Pearls and Irritations

Federal governments have been winding back administrative law reforms for 30 years, largely ignoring serious commitments (as signatory to Open Government Partnership (OGP) since 2015), to more open government.

Secrecy has become the fallback in Australia with over 800 secrecy and non-disclosure laws.

Commercial in confidence is overused, as is legal and professional privilege, national security, non-disclosure agreements and other mechanisms that can hide wrongdoing and incompetence, often leaving taxpayers footing the bill. Last year, the State of the Environment Report on climate change impacts was withheld until after the May federal election. Terrorism-related imprisonment is kept secret, as is offshore incarceration of asylum seekers. The former PM’s secret ministries and National Cabinet(-in-secret) was a staggering example of undemocratic and unnecessary secrecy, as it was a boon to the fossil fuel sector.

In 1982, Australia became only the fourth country to enact Freedom of Information Laws. It was part of a set of integrated mutually supportive administrative law reforms that included an Ombudsman, the Administrative Appeals Tribunal (AAT), requirements on public servants to give reasons for their decisions and simplified judicial review of those decisions. The reforms constituted one of the best governance and accountability reforms enacted absent a scandal.

Unfortunately, that was as good as it got.

Other jurisdictions Introduced similar reforms and added new ones – like anti-corruption commissions and integrity commissions. There was also development in the scope and understanding of FOI. Rather than being seen as a mechanism for getting access to government information, reformers started talking about the right to information (RTI) or Right to Know (RTK). Indeed, government Information is increasingly recognised as the property of the people who ultimately authorised and paid for its collection which should, in most cases, be made publicly available on searchable websites. One needs a good argument to deny access by the people to their property!

There are some good arguments to deny access, especially individual privacy. But it is important that those arguments are applicable and applied by an independent authority. There are some very bad arguments for withholding information such as preventing public discovery that a minister or senior public servant was wrong, foolish, or unethical. The worst case of all is where information is withheld because it would indicate that a minister misled the people or their parliament.

Hiding the truth has become commonplace and is so often about protecting the vested interests of donors, political interests or both. Secrecy can hide corruption, embarrassment, maladministration and untoward deals. It harms trust in government and costs a lot of money.

We know almost nothing of the AUKUS deal other than it takes us even closer to whatever war the US may be contemplating and may cost the earth, literally. Going to war can and does bypass the Parliament with no justification required.

Half of all political party funds bypass the disclosure system altogether or donations are disclosed well after the election.

The Open Government Partnership is an international agreement that obliges member-democracies to tackle corruption, open up government information and engage the public in making policies.

Our progress has been poor. Many measures finally adopted by Australia in 2020 were laughably inconsequential: administrative arrangements between all governments to support collaboration; place-based approaches to public service; surveys of public awareness and data sharing.

The 2021 report on Australia’s open government performance was damning :

“….. the government’s focus since COVID-19 was on creating the third action plan, that discussion about the second plan was “very old news,” and “there was almost agreement that there was nothing more to say about NAP2 at the meetings as they were finished or nothing had happened”. Australia Transitional Results Report 2018-2020

In three years since the last plan finished, Australia has still not lodged the Third National Action Plan and parts of the first and second plan have not been delivered.

Establishment of the National Anti-Corruption Commission late last year and strengthening whistleblower protection both lifted Australia’s game. Pay secrecy came to an end this month, hopefully leading to an end to the gender pay gap (currently women’s’ wages 18% below men’s).

Mark Dreyfus has renewed Australia’s commitment to the OGP refreshing the membership of the Open Government Forum with equal numbers of senior public servants and civil society members to co-create integrity and accountability reforms (Dr Kate Auty is civil society Co-Chair.) in the progression toward the development of the Third National Action Plan.

This forum is part of a call to the public to become involved in its development.

OPEN GOVERNMENT FORUM: Tuesday 18 April, 5.30 pm, Sanjay Pradhan, international CEO of Open Government Partnership will join a panel discussion on Australia’s OGP progress. All are welcome to this free event. See here for registration.

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