A court-ordered release of the Pezzullo report is a win for transparency – but it exposes a deeper culture of secrecy and institutional failure.

Good government won despite the Albanese government losing a court case recently. Given the money and the effort that it put into losing its case, and given Albanese’s own appalling record on Freedom of Information (FOI), it would be grotesque if bureaucrats and politicians claimed virtue or victory from the outcome. But the ordinary member of the public, and, probably, the ordinary public servant might think that the cause of government in the sunshine scored a significant victory.

In one sense, the government can hardly be too unhappy with the decision. The publication of the Pezzullo report operates to discredit the opposition, not the government. If there was any principle involved in trying to keep the report secret (and I doubt that was the case) the government can say that it fought the good fight, putting all the arguments made by a decision-maker disposed to refuse access come what may. And lost. Can’t say they did not try.

Of course there was a tremendous waste of public money involved, and the public service Commissioner, Gordon de Brouwer – improperly as it turned out – deferred or delayed putting the report into the hands of a public lawfully entitled to it, as we now know. And litigation is to continue on some still-redacted parts of the report (which I expect, the commissioner will lose – or deserves to lose, but maybe after securing even more delay). And the commission is still using reasoning of the same rejected type to deny access to information about some of the public servants lightly tapped on the finger over Robodebt. Whose names, and alleged sins, are not available, because the commissioner believes their right to privacy is more important than the public’s right to know. And presumably, we should simply accept the commissioner’s feeling, now reinforced by a secret report from a secret inquiry, that all is well within his system of management.

Of course, the commission’s resistance has probably been bolstered by ministers in the government, including Canberra’s own little champion of open and transparent government, Katy Gallagher. She wouldn’t be providing the lead, with Anthony Albanese the implacable standard bearer of the cause to chuck out the FOI Act altogether. He, and his tame and weak Attorney-General, Michelle Rowland, have formally abandoned legislation reducing the FOI Act to mulch, but their agenda hasn’t shifted. I am beginning to wonder if Katy deserves to be the subject of a campaign at the next senate election for her studied disinterest in good, decent and honest government. It will only be by giving Albanese a bit of a fright about his senate numbers that he will be weaned away from compulsive secrecy, non-consultation, patronage, privileged access, jobs and favours for cronies and donors. On the good and honest government front, this lot is no better than the Morrison government.

Rex Patrick dives into the FOI action

The person putting the government to account, not for the first time, is former senator and former submariner Rex Patrick. He is a loss to the senate, where he was an active participant in a host of important debates, but also in keeping the government on its toes, through the estimates process and FOI. Though he has fields of interest including submarines and defence generally, he has been one of those parliamentarians who cares about the legislature as an institution, particularly in holding the executive government to account.

He has fought several significant FOI actions, if not so much for partisan advantage as to establish important points of principle in relation to a citizen’s right to know what ministers are doing. Among these are cases on getting access to ministerial diaries, and the public’s right to know about which lobbyists are getting to the ear of the government, and for whose interests.

These are important matters particularly with a government (note here Katy) so committed to doing the absolute least to be accountable for the remarkable access that insiders get into this government. The Commonwealth has some of the weakest lobbying legislation in Australia, and in the world.

The case involved the former secretary of Home Affairs, Mike Pezzullo, who was sacked by the Albanese government for misconduct and breaches of public service codes two years ago. This followed, first, the Nine media group’s getting access to about 1400 emails passing between Pezzullo and a Liberal Party operative with the ear of prime ministers, first Malcolm Turnbull, and later Scott Morrisson. The emails showed that Pezzullo was using this back channel to lobby the government on policy, to bucket and praise various ministers, and to lobby on matters affecting his own career and where he might be in future.

Far from being the detached and professional public servant he had pretended to be, the correspondence showed him to be politically partisan, to be pushing party partisan outcomes on policy matters, including bagging various ministers and bureaucratic colleagues.

Some of his advocacy was for the government to adhere to its tough and cruel Operation Sovereign Borders policy, which was administered by his own department, and which Pezzullo feared might be watered down if the department was under the control of some weak or moderate minister. A tough right winger, probably the continuation of the reign of Peter Dutton, that would be best. Meanwhile some other ministers, including the deputy prime minister, Julie Bishop were hopeless and weak, according to some of the 700 or so WhatsApp or Signal representations coming to the Liberal scout, who, it appears passed them on to the prime minister.

That Pezzullo had such opinions would not have come as a surprise either to his colleagues, or to various ministers, or to the journalists he cultivated. He was never one to hide his light under a bushel. Even at regular meetings of departmental secretaries, Pezzullo was given to dominating the conversation, hectoring other (including more senior) departmental secretaries, and scorning the contributions of others. Martin Parkinson, secretary of Prime Minister and Cabinet, and the effective chairman of this august assembly, was frequently treated with open contempt, though I am not sure whether Pezzullo ever told him to his face, as he conveyed to Turnbull and Morrisson that Parkinson was “not up to the job”.

Pezzullo’s sins manifest, but no surprise

Indeed, Pezzullo indicated that he would be willing, if called upon, to take over in PM&C, though it would not be his preference. He wanted Defence, or, if the government was willing to listen to his preference for complete shake-up of departments, leading to only about five or six departments, a combined department of defence and home affairs, having complete dominance over national security and public safety issues.

Pezzullo did not, so far as I am aware, use the word “woke” to dismiss the ability or capacity of public servants, such as Parkinson, whom he regarded as weak and not in his class. But it’s what he meant. Liberal moderates were almost by definition feeble, frail, spineless and ineffective. Such weak reeds were even more of a menace in these terrible times with war imminent, the national security state needing to gear itself up for a War Plan involving mass detentions for those of suspect loyalty (as judged by people of his ilk), paedophiles on the loose, and disloyal public servants, and, probably ministers, leaking everywhere.

It emerged that Pezzullo had even arranged that his contact be awarded an $80,000 public service contract without the bother of calling for tenders. Nor with Pezzullo taking the trouble to declare his conflict of interest.

Indeed, Pezzullo was not one, usually, to deny facts alleged against him (which were obvious with the emails anyway). But what he did, vigorously was to contest whether his actions or his words should be interpreted as being improper. He always had a more innocent but unconvincing explanation, and, even after his argument that his sins were trivial was to be rejected, Pezzullo thought the ultimate penalty – the sack – manifestly excessive. It wasn’t.

Pezzullo is free to press his ideas, but it should be as an advocate not as someone pretending to be neutral and independent, and, as it turns out, not as one with an eye for his own interests. Such tendencies, as well as his management trait of being a bully who cannot abide alternative views, hamper the public service at all levels.

Indeed, during his efforts to inculcate himself near ministers or shadow ministers again, he has been given to dismissing as ridiculous, or at worst mild misjudgement, much of what he was found guilty of. And the sack was much too much for at worst minor transgressions.

He has continued in his publicity-gathering style, of forecasting dire developments in international affairs, of calling for urgent action to prepare ourselves for fates worse than death, and to try, mostly unsuccessfully so far, to insinuate himself in all manner of public debates. Murdoch provides him with a rostrum, of course. Once Pauline Hansen has established herself as alternative prime minister I expect that Pezzullo will be offering advice about repelling migrants, about high profile raids and about upgrading Border Force so that it as trigger happy and zealous for high-publicity high cruelty results as ICE in the United States.

When the correspondence came to light, his then (Labor) minister, Clare O’Neil stood Pezzullo aside and asked the Public Service Commissioner to organise an inquiry into whether misconduct could be inferred from the amazing cosiness which had developed. De Brouwer asked a former public service commissioner, Lynelle Briggs to conduct an inquiry and to make recommendations. Briggs found Pezzullo guilty of most (but not all) of the allegations and recommended that he be sacked. Albanese obliged, announcing it in a very coy media release which stated firmly that the Commissioner would not answer questions about the report or the enquiry.

One of the remaining pieces of the whole unhappy affair has been the Public Service Commission’s newfound devotion to total privacy for public service miscreants (including Pezzullo and those accused of Robodebt misbehaviour.) This is, apparently, because public servants who have done wrong and damaged the public interest should not be, like murderers, paedophiles and thieves, exposed to public shaming and a loss of the respect of their peers and the wider public.

The commission prefers the theory that a public service miscreant should be given the maximum possible chance of rehabilitation. Even after sacking, we do not want the adverse finding and penalty to hang over a head preventing the getting of work, or opportunities for jobs on boards, revolving door positions in the defence industry, and consultancies. Heaven forbid.

De Brouwer, who has stepped down as commissioner a year ahead of his term, was originally given to insisting that the Public Service Act gave him no choice whatsoever about imposing a blanket of secrecy over all proceedings. In fact, it is not what the Act says, and it is not what the Act intended. The board, as it now admits, has a discretion to give out information if it is in the public interest. Indeed, you can’t say that the presumption is against publicity when significant malfeasance has been demonstrated.

APSC failed the public as much as Pezzullo and the Robodebt public servants

But despite a damascene conversion to this point of view, there is now no evidence whatever of the commission’s lifting the veil in the two most prominent cases before it. If the circumstances of the widespread criminality, dereliction of duty and maltreatment of Australian welfare beneficiaries is not an important enough case to warrant public scrutiny, what is? If details of the charges and misbehaviour of Michael Pezzullo do not cross the threshold of being suitable matters of public exposure, what will?

It’s a problem like that being experienced by the National Anti-Corruption Commission, thanks to a late intervention (against Albanese’s election promises) that hearings and reports would be out in the open. Thanks to Albanese’s betrayal, as laundered by Mark Dreyfus, NACC legislation presumes closed hearings, but allows for public ones if it judges them in the public interest. The commission is now in the bind that it has spent so much time explaining why secrecy is best that a cynical public, which has already lost confidence in the Commissioners, doesn’t care much, doesn’t expect much and doesn’t believe a thing the chairman says.

The complete ineffectiveness of the organisation is not an unexpected design fault, but a piece of deliberate sabotage by the prime minister. It simply cannot be said that he has honoured an originally popular campaign promise. Like his retreat to secrecy, and his refusal to engage with the public over matters such as defence policy, he deserves to be hammered for it.

Down the track, the story of the resolution of Robodebt responsibility and the story of Pezzullo’s struggles with accountability will not focus on the individuals accused of poor performance. It will focus instead on the very poor performance of the institutions vested with the responsibility for preventing such things occurring, and for detecting and punishing it if it happens. The Public Service Commission failed the taxpayer no less badly than the public servants accused of breaking the public service code. Pity there’s no accountability for that.

Republished from The Canberra Times