Pearls and Irritations

If Ms McKenzie was pressured she had two choices: to make clear to her superiors (or minister) that she alone holds the delegated authority and will take the decision on the basis of her interpretation of the law in the circumstances before her, or to ask for her superior to take back the authority and take the decision themselves.

This is where “frank and fearless advice” really matters: standing up for the law and due process in the face of pressures from above (if there were such pressures).

The government has of course introduced into Parliament a bill to change the law. But that bill has not yet been passed and is subject to criticism from an array of legal, constitutional and public administration experts (myself included). Even if, as seems unlikely, the bill is passed, no doubt the courts will soon after be asked to interpret its application – how they might do so is anyone’s guess.

A smart senior public servant cognisant of their legal responsibilities might not have attempted to rely upon the surely fallacious argument that the national cabinet is a committee of the Commonwealth cabinet but have drawn attention to other provisions in the FOI act, which might limit public access to some of the documents sought. For example, under s47B some documents could be “conditionally exempt” if disclosure “would, or could reasonably be expected to, cause damage to relations between the Commonwealth and a state”.

Careful consideration along these lines might lead a delegate to the conclusion that it was not in the public interest to release some of the documents requested while endorsing release of others consistent with the act’s open government objectives.

Andrew Podger is an honorary professor of public policy at the ANU and a former senior public servant.

This article was first published in the Canberra Times and is re produced with permission.