TONY ABBOTT: This is very important Lyndal, because you know, our system depends on public servants being able to give free, frank and fearless advice to government and that means the advice has got to remain confidential.
And what we've got here is a desperate Prime Minister trashing the Westminster system in an attempt to hold onto power.
LYNDAL CURTIS: So you don't want that information released?
TONY ABBOTT: Well if, if, if the most confidential public service advice can be casually released just to help this government to hang onto power, I mean they are trashing the Westminster system in a desperate attempt to hold onto power...The conventions are there for a reason, they are there because if you are going to have efficient and effective government the public service has got to be able to give confidential advice...Now you just can't have this advice strewn around like confetti because you have a desperate government desperately trying to cling to power and in the process trashing the Westminster conventions. But what cannot happen, you cannot have the frank and fearless advice of the public service prejudiced by releasing it to people for whom it was never intended. I mean this completely undermines and compromises our whole system of government
And on it went as the Opposition leader on ABC radio AM this morning contributed to the big stakes argy bargy involved in seeking the numbers to govern. The independents have published seven points for the two main parties to consider before formal talks. The Opposition is resisting one demand, for Treasury costings of both party campaign policy commitments as Mr Abbott continues to refuse to give the over the full details because he claims Treasury's integrity was brought into question, as a result of a leak of one policy costing during the campaign. PDF posted by News Ltd: the full request for information
But on the issue of the centrality of confidentiality of advice to the future of the Westminster system, Mr Abbott is talking like some public servants, ironically Treasury Secretary Ken Henry, and head of the Prime Minister's department Terry Moran rather than a politician or someone who knows the legislative framework within which government is supposed to operate.
For almost 30 years, the law when issues of access to public service advice under the Freedom of Information Act arise, is that a document is only confidential when disclosure would be contrary to the public interest. Documents that consist purely of factual material don't even qualify for exemption anyway. A costing of policy proposals sounds pretty close to that mark. It's what might be more appropriately called an expert opinion that could or should be made available to the independents and the public generally in the public interest in these circumstances. The dangers of disclosure to "frank and candid" advice in future in any event are highly contested and the subject of different decisions in the courts and tribunals, with a long list of sceptics on the bench.
Minister Ludwig had this to say on the subject in August last year, in response to concerns about what changes to the FOI act to take effect in November will bring:
"I know that some in the Australian Public Service feel that FOI reforms may inhibit their ability to provide frank and fearless advice. But I believe that the tradition of frank and fearless advice is more robust than that. I believe that our public servants will work professionally within the new FOI framework as they do within other accountability mechanisms. It is beyond dispute that it is in the public interest for ministers to receive written advice on matters relating to their administrative and policy responsibilities. In any given case, whether or not the exemption may be sustained will depend on the subject matter of the document and the circumstances around the Government’s consideration of the document, including whether a Government position has been announced. Political sensitivity will not be an argument against disclosure."
Even Treasury released parts of the incoming government briefing book in February 2008, including the bit that warned, in their opinion, that some of the Government's proposed reforms to FOI laws would endanger the quality of policy advice.
Queensland's much vaunted RTI act is unique in that it includes an absolute exemption for 10 years for information brought into existence to brief an incoming Minister about the department.