We the people have a right to know.

Two issues largely treated as separate have got increasing attention in Australia this Millennium. The first is whether the activities of governments are sufficiently transparent, whether a lack of transparency breeds incompetence and corruption, and whether we need a federal ICAC. The second is about what used to be referred to as the Official Secrets Act.

Nobody likes to be questioned. Nobody likes to be put on the spot and to have to explain and justify. I was the CEO of two federal public sector organisations. I still tremble when I recall the day my phone rang, and an assertive, unmistakable voice said: “Laurie Oakes here. What I want to know is …”. Being on the public payroll, in charge of a controversial entity which was publicly funded, and – unless there was a good reason why I couldn’t answer his question – Oakes had every right to ask and to expect me to answer truthfully. (I did decide on the spot to get someone to screen my calls, so that I might at least have 30 seconds warning to collect my thoughts the next time Oakes called).

Fifteen months ago, our major media companies geared  themselves up as the Right to Know Coalition of Media Companies in response to very public raids by the AFP on Annika Smethurst and the ABC. The Right to Know Coalition issued a Magna Carta of demands for reform to protect public interest journalism. That didn’t seem to get very far, and there seems not to have been much follow-through by that Coalition.

Perhaps understandably, like the Magna Carta, the media demands were highly specific – such things as the right to contest application for warrants on journalists, journalists to be exempted from recently enacted national security laws, and defamation law reform.
Like the Barons who sued for the Magna Carta, the Coalition of Media Companies didn’t waste much effort in articulating a principled underpinning to their specific demands. It is appropriate to do so.

The phrase “speak truth to power” has gained currency recently. Demonstrably, Australian federal Governments have great power over members of the community. By Governments, I mean the whole panoply – from the Prime Minister and the Cabinet, to the various Departments, the AFP, the intelligence and security agencies, the armed forces, the Reserve Bank and all the statutory authorities and agencies which exercise executive power in Australia.

The Government spends a great chunk of the money that most of us earn thttp://www.ipaddressguide.com/homehrough our lives. It allows George Pell to go to Rome and Tony Abbott to London, while most people are stuck. It decides how the goodies in the Budget are distributed. It decides what land or water rights will be acquired and for how much. It decides that people coming to Australia under spousal visas should be required to speak English. It sets and enforces the rules around skilled worker visas, and citizenship.

The Government decides that we are not yet to have a federal anti-corruption body, although 85% of Australians want one. It will decide what the functions and powers of such a body will be, if we ever get one. It decides that most of the money set aside for local sporting clubs should go to clubs that were not at the top of the list by the objective judge. It decides whether you will get welfare benefits, and whether you will be penalised for some sin in relation to them. It decides to buy submarines and fighter aircraft that seem to be some of the most expensive lemons ever to reach the drawing boards.

It decided to pay hundreds of millions of dollars in kickbacks to Saddam Hussein’s regime in Iraq in exchange for lucrative wheat contracts. It then decided to go to war with Iraq on the basis of the dodgiest of “intelligence”. (Arguably that was the most negatively impactful decision that an Australian Government has made in my lifetime).
The Government decides to put tens of millions into foreign media companies, but to starve the ABC. It stacks the ABC Board and pressures it to sack journalist who are critical of the Government.

The Preamble to the United States Constitution begins “We the People”. Australia’s Constitution is much more prosaic, but there would be little argument in 2020 that the people are source of the powers which the Australian Constitution confers on Government. It is not God, or the Crown, or the Founding Fathers, or the Prime Minister or federal cabinet.

Often our leaders slip into a mode of talking as if that the money they dispense is their money. When you are in the power club, it is easy to think that the power is somehow divinely bestowed. Our leaders are mere trustees of that money and of those powers.

This thing that we call the Government does truly belong to us, the citizens of Australia. The power it exercises comes from us. We get to vote periodically to decide whether the political party in power should continue, or another one should replace it. We have occasional plebiscites and referenda. Opinion polls and other soundings help to shape what happens in between elections. The system is imperfect in reflecting the will of the people. In many countries, those mechanisms for gleaning the will of the people are supplemented by others citizens initiated referenda and direct democracy mechanisms.

It is inescapable that the people are the source of the power. It follows that we are entitled – within limits – to know what is being done in our name, and why it is being done.
Accordingly, when considering issues of transparency the starting point should be: why can’t this particular piece of information be made public. The real politic in Australia in 2020 is a very long way from that starting point. Governments have a mindset against disclosure.

Initiatives that have been put in place to increase transparency have been ruthlessly and systematically sabotaged. Freedom of Information is a prime example. But likewise, the Auditor-General’s Office, the Ombudsman and the office responsible for ensuring that Australia’s privacy laws are adhered to within Government are all starved of funds. To its credit, the Auditor-General’s Office continues to do great work with a reduced budget. Not so the others, in my experience and observation. Where are the counter forces against the decreasing effectiveness of FOI and the Ombudsman, and the increasing tendency to stamp everything with a security classification?

The greater the power, the greater the need for transparency. Over time, Government has grown in size and its powers have increased. With the exception of the odd breakthrough such as FOI and the Ombudsman, transparency has not kept pace.

On the other side of the ledger from transparency is secrecy. The case for secrecy is pretty obvious: loose lips sink ships! The standard response by advocates of secrecy is that there is an “unprecedented” threat facing Australia from hostile intelligence services. The head of ASIO repeated the mantra just last week.

In 2020 there is a much higher incidence of Government coming down hard on what I call alleged whistle-blowers than there has been in my long memory – David McBride, Richard Boyle, Witness K and Bernard Collaery to name the best known. Their cases do not seem to be about any national secrets which could remotely threaten our national security.

Very serious revelations have come out publicly as a result of unauthorised disclosures. It is an important adjunct to anti-corruption. And as a matter of principle, in a democracy the public needs to know what is being done by government.

The right to know has been more thoroughly explored in the US than in Australia. The US has had a robust and diverse media. Americans are prone to explore such issues through the courts, assisted by the primacy of the First Amendment right to freedom of speech. Even very recent foreign affairs events are explored in great detail in television and film documentaries, often with the actors playing themselves. In Australia, it seems as if the Archives’ 30 year rule is chiselled in stone so that virtually everyone who was involved is dead before any proper analysis is permitted. Of course, the quality of that analysis by then is so much the poorer with the dementia of the years.

If the US can survive the publication of the Pentagon Papers at the height of the Vietnam War, is it necessary for Australian laws to be so absolute that every unauthorised disclosure of any government information is a serious crime?

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Lawyer, formerly senior federal public servant (CEO Constitutional Commission, CEO Law Reform Commission, Department of PM&C, Protective Security Review and first Royal Commission on Intelligence and Security; High Court Associate (1971) ; partner of major law firms. Awarded Premier's Award (2018) and Law Institute of Victoria's President's Award for pro bono work (2005).

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