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  • Intellectual Property, News, Telecommunications - Written by on Tuesday, April 24, 2012 15:52 - 25 Comments

    Piracy meetings still censored: “No public interest”

    news An internal Government review has backed a decision by the Federal Attorney-General’s Department to censor almost all information about the secret Internet piracy meetings the department has held with the content and ISP industries over the past six months.

    Over the past six months, the Federal Attorney-General’s Department has been hosting a series of closed door meetings between the content industries, represented by groups such as the Australian Federation Against Copyright Theft, and Internet service providers such as iiNet and Telstra. The meetings have also been attended by industry groups such as the Communications Alliance, although consumer groups have been explicitly barred from attending.

    Earlier this year, Delimiter filed a Freedom of Information request seeking details of the latest meeting, held in February, seeking details such as a list of attendees, notes taken by any government staff, a copy of documentation issued to attendees, email correspondence related to the calling and conduct of the meeting, and internal departmental correspondence regarding it.

    However, the Government subsequently used a variety of complex legal justifications to avoid releasing virtually any detail of the meeting under FoI laws. Subsequently, Delimiter appealed the decision and requested an internal review of the Attorney-General’s Department’s justifications. In addition, the Greens have filed a Senator order requesting the documents be produced, although that motion will not be voted upon until May.

    This afternoon, the Attorney-General’s Department has made public the results of its internal review. The department’s director of its FOI and Privacy Section, Malcolm Bennett, wrote in a letter to Delimiter that he backed the initial decision to censor the piracy meeting material from being made public. “I have, in short, decided to affirm [AGD senior legal officer Jane Purcell]‘s decision to exempt all the notes in full pursuant to section 47C of the Freedom of Information Act,” wrote Bennett.

    One of the main legal instruments used to deny the initial release of information was section 47C of the FoI Act, which exempts material from being disclosed if it would disclose material which was involved in the deliberative or consultative processes of the government. In the previous FOI decision, Purcell had used the section 47C clause to deny the release of 14 pages of notes taken by a departmental staffer at the piracy meeting and another four pages of notes taken by a senior staffer from Communications Minister Stephen Conroy’s department.

    “As advised earlier by Ms Purcell, the notes in question record discussions which took place at the meeting about proposed industry solutions to the issue of online copyright infringement,” wrote Bennett. “As also advised by Ms Purcell, such discussions are still ongoing. I have affirmed Ms Purcell’s decision that the meeting notes comprise material recording the substance of consultation and deliberation that has taken place in the course of, and for the purposes of, the deliberative processes involved in the functions of this department.”

    Bennett noted, as Purcell also did, that another section of the FoI Act required such material to be disclosed unless doing so would be contrary to the public interest.

    “I have decided that disclosure of these documents would be contrary to the public interest,” he said. “My reasons for so concluding are essentially the same as Ms Purcell’s — that is, that the discussions that are taking place are at a delicate and sensitive stage.”

    “Disclosure of the details of them at this stage would, in my view, prejudice, hamper and impede those negotiations to an unacceptable degree. I agree with Ms Purcell that such a disclosure would be contrary to the interests of good government — and, by definition, contrary to the public interest.”

    In Delimiter’s communication with the Attorney-General’s Department requesting a review of the initial FoI request, we had argued that it seemed unreasonable that the entirety of the 18 pages of notes be redacted.

    “I would anticipate that there would be sections of these notes which would be trivial, and the redaction of the entire documents is a rather heavy-handed approach,” we wrote in our email to the department. “A more targeted approach, redacting sensitive portions of those notes only, would seem a more appropriate response to the spirit of a Freedom of Information request, and I note that AGD has taken this redaction approach in other sections of the documents.”

    Delimiter also objected to the notion that it was not in the public interest to release the documents in full.

    “As demonstrated by the degree of interest in this issue amongst the readership of sites like Delimiter (with many thousands of readers interested in this information), it seems clear that the public is highly interested in gaining more information about this situation,” we wrote. “This is further evidenced by the fact that consumer groups and other ISPs have also requested to join the meetings – but been denied. In addition, I am informed that the issue will also be raised in the Senate this week, further demonstrating that there is a public interest in the documents being released.”

    iiNet chief executive Michael Malone has reportedly said that his preference would be to stop participating in the talks held by the Attorney-General’s Department.

    Delimiter is currently investigating appealing the decision of the Attorney-General’s Department by having it externally reviewed by the Office of the Australian Information Commissioner.

    Not in the public interest? Judging by the many thousands of people who read Delimiter’s articles on the iiNet versus AFACT High Court case last week (tens of thousands of people on Delimiter alone), and the fact that the matter has been raised in the Senate, I would say there is a huge amount of “public interest” in what is happening in these secret meetings being held by the Attorney-General’s Department.

    I am aware that “in the public interest” does not simply mean “people want to know”. However, especially now that the iiNet High Court case has been finalised, it is of paramount importance that the Australian public knows what is being discussed in these meetings, so that it can its own say on this weighty national issue. These talks should be held in the open, with representatives of consumer groups able to attend. And media outlets such as Delimiter will not stop probing the Attorney-General’s Department on this issue until they are.

    Image credit: Attorney-General’s Dept, with slight editing.

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    1. Marcus
      Posted 24/04/2012 at 4:06 pm | Permalink |


    2. M.
      Posted 24/04/2012 at 4:19 pm | Permalink |

      Good luck with the OAIC review – they are so overworked and underfunded to handle the flagrant disregard the public service has for the public’s right to know.

      You might actually be the luckiest FOI applicant in the country if Ludlam’s senate order for the production of documents is carried. “The Senate has resolved, however, that it does not accept ‘confusing the public debate’ or ‘prejudicing policy consideration’ as grounds for public interest immunity claims [...] The refusal of a minister to comply with an order of the Senate may ultimately be dealt with as a contempt of the Senate”

      • Posted 24/04/2012 at 4:25 pm | Permalink |

        I think Ludlam’s Senate Order is the most likely way this information will be released. However, I don’t mind if it takes six months to wind its way through the OAIC. This issue is about more than these little pieces of information. It is about the need for transparency and public disclosure of what these talks are about. The Attorney-General’s Department needs to be aware that they cannot simply make major decisions about these sorts of issues behind closed doors, without a public consultation process.

        • Dean
          Posted 24/04/2012 at 7:49 pm | Permalink |

          Hear, hear! At this stage it seems to me to mostly be a matter of principle. I’d say we already have a fairly good idea of what each side of this “discussion” wants, but I just don’t see how the AG’s department can justify such secrecy. We’re not talking National Security here!

    3. Tommy Lawrence
      Posted 24/04/2012 at 5:20 pm | Permalink |

      “Disclosure of the details of them at this stage would, in my view, prejudice, hamper and impede those negotiations to an unacceptable degree. I agree with Ms Purcell that such a disclosure would be contrary to the interests of good government — and, by definition, contrary to the public interest.”

      I see.

      The public’s knowledge of it’s government’s actions is against the public interest.

      It’s nice when the thin pretence of democracy is peeled back to reveal who really runs things. In an ideal world, this clown and all the people who shaped this policy would be out on the street or in jail for this kind of anti-democratic nonsense.

      The very idea belongs to tin-pot dictatorships, not any Western country which dares to pride itself on its enlightened character.

    4. Posted 24/04/2012 at 5:21 pm | Permalink |

      How easy is it to do an FOI? Perhaps it is time to demonstrate the public interest by the public requesting in mass?

    5. Goku Missile Crisis
      Posted 24/04/2012 at 5:28 pm | Permalink |

      It’s a damn shame that it takes one tech-savvy Senator with a good moral compass to fight for the public interest, but here we are! Perhaps if other journos would follow Delim’s lead in pushing the issue… Hell, if iiNet follows through with threats to quit the talks (and they’re in a great position to do so right now!), hopefully other ISPs will follow suit? Time will tell.

      All I know for sure is that this government favours industry lobbyist’s interests over the public.. No big surprise there.

    6. Simon
      Posted 24/04/2012 at 6:08 pm | Permalink |

      Industry lobbyists give donations. Check out how much the MPAA gave to the democrats in the US last year

    7. Duke
      Posted 25/04/2012 at 4:22 am | Permalink |

      Get Assange into the Senate… and get him NOW!

      • Daniel
        Posted 25/04/2012 at 5:17 pm | Permalink |

        Assange wouldn’t do crap.

        And he’ll get over $100k a year for it too.

        The best you can do is send complaints to the Attorney General Office.


        Phone: 02 6141 2525
        Fax: 02 6141 4096
        Email: complaints@ag.gov.au

        Linking this page.

      • Disgruntled Loner
        Posted 26/04/2012 at 2:30 pm | Permalink |

        Since Ludlam has already acted on this would not it make more sense to support him?

        NB I am not a member of the Greens and I support Assange.

    8. Simon Shaw
      Posted 25/04/2012 at 4:45 pm | Permalink |

      Im definately interested in what’s been decided and what the various options are so we can lobby our politicians,

    9. John
      Posted 25/04/2012 at 4:55 pm | Permalink |

      It always amazes me that any relationship between an entity and the government is permitted. The truth is our constitution is not American, and whilst they may believe that they act in the best interest of their shareholders, they are effectively classifying and undermining the foundation principles of what our democracy is about.

      The only lawful way in my opinion for these entity’s, whether a corporation or association, the latter designed to protect them from prosecution and liability is to communicate through their shareholders to the government. Any other model is in my opinion amounts to the shareholders having a benefit of a secondary representative structure that we as individuals do not also have. That is a discriminatory practice.

    10. Simon Shaw
      Posted 25/04/2012 at 10:39 pm | Permalink |

      @John… Well said.

    11. Paleoflatus
      Posted 26/04/2012 at 7:26 am | Permalink |

      When government policy is overwhelmingly directed by lobbyists (e.g. trade unions, big business, foreign countries etc.) and governments are increasingly prone to corruption, then transparency is the only remaining tool for the electorate to maintain a semblance of democracy. The stark alternative is the natural transition from democracy to oligarchy and eventual autocracy.
      The importance and the danger of this decision by the current Attorney General cannot be over-emphasised, so the next election is vitally important.

    12. Adam
      Posted 26/04/2012 at 9:22 am | Permalink |

      It seems their interpretation of “not in the public interest” is more akin to a parent determining if something’s appropriate for their child.

      Maybe the documents could be follow the television content rating system:
      G – General population viewing (includes media)
      PG – Public service viewing only (media excluded)
      M – Mysteriously secret.
      R – Restricted to power brokers only.
      X – These documents are freely available in Canberra.

    13. Murray
      Posted 26/04/2012 at 10:01 am | Permalink |

      Apart from the redaction rationale and ‘internal review’, I’m curious to know what your experience has been with the AG’s FOI process, whether you were charged any fees, etc.

      Outwardly, the AG’s website gives the impression of a quite decent FOI system, particularly the one-stop ‘disclosure log’ listing past FOI requests with documents attached, and detailed reports/stats into the process. I’m curious what the site doesn’t tell us about the practice of FOI requests.

      • Posted 26/04/2012 at 10:04 am | Permalink |

        Usually they don’t charge any fees, but I have found that they *highly* dislike giving out any information, and will redact and block requests as much as possible, far beyond what other departments would do.

        • Daniel
          Posted 26/04/2012 at 10:15 am | Permalink |


          I sent a complaint to the AG’s department,

          This is the acknowledgement email I received

          Dear xxxxxxx

          Thank you for your recent email to the Attorney-General’s Department regarding denied FOI requests. We are currently looking into the matter and will provide you with a response in due course.

          In accordance with AGD service charter you will receive a response within 28 days. If this is not possible, we will let you know and advise when you can expect a response.

          Yours sincerely

          Compliments and Complaints Officer

          Attorney-General’s Department:

    14. Pepi
      Posted 26/04/2012 at 1:41 pm | Permalink |

      One can only assume that the discussions went far beyond the limited ambit of copyright, into areas which would probably outrage any reasonable person, if they knew what was really being discussed.

      Perhaps the discussions addressed the broad range of information available on the Internet (way beyond copyright); the things which certain special interest groups would like to see censored; automatic surveillance and shutdown procedures; and who might be tasked to operate this Orwellian nightmare.

      I fear that our days of Internet freedom, for the general good of the community, are rapidly drawing to a close.

    15. Garry
      Posted 26/04/2012 at 2:16 pm | Permalink |

      It is absolutly correct that “consumer groups have been explicitly barred from attending” because from the comments hear it is clear that in 99.9999% of cases content consumers are nothing more than theiving lowlife scumbags who have no idea what so ever what they would unleash in their efforts to get copyright laws changed to ensure they are not prosocuted for IP theft.

      Point in case, how many here in favour of the changes would be happy to have an image of themselves used by a white surpremist group to promote racial hatred around the globe?

      I thought so!!!

      Bottom line ATM you do have rights that you could rely on to protect yourself & stop the white surpremist using your image. Under the idiotic changes you want to see to copyright laws there would be jack shit you could do to stop your image being used.

      Soz guys you can’t have your cake & eat it to.


    16. Mike
      Posted 26/04/2012 at 2:37 pm | Permalink |

      This is some of your comments so far..
      * contempt of senate ………………………….has been processed and already its contempt
      * major decisions behind closed doors… I though they were just discussions at this stage
      *tin pot dictatorship… a touch of Latin America
      *jail for this kind of anti-demcratic…….. now we are going to jaol the government, ISPs and Afact and friends.
      *one senator with a good moral compass…I quess the rest of the senators are moral compassless

      If I was the government I wouldn’t tell you bunch anything, not with the inmature rubbish that you come out with, grow up

    17. Steve Dalby - iiNet
      Posted 26/04/2012 at 4:14 pm | Permalink |

      Can we just put this “iiNet threatens to walk away” line to bed, because selective quoting is misleading.

      The question was something along the lines of – are you fed up with this whole exercise ? Wouldn’t you just like to walk away ? MM answered ” yes, but I’m sure Steve has another view” to which I added that although “at one level, we might personally want to turn our backs on it, the issue hasn’t gone away and the reality is that we will continue to participate at the same passionate level that we have up to now”.

      I’m sure that’s a poor recount and is not verbatim, but those that taped the Q&A session will know that the sensational grab is only half the answer.

      • Posted 26/04/2012 at 4:41 pm | Permalink |

        hey Steve,

        thanks for your post. I didn’t listen in on the day, so I wasn’t quite sure about that — I just reported what was said at iTNews. I’ll be more careful about how it’s phrased in future.



    18. Daniel
      Posted 30/04/2012 at 3:56 pm | Permalink |

      Hey Renai – I got a standard reply back from the Minister.

      Dear xxxxxxxx

      Thank you for your email to the Attorney-General’s Department on 25 April 2012.

      All FOI requests made to the Department are processed in strict accordance with the provisions of the Freedom of Information Act 1982. Decisions are accordingly fully explained to applicants – who are also informed of their right to have the decision reviewed, either internally or externally.

      Yours sincerely

      Complaints Officer

      Attorney-General’s Department


      I call BS.

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