The principle of responsibility - to the electorate and the parliament - is a vital one which must be maintained and strengthened because it is the basis of popular control over the direction of government and the destiny of the nation ... people and parliament must have the knowledge to pass judgement on the government ... Too much secrecy inhibits people’s capacity to judge the government’s performance.
The words of former Prime Minister Malcolm Fraser, whose government introduced the Freedom of Information Act 1982, were referenced in a number of submissions to this inquiry. As Isabelle Reinecke of Grata Fund noted, the disparity between this objective and the current reality ‘sums up pretty neatly what our fundamental concern is of how the system seems to have drifted from its original intention’.
The Morrison Government is the most secretive Australian government in history and has presided over persistent efforts to undermine transparency. Geoffrey Watson SC told the committee that the Freedom of Information (FOI) Act 1982 has ‘become a tool of obstruction’, Grata Fund and The Australia Institute described the system as ‘broken’, and Peter Timmins, a veteran user of an FOI system he agrees is not working as it should, noted that ‘tone at the top always matters’.
It is clear that the FOI system needs to be strengthened, properly resourced, and implemented consistently with its objectives. Yet, the COAG Legislation Amendment Bill 2021 (the Bill) goes, once again, in the opposite direction and would hide many more documents from scrutiny for up to thirty years. This is a government determined to make it harder for citizens to access the information needed to understand and judge government decision making.
It is difficult to understand how anyone who listened to the evidence given to this inquiry could support the blanket confidentiality this Bill seeks to give to all National Cabinet documents. Various highly credible experts panned the government’s proposal as ‘untenable’, ‘completely unnecessary’, incompatible with democratic principles, ‘highly dangerous to the rule of law’, and ‘frankly, bizarre’.
National Cabinet is not a Cabinet
The decisions of Justice White in Patrick v Secretary, Department of Prime Minister and Cabinet set out in clear and unassailable detail that National Cabinet is not an arm of Federal Cabinet, and cannot rely on the Cabinet confidentiality exemption. Members of National Cabinet are not bound by a principle of Cabinet solidarity or unity, nor are they accountable to the Federal Cabinet or Federal constituents.
Rather than accept that greater transparency of National Cabinet documents was required, or appeal against Justice White’s decision, the government introduced the COAG Legislation Amendment Bill to overrule the outcome and entrench a ‘legal fiction’.
The Department of Prime Minister and Cabinet maintained that the Bill seeks to ‘simply confirm the government's intention that national cabinet was established as a committee of cabinet’. The Chair’s report on this Bill uses the same line, saying that the Bill gives effect to the ‘intention that National Cabinet was to operate with the same confidentiality protections as a Committee of Cabinet.’
But, as many other submitters pointed out, calling a dog a cat does not make it a cat, and simply saying something is necessary does not make it so. Professor Zifcak concluded:
National cabinet's characterisation as a committee of the cabinet has only one purpose, one political purpose, and that is to throw a cloak of secrecy over national cabinet's deliberations, decisions and documentation.
The Australian Human Rights Commission dismissed any suggestion that transparency was achieved by the Prime Minister releasing a summary of outcomes following National Cabinet meetings:
It is no answer to this to say that the government has adopted a current practice of providing a summary of national cabinet decisions to the public. This discretionary disclosure of information is no substitute for a right to seek and receive information.
Australians have a right to know how decisions that affect their lives are made. The Australian Greens will not support laws that detract from that basic democratic principle.
Existing provisions are adequate
In making the case for the Bill, the Department of the Prime Minister and Cabinet emphasised the statement from Premiers and Chief Ministers confidentiality is essential to full and frank discussion, but could not point to any examples of the current laws preventing such discussion.
Grata Fund confirmed that, despite extensive research, they had not been able to find any evidence that members of COAG had raised concerns that the FOI provisions covering COAG restricted frank conversation. In an opinion piece in the Canberra Times, former senior public servant Paddy Gourlay was even more frank:
The claims by Minister Tudge and PM&C about the prerequisites for "full and frank discussion" are disingenuous. The disclosure "loophole" the COAG Legislation Amendment Bill seeks to close has quite evidently had no effect on full and frank discussion among members of the national cabinet. Just about every day its members are at one another's throats in public in ways that give fullness and frankness vivid expression.
Other commentators have noted that any decline in frank and fearless discussion is more attributable to the government’s hollowing out of the public service and over-reliance on consultants paid to tell the government what it wants to hear.
The unjustified extension of cabinet confidentiality to a body that is so patently not a cabinet has no friends outside the Department of Prime Minister and Cabinet. Submitters considered that existing exemptions were sufficient to prevent inappropriate disclosure of Federal-State negotiations or matters affecting national security.
In the view of the Information Commissioner,
[T]he existing provisions in the FOI Act provide an adequate framework to balance the need, in appropriate circumstances, to maintain the confidentiality of opinions, advice, recommendations and deliberations that occur as part of government decision making – including by National Cabinet – with the public’s interest in and right to access government-held information.
Scope of the cloak of secrecy
While not supporting any extension of the Cabinet exemption, submitters were particularly wary of the very broad extension proposed by Schedule 3 of the Bill.
Both Grata Fund and Professor Twomey expressed concern at the scope of decisions that would be cloaked in secrecy by extending ‘Cabinet confidentiality’ to the amorphous National Cabinet structure, including any future sub-committees. Grata Fund said:
At this stage we know that [decisions] could concern things like housing, taxation, ageing and health care. But, of course, there could be all kinds of other decision and portfolio areas that are added in the future as the national cabinet—which is itself not a creature of statute—continues to expand. And so one of the major concerns that we hold is that we aren't yet sure what kinds of decisions might be hidden from view, but the reality is they will be very extensive.
The Morrison government eagerly relied on cabinet secrecy to hide information about its abysmal vaccination rollout, the shambolic national quarantine program, pandering to fossil fuel donors with the gas-led recovery, and decisions of the women’s safety taskforce. The expansive and undefined remit of National Cabinet’s work underscores how important it is that the work be subject to appropriate transparency.
Ignoring Justice White’s rebuke and actually extending confidentiality to a range of currently unknown committees, potentially comprised of public servants, business appointees, donors, or other interested parties will result in what Professor Twomey described as ‘a cascading level of nonresponsibility...the further you go down the food chain, the less and less and less it makes any sense at all.’ Outsourcing of advice informing committee decisions further diminishes accountability.
Compounding this lack of scrutiny, the Bill also proposes to limit the powers of oversight agencies like the Australian Commission of Law Enforcement Integrity, the Commonwealth Ombudsman, Australian Human Rights Commission and presumably, if it ever sees the light of day, the Commonwealth Integrity Commission, and to remove protections for public sector whistleblowers exposing National Cabinet decisions. The Australian Human Rights Commission, which has seen a significant increase in complaints during the pandemic, noted that the Bill could restrict access to information and undermine its ability to interrogate complaints about government decision-making in relation to COVID, including in relation to travel caps, bans and vaccination requirements.
The Information Commissioner, who was not consulted by the government on this Bill, is also concerned that the Bill will lead to ‘a diminution of Australians’ access to information rights’. That concern is shared by the Australia’s Right to Know coalition of media organisations, who believe the proposed changes will ‘effectively shut down the public’s right to know about a significantly expanded range of matters that affect all Australians’.
Advice from the Clerk of the Senate confirms the risk that the Bill would also limit the Senate’s access to information:
Given that the bill seeks to extend the FOI exemption to documents of the National Cabinet, it seems likely that the passage of the bill would lead to officials – and possibly ministers – purporting to invoke the extended statutory protection as a reason to withhold information sought by the Senate and its committees, rather than making properly-formulated public interest immunity claims.
Conclusion
As Peter Timmins noted, tone at the top matters. A government that encourages secrecy is not acting in the public interest.
Hiding from scrutiny may make decision makers more comfortable. But political convenience and the desire to avoid embarrassment are not valid reasons for secrecy and cannot override the public interest in understanding how decisions are made.
Dr Ken Coghill told the Committee that it is ‘just about impossible’ to reconcile this Bill with the commitments the government signed up to in the Open Government Partnership and urged the government to live up to those commitments:
Either you are in favour of open government and you reflect that in your legislation or you're not and you don't.
In its response to questions on notice, the Department of Prime Minister and Cabinet advised that an updated Open Government Partnership national action plan is under consideration by the government and no assessment has been made of the Bill against OGP commitments.
Public confidence in government is at an all time low, at a time when public trust has never been more important. The evidence from all submitters other than the government is clear: Schedule 3 of the Bill undermines the fundamental pillars of democracy - truth, transparency, accountability. It must be rejected.
The government’s support for this Bill in the face of the evidence presented to the inquiry is inexplicable, but not unexpected. Their aversion to transparency needs to end to restore public confidence in democracy and accountability.
Recommendation
That Schedule 3 of this Bill not be passed.
Recommendation
That the new FOI Commissioner review all guidelines to ensure FOI officers adopt a pro-disclosure approach to assessing applications.
Recommendation
That the government finalise, publish and implement the Open Government Partnership third National Action Plan.
Senator Larissa Waters
Greens Senator for Queensland