Category Archives: FREEDOM VOTING

Freedom warriors to be calling for reduced freedom

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Freedom of information goes to the heart of a healthy democracy, which is why we should be more concerned that the Federal Government is currently trying to reduce access, writes Mike Steketee.

Essentially, we are the freedom party. We stand for the freedoms which Australians have a right to expect and which governments have a duty to uphold. We stand for freedom and will be freedom’s bulwark against the encroachments of an unworthy and dishonourable government.

So said Tony Abbott in August 2012. Well, he was opposition leader at the time and he was addressing the Institute of Public Affairs, which styles itself as “the voice for freedom”.

But Abbott does offer it as one of his core beliefs and one that he has carried into government.

“From Menzies to Fraser to Howard and to the current government, the Liberal Party has been the party that gives more freedom,” he wrote in October this year on the occasion of the Liberal Party’s 70th anniversary.

Not, however, when it comes to draconian provisions in national security legislation, including jailing journalists for up to 10 years for disclosing information about anything deemed to be a special intelligence operation. Nor when it comes to freedom of information, where the Government is legislating for less freedom.

This is an area that, although receiving limited public attention, goes to the heart of a healthy democracy. Giving citizens access to government records, whether it covers personal or more general information, makes governments accountable and serves as a safeguard against wrong decisions and corruption.

Appropriately, if coincidentally, it was Scott Morrison – he of the “on water” matters not to be disclosed to the Australian public – who introduced the Freedom of Information Amendment (New Arrangements) Bill in the House of Representatives, representing Attorney-General Senator George Brandis. That was two weeks before Abbott’s October comments.

The legislation reverses the first real attempt, driven by Senator John Faulkner under the previous government, to make freedom of information law work properly. That was in 2010, almost four decades after the Whitlam government promised such a measure and almost three decades after the Fraser government implemented it – the delay a tribute to the skill of the public service in staving off such unpleasantness.

The new bill abolishes the Office of the Australian Information Commissioner, created as an independent position to foster a culture of open government and to review requests for government information denied by departments and agencies. The Attorney-General’s department, which certainly is not independent, takes over some of its functions. Reviews are sent back to the same government body that rejected the initial request, with the last resort an appeal to the Administrative Appeals Tribunal.

The Government’s justification is that it will save $10.2 million over four years and simplify and streamline FOI reviews. However most submissions to a Senate inquiry into the legislation were opposed to the changes, and argued that the savings were exaggerated or illusory because they did not take into account the additional cost of conducting reviews internally and through the AAT. Abolishing the Information Commissioner runs contrary to the trend in most of the Australian states and other countries, which have created similar independent offices.

The inquiry laid bare the government’s other intention: to reduce access to information. Reviews by the Information Commissioner cost nothing, whereas an appeal to the AAT incurs a fee of $861, plus the costs of legal advice and representation, given that government bodies almost always bring their lawyers to tribunal hearings.

Although there are provisions for concessions in cases of hardship, and all but $100 of the fee is refunded for successful applications, past experience suggests that most would be deterred from appealing to the AAT. David Solomon, who chaired an inquiry into the Queensland FOI Act, argued before the Senate inquiry that access to government was fundamental to democracy and that imposing the AAT fee therefore was akin to charging $861 to vote.

The government says the legislation restores the FOI system that operated before the creation of the Information Commissioner in 2010. And there’s the problem. As Solomon put it:

Once again the Australian people will have unnecessarily restricted access to government information and a complicated, legalistic, expensive system which defeats many people from even applying for access to information.

The stories of bureaucratic frustration of FOI requests make the efforts of Sir Humphrey Appleby look feeble. The traditional starting point for dealing with requests from the media or interest groups is to withhold as much information as possible.

Requests typically are denied for being too specific, too broad or covered by one or more of the long list of exemptions to the release of documents. If that is not a sufficient deterrent, then often a proposed bill of thousands of dollars for processing the request will do the trick. Particularly persistent applicants may eventually receive some documents, generally with anything embarrassing or even interesting blacked out.

Faulkner as special minister of state was a rare case of a politician going beyond the kneejerk reaction of governments to keep information secret. He invoked “a culture of openness where information ought to be made available unless it is against the public interest to do so”. The Information Commissioner would be a champion of freedom of information and drive cultural change throughout the public service, including through training and education. Even before the legislation was passed, Faulkner instructed public servants to “embrace a disposition towards disclosure”.

Yes, minister. The practice fell far short of these noble intentions. Public servants have invented any number of new ingenious ways to frustrate requests for information. Exorbitant charges have been applied for photocopying, even though the documents are available electronically. Arbitrary decisions have been made to exclude information that could be politically embarrassing, such as advice to ministers, even if it is not covered by a cabinet exemption. Some FOI requests have been denied even though the information already is available publicly.

Nevertheless, there have been signs of progress. A review of the 2010 legislation conducted by former federal departmental head Allan Hawke found “the recent reforms to be working well and having had a favourable impact in accordance with their intent”:

[They have] triggered a cultural change across the Australian public service, although there is still some way to go on this aspect. Further effort, driven from the top, will be required to embed a practice where compliance with the FOI Act is not simply perceived as a legal obligation but becomes an essential part of open and transparent government.

As for the Information Commissioner now being made redundant, Hawke described the creation of the position as “a very valuable and positive development in oversight and promotion of the FOI Act”.

Needless to say, this advice has been ignored by the Abbott Government.

All governments have an instinctive bias towards secrecy. If they can get away with it, it makes life more comfortable. What it sacrifices are a better informed public and better quality government. In that respect, New Zealand is streets ahead of Australia. Under its Official Information Act, cabinet documents are released as a matter of course once government decisions have been made. The legislation is framed broadly and operates on a presumption of disclosure, with relatively few exemptions. The bottom line is that much more information is released.

Canberra’s public servants recoil at the thought of such a system, claiming it would destroy their ability to give frank and fearless advice (although that already is a much diminished feature of modern bureaucracy). Some of their Kiwi counterparts have argued the opposite. As former New Zealand cabinet secretary Marie Shroff put it in 2005:

If I as a civil servant write a cabinet paper which I expect to be sought for public release, I am going to be extraordinarily careful to get my facts right, to avoid trespassing into politics, to give comprehensive reasons for and against a proposal, and to think very carefully about my recommendations. My advice will therefore be balanced, accurate and comprehensive.

The Abbott Government has not brought its FOI legislation back before the Senate in its final sitting days, apparently because it lacks Labor, Greens and crossbench support. In the spirit of openness for which this Government has rapidly built a reputation, my questions to Brandis’ office about its fate remain unanswered.

Perhaps, in the words of the Kris Kristofferson song, freedom’s just another word…

Mike Steketee is a freelance journalist. He was formerly a columnist and national affairs editor for The Australian. View his full profile here.

Henry Sapiecha