Australian Gov't: Not In The Public Interest For The Public To Be Interested In Secret Anti-Piracy Negotiations

from the transparency?-what's-that? dept

Last month Techdirt wrote about yet more secret meetings between the copyright and internet industries, this time in Australia, where the federal government there was “encouraging” them to come up with ways of tackling online copyright infringement.

The public, as usual, was not invited to offer their views on plans that would obviously affect them more than anyone. And so people filed a freedom of information (FOI) request to find out belatedly what was going on. But the answers they received were unsatisfactory, to say the least:

the Attorney-General’s Department responded to that Freedom of Information request, providing a series of five documents. However, using a variety of justifications, the department has redacted almost all of the information previously contained in the documents — including 14 pages of notes taken by a departmental staffer at the event and other four pages of notes taken by a senior staffer from Communications Minister Stephen Conroy’s department.

Some of the excuses for not providing the requested information are pretty far-fetched:

the Attorney-General’s Department stated in its response to Delimiter’s FoI request that it “does not hold” a list of the attendees who actually attended the meeting.

So the Australian government organized a secret meeting, but doesn’t know who attended? If that’s true, it suggests a stunning level of incompetence that ought to require heads to roll; and if it’s not true, then heads should still roll, for being economical with the truth.

But perhaps the most outrageous aspect of the response to the FOI request is the underlying justification for providing a content-free non-reply:

“Disclosure of the documents while the negotiations are still in process, would, in my view, prejudice, hamper and impede those negotiations to an unacceptable degree,” wrote [Attorney-General’s Department senior legal officer] Purcell. That would, in my view, be contrary to the interests of good government — which would, in turn, be contrary to the public interest.”

What this really means is: “All hell will break loose when the public finds out what is being discussed behind closed doors. So what we’re going to do is to come up with an agreement in secret, and then present it as a fait accompli, without offering citizens any options to change anything substantive. By contrast, to release the documents, and allow the public to have a say in how they should be allowed to use a critical 21st-century technology, would be contrary to the interests of this very good government, which by definition is identical with the public interest.”

It’s really extraordinary that, in 2012, governments can still trot out this nonsense that what is good for the government is by definition good for the public interest. How about letting the public have a say on the matter, by inviting them to join the debate using the means devised by the open government movements around the world during the last few years?

Instead, once the back-room deal finally emerges into the light of day, and is predictably met by a barrage of anger, the Australian government will profess itself stunned by the ingratitude of the public that is rejecting all that hard work done by its faithful public servants. And then perhaps, following in the footsteps of their German colleagues, Australian politicians will use that anger over lack of transparency as an excuse to justify further lack of transparency.

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Comments on “Australian Gov't: Not In The Public Interest For The Public To Be Interested In Secret Anti-Piracy Negotiations”

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explicit coward (profile) says:

What form of democracy is Australia? If it’s representative, why should “the public” have a say in any negotiations? They elected people to do exactly that for them…

That’s why I will always prefer the other model, the direct democracy: It doesn’t covertly imply that “ordinary” people are just not intelligent enough (aka to dumb) to make good governmental decisions.

explicit coward (profile) says:

Re: Re: Re:

And the public has every right to boss around their government.

What does that mean, practically speaking? That you can “fire” them (aka not elect them again) AFTER they have done a bad job? Or, to put it in other words: Can you stop them BEFORE they do a bad job?

Please keep in mind the meaning of the words “civil servant”.

I do. The problem is that it’s merely a label an elected politician gets, it’s not a spell laid on the elected person to behave as such.

Toff says:

Re: Re:

Well, it’s a minority government, hanging on by a thread thanks to three independents who will never be allowed to sit in parliament again after their discraceful betrayal of the Australian people for supporting the Labor party who clearly has no mandate, or majority. Most Aussies want a new election to resolve the current stalemate government, which is borderline corrupt, but with the three independents that sold out for their support of the party in power, they are all clinging on as long as they can, and denying a say to the electorate.

Nick Coghlan (profile) says:

Re: Re: Re:

You say that like there’s a lick of difference between Labour and the Coalition when it comes to this aspect of government policy.

Why are the Greens the only ones kicking and screaming about this in Parliament? *Because the Opposition agree with the way the government is handling this*

You seriously think a party that can’t even admit the NBN is a valuable nation-building activity on par with the main roads network will see a problem with doing backroom deals with legacy content players?

Technologist votes are lying there for the taking, but the Federal Opposition refuse to pick them up because of what they would have to do to retain them.

Anonymous Coward says:

Re: representative democracy

You’re right in that the public don have a say in the negotiations if it’s representative democracy.
But representative democracy is based on the idea that the people know what their elected think and do. If you take that away it’s no longer a democracy, even if you have fair elections.

This transparancy is also put preasure on the representatives to not do anything too stupid since they wont be reelected.

For the direct democracy… people are dumb and ignorant.
Having us decide every little detail is in my opinion a bad idea. I rather vote on a representative to take their time studying the issue and make the decission.

The important thing is that i know what he/she is doing and so i can choose someone else next time if needed. Very few misstakes can’t be corrected in one way or another.

explicit coward (profile) says:

Re: Re: representative democracy

And you think that dumb and ignorant people can do less damage if they “only” choose their representatives… as happened in Germany during the Weimarer Republic (a representative democracy) when people elected the Nationalsozialistische Deutsche Arbeiterpartei…

I never said that you need to have a form of direct democracy where EVERY decision has to be voted by the people – just a more direct form where countermeasures to bad legislation can be implemented by the people more easily.

John Fenderson (profile) says:

Re: Re:

What form of democracy is Australia? If it’s representative, why should “the public” have a say in any negotiations? They elected people to do exactly that for them…

In order for representative government to work, the public must be properly represented. This requires the public to know what their representatives are doing and to pressure their representatives according to the public’s preferences.

A representative government does not work if the public simply elects them and lets them act solely at their own discretion. That’s simply a softer form of tyranny.

Old Mate says:


Representatives are there to represent the wants and needs of the people from their representing state/city. Therefore, if the people from their representing state/city do not want something like this to pass, the representative of that state/city should be seen to be against it as well, as they are representing the interests of the people in their state/city.

Josef Anvil (profile) says:

Getting a little tired of this argument

Can we just dispense with the “representative” government argument already. Yes we know that representative government was the best option, given the limitations of previous communication mediums, but we are in a new era of communications.

There are platforms whereby the voices of the masses can be heard and even addressed if needs be. That is not to say that we should devolve into anarchy or even mob rule, but when it comes to new tech changing the way we live, it’s really past the time for that to be taken into account.

If nothing else there is no longer a reason for a complete lack of transparency in government. Oh wait, I forgot…. The TERRORISTS are watching.

explicit coward (profile) says:

Re: Getting a little tired of this argument

Can we just dispense with the “representative” government argument already. Yes we know that representative government was the best option, given the limitations of previous communication mediums, but we are in a new era of communications.

The limitations of previous communication mediums wasn’t the main reason (if a reason at all) why most democracies deemed it the best option. To cite wikipedia:

James Madison: A pure democracy can admit no cure for the mischiefs of faction. A common passion or interest will be felt by a majority, and there is nothing to check the inducements to sacrifice the weaker party. Hence it is, that democracies have ever been found incompatible with personal security or the rights of property; and have, in general, been as short in their lives as they have been violent in their deaths.

John Witherspoon: Pure democracy cannot subsist long nor be carried far into the departments of state ? it is very subject to caprice and the madness of popular rage.

Alexander Hamilton: That a pure democracy if it were practicable would be the most perfect government. Experience has proved that no position is more false than this. The ancient democracies in which the people themselves deliberated never possessed one good feature of government. Their very character was tyranny; their figure, deformity.

ltlw0lf (profile) says:

Re: Re: Getting a little tired of this argument

The limitations of previous communication mediums wasn’t the main reason (if a reason at all) why most democracies deemed it the best option. To cite wikipedia:

I suspect in the not so distant future some very smart people will likely say the same thing about Representative Democracies too, since they appear to suffer from the same afflictions when not done properly.

The problem I see with the current system is clear in this post — the government is subject to caprice and the madness of popular rage — terrorism (and in this case, money from a small interest) sets them off into a rage and they pass all sorts of do nothing laws which will likely be rejected by the courts eventually. They don’t need to act to every perceived threat and money alone should not be a motivator for them passing laws. The fact that very few of them read the laws they pass should say something to them about their failures.

What this government needs is less money from small interests and more transparency. What they want is free-reign and opacity, so they can collect their millions and move on without getting into trouble, and quite frankly, that sort of government is just as unsustainable as a true democracy.

I still agree with Douglas Adams — there has to be a better way of electing politicians. Term Limits is a good idea, removing money from politics is a better one, but I am still a fan of political positions being like Jury Duty — nobody wants it, but when someone gets it they try to do the best job they can while they have it — nope, that won’t work well either. I don’t know what the answer is.

Joe says:

Re: Getting a little tired of this argument

The ‘terrorists’ are so slow to respond to changes in society, that the majority could run circles around them. Most of the so-called ‘terrorists’ (really, ‘political murderer’ is more correct) are either stuck in the 5th century or believe that the world owes them something and would be shocked to see what it’s like to have everyone essentially make them obsolete.

Of course, the real terrorists (read: people who profit from scaring you) wouldn’t like to not have scapegoats for their own failures.

Anonymous Coward says:

i hate to say it but, it doesn’t matter what is done or what should be done, the public and/or their representatives that are trying to preserve rights and freedoms fought for for decades are going to be kept in the dark. any and every law that the entertainment industries want brought in, will be brought in and it makes no difference at all what action(s) the public etc take, that will be ignored as well. the very real possibility/probability that politicians will lose their jobs for supporting these laws is no deterrent either, as they will receive higher paid ‘jobs’ within the industries they are backing as their reward for turning on the people they should be standing up for!

John Fenderson (profile) says:

Re: Re:

I completely understand the pessimism of your comment. I have frequent bouts where I share it.

But I turn to history for solace. There are a lot of examples where the good fight seemed pointless and hopeless, where the injustice was so entrenched and well-funded that it seemed unassailable, and where in the end the good fight was won. In almost all of these examples, what won was perseverance and continued action despite the appearance of hopelessness.

We do make progress. An agonizingly slow, lurching, two-steps-forward-one-step-back kind of progress, but progress nonetheless.

Do not let despair take away future victory.

awbMaven (profile) says:

I got the same type of response from the UK

Here’s what the UK said to me when I put in a FOI request regarding ACTA:

I regret that the other draft negotiating and further texts that you have requested are withheld as they are exempt under the following sections of the Freedom of Information Act: s.35(1)a (formulation of Government policy) and s.27(2) (international relations).

These are qualified exemptions and are therefore subject to a public interest test. After careful consideration of all the circumstances of the case, the conclusion reached is that the public interest in maintaining these exemptions outweighs the public interest in disclosing this information.

I put my request in for ACTA documents after negotiations had finished. There were previous FOI request while negotiations were ongoing but they were refused for the same reason Australia has given, because negotiations were ongoing.

Seems citizens are buggered either way – no docs while negotiations were ongoing, no docs afterwards for other reasons.

I have put in a Review request, that can be read here:

Grover (profile) says:

Term limits

This kind of crap from ‘civil servants’, aka politicians, is what happens when they are allowed to hold onto a position for more than two years, especially those that have their hand in making laws. Don’t they realize that they, themselves, will be subject to the very laws they’re making – at the behest of special-interest groups, and corporations, who’s only interest is in their bottom line?

Greed. . .it all boils down to greed and money. Evil is alive and well in the world.

G Thompson (profile) says:

Update: Senator asks for release

Just thought I’d add an update from the Tuesday article above (or was that Monday for you lot.. we in Australia are always living in your future . HA)

Again from Delimiter (Renai LeMay – the editor – is making good headway with this enquiry)

The Australian Greens have filed a motion in the Senate requesting that the Government release documents regarding its closed door meetings on Internet piracy which the Attorney-General?s Department has blocked from being released under Freedom of Information laws[.]

[This] morning, Greens Communications Spokesperson Scott Ludlam filed an order in the Senate that the Government disclose details of the most recent meeting. ?The Government refuses to reveal almost any information about the attendees, the substance or the outcomes of the meeting,? he said in a separate statement. ?A Freedom of Information request from a journalist looks like it?s been met with maximum resistance.”

You have to love the reply Delimiter got from Steven Dalby (iiNet chief legal beagle) when delimiter took a dig at iiNet in a previous article and wonder just what the hell the government and organisations like AFACT are playing at.

Especially when the GDP of the whole Entertainment Industry (all levels) in Australia is around 0.5% (yes less than 1%)

The sole organisation to publicly reveal any information about the talks is iiNet, which has attended the talks. Yesterday, the ISP?s regulatory chief Steve Dalby posted comments on Delimiter stating that there was a ?massive? gap in the talks between what the ISP and content industries wanted. ?Most, if not all of the discussions over the years have been conducted between the rights holders and the ISPs,? he said. ?These have been fruitless. The rights holders want all the benefits of remedial action, but want the ISPs to foot the bill. ISPs don?t want to pay to protect the rights of third parties. The gap between the parties is considerable and unlikely to close.[emphasis added]?

?Government probably wishes the whole thing would go away, but given that it hasn?t, they have reluctantly joined in the conversation, to see if a commercial solution could be encouraged.?

Anonymous Coward says:

the ability for governments to dismiss the thoughts and objections of citizens or completely ignore those thoughts and objections from the outset is spreading like a disease. how can any government have the right to favour the opinions of certain corporations and totally bypass the concerns of their electorate, then tell the electorate it would be wrong for them to know what was being discussed/implemented anyway? governments are elected according to the promises the leader of a political party makes. if those promises fall by the wayside or dont come quickly to fruition, the people should have the right to hold elections sooner than the usual time scale of the country concerned. as it is now, governments seem to think they are in power for as long as THEY want

Anonymous Nerd (user link) says:

For those who need more TPP Info A Facebook Action Group can keep you folks informed, in fact recent news says that foreign countries and yes even the australian Gov. are getting pissed at this deal, if you don’t believe it okay, just saying we shouldn’t be TOO pessimistic, we must remain calm and look at both sides, if we panic, then they already won

TtfnJohn (profile) says:

Re: For those who need more TPP Info

If the comments I’m reading on the Facebook group you have the link to are correct there appears to be a major stall over the United States trying to “export”, or “colonize” as one comment read, American IP laws across the Pacific. I can’t see if that’s partially a reading by Pacific Rim countries of the reaction to ACTA in Europe or simply their reluctance to get caught up what they might perceive as being forced to do what they are told by Europeans or Americans any more. If the word colonization is being used that’s a very loaded word around the Pacific Rim given their history. (Not just with Europe and America but with China and Japan as well.)

It’s also mildly amusing to see that these negotiations are almost as leaky as ACTA was and some of the issues seem to be exactly the same around IP issues, and that’s a reluctance to follow the American route. Though I’m hard pressed to say what’s worse the American route or the “three strikes” and you’re off the Internet route that seems so popular in Europe right now.

All that said various governments do need to be shot for conducting these negotiations in so much secrecy. There’s really no need unless, of course, they’re hiding something.

And they wouldn’t do that, would they?

Anonymous Nerd (user link) says:

Re: Re: For those who need more TPP Info

Remember, ACTA was so CLOSE to becoming real in a few days, but what happened? CRAP WENT DOWN. Not alone with Operation BLACK MARCH (Boycott of all copyright entertainment products and buying of independent ones) will get the message clear, if not, well we can always protest outside the MPAA and RIAA buildings and lets them see their opposers, Customers, Artists, Actors, Directors, and Writers

Violated (profile) says:

Shady Dealings

The public, except for very rare exceptions, should always be kept informed about the laws being proposed. TPP is even more critical when an international trade agreement is not complete without knowledge of its creation to clarify ambiguous points.

Well if they want to lock the public out again, and the technology experts, then we will only shoot it down again just like we did we SOPA, PIPA and soon ACTA.

It is clear to see here that this is only a power grab where they even bypass the WTO. So we fairly ask “can these people be trusted?” only to have all access denied. So the only conclusion is they would not be hiding things form us unless they did have anti-public and anti-Internet shady dealings to hide.

Then anyone who supports this anti-democratic status should have their names noted down and removed from their jobs.

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