Pearls and Irritations

Accountability only works if information about government is readily available. And who doesn’t believe in accountability, at least in theory?

While opposition political parties are ardent about freedom of information laws, for governments they’re a pain in the neck.
More than with most other aspects of government, where you sit is where you are most likely to stand.

In the early 1970s, the ALP in opposition promised a Freedom of Information Act. But when the Whitlam government’s attempts to raise loans overseas through unorthodox means turned sour, the promised legislation didn’t show up and an interdepartmental committee working on it was put to sleep. In some ways it didn’t matter because the Department of the Treasury was leaking information at a rate that meant the opposition political parties knew at least as much about the so-called “Loans Affair” as the government. Accountability was being enforced by illegal means.

Still there have been a few bright spots.

In 1982, the Fraser government got the first Freedom of Information Act through the Parliament, even though that government was on its last legs and mired in detonating scandals. It was a tribute to Fraser’s sometimes stubborn adherence to principle and the policy advocacy of group of officials in the Attorney-General’s Department, especially Lindsay Curtis. Indeed, while the Ombudsman had been established by Whitlam, Fraser with the help of Curtis and others dramatically altered the government and public administration framework with the FoI Act, the Administrative Decisions (Judicial Review) Act and legislation to create the Administrative Appeals Tribunal.

Now government information was presumed to be available unless a case could be made for the exemption of its disclosure, the prerogative writs were largely superseded and a range of government decisions could be reviewed on their merits.

With the notable exception of former Senator John Faulkner who strengthened the FoI Act when he was a Minister, all governments since Fraser’s have sought to thwart it because of its potential to make them more accountable and therefore more politically vulnerable.

The Morrison government brought FoI to a new low when the Department of the Prime Minister and Cabinet was flogged to within a millimetre of its life by the Administrative Appeals Tribunal for its refusal to disclose to former Senator Rex Patrick harmless documents from the National Cabinet. There’s no evidence things have improved under the Albanese government. Indeed, Patrick says that “Albanese hasn’t even tried to exceed Morrison’s low bar” and that the Prime Minister is “a secrecy wolf wearing transparency sheep’s clothing. That’s worse than being an overt fan of opaqueness.”

To underline the point, the Attorney-General, Mr Dreyfus has been quick to knock on the head a modest suggestion from the Robodebt Royal Commission for a modification to the blanket exemption of Cabinet documents from disclosure. That is, the Government wouldn’t want to lessen the chance to run documents through Cabinet to get protection from disclosure, while fake claims of privacy and commercial-in-confidence and laughable estimates of work required to prevent citizens from embarrassing ministers remain “the order of the day”.

Patrick says that under the existing system an appeal to the Information Commissioner against the denial of an FoI application would not be heard until 2027.

In this unedifying environment, the Senate Legal Constitutional Affairs Committee has recently produced a report on the FoI Act. True to longstanding form, the opposition members of the Committee have come up with thoroughly worthwhile suggestions to help get the better working of the Act, while the government members led by Senator Nita Green have loyally registered their dissent. Patrick says that on this basis Green should “go far”.

The Committee’s cogent majority report covers organisation, procedural and resourcing matters.

It has fifteen recommendations of which one of the most significant is to “separate out the FoI review and regulatory functions from the Office of the Australian Information Commissioner and relocate the FoI Commissioner to the office of the Commonwealth Ombudsman.” The majority report sees “potential synergies” and the prospects of “sharing services” in such a move, and that’s likely to be so.

The dissenting report from the government Senators is predictable and unconvincing. It contains pro forma declarations of commitment to openness and boasting about Whitlam’s advocacy of FoI although doesn’t remind its readers that Fraser brought the Act in. It rightly criticises the depredations of Coalition governments but doesn’t reflect on the ALP’s unsaintly record. It then says that the “recommendations of the majority report fail to reflect the Liberal Party’s longstanding attempts to weaken freedom of information in Australia, including through the elimination of the FoI Commissioner.”

In fact, the majority report is highly critical of the present working of the FoI Act and the ways in which its administration has been keep on light rations; the implications of these criticisms for Coalition governments are plain and unavoidable. Moreover, it does not recommend “the elimination of the FoI Commissioner” but the relocation of that office to a place where it is more likely to be better supported and where its resourcing should be able to be more soundly protected.

Yet for all the merits of the majority report’s recommendations about structures, processes and resourcing, it is right to say that “if the culture is not right….the FoI system will not operate as intended.” And the culture is insidious because governments and ministers are ever nervous about how disclosures of information, no matter how innocent, may cause trouble, especially in an era when the managing of day-to-day politics in an often irresponsible modern media too often dominates all else. It’s no wonder the FoI system has clammed up to the point where getting hold of documents can seem like trying to pull out the stubbornest of molars.

Here changing laws and structures can only do so much to change culture. The imperative is for ministers and governments to realise that their evasions on access to information and accountability are very often likely to be more politically damaging than fessing up and making a clean breast of it.

Until that happy day it’s odds-on the Government will adopt the dissenting report of government Senators to do not much and the FoI Act will continue to be a mockery of itself.

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