting

The Transparency International Australia National Integrity 2017 conference in Brisbane last week brought together 160 government, business and civil society delegates from all corners of Australia, including senior legal figures, heads of integrity agencies, federal, state and local parliamentarians, community groups, corporate leaders and individual TI Australia members.

Lots of energy at the conference and a perceptible whiff that positive change is in the air with more voices calling for improvements in integrity in the public and corporate sectors.

The release of a major paper canvassing key issues for the design of a federal anti-corruption commission was one of many highlights.

Here's me giving a rundown on lessons learned from Australia's experience in developing the national action plan required as a result of the commitment by PM Turnbull in December 2015 to join the Open Government Partnership. Someone told me the only thing missing from the timeline diagram are the snakes and ladders.

And in a panel discussion with Queensland Attorney General Yvette D'ath and James Ensor BHP Billiton.

Hat tip to Queensland for leading the nation on real-time disclosure of political donations, which follows publication of minister appointment diaries, and reporting and publication on lobbying contacts. 
(They should do better with reporting on parliamentarians use of entitlements.)

Hat tip to BHP Billiton- no to political party donations, yes to publicly available information on beneficial ownership of corporate entities, action in reporting on payments to government....
(They and the business community generally are rarely heard on the topic of good government and could and should speak up.)

Monday, March 20, 2017

The Diary Wars; Who ministers plan to meet in the course of their duties should be no state secret.

 Crikey this morning
"A monumental waste of everyone's time." That's how shadow attorney-general Mark Dreyfus has described the three-year battle to release Attorney General George Brandis' diary for the months leading up to the 2014 budget. Brandis has finally released a heavily redacted version of his diary, after challenging Dreyfus' freedom of information request all the way to the Federal Court, which ordered Brandis to hand over the diary in September. So what does it show? The 34-page printout of his Outlook calendar doesn't include any meetings with community legal centres, which had their funding slashed in the 2014 budget. The Attorney-General's office says this isn't the whole story though, as the diary doesn't show meetings made at short notice or by the Attorney-General himself.

The only correction to this and Adam Gartrell's longer piece in the Sydney Morning Herald is that the Federal Court ruled there was no valid reason for the refusal by Brandis' office to  process the FOI application. Six months ago it ordered the office to do so.

The Attorney General took offence in Senate estimates in February at suggestions his office may be in contempt of a Federal Court order to process the application by shadow AG Dreyfus for entries in his appointments diary for the three months before the 2014 budget:
"That is a very serious allegation In order to assert that there has been a contempt of court it is necessary to show that the order of the court has not been complied with. There has been no noncompliance with any order of any court. The order of the full court of the Federal Court was merely that the appeal be dismissed with costs. The order of Justice Jagot in the AAT was—and I will read it to you again: 'That the decision that there is a practical refusal reason be set aside,' so that was set aside, and 'that no practical refusal reason exists'. That is the order. It was not an injunctive order. It was not a direction to me or to the decision maker or to anyone.
It took three years in total for the office to get the job done.

Senator Brandis in Opposition in 2009 of course nailed it with this comment: (Senate Hansard13 August 2009
Senator Brandis.....The true measure of the openness and transparency of a government is found in its attitudes and actions when it comes to freedom of information. Legislative amendments, when there is need for them, are fine, but governments with their control over the information in their possession can always find ways to work the legislation to slow or control disclosure. That is the practice we are seeing now under the Rudd government, whose heroic proclamations of commitment to freedom of information are falsified by the objective evidence of their practice.
 It's not the end of the Diary Wars either

As Sean Parnell reported in The Australian in January the Office of the Prime Minister is off to the Administrative Appeals Tribunal contesting the ruling by Australian Information Commissioner Pilgrim that the PM's official diary for his first day in office 16 September 2015 is not exempt and should be released to the applicant, Parnell.

Commissioner Pilgrim accepted that entries concerning meetings with Coalition members who were not serving Ministers, and entries relating to party political events, are to be treated as exempt. But he rejected exemption claims for entries in the electronic calendar recording a meeting time and the name of the person scheduled to meet the PM.

The Commissioner found
  • that  some entries reveal information that would, or could reasonably be expected to cause damage to the international relations of the Commonwealth and could be redacted for that reason
  • that information is unlikely to cause damage to the relations between the Commonwealth and a State, particularly as those entries do not record the content of the proposed discussions. "Other than asserting that damage would occur, PMO has not provided any real and substantial grounds for expecting damage to occur, nor has it provided any evidence supporting this contention
  • that the entries recorded do not contain opinion, advice, recommendation, consultations or deliberations that have taken place. In its confidential submissions, PMO essentially reiterates its reasoning in its decision, and contends that the document functions as a means for deliberation about the management and use of the Prime Minister’s time.I do not agree with PMO that a diary is used for deliberation about the management of a person’s time. This, in my view, is not a weighing up or evaluation of the competing arguments or considerations, and is not a deliberative process for the purposes of s 47C.
The Commissioner did not agree with PMO that disclosure of personal information in this case would be unreasonable. 
"The document records scheduled meetings between the Prime Minister, Ministers, and various individuals. It is my view it would not be controversial or a surprise to anyone that the Prime Minister had scheduled such meetings on his first day in office. Further, there is nothing in the document that would suggest that the personal information is uniquely private or sensitive. Accordingly, I am satisfied that the disclosure of the names of the individuals in this case would not result in an unreasonable disclosure of personal information."
 The Commissioner ruled to the same effect on an application by Josh Thomas Taylor (apologies) for Communications and Arts Minister Mitch Fifield’s diary entries for a three month period in 2015. 

There's a better way than this of course-publish appointment diaries as Queensland and the NSW government and many others do.

Friday, January 13, 2017

Has the PM answered the call: An integrity agenda for 2017?

The Prime Minister in conjunction with the resignation of Health minister Sussan Ley has announced a commitment to further changes to the parliamentary entitlements system.

The changes go beyond the recommendations in the Conde report already accepted in principle and according to an earlier announcement to be acted upon in the first half of 2017.

The PM:
"Australians are entitled to expect that politicians spend taxpayers' money carefully, ensuring at all times that their work expenditure represents an efficient, effective and ethical use of public resources," he said. "We should be, as politicians, backbenchers and ministers, we should be as careful and as accountable with taxpayers' money as we possibly can be." Mr Turnbull also announced that a new body overseeing parliamentary expenses would be created.
"The Government believes that the work expenses of parliamentarians, including ministers, should be administered and overseen by an independent agency," he said.
"An independent parliamentary expenses authority will be a compliance, reporting and transparency body. It will monitor and adjudicate all claims by MPs, senators and ministers, ensuring that taxpayers' funds are spent appropriately and in compliance with the rules."

Describing transparency as key, Mr Turnbull said the new system would allow the public to view expenses in "as close to real time" as possible. "The system that manages entitlements will be modernised to allow monthly disclosure of parliamentarians' expenses in an accessible — that is to say, searchable — format," he said."[Currently] Most of the forms are filled in by the politicians by hand. It is all paper-based. The reports that you do find on the Department of Finance website are big PDF files. They are, you know, months out-of-date when they are posted."
Welcome news.

As per usual the devil is in the detail, yet to come.

A few thoughts:
  • Apart from Conde there are recommendations not acted upon in a number of auditor general reports stretching back to 2001-2002 and from the Belcher committee report in 2010. Hopefully they haven't been lost in time.
  • No mention so far of a Code of Conduct for Parliamentarians. Maybe the legislation the PM has in mind will go further than a code when it comes to responsibilities. Great. However the Coalition in 2010 wouldn't have a bar of it when John Faulkner tried to persuade Parliament to introduce a code.
  • "Parliamentarians entitlements"paid by Finance are only part of the picture. Some payments are made to or on behalf of members and senators by the Parliamentary departments, including support for and the cost of hospitality incurred by the Presiding officers. These payments currently are not  published. Parliament in 2013 excluded the parliamentary departments from the Freedom of Information Act.
  • Each department pays for the costs involved in supporting its minister, including official hospitality and who knows what else. These expenditures currently are not published.
  • The PM is right to state parliamentarians must be "as accountable with taxpayers' money as we possibly can be."Transparency and accountability should also extend to searchable information about declarations of interest (PM- they're in PDF files), contact with lobbyists ( PM-not published), and political donations (PM-can be published up to 18 months after the event.)
  • A parliamentary expenses authority should help keep things within reasonable limits. However a government serious about integrity would accept that a Federal anti-corruption body is also much needed.
As Peter Hartcher in making similar points in Fairfax Media recently said
"The cause of cleaning up Canberra is an inevitable one. The only question is who will best do it, and whether the energy will be channelled constructively to fix our democracy or destructively to make it weaker."
Trust and confidence 

Before the 2016 election campaign got underway the Roy Morgan Annual Survey revealed Federal Politicians are rated highly on Ethics and Honesty by 17% (up 4% in a year), putting them 23 of 30 professions included in the survey.

As scored on ABC Vote Watch the Prime Minister finished the election campaign in July with a personal trust rating of 4.5 out of 10, Bill Shorten 3.7 and Greens leader Di Natale 3.9.

According to the ANU Post Election 2016 Survey 74% agree "People in government look after themselves." Only 26% say "People in government can be trusted."

The PM knows all this. As he said in July last year:
"There is no doubt that there is a level of disillusionment with politics, with government, and with the major parties. Our own included. We note that. We respect it," Turnbull said. Now, we need to listen very carefully to the concerns of the Australian people expressed through this election. We need to look at how we will address those concerns that's what the Deputy Prime Minister and I have been discussing today. There are lessons to be learned from this election."
On the other hand we've heard good intentions before.

Tony Abbott before the 2013 election as reported in the Sydney Morning Herald:
Abbott's first priority if he wins the election will be to seek to rebuild Australians' confidence in government and restore civility to the national political discourse after three bruising years of minority government.
''The greatest deficit in our country at the moment is the trust deficit. Sure we have got a very serious budget deficit, but the trust deficit is even more serious. I would hope that, should we win the election, I would be able to so conduct myself and my team would be able to so conduct themselves that by the end of the first term people would have once more concluded that Australian government was competent and trustworthy
 We live in hope for 2017.