BRUCE ARNOLD. Open Government, Open to interpretation

Dec 10, 2016

If we are indeed open to Open Government a salient demonstration would be facilitating Australian Human Rights Commission  access to what is happening on Australia’s behalf in offshore detention centres. That would be a fine national Christmas present from Turnbull, Dutton and Brandis, with or without tinsel.

Our new national commitment to Open Government is open to interpretation – and deserving a hard-headed appraisal – rather than careless celebration and mutual congratulation.

Yesterday’s Open Government Action Plan will be acclaimed by civil society advocates and commentators as a major step forward for Australia and as personal triumph for Prime Minister Turnbull. The Plan does indeed have benefits in advancing “transparency, accountability, public participation and technological innovation in Australia over the next two years”. After resistance by Tony Abbott, several of his ministers and leading bureaucrats we should be grateful that Australia is following its peers with a commitment to increase “confidence in the electoral system and political parties”, combat corporate crime, “digitally transform the delivery of government services” and foster “open contracting”. The Government promises to do more, much more, in the next iteration of the Plan, due in 2018.

Ignore for a moment the inconvenient fact that none of those ministers and bureaucrats have resiled from past claims about the “perniciousness” of Freedom of Information and the irrelevance of the Office of the Australian Information Commissioner.

Ignore the suspicion that the “ambitious package of 15 commitments” is just as much about bureaucratic turf wars – ‘open government’ as legitimising the ambitions of the Department of Finance – as it is about responsiveness on the part of politicians, officials and the increasingly pervasive private sector solution providers.

Ignore that many of what the Plan claims as achievements and building blocks for future development were contrary to openness. Scholars of Freedom of Information law, recurrently dismissed by Public Service Commissioner John Lloyd, may be bleakly amused to see the Hawke Report cited as evidence of the Government’s positive spirit. That report called for the winding back of access rights under the Act, in essence because they were administratively inconvenient.

Privacy scholars will raise an eyebrow when encountering the Action Plan’s reference to the Office of the Australian Information Commissioner, that timid watchdog whose continued existence is attributable to the inability of the Attorney-General to abolish the agency despite recurrent commitments to do so.

Ignore the window-dressing – some tinsel is after all expected at this time of year – such as reference to Trove. Readers without Open Government amnesia will recall that Trove, an unrivalled digital initiative accessible across Australia, was threatened in yet another round of National Library funding cuts. Historians may be similarly underwhelmed by boasts about the National Archives, which has faced cuts on a year by year basis. Open government means keeping the doors open and the lights on at the curatorial institutions, matters on which the Government has been parsimonious and which are not readily offset by faith in “open contracting” and the “digital delivery of government services”.

Ignore the context, something that is easy to do if you are relying on buzzwords about “digital transformation”, “technological innovation”, “discoverability” and the release of “high-value datasets”. Meaningful open government involves respect for figures such as Australian Human Rights Commissioner Gillian Triggs, who dared to ask inconvenient questions about government policies and their implementation in refugee facilities onshore and offshore. The disrespect shown by the Attorney-General to Triggs and to Solicitor General Gleeson should be concern to anyone who recognises the significance of statutory positions as mechanisms for independent advice, scrutiny and transparency.

Meaningful open government also involves a vigorous fourth estate, given that media organisations – unlike most individuals – have both the skills and resources to use open government tools such as FOI to identify and critique wrongdoing. It is significant for example that the Australian Broadcasting Corporation and Fairfax effectively exposed systematic wrongdoing in the finance sector, wrongdoing ignored by regulators such as APRA and ASIC. It is also significant that the ABC, amid ongoing financial stringency (another day, another program axed), continues to face threats to its independence.

The Action Plan is an achievement. Sadly, it is likely to be Prime Minister Turnbull’s greatest achievement, akin to John Howard’s leadership in the firearms buy-back. It is however less than a glass half-full. We should not take it at face value. There are no signs that the people who will put it into effect or interpret it into ineffectiveness have experienced a true conversion on the digital road to Damascus. The “new ongoing multi-stakeholder forum” is commendable but needs to be substantiated by action that goes beyond privatising “high-value datasets” such as health records. Less rhetoric, please, about transparency and more respect by mandarins such as Public Service Commissioner Lloyd for the spirit of the FOI Act.

If we are indeed open to Open Government a salient demonstration would be facilitating AHRC access to what is happening on Australia’s behalf in offshore detention centres. That would be a fine national Christmas present from Turnbull, Dutton and Brandis, with or without tinsel.

Bruce Arnold is Asst Professor, School of Law and Justice, University of Canberra. 

Government announcement on Open Government Partnership – Australia.

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