Comment

COMMENT

FOI laws are resented and resisted

John T D Wood, now presiding at the Clare Holland Hospice, has rendered the public interest, public safety, and accountability of politicians and bureaucrats a few services over a lifetime now drawing to a close. But I expect he will have had rare pleasure from his success in an important FOI case in recent weeks.

Wood is one of the fathers of freedom of information legislation. This was not least from his activism with the Rupert Public Interest movement during the 1970s. But he has also been a prominent local and national player in the development of consumer activism, on the one hand with the Australian Consumers Association and, at another time, as head of the Federal Bureau of Consumer Affairs.

Greens Senator Sarah Hanson-Young received a briefing from ACT Ombudsman Alan Asher, which cost him his job.
Greens Senator Sarah Hanson-Young received a briefing from ACT Ombudsman Alan Asher, which cost him his job. Photo: Alex Ellinghausen

At another stage Deputy Commonwealth Ombudsman and at others, in a lay capacity, president of the ACT Council of Social Service, or representing the public in public health, food, shareholder and public broadcasting forums, he's a citizen sort of guy. From another point of view, a busybody and public nuisance of the sort all communities need. A friend and ally was Ralph Nader.

Wood sought briefing documents going to then prime minister Julia Gillard about the circumstances surrounding the effectively forced resignation of the last Commonwealth and ACT Ombudsman, Alan Asher. Asher, finding his budget and his agency's effectiveness continually squeezed, not least by efficiency dividends, was foolish enough to get caught briefing Sarah Hanson-Young of the Australian Greens about his agency's dire straits, and to "suggest" some questions which might elect the facts during a Senate estimates hearing.

Gary Gray, Special Minister of State and as a successor in that position to John Faulkner known as the minister for accountability, got wind of this "heads-up" and was demanding blood for this species of treason. Given that Asher was also ACT Ombudsman, Andrew Barr obliged his federal colleagues by also putting in the boot.

Asher, whose major mistake was getting caught doing what any number of statutory heads do, ultimately resigned, to be replaced, over recent years, by Alan Neaves. No one would ever expect Neaves to be heard or seen secretly briefing politicians, or anyone. His name is to be found on Missing Persons Lists, and his complete silence on anything may, for all I know, be because he is in a witness protection program.

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With Labor and Coalition politicians united on the principle that it is best if public watchdogs do not bark or bite, the past six years have seen a major winding back of checks and balances in Commonwealth public administration. Anything that survives is facing slow strangulation, whether from diminished budgets or officials who have learnt that their message is unwanted.

Public Service Commissioner John Lloyd is campaigning against the FOI Act which he claims is inhibiting the flow of frank and fearless advice. Not from him, of course. Michael Thawley, outgoing secretary of Prime Minister and Cabinet, says that "unintended" use of FOI puts pressure on frank exchanges of trust between the public service and government and, hence, is a risk to good government.

What he means by "unintended" use of FOI is efforts by journalists and other observers and players in the political system to get accurate and timely information about what government, including public servants, are up to. This is in fact one of the central intentions of FOI, indeed being even ensconced in the act's lists of objectives.

It is quite true that many senior public servants believe the passage of FOI to have been a mistake and that they not only resent and resist its implications, but have rewritten the history and reasons for its development to reflect their point of view. But it was ever thus, and it is in part because senior public servants do not like to have it thought that they are publicly accountable for their stewardship that FOI was instituted.

The complaints of two of Tony Abbott's personal captain's picks for top public service jobs resemble some coming from Britain at the moment, or from Peter Walsh, a former Labor Minister for Finance about 30 years ago. FOI, such people say, might in principle be a good thing, but was now being "misused" by journalists, opposition politicians and lobbyists to "trawl" for information they could use to embarrass government. Too right. One of the spurs to good government is the fear that bad government might be exposed, and have negative consequences for those involved.

In any event, PM&C had any number of good and cogent reasons why its advice to Gillard and Gray should not be shown to Wood or Asher or the public. Its arguments very much impressed the FOI Commissioner and received his fairly usual rubber stamp. This does not greatly surprise me, because I could never be convinced that most of the quasi-judicial officers of the office of the Australian Information Commissioner were ever very much in favour of FOI or, in practice, very likely to cause disclosure to occur, at least within a reasonable period of time.

This is one of the reasons why lamentations about the effective closure of the OAIC by the Abbott government were fairly muted, with many people thinking the proposed alternative, sending appeals straight to the Administrative Appeals Tribunal, could only be better. Malcolm Turnbull seems to have indicated that the office might be re-established, but it will be any good only with better leadership, a completely different style, and a new approach to quick and cheap and correct decision-making.

One of the reasons why the AAT was expected to be better is a very good and effective deputy president in the person of Stephanie Forgie. In 1988 I was critical of her appointment, by Lionel Bowen, but I have since been regularly proven wrong in any imputation I may have cast about her ability or jurisprudence, particularly in FOI matters.

In the Wood case, as recounted by Chris Knaus earlier this week, Forgie acknowledged the usual self-serving tosh from senior public servants about how release of bureaucratic advice to ministers could forever imperil trust between politicians and their advisers.

"I accept the public service needs to be able to give totally frank advice to ministers," she said.

"I also accept that there will be occasions on which its officers need to do so on an understanding that their advice will be confidential. They need to be able to frame their advice freely rather than in the more guarded or careful terms in which a minister may address the same issue in public or a public servant may prepare an information document or press release on that issue.

"A minister needs to be confident that he or she can rely on advice given by his or her department and know that the advice has not been framed so carefully that, if released at the same time, it would not compromise what the minister chooses to say.

"The terms in which a minister addresses an issue on which the public service has advised and in relation to which he or she is accountable to the Parliament is a matter for the minister. Having acknowledged that, however, I do not accept that advice given on those occasions need always be kept confidential and out of the public eye.

"To reach that conclusion would run counter to the FOI Act itself which is based on every person's having a right of access … Whether a document has that outcome must be assessed at the time disclosure is considered. That may be some years after the preparation of the document and events surrounding its preparation may have changed.

"In this case, four years have passed since Mr Asher spoke with Senator Hanson-Young regarding matters relating to his office. Mr Asher has resigned as Ombudsman. Ms Gillard is no longer the Prime Minister. Mr [Ian] Watt is no longer secretary of PM&C. The only officer of PM&C who was involved in the preparation of the advice and who remains in PM&C is Ms [Philippa] Lynch. Senator Hanson-Young continues to be a Senator. The events have largely been aired in public.

"There may be historical interest in the events by the general public but I would go further and say that there is a public interest in knowing that the government generally, and the Prime Minister in particular, were given advice that explored the issues arising from a sensitive set of circumstances and gave comprehensive advice.

"It is difficult to see how disclosure of such advice some four years after the circumstances in which it was given will inhibit public servants in giving such comprehensive advice in future.

"Disclosure of the advice will also disclose the role that an impartial public service plays in Australia's system of responsible government but does so at a time when those at the heart of events leading to the preparation of that advice have moved on to other things and at a time when the issue has, for the Australian public generally, become a matter of historical interest."

It is not without interest that the interests of John Wood in the AAT litigation were being advanced by one Alan Asher. But it is also noteworthy that they were appealing a decision made by an agency then headed by Professor John McMillan, a former Ombudsman (and, now again an acting Ombudsman for NSW).

McMillan and Wood were the main civilian advocates for FOI back in the 1970s and, if not the Act's fathers, at least their DNA is all over it. It would not be true to suggest that they fell out. But their paths did seem to diverge.

A time came when McMillan, still at that stage an academic, began to have public doubts about whether the administrative reform package of the 1970s and early 1980s had gone "too far." He had reservations about the way that courts and tribunals, in running the rule over immigration decision, were developing a marked tendency to substitute their own view of the best decision. They should have been, he thought, deciding whether bureaucrats had applied the right processes and principles.

His doubts, if not apostasy, attracted the attention of politicians, and it would not be overly cynical for an outsider to think that it played a major role in a decision to offer him the position of Ombudsman in 2003. During his seven-year tenure, which included reappointment, the profile of the office dropped and no informed criticism emerged about immigration and refugee matters. This was not because of good immigration culture or administration but, seemingly, a lack of interest by the office or an incapacity to find facts.

Refugee issues were big news and soon major scandals, such as the Rau and Solon cases, emerged. Ironically, the independent outsiders then commissioned to get to the bottom of the mismanagement, had to be given the powers of the Ombudsman to do so.

To some, McMillan might have seemed a natural choice to be Information Commissioner when the Rudd government began reforming FOI and its appeal processes in 2008. But it would not have been for his management skills, combativeness or capacity to come quickly to a judgment.

The new office, quickly given about 100 staff, was supposed to adopt informal processes to promote a new culture of disclosure. It hardly worked out that way, becoming instead an embuggerance, with delay, bureaucracy and timorous process. Not only were routine cases waiting for more than a year for resolution, but the resolutions, when they came, were surprisingly conservative and anti-disclosure. I cannot think of a single outcome which might be thought to be some sort of signpost or beacon for an open government culture.

To this day, moreover, slow and ponderous agencies, such as Immigration and the AFP, claim to be following "best practice", as proclaimed by OAIC, to justify failures to consult other than through formal written channels. Likewise, with the use of speculative but extravagant and discouraging claims about how long it will take highly-paid public servants to determine whether a document is exempt. FOI is now being defeated by bluff and high appeal fees.

McMillan's predecessor in NSW, Bruce Barbour, became involved in an interminable inquiry into how one (Montague) faction of the NSW cops, which included commissioner Andrew Scipione and deputy commissioner Catherine Burn, began tapping the phones of more than 100 cops of the Capulet faction, including deputy commissioner Nick Kaldas, in a corruption inquiry.

Barbour's own inquiry methods, and tendency to jump into assorted rabbit burrows, have come under attack, and it is not clear that new eyes can undo all of the problems. If McMillan can see through the problem and come to a widely-accepted conclusion in a timely manner, with exemplary natural justice all round, he will have opened the way for fresh material on an extensive CV.

But I doubt it will match the notches, including the fresh one, on the barrel of his old colleague's pistol.