Senator Rex Patrick may have gone too far in personalising his criticism of Angie McKenzie but, as the delegate making the decision regarding his request for documents under the FOI Act, she has no right to anonymity.
Indeed, she is publicly accountable for her decision, which may be appealed. PM&C's rejoinder that attacks such a Senator Patrick's undermine public confidence in Australia's democratic institutions does not help: scrutiny of administrative decisions is central to our democracy as is open government and PM&C should be promoting understanding of these principles across the Australian Public Service.
Senator Patrick is in fact on strong grounds for questioning the decision. The AAT clearly and firmly found that the national cabinet is not a committee of the Commonwealth cabinet, and the Commonwealth has chosen (wisely in my view) not to appeal. So that decision stands as the law, at the very least for cases like those the AAT considered, unless and until the law is changed.
In these circumstances it is difficult to see how a public servant exercising the relevant delegated authority could find that the national cabinet is indeed a committee of the Commonwealth cabinet in another FOI case. If her reasoning is that the particularities of the new request are sufficiently different requiring a different assessment, she as delegate must explain why.
Senator Patrick accuses Ms McKenzie of being "politicised". It is unlawful for anyone - a minister or a superior officer in the department - to direct a delegate in exercising their authority.
If Ms McKenzie was pressured she had two choices: to make clear to her superiors (or minister) that she alone holds the delegated authority and will take the decision on the basis of her interpretation of the law in the circumstances before her, or to ask for her superior to take back the authority and take the decision themselves.
This is where "frank and fearless advice" really matters: standing up for the law and due process in the face of pressures from above (if there were such pressures).
The government has of course introduced into Parliament a bill to change the law. But that bill has not yet been passed and is subject to criticism from an array of legal, constitutional and public administration experts (myself included). Even if, as seems unlikely, the bill is passed, no doubt the courts will soon after be asked to interpret its application - how they might do so is anyone's guess.
A smart senior public servant cognisant of their legal responsibilities might not have attempted to rely upon the surely fallacious argument that the national cabinet is a committee of the Commonwealth cabinet but have drawn attention to other provisions in the FOI act, which might limit public access to some of the documents sought. For example, under s47B some documents could be "conditionally exempt" if disclosure "would, or could reasonably be expected to, cause damage to relations between the Commonwealth and a state".
Careful consideration along these lines might lead a delegate to the conclusion that it was not in the public interest to release some of the documents requested while endorsing release of others consistent with the act's open government objectives.
- Andrew Podger is an honorary professor of public policy at the ANU and a former senior public servant.