Leaks illustrate need for policy debate and resolution

Last week's leaks of a letter between ministerial colleagues, and the co-ordination comments from four major policy departments, on a cabinet submission on the FuelWatch program raised a number of issues.

The Australian Federal Police were called in to investigate; the Prime Minister said the public service was to blame for the departmental leak but in any event he favours policy contestability and debate about the issues; Matthew Moore in the Sydney Morning Herald wonders why we were surprised there were differing views within government about the proposal, but is concerned "(t)his is the moment bureaucrats and staff will whisper in ministerial ears that easing the FoI laws will lead to more advice becoming public and more troublesome stories about government splits"; and John McDonnell in The Australian says that if a public servant is behind this, a basic element in the trust relationship between ministers and public servants -never leak-has been broken.

It's not surprising that differences exist about the merits of a proposal under consideration by government, but it was surprising that we came to know about them in this case relatively soon after the decision was taken. Politically embarrassing leaks early in the life of a new government send shivers in a few directions.

We -the government, the media, the public-aren't used to this, don't usually get to see what goes on behind closed doors, in the interests of the government sounding decisive, wise and at one in choosing a particular course of action. If in announcing the decision to proceed with FuelWatch, the Government had indicated that expert opinion on the results for petrol prices was divided, even released a summary of what its advisers said, but concluded it held enough promise to go ahead, there would have been little room for subsequent embarrassing disclosure of differences in the ranks. Of course it would have been otherwise if the case for the proposal was threadbare. Maybe in that case the wise would not proceed.

Every organisation must have rules about who can disclose what about its internal workings , but given its role and the nature of the information it holds, special rules should apply to access to government information. We should be entitled to know through designated procedures(not leaks at the whim of someone in the system) what government knows unless some harm to essential public interests would result. Governments need thinking space to weigh advice and make a decision, then choose to act on the advice of this expert or that, or not at all, and to explain itself. However a government serious about transparency should not be trying to limit what we know about the views of its experts by locking the papers up for 30 years when they will be released into open access. Disclosure of the assessments of government advisers, no matter how this occurs, should not endanger the prospect of frank and candid advice in future. The Government should be demanding this sort of advice from its public servants on an ongoing basis.

Leakers are not necessarily whistleblowers who deserve sympathy or protection but not all leaks are matters of great national signifigance. Currently unauthorised disclosure of any fact or knowledge acquired in the course of duties by a federal government official is a one size fits all criminal offence under the Crimes Act, for which there is no public interest or other defence. Whistleblowers who act in accordance with established rules to bring to the attention of proper authorities, maladministration, corrupt conduct or the misuse of public money deserve special protection. In the event of an unauthorised public disclosure, the discloser should have an opportunity, in mitigation, to raise a claim of justification on defined public interest grounds.The NSW Protected Disclosures Act reflects this principle in a fashion, permitting disclosure to a journalist if no action has been taken six months after a matter was reported to a proper authority. And in the interests of us all, sensible shield laws are necessary to protect journalist sources.

Last week's leaks are a reminder we still have a long way to go in getting our laws in these areas sorted.