How governments hide their activities

Jun 11, 2024
Parliament building in Canberra, Australia

Primary school students learn in their early days that accountability is a keystone of democracy. Not far into secondary school that reassuring notion is tempered as schoolies get to appreciate that for governments accountability equals political risk. It’s a pain in ministerial necks and should be kept within bounds sufficient to minimise electoral discomfort.

These forces do not always play out happily as is evident in the conduct of question time in the federal parliament. This, of course, is not accountability. It’s a juvenile farce demeaning its participants, short-changing citizens and corrupting political life.

Public servants are caught in the middle of the accountability tussle as they serve their ministers and submit themselves to questioning in the parliament. It’s an awkward business, especially when there’s a premium for ministers in evasion. It can be uncomfortable too if evidence given by officials drops ministers in the soup.

On occasions such dousings are pre-empted by governments prohibiting officials from answering questions by, for example, making claims of what once was known as “Crown privilege”, a concept now described in more republican terms as “public interest immunity.”
There was a famous case of prohibition in July 1975 when the Senate called several departmental secretaries before it to be quizzed about the Whitlam government’s unorthodox attempts to raise loans from overseas (known as “The Loans Affair”).

In the middle of 1975, the government was haemorrhaging like a stuck pig and the last thing it wanted was public servants increasing the flow by spilling their guts in the Senate. Therefore the secretaries were directed, in writing, to “decline to answer any questions addressed to you…and to decline to produce any documents, files or papers…”. They held the line although it didn’t do much good as a few months later the Governor-General infamously dismissed the government.

A subsequent investigation by the Joint Committee on the Parliamentary Committee System in 1976 on the futile questioning of departmental secretaries concluded that “neither House is likely to overcome the use of Crown privilege unless the government is prepared to release relevant information.” Quite so.

In the wake of all of this, interest revived in the question of whether there should be guidelines to help public servants appearing before parliamentary committees, a matter that had been booted around in the Menzies era. After much consultation, guidelines were approved by the government circa 1980. They have been amended every now and again mainly by additions and they now exist in a document titled “Government guidelines for official witnesses before Parliamentary Committees and related matters”. It’s a useful and wise 40 pager.

The Department of the Prime Minister and Cabinet (PM&C) is the custodian of the guidelines and from time to time it’s asked by other departments about how to answer the same or like questions that have been put to all or some of them. This experience has prompted PM&C in April this year to issue a further document on how departments might answer Senate Estimates questions on notice that have been asked of several departments.

While much of the April document is nose pickingly condescending, parts of it are more than an elaboration of the longstanding government guidelines for witnesses etc. A PM&C officer believes the document is consistent with the guidelines for witnesses; the Clerk of the Senate believes it’s contrary to them according to a claim recorded in Hansard.

Even with generous allowance it’s difficult to see how the PM&C April guidance fits with the government’s official witness guidelines. The Clerk of the Senate would seem to be on the money.

Principles in the government approved guidelines urge the “freest flow of information”, the provision of “readily available information” and requires MPs to be treated with “courtesy and respect.” They say that claims for the refusing to provide information because of costs should be referred to ministers.

Principles in the PM&C document say “refer to publicly available information, …provide only information required,…refer to previously tabled information or suggest another department be asked where appropriate.” It does not suggest any refusal to answer on grounds of cost should be referred to Ministers. Some of the 40 suggested pro forma responses to imagined questions are evasive to say the least.

The PM&C document seeks to constrict the “flow of information” and by referring MPs on to obscure sources, such as AusTender which is accessible as Fort Knox, citizens’ representatives in the Parliament are being given the run around.

Disconcertingly it emerged in recent estimates committee proceedings that the April document was approved by a Division Head in PM&C after consultation confined to the Prime Minister’s office. Thus the Government has permitted rules relating to critical and sensitive aspects of relations between Ministers and the Parliament to be determined by a subordinate official. And this from a Department once regarded as the fount of wisdom on proper governance. How long ago that now seems.

In the recent estimates committees the latest PM&C advice caused a deal of foot shuffling among departmental witnesses, and so it should have. The best thing that could happen would be for it to be withdrawn. If loss of face would not permit that, departments should ignore it and do their best to live up to the high sentiments in the longstanding government approved guidelines for witnesses encouraging the “freest flow of information.”

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