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Wednesday, May 27, 2009

Access to advice a lively issue in Estimates

Special Minister of State and Cabinet Secretary John Faulkner has been through the Senate Estimates Committee processes interminably over the years, and probably knows more about the subject than anyone other than soon to retire Clerk Harry Evans. In the Finance and Public Administration Committee (25/5/2009) Budget Estimates for the Department of Prime Minister and Cabinet on Monday however he came in for close questioning from WA Liberal Senator Mathias Cormann ( a drop-in on the session, who brought with him on appointment to the Senate in 2007 experience as an adviser to a WA Premier and to the former Federal Minister for Justice and Customs), about the circumstances in which ministers or public servants can refuse to provide information in response to questions.

Senator Cormann [84] asked whether PM&C had provided advice on the Alcopops issue (RTD excise)-46 times since May 2008, seven times since the Committee met in February was the response from the departmental official. Was any of this part of the cabinet deliberating process? "Advice to government" was the reply. Then with the request to table the advice, the exchanges started.

The Minister explained many times that the actual content of the advice would not be provided and "should not be provided to the committee. This is, as you know, a very longstanding convention of these committees. But what we are happy to provide for you and are doing so in a fulsome manner is the details around the processes leading to the provision of the advice."

To which Senator Cormann responded just as often along these lines:
"And you would be aware of the continuing order of the Senate that was passed last week that ministers and officers who refuse to provide information to Senate committees have actually got to raise a proper public interest immunity ground. Ms Cass has already said it was not part of Executive Council or cabinet deliberations. So which public interest ground are we talking about? Would it be a prejudice to the national security or the defence of Australia if we were provided with copies of that advice? Would it prejudice law enforcement investigations? Would it damage commercial interests? Would it be an unreasonable invasion of privacy? Would it prejudice Australia’s international relations perhaps? Which recognised public interest ground is the government relying on not to release the advice to government in relation to the ramifications and implications of the increased tax on RTDs?".
A little later:
"Senator Faulkner—I want to correct the record. I do not think Ms Cass said it was not part of cabinet deliberations.
Senator CORMANN—Yes, she did.

Senator Faulkner—This was advice to government which informed the government and informed the cabinet.

Senator CORMANN—They are two separate things. I asked very specifically: was it part of the cabinet deliberations or was it advice to government? Ms Cass said that it was advice to government. ‘Advice to government’ is not in itself a recognised public interest ground. I am sure, Minister, that you know that very well and I am sure that, as somebody who is a stickler for process and procedure in the Senate, you are very well across the issue I am raising.

Senator FAULKNER—I would like to think of myself as that, Senator, and as a stickler for consistency on these matters, too. I think my approach has been consistent, regardless of what side of the estimates table I have sat on, and it is consistent today. The process questions around this advice to government which informed a cabinet decision, I think, should be answered, if they are able to be answered, by ministers or officials; if we are not able to answer matters directly, we should take them on notice and provide an answer to the committee, which is precisely what we are doing. The content of advice to government, which of course is a very relevant matter in relation to the cabinet consideration, is something again on which I have taken this consistent view. I intend to maintain my consistency, regardless of on what side of the table I sit."

Senator Cormann then took the discussion to general principles:
"I am not necessarily arguing that the information or the advice should be provided. I am arguing and asking the department and the government to consider that if you decide not to provide that information then you have to properly claim public interest immunity on a recognised public interest ground and you have to provide a proper statement of reasons as to why not providing that information is in the public interest. That is entirely consistent with past practice, with past resolutions of the Senate. In fact, it is entirely consistent with the government’s own guidelines about officials giving evidence to parliamentary committees. I will leave it at that."
But that wasn't the end.The issue cropped up again with later references [94-96] to public interest immunity claims and Freedom of Information exemptions. Senator Faulkner found some comfort in the reference in the Senate Order to "material disclosing matters in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place in the course of, or for the purpose of, the deliberative processes involved in the functions of the Government where disclosure would be contrary to the public interest." He added:
"Obviously ministers have, for very many years, asserted that their obligations under the resolution is discharged by that particular part of the document. Senator, what I also went on to say, and I would commend this to you and other members of the committee, that I think the interpretation of this, for a very long period of time—as it is a longstanding document, as you would appreciate; I think it has now been in place for 20 years—is that the obligation remains on governments to provide as much process detail around these matters as they can. I think there has been a consistent view from both government and opposition, regardless of which party forms government and which party is in government or opposition, to accept that it is contrary to the public interest for advice to government prepared for the purposes of such deliberative purposes and input into cabinet and the like for those sorts of matters to be disclosed. Government ministers at the table have said that consistently for the past 20 years. What I am saying is that what has not been applied consistently is information around the process of the provision of advice. I certainly want to provide as much information to you as I can. But let the record at least stand—if we are going to talk about public interest immunity—of the full scope of that public interest immunity, which someone in reading the transcript might think it might be left at issues such as national security, defence, international relations or the like.

Senator CORMANN—Minister, I am very pleased that you have stated all of that for the record because it will enable people to review what is a proper process moving forward. You have read an extract from paragraph 2.32, but I would also point out to you that that particular section concludes with: It must be emphasised that the provisions of the FOI Act have no actual application as such to parliamentary inquiries, but are merely a general guide to the grounds on which a parliamentary inquiry may be asked not to press for particular information, and that the public interest in providing information to a parliamentary inquiry may override any particular ground for not disclosing information."
That was it for the moment at least.It will be interesting to see where the discussion goes from here. Cabinet documents are one thing, general advice another. A general claim of exemption for advice documents without citing compelling public interest considerations against disclosure would be unlikely to be sustained under FOI as it now stands. Under the new Reform proposals Minister Faulkner now has on the table, advice to a minister for the dominant purpose of briefing on a document to be submitted to cabinet would be exempt. Other advice will be subject to a test including consideration among other factors, of whether disclosure would increase scrutiny and review of government activities, and inform debate on a matter of public importance.

1 comment:

  1. Dear Peter,

    Thank you for your interest in the recent exchange between Senator Faulkner and myself during Senate Estimates. I was most interested in reading your account of that exchange, and like you I am keenly interested to see where the discussion will go from here.

    For the purposes of completenes and accuracy I thought I would draw your attention to a few relevant matters.

    Senator Faulkner was in fact quoting, not from the continuing order of the Senate, but from paragraph 2.32 of the government's guidelines for official witnesses before Parliamentary Committees (and selectively at that).

    A copy of these guidelines is available here:

    Senator Faulkner at the Committee also suggested that there is a long-standing practice of not revealing the content of advice to Ministers.

    I have since written to Senator Faulkner following up on our hearing on Monday to draw his attention to consistent advice by the Clerk of the Senate that there is no such long-standing practice.

    Advice to ministers is frequently disclosed. Among many other examples, you might recall the last estimates hearings when the Secretary of the Treasury and the Governor of the Reserve Bank answered questions about the advice they had provided to government on dealing with the global financial crisis. It is clear from this and from many other such examples over many years that the mere fact that information consists of advice to government is not a barrier to its disclosure in the course of a committee inquiry.

    Secondly, in relation to Senator Faulkner's selective quoting of paragraph 2.32 of the Government Guidelines for Public Service Witnesses - that provision does indeed indicate that material in the nature of advice relating to government deliberative processes may be withheld.

    However, Senator Faulkner omitted to note (or quote) the particular the effect of the proviso at the end of that paragraph: “where disclosure would be contrary to the public interest”.

    Those words are marked for emphasis in the original text of the guidelines.

    It is clear that the fact that information consists of advice is not in itself a ground for a public interest immunity claim, and that there must be a separate consideration of whether there is a public interest ground for not revealing the advice.

    Persistent misunderstanding about these two points has led to constant difficulties in Senate committee hearings in the past, and it is one of the aims of the continuing order of the Senate of 13 May 2009 on Public Interest Immunity Claims to overcome that misunderstanding.

    In very simple terms, the order of the Senate passed on 13 May 2009 requires that, if asked, a responsible Minister advance a recognised public interest ground and provide a statement with the reasons for not disclosing the particular advice which questions are being asked about.

    I have asked Senator Faulkner to reconsider the position he took at Monday’s hearing of the Finance and Public Administration Committee, in particular, given the evidence by the Officer that the advice had not been provided in the context of Cabinet deliberations, but appeared to be more in the nature of routine advice as is requested by Ministers from time to time.

    For those visitors to your blog with a particular interest in the matter I commend the debate between Senator Ludwig as Manager of Government Business and myself as mover of the motion in the Senate on 13 May, which can be accessed here:

    Thank you again for your interest in these important matters of government accountability.

    Kind regards

    Mathias Cormann
    Senator for Western Australia