That culture change challenge

Crikey today gives prominence to a speech last week by Secretary of Prime Minister and Cabinet Terry Moran in which he endorsed remarks by his predecessor Dr Peter Shergold about the role of the public service concerning policy advice

"The public service, Dr Shergold said, provides ministers, that is the executive government, with frank, fearless and robust policy advice — and it does so in a confidential manner. I believe, as does Peter, that the confidentiality of advice is critical to our ability to be professional."

This overall was a small part of the Moran speech about challenges facing the public service, which also relevantly included comments about the need to put the citizen at the centre of service delivery, the wonders of the economic stimulus plan website, and the Government 2.0 Task Force which Moran (the nation's top public servant) says will among other things "advise on how to establish a public sector culture that favours openness."

The Shergold remarks were made in a panel discussion at the Adelaide Festival of Ideas, broadcast a week ago on Radio National's the National Interest. The quote above is accurate but Shergold added at the time that the Westminster system can only work when advice including options presented to government remains confidential. When challenged on this by former Senator Natasha Stott Despoja, Shergold said unless confidentiality was assured, he had fears about the strength of advice that would be offered, that he and others would write in different terms, and that oral rather than written advice would be offered in some circumstances.

All this is a rerun of arguments Shergold and others including Treasury Secretary Ken Henry (and many before both of them ) have been running for years. And often rejected by those responsible for independent review of decisions on access to information, for example in McKinnon and Secretary Department of Prime Minister and Cabinet (2007) AATA1969 . In that case a number of claims by Dr. Shergold that documents concerning government deliberations should not be disclosed in response to a Freedom of Information application on public interest grounds were rejected by the Deputy President of the Tribunal - that disclosure would reveal deliberations of senior public servants, would mean that proper records would not be created, and that frank and candid advice would not be offered.

These sorts of claims were similarly dismissed recently by Clerk of the Senate Harry Evans as grounds for refusal by ministers and public servants to respond to questions in parliamentary committee hearings.

I'm sure Moran and Shergold know that advice to government (other than in the context of cabinet deliberations) has had no guarantee of confidentiality since the FOI Act came into force in 1982. It is only protected where disclosure would be contrary to the public interest. The Government's proposed Freedom of Information Reform Bill- or at least the draft, Moran's department has carriage of the bill yet to be presented to parliament- will enhance prospects of disclosure where this would increase scrutiny and review of government activities, and inform debate on a matter of public importance. No one until now has suggested the need for more confidentiality.

Moran seems to be suggesting we go backwards rather than forward on this one. I don't contest the need for confidentiality in provision and consideration of advice and the weighing of options. But after decisions have been taken, good government in my view, would be enhanced by disclosure of the decision making process, the choices available and the arguments for and against, unless the sensitive nature of the issues at hand, and therefore the public interest demands otherwise.