The Open Government Partnership

The Open Government Partnership began in 2011. Its founding members were Brazil, Indonesia, Mexico, Norway, the Philippines, South Africa, the United Kingdom and the USA. The leaders of the United Kingdom and the USA have been strong supporters of the partnership[1]. Australia was invited to join in 2011 by the UK, Indonesia and USA and joined in 2013

Joining the OGP can present a major challenge for both governments and civil society members. But at this stage, only one nation has withdrawn – Russia.

The OGP – Articles of Governance

In joining the OGP, Australia has accepted its comprehensive Articles of Governance.[2] Stated expectations include making “concrete commitments… that are ambitious and go beyond a country’s current practice”. The Articles also detail 4 commitments.

1. “Increase the availability of information about governmental activities”. The text commences with an acknowledgement that “Governments collect and hold information on behalf of people, and citizens have a right to seek information about governmental activities”.

The stated commitments include “providing access to effective remedies when information or the corresponding records are improperly withheld, including through effective oversight of the recourse process.”

2. “Support civic participation”. The text opens with the following:

“We value public participation of all people, equally and without discrimination, in decision making and policy formulation”

and the concluding commitment is to create mechanisms to enable greater collaboration between governments and civil society organisations and businesses”

3. “Implement the highest standards of professional integrity throughout our administrations.” The opening text is an acknowledgement that “Government requires high ethical standards and codes of conduct for public officials”.

It continues “We commit to having robust anti-corruption policies, mechanisms and practices, ensuring transparency in the management of public finances and government purchasing, and strengthening the rule of law.”

It concludes with a commitment to “enacting and implementing rules that protect whistle-blowers” and “increasing deterrents against bribery and other forms of corruption in the public and private sectors…”

4. “Increase access to new technologies for openness and accountability.” The text opens with an acknowledgement of the opportunities offered by new technologies. It also includes the commitment to “harness these technologies to make more information public in ways that enable people to both understand what their governments do and to influence decisions”

To date, the primary focus of the government appears to have been on the last of the above commitments.

The Articles of Governance conclude with several general commitments including a pledge

“to lead by example and contribute to advancing open government in other countries by sharing best practices and expertise and by undertaking the commitments expressed in this declaration on a non-binding, voluntary basis”.

They also stress “the importance to the promotion of openness of a comprehensive approach and the availability of technical assistance to support capacity – and institution-building”.

The OGP – Members tasks, assessment and support

Members of the OGP are expected to develop action plans every two years. The action plans are expected to address at least one of the five “grand challenges”[3] -

1. Improving Public services,

2. Increasing Public Integrity,

3. More Effectively Managing Public Resources,

4. Creating Safer Communities,

5. Increasing Corporate Accountability.

The OGP also requires mid-term and end of term self-assessment reports by the participating governments and provides an “independent Reporting Mechanism” to complement those self-assessment reports[4].

The OGP has also established a substantial worldwide support unit to assist individuals and civil society groups to participate in their national partnerships.[5]

The OGPau – Opportunity.

We have been provided with a system which, if honoured by all the participants, should serve Australia well.

Its level of success will ultimately depend, like all aspects of government, on the members of the partnership honouring the Public Office Public Trust principle as their guiding principle; for, it will help to ensure that all participants will approach their task on the basis that each National Action Plan, and its subsequent implementation, must serve the public interest and to do so in priority to any personal interests or other private interests. [6] The Government is the Public Trustee. Civil Society is the beneficiary.

The OGP framework, commitments and guiding principles will encourage that approach. For their adoption will help to ensure that

· the people of each nation are informed about, and involved in, government through the partnership with the Public Trustees and

· the Public Trustees will be better informed, and assisted to take into account all they should in determining what will best serve the public interest.

This will be particularly important where the Public Trustees find themselves unavoidably in a conflict of interest position [7], for example, when considering reforms to the Commonwealth government integrity system such as the operations and powers of anticorruption bodies, whistle-blower protection and freedom of Information Systems or the transparency of political fundraising and lobbying.

The OGPau – the Challenge

Roles

The government and civil society of each member nation are expected to work together and make decisions together in partnership in preparing and implementing their national action plans. Thus it is common to refer to the OGP partnerships as “co-creative partnerships”.

But under the OGP Articles of Government, it is for the Government to take the first step of joining the OGP. The Government of each member nation also has to set in motion the creating of the partnership.

Initial action – in Australia

The Government. The Australian Government took action last November by:

· creating a website for the OGPau[8]

· placing on it on 17 November 2015 a detailed program and very tight timetable for the production of Australia’s first National Action Plan

· approaching people and organisations known to it as concerned about the issues relevant to the OGP grand challenges including Peter Timmins, Transparency International and the Accountability Round Table and a number of people and organisations with interest and expertise in the digital age and digital data.

The government did not, however, attempt any public announcements or media releases to alert the community generally or the media. Their lack of knowledge persists

Initial civil society response

Following the contact made by government with the civil society organisations and individuals on 17 November 2015, they, in turn, acted to create the Australian Open Government Partnership Civil Society Network [9]

Member organisations include The Accountability Round Table, Transparency International Australia, Open Knowledge Australia, OpenAustralia Foundation, Electronic Frontiers Australia, Code for Australia, Australian Press Council, Media Entertainment and Arts Alliance, Publish What You Pay, Blueprint for Free Speech, Creative Commons Australia, Australian Privacy Foundation, Australian Policy Online and Internet Australia. [10] A steering committee was created. Its Chair is Dr David Solomon and Peter Timmins is its Interim Convener.

OGPau -First steps

Opening the issues for civil society responses. The Government initially placed[11] two detailed and vital documents on the website –

· a Vision Statement attempting to state the guiding principle and policy concerns and

· a Background Statement attempting to describe the reality of the relevant aspects of government.

It also made clear that the government intended that the two grand challenges to be addressed in the first National action plan were grand challenges 1 and 3.[12] That position has been maintained to date as non—negotiable.

Members of civil society soon attempted to respond. For example;

· a detailed submission from the Civil Society Network Chair raising a number of matters including its concerns about the lack of consultation,[13] and

· the Accountability Round Table responded to the Vision Statement and the Background Statement drawing attention to major areas in both that it submitted were critical but had not been addressed. [14]

These submissions were placed by the Government on the website in the special wikispace [15]that the government had created.

A second edition of the Background Material was produced in which the Bill to abolish the OAIC was included but nothing was said about the Government’s then ongoing intent to proceed. Submissions from State Information Commissioners were added.

Otherwise there was no follow up government response, on the website or otherwise, to these submissions and there has been no consultation on the crucial matters raised in them. This pattern has continued as civil society has raised other issues.

Civil society was also invited to make submissions about the commitments it wanted included the National Action Plan. This was required to be done by the end of March. [16]

The Government also organised meetings and a Workshop. In this way it has started to bring civil society together.

Meetings arranged with civil society

Initial Information meetings.[17] These were held in capital cities in mid-December. People from civil society were invited to attend to be briefed and to ask questions about the proposed Australian OGP. The government also planned a Workshop.

The April 11 Workshop. Attendees. The Workshop took place in Canberra and began at 8 AM and finished at 5 PM. The website records that 93 individuals and organisations provided 210 suggested actions for consideration at the Workshop. Among those attending were 36 civil society people. They came to Canberra for that purpose, paying their own way. Four people attended for PM&C including the Deputy Sec. for Innovation and Transformation and 15 people from federal government agencies.[18]

Arrangements had also been made for the presence of two people from the International OGP Civil Society Support Group.

The government officers involved in the Workshop and the consultant engaged capably and conscientiously to advance the project and assist civil society in its involvement. But there was no one present throughout the day, with authority to consult with civil society, discuss the pros and cons of issues raised or seek solutions and agreement. That was not the purpose of the meeting.

Issues and Materials. On the Thursday before the Monday Workshop, the Government had placed on the OGPau website its proposed draft NAP[19]. It relied on the unchanged Vision Statement and Background Statement and the parameters they had previously set and which had been challenged but not answered. Its commitments cannot be described as ambitious. Rather they fell well short of Australia’s obligations under the OGP referred to above. The Chair of ART had prepared a response to the NAP and distributed it at the meeting. It has since been placed on the website. [20]

The focus of the Workshop was the preparation of a list of commitments sought by civil society for consideration by the Government for inclusion by it in the draft National Action Plan. Their selection at the Workshop was to be determined, according to rules previously adopted by the government, by the support given at the meeting. The Draft Action Plan was not on the agenda

The focus was on establishing a list of the commitments sought by those present from civil society.

At the end of the day, 18 proposals had been prioritised and turned into 14 commitments which were placed on commitment templates provided by the OGP.

Notwithstanding the inability to include Grand Challenge 2 in the discussion, a number of government integrity issues were identified and considered on the basis that they were relevant to grand challenges 1 and 3. In brief, the Government Integrity commitments accepted by the civil society people included in the final list of the Workshop commitments were

· an anticorruption body covering the whole of the Commonwealth government

· contract transparency

· Private enterprise whistle blower protection

· elevating Parliamentary standards and conduct

Agreement was also reached at the workshop that government and civil society should consider establishing a peak partnership body for all future decision-making and guidance. The Workshop organisers undertook have placed on the table for consideration by the Government the issues of a peak partnership body and the development of an agreed Vision Statement and Background Material Statement.

Subsequent developments

We understand that the government personnel involved in the Workshop have continued conscientiously to advance the matters raised at the Workshop, but events have overtaken any further action by Government itself. In particular, the calling of the election has prevented further consideration of the draft NAP by the Government. The timetable for resuming that will presumably need to be renegotiated by the new government with the OGP. The role of civil society in that is yet to be discussed.

Addressing the realities

The Australian OGP faces the same challenge that faces every new national OGP - the design and establishment of the partnership structure that will best serve the OGP principles and objectives and the interests of the people of that country.

Since 17 November 2015, we have seen no evidence that within the Commonwealth Government any consideration has been given to the structure of the Partnership that will best address that challenge.

The Action Required

The Articles of Governance (page 17) give guidance on what we should be doing in developing our full NAP. They describe the first stage:

“Governments should begin their OGP national action plans by sharing existing efforts relating to their chosen grand challenge(s), including specific open government strategies and ongoing programs.”

They then state:

“Action plans should then set out government’s OGP commitments, which stretch government practice beyond its current baseline with respect to the relevant grand challenge.”

and

“Commitments in country action plans should be ambitious in nature. An ambitious commitment is defined as one that once completed, will show a demonstrable advancement from action plan to action plan in the grand challenge areas proposed by OGP through openness, transparency, civic participation and accountability”

We are yet to conclude the first stage – we are yet to identify fully, let alone analyse, our “existing efforts”. We need an agreement between Government and civil society about the design of the structure of Australia’s Open Government Partnership. That requires initial consultation and discussion between government and civil society involving those in the Government with the relevant decision-making responsibility. Such discussion, to be satisfactory, requires consideration of the present background, all the relevant OGP commitments that Australia must honour as a member of the OGP, and how best they can be approached including whether our first NAP should include Grand Challenge 2. No doubt the experience of other nations will be of assistance[21] such as the UK

Once a new government is formed, discussions between civil society and the government about the NA P can resume. We submit that the priority should be to establish a structure for those discussions which will involve civil society and the government engaging in a partnership including the decision-making about the content of the NAP.

To enable to this to happen, commitments are needed from those seeking election to the Commonwealth Parliament to support, as an immediate priority in the NAP process, the design by the government and civil society of a partnership structure for our national OGP that will best enable government and civil society to engage in a co-creative partnership.

To enable the Australian partnership to honour its obligations under the OGP, a commitment is also needed to include Grand Challenge 2 in the first NAP.

[9] A coalition of civil society organisations and individuals committed to making government work better through transparency, participation and accountability. The Network collaborates with and challenges governments in Australia to develop and implement ambitious open government reforms through Australia’s membership of the OGP.

[11] see Articles of Governance – Addendum B page 17 (“sharing existing efforts …”)

[14] e.g.; the Vision statement did not address the principles and values stated in the OGP Articles of Governance, its objectives or the public office public trust principle.

The Background Statement focused on the positive– including the recent handling of electronic data issues, and its disclosure, and the creation of the OAIC – but did not complete the picture by included the many negatives that exist.

http://ogpau.wikispaces.com/Vision+for+open+government+in+Australia http://ogpau.wikispaces.com/Background+of+open+government+in+Australia

[20] http://ogpau.wikispaces.com/Draft+text+of+the+National+Action+Plan+-+5+April+2016 ; The original submission used the text of the NAP and placed responses after each section of the proposals. The presentation on the website has taken a different approach.

[21] A recent example of an approach is the “open Government Forum” established in the United Kingdom. http://forum.opengovernment.org.uk/ . We understand that the OGP is close to publication of a Handbook examining the experiences of OGP member nations in this area

[21]