In an extraordinary turn of events the Clerk of Queensland’s Parliament has refused OpenAustralia permission to republish the state’s proceedings of parliament. This is the email we received this afternoon
Katherine,
I have taken sometime to consider your request because of the multitude of issues and its long term policy implications.
At the outset, I note that the “Queensland State Parliamentary Hansards” is actually the Record of Proceedings. Unlike other Parliament’s Hansards, it is a record, not only of what is said, but a procedural record of what has been done.
Initially, I was inclined to support your request because:
- I am an ardent supporter of the use of the Internet as a communication medium as exampled by the Queensland Parliament’s lead in areas such as Epetitions and the Tabled Papers database (a single database containing all documetns tabled in the Parliament and linked to the Record of Proceeding).
- I am inclined to support anything that would make the record of Proceedingaccessible and searchable.
However, I have decided to decline to give permission.
My reasons include, but are not limited to the following:
- I am concerned about the demands that may ultimately be placed upon the Queensland Parliamentary Service by OpenAustralia in terms of supply of information. I am especially concerned that once OpenAustralia is supplied the record for the purposes of republication, it would become a “special stakeholder” over and above our other stakeholders, to the extent that we would have to take into account OpenAustralia’s needs when any adjustments have to be made to our own systems. System redesign is complicated enough, without the added complication of such a “special stakeholder”.
- Despite OpenAustralia stating that it is a “not for profit volunteer run service”, I am not able to be assured from the information provided that there is no-one with some commercial interest (even indirect) or some other private interest in the venture. The information and “special stakeholder” status mentioned above could be a valuable commodity, not currently provided to others.
- A key issue is whether OpenAustralia should given the status and protection of an “authorised publisher” as an engaged entity for the publication of an authorised parliamentary record as per section 51(4)(g) of the Parliament of Queensland Act 2001 ( http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/P/ParliaQA01.pdf ). I do not believe it would be appropriate for me to give this authority as this sort of arrangement was not contemplated by the Act.
- Therefore, if permission was granted, it would be on the basis that OpenAustralia is not an authorised publisher under the Act and that OpenAustralia accepts all risks of any legal liability arising from the further publication of the parliamentary record – which would not be absolutely protected by parliamentary privilege.
- Most significantly, I am concerned about an alternative “non-official” site upon which lays the Queensland Parliaments official Record of Proceedings but which no-one in authority within the Parliamentary Service has control.
- I applaud the use of open-source software used by OpenAustralia
Neil Laurie
The Clerk of the Parliament
This email comes after three months of correspondence which you can read for yourself.
We’ll be appealing this decision, don’t you worry!
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15 Comments
Very disappointing to hear…
Hmm… are there somehow different issues in Queensland compared to the other states?
So one minor functionary can block open access to Hansard? I don’t think so.
Neil, are you ready to make a name for yourself?
—
MC
I seem to remember there is a constitutional right that parliamentary records need to be publicly accessible. I would assume that also applies to Queensland. If that is the case and Queensland published Hansard online, I would assume they cannot take away your right to republish. IANAL, so don’t take my advice. I just want to make you aware of something that you may want to check up on.
Neil came back with a
very considered response Which is awesome – even better he lays out all the reasons why the request was denied. Which leads me to think that there is still room to negotiate – sounds like what’s needed is well worded MOU more then anything else – to relieve Neil of potential worries
ben
MOU?
I do appreciate that, and agree that there’s room to negotiate. Some of his concerns are quite clear, and I don’t have a problem responding to those. The part of this email which is troubling is the statement “My reasons include, but are not limited to the following:”.
I’d be interested in any feedback you might have on the request I sent through which illicited this response.
http://tickets.openaustralia.org/browse/OA-241
Is the applauding of the use of OSS a reason to decline or just added on to make us all feel better?
Slivia, I think you are right but I’m not sure it has to be for free (as in beer).
This is disappointing but hardly surprising.
It does not seem that Neil has thought through the implications of his own arguments fully – particularly as point 4 seems to negate all the others. It is ALWAYS the case that a user of information provided in the public domain does so at their own risk, regardless of licencing.
Perhaps the real concern from the House’s point of view is point 5, that they don’t want another service providing hansard which they do not control, because of the risk of creating new liabilities (as outlined briefly in the conversation at http://tickets.openaustralia.org/browse/OA-241). This kind of response is public service bread and butter.
However, it may be the case the Queensland has different laws regarding liability and hansard, and these should probably be investigated before proceeding earlier (though if that were the case, I would have expected Neil to say so in his response).
As I see it, there are three grounds for the appeal:
a) Open Australia agrees not to seek “special stakeholder” status and will take on full responsibility to retrofit any changes to Hansard format into their feed
b)Ask what other information they require to establish your bona fides as a non-profit and/or accept that the Parliament can ‘switch off’ the feed in the unlikely event that information comes to light that there is a conflict of interests.
c) accept the fact that the Open Australia feed is not covered by parliamentary privilege. (btw, how does this compare with the feed for the federal parliament?)
Section 58 of the QLD Parliamentary Act seems to be one of the key points for consideration – however my reading is that the action (republishing) can be taken, there’s simply a risk of being in contempt if the Assembly changed the roles. However I’m not a lawyer.
(http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/P/ParliaQA01.pdf)
Assembly may impose conditions on publication
(1) The Assembly may at any time impose conditions on the publication of a parliamentary record.
(2) It does not matter whether the parliamentary record has been previously published or whether the Assembly authorises or has authorised the publication.
Example—
Assume an audio or visual record of proceedings in the Assembly is published on the internet by an authorised publisher under section 51.
The Assembly may impose conditions on the publication by the authorised publisher. The Assembly may also impose conditions on the publication by a person who has accessed the internet publication of a parliamentary record derived from that access.
(3) Publication of a parliamentary record in contravention of a condition imposed by the Assembly is a contempt of the Assembly.
Still need to be an “authorised publisher” however.
authorised publisher means—
(a) a member or a person acting on behalf of a member; or
(b) the Speaker; or
(c) the chairperson of a committee; or
(d) the Clerk; or
(e) an officer or employee of the parliamentary service acting in the course of the person’s duties; or
(f) the government printer; or
(g) an engaged entity.
engaged entity means—
(a) an entity engaged by the Speaker or Clerk or a chairperson of a committee (the engager) for the publication of a particular authorised parliamentary record; or
(b) an employee, contractor or agent of the entity acting in the course of the person’s duties, contract or agency; or
(c) if, with the engager’s written approval, the entity engages another entity for the publication of the particular authorised parliamentary record—
(i) the other entity; or
(ii) an employee, contractor or agent of the other entity acting in the course of the person’s duties, contract or agency.
I think concerns of this kind, flowing from “loss of control” and sitting alongside others such as cost recovery and copyright will be a big part of the coming culture debate as FOI reform with a new proactive publishing requirement moves to implementation phase. And yes Queensland is first cab off the rank, and is receiving plenty of accolades so far, but parliaments everywhere in Australia remain outside the scope of the legislation.At least the letter shows some serious consideration of the issue- I’d be surprised if it has received much attention at state parliaments elsewhere. The issue of privilege, and possibly getting snagged in defamation or related proceedings warrants close attention.
I agree with many of the comments here re: room to negotiate and to ease their concerns. (MOU = Memorandum of Understanding if that wasn’t cleared up earlier).
FWIW many of these concerns have come up in the workshops I’ve been doing on social media & networking with government – it’s not limited to Queensland.
The loss of control, secondary source and who’s responsible when data is republished are all legitimate and common concerns. And thankfully, I think, they are concerns that can be overcome.
Looking forward to hearing how you go with the further appeals. If you are successful it would be great to have the information/approach/MOU/whatever you come up with published so that it could be used/promoted to other agencies if/when these concerns come up.
Regards, Grant
Not surprising, it is Queensland after all, which has always been known for its open and accountable government.
While it is good that Mr Laurie has given some consideration to your request, more consideration could have perhaps been given to how his concerns could be addressed.
His concerns are:
(a) special stakeholder status;
(b) not-for-profit status of OA;
(c) whether OA can or should be engaged by the Clerk as an authorised publisher under s 51;
(d) lack of parliamentary privilege if OA is not engaged as an authorised publisher; and
(e) lack of control over OA’s publications.
They can be addressed as follows:
(a) OA expressly waives any rights as a special stakeholder and the Clerk reserves the right to revoke OA’s authorisation at any time and without notice to OA – draw attention to OA’s experience with the Cth – http://blog.openaustralia.org/2008/10/13/why-is-openaustralia-not-getting-updated/
(b) irrelevant to the extent that OA does not have special stakeholder status but could be easily proved in any event;
(c) s 49 expressly contemplates parliamentary records being “in any form”, “permanent or otherwise”, and s 48 defines “publication” to include a “broadcast” which in turn includes electronic transmissions – it follows that the form of publication proposed by OA is within the scope of the Act – however, see note below;
(d) ss 56(1) and 51(1) exclude civil and criminal liability on the part of OA if it is engaged as an authorised publisher; and
(e) if the Clerk reserves the right to revoke OA’s authorisation at any time and without notice to OA, the Clerk will have effective control over OA’s publications whilst the possibility of revocation exists; in practice, the Clerk could from time to time issue informal requests to OA to do or refrain from doing particular things.
Note: Section 51(4) of the Act contemplates the Clerk engaging an entity for the publication of a “particular” authorised parliamentary record. There is a question as to whether the Clerk has the power to engage an entity for the publication of all authorised parliamentary records. It may be that such an engagement would need to be approved by the Assembly.
Go get ’em!
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