Only shame can make integrity guardians do their duty

Jun 18, 2024
The national flag flutters on the Parliament House.

A predisposition to secrecy still handicaps integrity in Australian government.

The many who feel that the National Anti-Corruption Commission (NACC) made a very serious error of judgment in deciding not to pursue a reference from the Robodebt Royal Commission will feel somewhat relieved that the NACC Inspector, Gail Furness, SC, will be holding an inquiry into the matter. But the inspector is not a court of appeal and cannot tell the commission to do its duty.

An adverse report, or a similar one from the parliamentary committee standing over the NACC, could shame the commission into changing its mind. That would involve reversing itself on the reasons it gave for deciding not to hold an inquiry into the references, and starting all over again, preferably under one of the assistant commissioners not part of the majority against any inquiry at all.

Judges feeling pressure to conduct an inquiry they initially, publicly, did not want to do, are up to facing a perception that they have no enthusiasm for their task. Confidence in the process and in the thoroughness of any investigation is critical. If NACC arrogance and pride stands in the way, the whole show, or at least its senior commissioners, should be discarded as not up to the task. The commission has already seriously damaged confidence in its judgment, and there is no certainty that it can be shamed into reversing itself.

The necessity of doing so is underscored by the commission’s complete misapprehension of why the matter had been referred to it, and the error of its impression that it was being asked to re-investigate known facts, rather than to take the royal commission’s investigations further. Catherine Holmes, who conducted the royal commission, with more skill than the NACC has so far demonstrated did not have a brief to investigate corruption.

The intended purpose for a NACC inspector is to investigate allegations that the NACC has gone too far, not complaints that it has not gone far enough. It will be the natural repository of claims that people were denied natural justice, or a fair go, while being investigated. Even if the investigation takes place in complete secrecy with no public report unless or until any subsequent legal proceedings are over, one can still expect lots of complaints from those whose conduct is under scrutiny. Their model for resisting any form of scrutiny whatever will probably be drawn from public service commission explanations of why no public servant should ever be identified with misconduct.

Don’t count on Labor having any zest for a serious inquiry. NACC inaction is a precedent they will savour.

I shouldn’t be surprised if the present government stands aloof from any complaints, whether made publicly, or privately, or by proper channels or through lobbying networks and the old mates act. Labor is, of course, deeply opposed to official corruption. But its predisposition to investigate and expose it is primarily a political one. It involves calculations about the risk of political damage to ministers, party officials and friends of the government. It also involves considering whether mud sticks, whether there will be collateral damage from perceptions that the government moved too slowly or failed to perceive the bleeding obvious. That’s quite apart from the fact that some conduct, looked at in some ways, may embrace the NACC’s wide definition or corruption while being regarded by some of those in government as political cunning.

An example of this might come from the Albanese government’s handling of FOI requests. Various government departments, and even some ministers are given to completely spurious claims of exemptions from the FOI Act, and the use of devices and systemic weaknesses in the system to delay disclosure beyond a time when the material is embarrassing or useful. Some of this, if a body like the NACC were to investigate it, is capable of being called corruption. If it were, those fronting the NACC would be just as likely to be departmental secretaries rather than junior heads of FOI sections, if only because policies of resistance are usually obvious and embrace agency management. Ministers and their minders are just as vulnerable to a body such as the NACC, able (unlike parliamentary committees or other inquisitors) to demand answers to questions, to treat those who play games as being in contempt, and, ultimately, to refer criminal charges for the Director of Public Prosecutions.

Any citizen can complain to the Information Commissioner to make a complaint about the handling of their FOI request. I can attest, from bitter experience, that this is a complete waste of time, even when a complaint is upheld. Complaints, for example, are subject to delays of up to four years to process, during which there will usually be no progress in processing the original FOI request. My experience is that over this period, up to half a dozen (mostly part-time) officers will be dealing with the complaint, but that their manner of doing so involves being the letter box through which correspondence between the parties occurs.

They may listen, and devote time to understanding the point, but they remain completely neutral, merely putting your arguments to them and their arguments to you. One never gets the impression they are on your side, or even on the side of disclosure. Generally, it takes about three months between interchanges, none punctuated by interim rulings, or pressure applied to the recalcitrant.

One can appeal, of course. The higher one goes (and the more one pays for the privilege, the better the chance of success. By then many have dropped out, because agency tactics have made disclosure too late to have any value, or because the process has become too tedious.

There’s a guidebook for avoiding and delaying FOI accountability. It works.

A number of agencies begin with inverted rights, parsing every word in a request for reasons why the request should be – must be, they will insist — rejected. Out will come arguments that all identifying material and all contact material must be excluded, on the basis that any accountability or exposure to scrutiny for official acts as a public servant is injurious to privacy. Muscles are stretched by insistence that any request, big or small, must be reduced in size and scope, or rejected out of hand. One can fight this, but that is only to delay processing. Requests will be made, usually on the last day that the legislation permits, for extensions of time, even when there is evidence of complete inaction until the last moment.

Fantastic suggestions will be made about the time and energy required to answer an FOI request, leading to refusal because of an unreasonable diversion of resources. I once asked the FOI branch of the then department of Human Services (when under the management of Catherine Campbell), for copies of correspondence in her office dealing with criticisms I had made of her Robodebt administration. The agency initially claimed it would have to examine every letter arriving at the department over a particular period. It also demanded money up front, even though the time for levying fees had passed. Knowing from my exasperation that I planned to make complaints about the efforts they were making to spin out the request, they determined not to sign correspondence, or later (when “advised” this was wrong, to sign them with first names only.

It took five years or more to get a ruling – essentially in my favour – but the senior representative of the Information Commissioner’s office thought, on the basis of an early FOI judgment I think was plain wrong – that the “better view” was that agency was entitled to deal with the request as though it had been received yesterday.

It is quite true that the Information Commissioner reverses many decisions, even if it takes years before appeals are processed. The commissioner is entitled to argue that the reason for the delays has been that Tony Abbott, when prime minister, stripped the office of resources, and they have not been restored. Yet many of the delays are caused by the procedures adopted by the office, and the failure of the commissioner to use inquisitorial powers to issue peremptory directions, to push matters along when it is clear that the Act is being abused, and to deal with the major resistant departments such as the AFP, Prime Ministers and Home Affairs. As it is, many agencies are laughing at the commissioner, and do not much care if they lose cases if they have secured delays long enough to make information valueless.

Conscious cheating on “Cabinet in confidence” claims.

In 2010, John Faulkner put up amendments to the FOI Act which had the effect of tightly reining in the capacity to claim that documents were exempt as being “cabinet” documents. The exemptions were supposed to protect Cabinet discussion and decisions, but progressively claims were made that documents were exempt if they were said to have been prepared for Cabinet, or be drafts of material for Cabinet, even when the documents disclosed nothing about the Cabinet discussion, or the decision made.

After lobbying ceaselessly but unsuccessfully against the amendments. PM&C decided to act as though the amendments should be interpreted as PM&C wanted them to be, rather than as they were. Last week a full court of the Australian Federal Court handed down a decision seriously winding back the PM&C interpretation and insisting that it be interpreted narrowly. Contrary to what will be claimed it does not undermine Cabinet secrecy: it merely limits the array of documents having nothing directly to do with Cabinet argument and decision making, able to be kept secret.

If the Commonwealth wants to appeal, it will have to go to the High Court. Or to put up further amendments having the effect of creating greater secrecy. I doubt that the senate would approve such amendments. Cynics will note that the material being sought – with production strongly resisted by senior counsel for Service Australia – involved material going to the expenditure review committee and cabinet at the beginning of the infamous Robodebt affair. Much of the material had emerged during the royal commission, but that did not prevent the fight to avoid disclosure.

The case was argued by Tom Brennan, SC, acting for Justin Warren, an IT expert who first lodged his request 7 ½ years ago. The information in question has the capacity to touch the involvement in the Robodebt case – probably the most expensive public administration fiasco since federation — of Scott Morrison. It is close to the centre of the matter that NACC would have been investigating, had it a mind to. Along the way the NACC might have had the opportunity to consider not only the past and present approach of agencies to transparency and accountability, but the incidental roles of PM&C, Finance and the Attorney-General’s department, and a number of ministers, in seeking to conceal the scandal. If it could bother itself to ask the obvious questions It could hardly fail to find that this resistance was systemic rather than mere aberration, and that the motivation, or covering up conduct described by Catherine Holmes as crude and cruel, and in clear breach of social security law, was deliberate.

The scheme was “devised without regard to social security law … in a manner that was essentially unfair, treating many people as though they had received income when in fact they had not.” The bureaucratic and political architects and administrators of the scheme were accused of “obliviousness to, or worse, callous disregard of the fact that welfare recipients had neither the means nor the ability to negotiate an online system” to satisfy the requirements of a reversed onus of proof.

Holmes, in a sealed report, made recommendations in relation to seven people, six public servants. The sealed report detailed evidence going beyond her brief as royal commissioner, raising issues of possible corruption. Other public servants had their matters sent to the public service commission, for investigation into whether they had breached public service codes of conduct. As things stand, it is difficult to work out whether it is the Public Service Commissioner or the NACC which has made the bigger botch of its job.

It is certainly not true, as has been suggested, that the PSC is prohibited by law, or privacy considerations, from telling the public about whose conduct has been found wanting, and what penalties (all the way up to dismissal) have been imposed. The Act makes it quite clear that the commissioner can disclose what happened if he judges it as being in the public interest. The refusal to disclose information about Mike Pezzullo or those accused of Robodebt misbehaviour represents a value choice by the commissioner, Gordon de Brouwer, not a requirement of the law.

A predisposition to secrecy still handicaps integrity in Australian government.

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