Ethics

Privacy and Freedom of Information: Politics and Laws

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Whilst Australian politics certainly appears lacklustre in comparison to the complications and political machinations of the Turkish government and a challenge of which I am naturally compelled, nevertheless Australia has and will always remain a country – insofar as human rights and law is concerned – that I am proud of and have an inherent and comparative respect for, regularly taking with me when researching on or thinking about international relations as a whole. But it is not without its embarrassing moments, no doubt influenced by factious relations whether from powerful industry moguls or promotors of international conservativism. While I was happy to see Tony Abbott ousted, my fears that Malcolm Turnbull – being one who has public support – would cause Australians to overlook the fact that the Liberal Party contains a significant number of policies that have and continue to work against the improvement of Australian civil society. Being one more inclined to the judicial rather than executive elements of policy and law, the first budget release of the Liberal government during the rather short period of Abbottism that cut funding for the Office of the Australian Information Commissioner [OAIC] proved that an intentional challenge against the very heart of the Australian Constitution appears to exist. Since the OAIC remains a legal entity, the intent of the Abbott government’ proposed abolition uniformly contradicts statutory obligations vis-à-vis section 61 of the Australian Constitution[1] in that to simply bring a legal entity to an end independent of parliament is to usurp the constitutional role of parliament itself, since only the latter has the right to legislate accordingly. This act against the OAIC raises manifold issues particularly with legislative and executive functions and the required separation of powers, the composition of the ministries and ultimately the impact such an implementation of executive powers in defiance to legislative obligations can have on the future of human rights in Australia. The Freedom of Information Act [FOI] itself was established to ensure the principle of an open and accountable government and ultimately the health of Australian democracy without polluting the overall objective of the constitution that gives people the ultimate control of the government.
I can assure you we are living in an age where privacy is perhaps no longer applicable. There are many who are unaware of the complex, dynamic and swift systems readily available that can easily locate the details of any one person. In fact, if one knows how to look, the system of finding private information is not as difficult for even a common person if publicly available, so one could imagine the technically advanced algorithms and programming that can detect even minute details and by combining it with other information data, establish or predict private, even sensitive information and the more information one is able to attain, the more accurate the predictability; thus it would only seem logical that abusers of privacy would compel one toward giving more information, right? Take it one step further. You download an app that requests access to your friends list and that detects your best friend or family member – I can see who last viewed my Facebook profile in less than ten seconds just by scanning through sources codes – or by which page you visit most often by using more refined systems and through profiling create a personalised facial composite using advanced software, whereby the image of this ‘person’ as part of an advertising or marketing strategy is used to implicitly compel you toward a product because you are unconsciously attracted to the model that happens to actually be you and someone that you love.[2] The abuse of privacy is not uncommon, i.e., the recently exposed News International who hacked phones to obtain sensitive data – Rupert Murdoch being on friendly terms with the Liberal Government – and there currently stands no strict policies that would prevent or protect ourselves from abusers. Whilst I could, in this instance, begin discoursing on the social contract theory and perhaps the rather calculating, Orwellian agenda where society has gradually sacrificed their privacy and freedom for the sake of ‘national security’, in principle the disclosure of even the most basic information that we supply can be used against us. Capitalism and globalization is the very heart that compels one to disclose information openly and freely unawares that in doing so one has been manipulated to not care about privacy without knowing that we are now living in a time where it has become fashionable to not care when we should be. A woman can manipulate a man into thinking and behaving in a manner that is not his own character, even though the man may think he has complete control of himself and even of her. This is the sociopathic model of our current social system, that social media and other forms of marketing data tell us prior to forming our own opinion what we think we will desire, unconsciously manipulating the decision-making process through the inducement of receiving positive things whether it is material, or friends, or popularity, sexual pleasure etc. &c., that we end up buying products that we don’t even need or want or parabolically live in superficial contentment with a woman we don’t even like only because it is conveniently and positively marketed. People will eventually believe that material determinism is the only truth when in fact they have unconsciously been coerced to give up their own autonomy, that we are already living in a ‘A Spacetime Odyssey’ in that the very technological mechanisms we created to advance are – ‘the root of its own destruction’ – actually working against us.
In 1996, the Australian Law Reform Commission published Open Government – A Review of the Federal Freedom of Information Act 1982 (ALRC Report 77) designed with the intent on ensuring the principles of public scrutiny and the accountability of government that encapsulates the quality of democracy is applied viz. the objective of the act itself. “The FOI Act provides a right of access to information in the possession of government departments and agencies. The fundamental reason for providing this right is to ensure open and accountable government.”[3] The publication confirmed the necessity to improve the quality of the decision making process that citizens should possess and as a consequence access to information is a criteria of democracy. Whilst democracy itself is ambiguous in definition, particularly since it poses intractable theoretical issues that limits its conceptual interpretation, broadly speaking the minimalist view of what constitutes a democracy can be defined as the ‘participation of all adult members of society, freedom to formulate and advocate political alternatives, and the credible availability of political alternatives.”[4] During the developmental stages of FOI legislation in the late 1970’s, the Senate committee reported that the significance of implementing FOI laws was to ensure that individuals have access to what information the government may have and to have the capacity to correct what they consider to be misleading; in doing so, it will enhance the transparency of the government and ultimately a community better informed can participate democratically in a more effective manner.”[5] Thus, the Freedom of Information Act 1982, an “Act to give to members of the public rights of access to official documents of the Government of the Commonwealth and of its agencies”[6] was put to force.
Whilst initially accessible, over time the administrative process became problematic and overwhelmed, particularly attributable to compliance. Accordingly, it was recommended by the ALRC[7] that a new statutory position of an FOI Commissioner to act as an “independent person to monitor and promote the FOI Act”[8] should function to ensure compliance with the FOI Act and to raise the profile of the agency to the public through the improvement of the decision-making process. At the time there existed no independent person committed to act and contribute to resolving any difficulties that the agency experienced. Thus in 2010 the freedom of information reforms were implemented by the Australian government particularly concerning the Freedom of Information Act 1982 (FOI Act) and among those reforms included the appointment of the Australian Information Commissioner supported by statutory officers, namely the Privacy Commissioner and the Freedom of Information Commissioner, both appointing Mr. Timothy Pilgrim and Dr. James Popple for a term of five years.[9] Appeals for any rejected FOI claims that previously were dealt by the Administration Appeals Tribunal (AAT) and were in addition an expensive and lengthy process can now be made directly to the Commissioner that ultimately reduced the backlog and turnaround times. It will additionally aid agency compliance, whereby “[t]he reported cost attributable to agency compliance with the FOI Act was $41.719m, an increase of 14.9% on the previous year.”[10]
However, in the budget release of 2014-2015, the Abbott government withdrew the funds necessary to maintain the OAIC with the intention of disbanding the agency by the 31 December 2014. This was challenged by parliament since legislation with the intent of abolishing OAIC was not passed and consequently funds contributing to the agency were partially reinstated in the 2015-2016 budget. The initial objective was to transfer functions over to the Attorney-General Department and the Commonwealth Ombudsman who were already enabled with the powers to exercise the same powers of the OAIC.[11] This is where the controversy lies, that without the approval of parliament for this decision, it has in point of fact exposed a deficit amid the separation of powers and the function of the executive branch of government. The withdrawal of funding and the intent to legislate the abolishment of the OAIC nevertheless appears to be a practice implemented previously. In September 2013, the Climate Commission funding was removed by the Abbott budgetary changes prior to the implementation of its abolishment by parliament.[12] This confirms that the process of abolishing depends ultimately by parliament to be sure but the progression by procedurally defunding prior to any legislative changes confirms that there exists a rather discomforting executive system that stands on a thin line between the required separation of powers.  The doctrine of the separation of powers is a concept that ensures accountability and strengthens the checks and balances through the constitution necessary to ensure a fair and just governance of citizens. Simplified, the legislature enacts, executive applies and the judiciary interprets the law and since the rigidity of the body of rules once enforced is binding, therein requires the appropriate checks that ensure the law is beneficial to society as constitutionally implied, to prohibit and regulate to the effect of protecting and enabling Australian citizens and for the “peace, order, and good government of the Commonwealth.”[13]
Thus, to what extent does the removal of a regulator and a specialist low-cost review body undercut the benefits of the 2010 reforms to the Commonwealth FOI regime? The difficulties experienced by the commissioners due to budget cuts is perhaps sufficient enough to show the difficulties they experience performing the key functions of the agency, particularly with the effectiveness that it previously achieved. This is no doubt the reasons behind liberal government’ intent to close down the Commission, since the commissioners have been successful in a very short space of time in changing the structure and processes that have simplified accessibility to Australians and facilitated transparency as the original 1982 FOI Act had purposed. For instance, a strong emphasis on interagency networking all of which are subjected to the act and publications used as part of its information policy was resourcefully published and built, working on reforms implemented viz. the publication of information, “including information about what the agency does and why it does it.”[14] In addition, the resolution of complaints that would otherwise remained fixed in a backlog of lengthy and expensive was significantly questioned and ultimately reduced allowing public access to information that would have remained locked in a loophole. The costs involved to appeal decisions particularly related to public interest cases prohibit the rights of many due to their incapacity to financially afford the associated costs. A recent and landmark decision viz., the ruling in Bare v Independent Broad-based Anti-Corruption Commission exposed this problem, whereby the Supreme Court of Victoria granted a protective cost order that limited the costs of Nassir Bare, a 17 year old Ethiopian man who was assaulted by police.[15] Mr. Bare sought his right to have an independent body from the Victoria Police – the distrust that a fair and equitable assessment is clear since Mr. Bare himself was assaulted leaving chipped teeth and cuts along his jaw and thus breaching Section 38(1) of the Victorian Charter of Human Rights and Responsibilities – and when consulting the IBAC, the latter deciding not to investigate the claim. Accordingly, public interest is tested and determined when public interest substantially outweighs the entity in question[16] and the court therefore ruled that costs associated with the case do not exceed a maximum of $5000 to allow Mr. Bare to continue with the proceedings.
The costs associated with FOI cases vis-à-vis the principle of the right to freely access information by public bodies establishes a reluctance by a significant portion of those attempting to access information and thus limits or excludes the disclosure of information. A report by the Australian Information Commissioner Prof. John McMillan highlighted the issues related to the scale of charges and the required simplification of its framework.[17] That is to say that to prevent burdens reaching to an unmanageable state, limitations to accessing documents is applied through both the ambiguous practical refusal mechanism under the former ss 24[18] of the FOI Act, along with the power to impose charges.[19] While it is clear that either a full or partial waiver of associated charges for those experiencing financial hardship are taken into account, what is considered ‘financial hardship’ indeed, what is considered ‘public interest’ itself required a more thorough definition to assist agencies with determining on a case by case basis the exemption of applicable fees.[20] The success of the commissioners indeed has caused wide-eyed nervousness amongst more than one quarter in the liberal camp, no doubt the reasons behind the attempt to shut them down as abruptly as they intended. What exactly is it that they have to hide that they sit in trepidation that disclosure of information on matters of public importance is now becoming more efficient as it was when it initially came to fruition? Are the tests that facilitate transparency going to be too transparent?
While we are overwhelmed as it is, to recapture our own autonomy and possess the strength to fight for our human rights is still possible and in fact, almost all fictional and non-fictional tales, from the examples by the prophets and saints in the Bible to the Matrix to Aldous Huxley or George Orwell or Ghost in a Shell, we find ourselves with this one and only challenge, to defeat the penetrative and manipulative monster that sweetly compels us toward sacrificing our own autonomy. To traverse through the confusion and the mess of it all to wake up to the reality of who we actually are, what is real and what is worthy and what it is that we actually want and need. To escape from the grips of it all boils down to one choice that we need to make, to fearlessly turn and face this monster and this recognition would allow one to see that the only reason why monsters live in the closet is because we put them there. Privacy and freedom will never come to fruition if you follow the herd.
[1] §61 Australian Constitution, to execute and maintain the constitution and the laws
[2] Sonam Samat. “Visceral Targeting: Using Personalized Face Composites for Implicitly Targeted Marketing” 11 October, 2013.
[3] ARLC 77, 2.2
[4] Sylvia Chan, Liberalism, Democracy and Development, Cambridge University Press, (2002) 10
[5] ARLC 77
[6] The Freedom of Information Act 1982 (FOI Act)
[7] ARLC 77
[8] ARLC 77, 6.4
[9] Freedom of Information Amendment (Reform) Act 2010
[10] Dr James Popple, “Message from the Freedom of Information Commissioner” OAIC Annual Report 2011-2012
[11] Office of the Australian Information Commissioner PBS,  §1.1 p471
[12] Thomas J. Goreau, Ronal W. Larson, Joanna Campe, Geotherapy: Innovative Methods of Soil Fertility Restoration, Carbon Sequestration, and Reversing CO2 Increase, CRC Press (2014) 580
[13] The Australian Constitution, 1900 §52(i)
[14] Freedom of Information Amendment (Reform) Act 2010 (NO. 51, 2010) – Schedule 2: Division 1, §7A
[15] Bare v Independent Broad-based Anti-corruption Commission & Ors [2015] VSCA 197
[16] For instance, see Privacy Amendment (Private Sector) Bill 2000 (Cth) Part VI, §72: 2(b)
[17] Prof. John McMillan, Review of charges under the Freedom of Information Act 1982: Report to the Attorney-General, February 2012
[18] This is no longer applicable.
[19] Review of Freedom of Information Legislation: Submission to the Hawke Review, December 2012: Section 198
[20] Freedom of Information Act 1982 – ss11B

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