The APS Commissioner, Gordon de Brouwer, included some surprising comments when speaking at The Mandarin’s ‘Rebuilding Trust and Integrity in the APS’ conference last week.
His call for a debate about the effectiveness of FoI law and whether the way it has been operating is counterproductive to the Parliament’s intent was not in itself inappropriate.
What was not appropriate was his comment when referring to the Robodebt Royal Commission’s concern about the absence of proper record-keeping that:
‘It is no use just to tell everyone to change.’
Indeed, he seemed to be excusing the behaviour the Royal Commission found (as has the Auditor-General in report after report) to be inconsistent with public servants’ accountability obligations.
In answering a pointed question from the WA FoI Commissioner, de Brouwer went further:
‘We can’t tell everyone to change and just to put your advice in writing. It’d be nice if that were going to happen. It’s not going to happen.’
No doubt the failure to keep written records is, as the Commissioner noted, under pressure from ministers and ministerial staff and senior public servants (the last ones in sharp contravention of their statutory obligation to promote as well as to uphold the APS Values). Such pressure may arise from impressions about the reach of the FoI Act. But that is no excuse for failing to uphold the APS Value of accountability and the implied obligations under both the Public Service Act and the Public Governance, Performance and Accountability Act to keep written records.
Whether exemptions under the FoI Act should be extended is another matter: in the meantime, public servants must act according to the law and to uphold the APS Values.
Existing requirements
The APS Value of accountability in the Public Service Act states that:
The APS is open and accountable to the Australian community under the law and within the framework of ministerial responsibility’.
The Commissioner’s Direction about this Value takes this further. Having regard to an individual’s duties and responsibilities, it states that upholding this Value requires, inter alia:
‘(b) being open to scrutiny and being transparent in decision-making’;
‘(c) being able to demonstrate that actions and decisions have been made with appropriate consideration’; and
‘(e) being accountable for actions and decisions through statutory and administrative reporting systems’.
And of course, APS employees and agency heads are subject to the Code of Conduct.
As mentioned, the PGPA Act (and its Rule and the Finance Directions) also imply the keeping of written records. And the Archives Act prohibits the destruction of records unless certain conditions apply.
The case for and nature of a review
I accept that there is a case for reviewing the provisions in the FoI Act. The Commissioner’s suggestion of an exemption for ‘genuine deliberative material’ echoes a recommendation by Peter Shergold in his 2015 report, Learning from Failure, following the Royal Commission into the Home Insulation Report. Other former PM&C Secretaries including Ian Watt and Martin Parkinson have also lent their support for extending exemptions. De Brouwer’s suggestion is for the exemption to apply to all ‘deliberative material’ for 5 or 10 years – that seems quite a stretch.
In my report to the Robodebt Royal Commission, I said I was not sure of the need for extending exemptions. There are exemptions now under the Act if release would not be in the public interest, and the courts have from time to time agreed not to release documents on this basis. A blanket exemption may, in my view, go too far.
What I did recommend to the Royal Commission was:
‘that the Government commission an independent review of how, according to judgments by the courts, significant advice provided to support the deliberative processes of government is currently treated under the FOI Act, and whether it would be in the public interest to extend current exemptions to include such advice.’
The Royal Commission did not take up my recommendation. Indeed, it went the other way proposing that the current exemption on Cabinet documents be removed with the public interest test for exemption to be applied in each case. That has not been accepted by the Albanese Government, nor do I agree with it. I fear it would lead to Cabinet submissions being prepared with a close eye on subsequent publication, that critical coordination comments would be omitted, and the frank and open debate Cabinet needs to have would be curbed.
So, by all means have a review of the FoI Act and its treatment of deliberative material, but let’s ensure the review is based on facts and real evidence, not just perceptions. The last time I looked, there were few applications for access to policy advice and most of these were refused with those decisions not being overturned by the FoI Commissioner. My fear is that there is a deeply embedded culture in the APS, particularly at senior levels, antagonistic towards the transparency required by the FoI Act despite frequent rhetoric to the contrary.
My own experience is that little if any pressure was provided not to present policy advice in writing: where pressure was most often brought to bear was on advice relating to due process – advice on grants, advice on the release of documents under FOI (such as on ministerial expenses), advice on legal matters, and frank performance information in annual reports. These are precisely where written records are most vital to accountability and embarrassment to ministers must be set aside.
A central reason why the pressure de Brouwer refers to is so often successful is not legitimate concern for the public interest but excessive desire to please and awareness that failing to do so may lead to a shortened career at the top. Claims, with little if any evidence, of the malign impact of the FOI Act on advice to ministers, too often seem to be made by the same people who deny the well-documented impact of secretary tenure arrangements on advice. It is secretaries’ appointment, termination and contract arrangements that deserve most attention.
The need for clearer direction from the APS Commissioner
Finally, I should mention another of Shergold’s 2015 recommendations which I took up in my own recommendation to the Royal Commission:
‘That requirements to create written records be made explicit either in Directions or guidance from the APS Commissioner, to include significant advice to ministers (including oral advice), decisions by ministers (including decisions conveyed orally), and inter-agency meetings and senior management meetings.’
The Royal Commission took this up in its own Recommendation 23.8:
‘The Australian Public Service Commission should develop standards for documenting important decisions and discussions, and the delivery of training on those standards.’
The Albanese Government claimed to have agreed to this recommendation last year.
I hope de Brouwer’s call for a review of FOI exemptions is not an excuse for delaying implementation of this agreed recommendation.
Republished from THE MANDARIN, February 28,2024
Andrew Podger is honorary Professor of Public Policy at The Australian National University, and former Australian Public Service Commissioner and Secretary of the Departments of Health and Aged Care, Housing and Regional Development, and Administrative Services. He was national president of the Institute of Public Administration Australia from 2004 to 2010, and a member of the foundation board of the Australian and New Zealand School of Government. He was made an Officer of the Order of Australia (AO) in 2004, and has written extensively on social policy including health financing, retirement incomes and tax and social security, and on public administration.
Contributions to Pearls and Irritations
Your contribution will fund quality independent comment and analysis in Pearls and Irritations
Contribute
