Buried at Sea: The Loss of our Freedom to Access Governmental Information (Geoffrey Watson SC)

This is the penultimate post in the series on the 50th anniversary of the Kerr Report, cross-posted from the Australian Public Law blog.

In the 1970s Australia was poised to move ahead of the world in allowing access to government information. Just before the federal election in 1972 the Australian Labor Party promised legislation for that purpose – but Mr Whitlam faced a hostile Senate and could not get the legislation off the ground. Australia remained at the cutting edge in 1978 when a Freedom of Information Bill was finally introduced into the federal Parliament. At that time no other Westminster-style parliament had introduced such legislation. During his Second Reading Speech, Senator Durack described the need and purpose for such legislation as ‘simple’.

Well – not so simple. It took four years for the Bill to pass into law.

The spirit of the landmark Freedom of Information Act 1982 (Cth) (FOI Act) was really quite admirable, even inspiring. There are reasons for and explicit objects of the FOI Act:

• That the Australian community had a right to access to information held by the federal government.
  • That the purpose of the legislation was to enhance representative democracy, to encourage public participation, and to promote better-informed decision-making.
  • That the information would increase scrutiny, discussion, comment and review of the government’s activities.
  • And that government information of this kind was to be preserved because it was ‘a national resource’.

The Parliament agreed that the functions and powers given by the FOI Act were to be exercised ‘as far as possible’ to facilitate public access to information promptly and at the lowest cost.

All good and noble ideas. Openness and transparency in government decision-making is the foundation of good government. The reasons are obvious: in a liberal democracy the more the public knows the better informed it will be when it comes to select governments and members of government. Quite obviously, the more we know about the decision-making process the better: we are entitled to know why a particular course was pursued in preference to others; the potential consequences or unintended consequences of taking a particular course in preference to another; the comparative costs of deciding one way in preference to another way. I could go on.

Could anyone muster an argument to the contrary? Not really. Well, not an honest argument. That itself is part of the problem: those who seek to defeat access to government information never honestly address the arguments. They do so by other means. Those seeking to defeat freedom of access to information work from inside the system.

I am repeatedly asked what can be done to improve the legislative framework. My response is perhaps surprising – in my view very little needs to be done to improve the legislative framework: it was properly designed in 1982 and, if it was properly applied, it would work well today.

Our problem is not with the legislation – our problem lies with those who seek, on a day-to-day basis, to avoid and evade compliance with the legislation. The problem lies with our politicians and bureaucrats. Experience demonstrates that many decisions and the reasons given for decisions carry a political flavour – conforming to a political perception. Even where that is not the case, the decision-making demonstrates an overwhelming favouritism toward secrecy in preference to transparency. The default setting is for applications to be refused. The right to freedom of access to governmental decision-making has been compromised.

Politicians have always wished to keep matters as secretive as possible; so have bureaucrats, but never to the extent that we see now. Now the rules imposed by Freedom of Information legislation – state and federal – are routinely broken and ignored. The legislation provides timelines which are never obeyed. Those supplying answers to requests for information routinely claim exemptions which cannot be justified by a proper interpretation of the legislation. When a person seeking access challenges an adverse result they are confronted with skilled, government-funded legal opposition, with the potential for expense and delay. At a federal level the introduction of the Information Commissioner was supposed to speed up and cheapen the process – unfortunately it has had the opposite effect. If the Commonwealth loses before the Information Commissioner it routinely appeals to the Administrative Appeals Tribunal. Sometimes there is a third appeal to the Federal Court. But by the time the process is over usually three years will have passed, so that the issue which was once pressing and important has lost its sting.

And remember that litigation is expensive and stressful. Worthwhile litigation terminates in favour of the government when litigants wilt under the pressure.

And, so, the politicians win again. Victory by foul means. Obfuscation on the facts, false legal arguments, expense and delay – usually thought to be the necessary implements in the tool kit of an unmeritorious litigant.  

Sadly, the legislative and procedural framework under the FOI Act is now being used to obstruct or rights, not facilitate our right to information.

Who killed transparency – and when did they kill it?

You might ask yourself – when did things begin to change? When did governments begin to obstruct, rather than facilitate access to information?

I will tell you when I think transparency died in Australia. It had been unwell for months, but I believe I know the exact moment it died.

Transparency died on Friday, 8 November 2013. It happened at a media briefing called by the then Immigration Minister, Scott Morrison. The purpose of the briefing was to address issues arising from the controversial asylum seeker policy known as Operation Sovereign Borders. Sixty-three human beings had been rescued from a leaky boat. Nobody knew where they were or even if they remained alive. People wanted to know what had happened to these people. And the Press were asking questions.

A member of the Press asked a simple question – ‘What’s become of that boat of asylum seekers?’

The response was simple – we were told that no comment whatsoever would be made. It was a secret. It was a secret because it involved ‘On-water matters’.

‘On-water matters’. You will recall that was a standard, stonewall response in the months that followed. And the government got away with it. The words were repeated as a kind of chant and as though the description of an event as an ‘on-water-matter’ provided a true legal basis to resist transparency. There was a hint in those words that it may have something to do with national security – but that, of course, was never the case; no evidence was ever produced that there was some broader risk from those arriving by boat. The vague suggestion of a national security risk, especially back in those days, was suggested to provide a basis to resist product of documents or information whether under the FOI Act or under other mechanisms such as parliamentary question time. And once they got away with it they got a taste for it. That kind of secrecy has an alluring, addictive quality.

So there we have it – 8 November 2013 – the day that transparency died. Murdered, live on television, by the Abbott government. And as the title of my post suggests, its remains were buried at sea.

It is all downhill since 2013

Since 2013 we have seen an unprecedented attempt to keep government dealings and deliberative processes totally secret. This partly reflected with the problems under the federal FOI Act, but it is far more general than that – that same mindset has spread to the states. There is an overwhelming inclination towards secrecy. The ways and means of achieving secrecy have included targeted under-funding of the various accountability agencies.

A case in point: the federal Auditor-General. In the absence of a federal integrity agency, the Auditor-General has become the single most important federal accountability agency. The Auditor-General has exposed, time and again, genuine problems in government. Bear this in mind: we only know about the Leppington Triangle, Sports Rorts and Car Park Rorts because of the Auditor-General.

The Auditor-General has sufficient funding to conduct only 80 audits per annum. A government interested in improving decision-making would double the funding of the Auditor-General in the hope that it could double the exposure of bad, inefficient, or even corrupt transactions. By these means the Auditor-General pays for itself – it is a profit centre, not a drain upon our budget.

But what did the federal government do? In practical terms the government cut funding. The number of audits conducted each year will need to be reduced, not increased. The effect of this is that maladministration will not be revealed.

Case study – The Hawkei debacle

There are many examples of this, but I wish now to draw attention to one particular example because there is an ironic twist at the end.

In 2018 then Commonwealth Attorney-General, Christian Porter, deployed rarely used powers to suppress an Auditor-General’s report that criticised the purchase of a new combat vehicle, the Hawkei. The Hawkei was manufactured by the multinational arms giant, Thales.

The Auditor-General had investigated the project and made findings that the Hawkei did not provide value for money when compared with alternative vehicles. The criticism had nothing to do with national security, but it had the potential to embarrass the government.

Mr Porter ordered the Auditor-General’s report be suppressed. Thales joined into the fight, becoming an ally of the government in seeking to have the report suppressed.

The independent South Australian Senator, Rex Patrick, pursued the matter. He first made a simple FOI request; access was denied. Senator Patrick then appealed to the Information Commissioner; he won. Mr Porter appealed to the AAT; he lost.

And the ironic twist to which I referred? Think about this: a very large amount of public money was wasted trying to prevent information about the government wasting public money becoming public.

There is a lesson behind this: even though the government lost the battle, it won the war – you have probably never heard of the Hawkei incident because the delay meant the potential for embarrassment had passed.

Case study – When is a Cabinet not a Cabinet?

In these times the public has a genuine interest and a right to know what is going on with our governments and their handling of the pandemic.

One peak consultative group guiding the response to the pandemic is made up of the Prime Minister, the state Premiers and the First Ministers of the territories. No doubt, that is a generally good idea.

Even though the consultative group operates at a high level of seniority there are no reasons for the general deliberations of it to remain secret; to the contrary, there are good reasons that its deliberations should be open, considered publicly, and exposed to informed comment and criticism. That seems obvious.

The Prime Minister obstructed that. He sought to circumvent access to the information with a poorly-reasoned device: he just labelled the body as a ‘Cabinet’ – the ‘National Cabinet’.

When Senator Patrick sought production of documents through ordinary FOI processes, access was denied under a blanket claim that the documents were entitled to Cabinet-in-Confidence privilege under s 34(1)(b) of the FOI Act. The Information Commissioner declined to deal with the issue (but only after a considerable delay) and the matter was referred to a judicial member of the AAT.

In a strongly-worded judgment, White J rejected the evidence and legal arguments of the Secretary of the Department of Prime Minister and Cabinet. The claim that the group was a committee of federal Cabinet was rejected as contrary to authority, contrary to historical practice, and contrary to legal and political principle – Patrick v Secretary of PMC [2021] AATA 2719. It was not relevant to White J’s judgment, but it could be added that the whole idea was contrary to federation.

The larger question is to ask why the Prime Minister wished to resort to such a device. It was a crude device. The purpose is unclear. The participants do not need protection. The deliberations do not need protection. It seems more like an unprincipled attempt to keep things secret just for the sake of it.

That interpretation is confirmed by what happened next. The Prime Minister introduced legislation to overturn White J’s decision. That legislation is especially ill-thought through, and seems doomed to fail in the Senate. But that is not an end to it: it appears from answers recently provided on notice to a Senate Inquiry that access to documents emanating from the ‘National Cabinet’ are still subject to secrecy on the same legal basis which was impugned by White J. Recently other requests under the FOI Act have been rejected because it is suggested that since the decision of White J the evidence has changed.

Can this be reversed?

Of course, we could return to a more civilised approach to access to government information – it only requires the political will to do so. The way in which the process has been corrupted is largely the result of political choices – other political choices are available.

Geoffrey Watson SC is a barrister at New Chambers, Sydney. Mr Watson SC acted for Senator Rex Patrick in Patrick v Secretary of PMC [2021] AATA 2719.

This content has been updated on November 10, 2021 at 19:00.