Thanks to the Leader of the Opposition, Ms Ley, the Government’s disgraceful attempt to squeeze the life out of the Freedom of Information (FoI) Act is as dead as a herring.

In an elegant note in The Canberra Times of 13 October in which Ms Ley fillets the Government’s attempt to narrow the scope of the FoI Act and says “The Opposition will stand firmly against these changes.” Thus, the Coalition and cross-benchers in the Senate are primed to flush the Government’s proposals away.

The Prime Minister had urged the non-government parties to “Engage constructively with this reform….because [it] is necessary if government is to function into the future.” Ms Ley’s principled leadership has put this absolutist Albanese twaddle right in the toilet.

How did it come to this?

Well those seeking to muzzle the FoI Act have, through a mixture of incompetence and slyness, undermined their cause.

Although the number of FoI requests has been more or less constant for a long time, some of the restrictions proposed reflect apprehensions of Minister Mark Butler that many FoI requests “are AI bot generated”. But when the Attorney-General’s Department officials were quizzed about this at recent Estimates Committees, the best they could say was that “some could have been supported by bots” and that “while it is difficult to be certain…an upward trend…in requests…appear to be from bots.” That’s not evidence, it’s speculation and it got on Ms Ley’s goat, she saying that such justification for restricting the FoI Act “is nothing more than a smokescreen.”

The Government wanted to include a list of new “factors against giving access” in the FoI Act. These were thought to be necessary to improve the quality of internal government and public service deliberation and better promote our old friend “frank and fearless advice.”

The Public Service Commission (PSC) waded into this swampy territory in a submission to the Senate Committee considering the FoI Amendment Bill. The submission harks back to a 2015 report by Dr Peter Shergold, a former Secretary of the Department of the Prime Minister and Cabinet, into, among other things, the Home Insulation Program (HIP), part of the Rudd Government’s response to the 2008 global financial crisis, and the Hanger Royal Commission on that Program.

The PSC approvingly quotes Shergold’s conclusion on the HIP and the associated Royal Commission that “the Commonwealth FoI laws now present a significant barrier to frank written advice.”

But just a minute, there’s nothing in the Hangar Royal Commission Report suggesting that the FoI Act had any effect on the deliberative processes and decisions on the HIP. Indeed, if the FoI Act had not existed, the HIP problems would not have been avoided because they were caused by a perceived need for haste, ministerial impatience and departmental inexperience.

Sure, Hanger complained about a “lack of candour in briefings to Minister Garrett” and the lack of comprehensiveness and documentation of advice but the section of his report headed “Frank and Fearless Advice” doesn’t mention the FoI Act. Rather Hanger alluded to another threat saying that “public servants might reasonably feel less able to give advice to Ministers who, if he or she finds it unpalatable, might take action that threatens that person’s employment.” Puzzlingly Dr Shergold and the current Public Service Commissioner, Dr de Brouwer, don’t buy that.

Shergold’s report didn’t put the claims about the alleged inhibiting effects of FoI to the test by, for example, examining a couple of hundred examples of written bits of policy advice to see if any defects could reasonably be related to the FoI Act. Nor, it would seem has the PSC taken the trouble to do so in its re-iteration of Shergold’s controversial conclusions.

Undaunted, the PSC’s submission to the Senate Committee goes on to say that the evil effects of FoI are evident in the findings of the Robodebt Royal Commission report. Are they? Is it conceivable that less disclosure might have made the Robodebt saga less likely? The fact is that this Royal Commission considered a wider exemption from deliberative documents but made no suggestions to do so.

In the more abstract, it doesn’t seem to occur to the PSC to consider how the remote prospects of officials’ policy advice to Ministers being disclosed under FoI would affect their motivation. What public servants would be pleased to be exposed as jelly-backs rather than purveyors of honest, comprehensive and wholly competent advice. That is to say, the FoI Act should be an incentive for better policy advice.

Dr de Brouwer provides no evidence in support of his improbable arguments about the damaging effects of FoI on policy deliberation and advising. His claims are a part of the “smokescreen” that’s offended Ms Ley and taken the FoI amendment Bill to the precipice. .

Prior to the introduction of the FoI Act in the 1970s, serious public servants like Sir William Cole and his colleague and supervisor, John Stone, were terribly apprehensive about the effects an FoI Act, even with generous exemptions from disclosure, would have on the quality of internal deliberations and advice to Ministers. After the Act came into force, these two stalwarts comprehensively showed that their apprehensions were unwarranted, as Drs Shergold and de Brouwer could establish by reading a selection of their advisings to Ministers.

The best thing, however, is that the Government’s FoI Amendment Bill appears to be headed for the scrapheap. Its authors and urgers should read Dr Shergold’s report which was titled “Learning from Failure” for in this case there are many lessons. Policy around such legislation should be developed with a better balance of the public interest and the interests of ministers and officials. If that were done, improvements to the FoI Act might be based more on solid evidence rather than self-serving speculation.