A victory against the flow of the tide

Mar 27, 2024
The Freedom of Information Act (FOIA) written on a page.

Under the Morrison and Albanese governments it may well be that the FoI Act has been more restrictively administered than at any time since it came into effect in 1982.

In the early 1970s the Whitlam Government set up an inter-departmental committee to prepare advice on freedom of information legislation. As that Government became burdened by the so-called Loans Affair whose pot was kept on the boil by the damaging leaking of information from the bureaucracy, the committee lapsed into recess. Nevertheless, the work it did provided a foundation for the enactment of the Freedom of Information Act almost 10 years later during the Fraser Government.

Some, although not all, members of the inter-departmental committee were moodily apprehensive about the consequences of freedom of information laws that would invert the comfortable habits of many lifetimes. Thus, rather than information being provided at the discretion of ministers and officials, it would be available unless it could be shown to be within legally exempt categories. The world was to be turned upside down.

It was said that government and public administration could not be made to work in a goldfish bowl and that opening internal machinations up to public scrutiny would wreck the ability of the public service to provide comprehensive and effective advice to ministers.

These apprehensions live on in the minds of people as different as Dr Peter Shergold, the former head of the Prime Minister’s Department, and Dr Gordon de Brouwer, the current Public Service Commissioner. While they have had the advantage of seeing the FoI Act in operation, their bleatings about its baleful consequences are unsupported by facts or analysis. They’ve not brought forth, for example, a consideration of the number of successful FoI claims for ministerial policy advice or the results of a critical examination of say 200 examples of such advice to see if they’ve been dulled by the FoI Act.

It’s more than likely that the apprehensions of some of the members of the 1970s inter-departmental committee and more contemporary fretters like Drs Shergold and de Brouwer are unfounded; at least they should be treated as such in the absence of evidence to the contrary. The exemptions in the FoI Act provide substantial protection. More particularly however, aided and abetted by the example of those two bastions of secrecy, the Department of the Prime Minister and Cabinet and the Public Service Commission, the release of information has largely been limited to that which would not cause political or other embarrassment. And under the Morrison and Albanese governments it may well be that the FoI Act has been more restrictively administered than at any time since it came into effect in 1982.

In the recent past the Department of the Prime Minister and Cabinet has refused to divulge which of the Thodey Review recommendations on the public service have been implemented, partially implemented or not implemented. It also will not say if its Secretary, Dr Davis, checked on the role of Ms Kathryn Campbell in the Robodebt matter before helping to arrange a $900k job on the benighted AUKUS project. Meanwhile, the “communiques” the Department posts on the doings of the Secretaries Board are models of hilarious opacity.

The Department’s sister organisation, the Public Service Commission, refuses to let out one word of the report prepared by Ms Lynelle Briggs on the behaviour of the previous Secretary of the Department of Home Affairs, Mr Michael Pezzullo. He, of course, was put to the sword but the public cannot be told anything about the procedures Ms Briggs adopted or given an extract of her conclusions or recommendations. When it was pointed out that the reports of the Brereton inquiry on the behaviour of ADF personnel in Afghanistan and the Head report on the consideration by the New South Wales government of an overseas appointment for Mr John Barilaro were made public, the Commission said that they were different as access was not sought to them under FoI laws. It’s hard to know whether to laugh or cry – maybe laughing with one eye, crying with the other, to borrow from a Serbian fairytale.

One measure of the restrictive extent to which the FoI Act is being administered is what can happen when those denied access to documents are prepared to risk large costs and take their claims to court.

Here the former Senator and former submariner, Rex Patrick, has, in several cases shown up how the law and spirit of the FoI Act are being ill-served.

Patrick has set himself up as a “Transparency Warrior”. While he runs many cases off his own bat, for modest charges he helps others wanting to get information from the government.

Under the Morrison regime, Patrick took the Department of the Prime Minister and Cabinet to the Administrative Appeals Tribunal over the Department’s refusal to release certain innocent enough documents provided to the so-called National Cabinet. A judicial member of the AAT found in Patrick’s favour and gave the Department a terrible thrashing including for misrepresenting aspects of its history.

More recently Patrick has had a big win in the Federal Court over the Information Commissioner’s confirmation of a decision to deny access held by a former Attorney-General dealing with the Great Sports Rorts Saga. While the case is complicated and not easy briefly to represent, the guts of it was that by convention documents held by former Ministers and not with their departments are not subject to release under the FoI Act. Judge Charlesworth has put that convention well and truly in the shithouse saying that it is not one “authorised or contemplated by the FoI Act and it should stop.”

Mr Patrick said that it should now not be possible for governments to “sweep a departing minister’s direct underneath the carpet.” A victory against the flow of the tide.

The thing is governments, and so their officials, are wary about FoI. They see it not so much as a boon to the democratic system as a path fraught with political pitfalls. Such misgivings appear to suffuse the administration of the Act. It was a miracle it was enacted in 1982 when the then Fraser Government, adrift in scandals around bottom of the harbour tax schemes, was leaking like a colander. But that came at the end of a period of remarkably bold changes in administrative law including the Administrative Decisions (Judicial Review) Act and the Administrative Appeals Tribunal. It was a compliment to the strength of advocacy from certain officials in the Attorney-General’s Department and Prime Minister Fraser’s unorthodox idealism. If only a little of this 1970s boldness could be revived to displace the presently favoured ultra thin tranche approach to legislative improvement of the administration which has thus far yielded nothing.

Patrick’s wins over departmental refusals to cooperate with FoI requests together with the general dead cat stink about its administration, suggests the need for the legislation to be reviewed. Indeed, in a report on the Act in 2013, former Defence Department Secretary, Allan Hawke said that “a more comprehensive review…is now necessary”. Eleven years later that case is more pressing. Yet it should not be done by a parliamentary committee with its political riddles. Nor by the all too familiar dodgy method of dragooning in a few worthies to sign off on a draft prepared by departmental officials who well appreciate who butters their toast.

No, no. A review of the FoI Act of all things should be properly independent and done by persons able sensibly to balance the interests in openness and accountability with those in the effective working of the administration. There are good grounds for suspecting that at the moment these interests are well out of whack with political bottoms being protected at the cost of the rights of citizens to know what their governments are up to.

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