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Australia joined the Open Government Partnership in 2015. As we enter consultations for our 3rd National Action Plan most Australians have never heard of it.

The Open Government Partnership: Our Best-kept Secret

Australia joined the Open Government Partnership in 2015. As we enter consultations for our 3rd National Action Plan most Australians have never heard of it.

The Open Government Partnership: Our Best-kept Secret

It was April 11, 2016 in a room lined with butcher’s paper and dotted with hastily-scrawled goals for a more transparent and accountable Australia. Less than forty representatives of civil society (from NGOs like Transparency International and the Open Australia Foundation) came together with representatives of federal and state agencies in the nation’s capital to draft Australia’s 1st National Action Plan for Open Government.

If you have never heard of the Open Government Partnership or the National Action Plans that document Australia’s Commitments under the agreement, you are not alone. As a group, civil society had little luck in getting the ear of the media to inform our fellow citizens of the new policy mechanism under way to bring transparency and accountability to Australia.

So basically what it all boils down to is less than 40 people representing the entire Aus population at the NAP drafting event. Are you feeling included yet? Engagement around OGP for both 1st & 2nd NAPs were a total failure due to lack of gov & media interest.

— Rosie Williams (@Info_Aus) August 26, 2019

On the other hand, Martin Parkinson, who just served his last days as Secretary of the Department of Prime Minister and Cabinet, had no problems getting The Canberra Times to publish his call to wind back FOI on the same day that the Deputy Secretary of PM&C opened the National Action Plan drafting event where members of the public were feverishly trying to save the agency in charge of Freedom of Information from legislation introduced to abolish it! That no mention was made in this article of the OGP event occuring just minutes away speaks volumes for the media's lack of engagment in the process, driven no-doubt by the Liberal government's lead.

The previous Labor Government had established the OAIC and signalled the government's intention to become a member of the Open Government Partnership. When the Liberal Government came to power in 2013, there was an immediate attempt to abolish the independent agency responsible for regulating both Freedom of Information and the Privacy Act. and active membership of the OGP was delayed till late 2015.

When Malcolm Turnbull finally signed on to the OGP in November 2015, it immediately launched Australia into the consultation phase for the 1st National Action Plan. A key Commitment of this plan was to introduce beneficial ownership transparency to Australia. Beneficial ownership data allows the public, media and researchers to know who is the ultimate owner - or benficiary - of any company registered in Australia.

According to author of 'Game of Mates - how favours bleed the nation', economist Dr Cameron Murray,

"One of the key advantages to me as a researcher [of beneficial owner transparency] is to be able to trace the true financial beneficiaries of political decisions. This can help uncover the motives behind various lobbying activities, the financial scale of political benefits gained, while also demonstrating the power of corporate and political relationships in our political system."

Murray notes that

"...this is also the very reason why I expect that this type of transparency will not happen any time in the near future - it exposes the past bad behaviour of both major parties who like being able to favour their mates behind this veil of secrecy."

Collecting and publishing the true owners of Australian companies and trusts would mean that issues like the recent 'Watergate' scandal would be easier to investigate so it is no surprise that the government has hit the go slow button.

The Independent Review Mechanism Report on the 1st National Action Plan undertaken by the ANU’s Daniel Stewart (on behalf of the Open Government Partnership) confirms that the public expected to have access to beneficial ownership data:

"Civil society groups expect that this commitment will lead to the establishment of a beneficial ownership register of some form, though consultation between Treasury and stakeholders is ongoing. Government could consider making the register publicly available."

That there was any possibility the beneficial ownership register would not be publicly available came as a shock to the people who had voted it into the 1st National Action Plan, myself included.

According to an FOI undertaken by Evelyn Doyle, the consultation carried out as the first step toward improving owner transparency demonstrated that 'The majority of stakeholders broadly supported increasing the collection of information on the beneficial ownership of companies.'

So uniform was the support to make ownership data open to the public that a budget estimates response to Former Senator Ketter was able to identify only one stakeholder who argued against it!

"All non-confidential submissions have been published on Treasury’s website. One of these submissions – from the Australian Investor Relations Association – argued against the establishment of a centrally operated register of beneficial ownership."

Despite this near-unanimous call for publicly available beneficial owner information, attempts to clarify the government position met with ambiguity after ATO Commissioner Chris Jordan talked down the idea in Senate Estimates. "A register of beneficial ownership is just, you know, what someone says someone else owns so, you know, it could be good but it could be just a lot of 'stuff' that doesn’t really help us" he said.

Senator Whish-Wilson, to whom these statements were addressed believes that:

"There’s no indication this government will establish a public register of beneficial owners. Instead, by back flipping on their original statements and pressing the go slow button, they appear to be kowtowing to those with a vested interest in keeping their tax evading tricks secret." (15 August 2019)

My request for the current government position drew this response from the Minister for Housing and Assistant Treasurer, Michael Sukkar, who provided a statement on 14 August 2019,

"The Government is committed to improving the transparency of information around beneficial ownership and control of companies. We have consulted on a number of options to improve transparency, including the establishment of a central register. The Government is considering how best to give effect to this commitment while not imposing unnecessary regulation on business."

While the government has danced back and forth on the strength of their commitment, they have spent the intervening years consulting on the creation of a central register- to merge and replace the aging ABR/ASIC databases- which includes a Director Identification Number. The question of whether this unique identifier will provide transparency to the public or inhibit it appears to be the burning question.

MEAA raised these concerns during the consultation process:

"Regrettably the proposed new laws will lead to a reduction in the level of registry information currently available to the public. MEAA strongly oppose this step. Any reduction in the level of available information will have implications for coverage of business activities and business operators who have attracted the attention of regulators such as ASIC and ATO. Company records do not exist in a vacuum and must be capable of being accurately related to the world outside of the registry to be of any practical use."

Not only has the government not made it clear what beneficial ownership data will or won’t be in the new central register, it is not clear if information will be available to the public, researchers or journalists or made solely available for internal government use.

Accenture was contracted to build a bespoke solution (on a contract of over $3 million) for the new central register after it was found that no off-the-shelf solutions would meet requirements.

That the government was able to 're-interpret' documented Commitments made in concert with civil society is largely a function of the lack of media and public awareness of the Open Government Partnership and the National Action Plans it spawns. This lack of media interest and consequent public awareness is due in no small part to the lack of Ministerial support.

While Former President Obama and David Cameron both made lengthy and highly prominent speeches in support of the Open Government Partnership, no Australian Prime Minister has followed this lead. Australians have seen the slide in commitment to open government and civil rights over recent years while we should have been forging ahead with higher expectations.

This lack of media interest in Australia’s commitment to open government has finally hit home with the recent AFP raids on mainstream media for their work with whistleblowers. These events could be the policy window event Australia needs to galvanise the media behind using the OGP to establish a Australian Bill of Rights.

According to Fiona McLeod SC, former head of the Law Council of Australia:

"The OGP Forum would be a terrific body to advance the work because of current work designing deliberative consultation models with civil society and the active participation of senior officials across the whole of government."

With the consultation period for Australia's 3rd National Action Plan about to begin, and the next plan due to begin mid 2020, the Open Government Partnership is uniquely placed to introduce and oversee the implementation of an Australian Bill of Rights and the kind of broad engagement from the media and the public that would bring to the National Action Plan would have flow on effects for all Commitments - but only if the media decides to get on board.

Sign up at the Department of Prime Minister and Cabinet site for the email list to notify you of upcoming consultations and news on the Open Government Partnership.

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