Frank and fearless safe after all

Opposition leader Abbott's concerns about the flow of frank and fearless public service advice as some sort of reason for not co-operating with Treasury to allow a costing of policies for the independents lasted 24 hours before this backflip: about 12 hours longer than the earlier reasons given, that Treasury couldn't be trusted, or wouldn't be able to understand how to go about accurate costings of Opposition policy commitments

Abbott's earlier concerns about frank and fearless had the strong support of Shadow Finance spokesman Robb who took it to another level, arguing that the public service briefs prepared before the election warranted state secret status, if a public service 'down tools" was to be avoided:

''The red and blue books are fundamental to successful transition to government, and that's another important plank of convention in the way in which our government runs,'' he said. ''That material is based on frank and fearless … advice by the public service, and if they thought that could become public knowledge, they would not conduct that sort of assessment again.''

The Herald Sun quoted Professor John Williams, a University of Adelaide law professor,  supporting this line: ''If the public service knew their full and frank advice would be made public, they may not give it,'' he said.

As pointed out here on Friday, if we were looking at a hypothetical Freedom of Information issue, public servants know that since the introduction of the act in 1982, documents of this kind are potentially subject to disclosure unless contrary to the public interest.  As to the red and blue books, that post reminded that the Treasury itself - not regarded as at the leading edge when it comes to disclosure - released parts of its incoming minister's brief in 2007, in response to an application by Michael McKinnon.

As to concern about the impact of disclosure on advice in the future, the issue is whether the threat to frank and fearless is a relevant factor in determining the public interest, and what weight should be attached to this, as against other considerations that favour disclosure in the public interest. If Treasury's costings have the potential to influence a decision about who governs, the public interest in disclosure would seem strong.

The argument about the relevance and weight of frank and fearless has been going on since 1985 when the President of the Administrative AppealsTribunal, Justice Davies in Re Howard and Treasurer of Commonwealth of Australia (1985) 7 ALD 626 (yes that John Howard) acknowledged in a list of factors ruled to be relevant that disclosure which will inhibit frankness and candour in future pre-decisional communications was likely to be contrary to the public interest. But he added that evidence was needed to support such a claim. (Just about all the other public interest factors listed in that decision, again the subject of much judicial conjecture since, will be legislated out of action in FOI amendments that take effect in November.)

Justices Callinan and Hayne in the High Court in McKinnon's case breathed some oxygen into the argument, saying it was something that couldn't be ruled out. But in a subsequent McKinnon case, Deputy President Forgie rejected the argument advanced by the Prime Minister's Department saying there was no evidence to support it. In the course of her decision she noted [122] - APS =Australian Public Service:

The APS Value set out in s 10(1)(f) of the Public Service Act is concerned with the responsiveness of the APS to provide frank honest, comprehensive, accurate and timely advice and in implementing the government’s policies and programmes. It is a Value that complements the Value set out in s 10(1)(a) to be an apolitical service. It is intended to “... ensure that governments have a comprehensive view of issues and access to a full range of options on which to make decisions.”

Deputy President Forgie went on to refer to the Australian Public Service Guide [123] (one of its indicators whether an agency is reflecting the Value in practice is "The agency has a culture that supports the provision of frank  and  fearless  advice), the Australian National Audit Office guidance [124], the relevant Australian Standard [125], and Chief Executive instructions issued to the APS by then head of the Prime Minister's Department on record keeping [128] as all supporting the obligation on public servants to provide written, frank and comprehensive advice to ministers on key issues. But she remained open to evidence to the contrary.

The duty doesn't sit well with claims by Abbott and Robb that public servants won't continue to do what they are tasked to do if the product is to become known to the independents, or heaven forbid, public knowledge

Come 1 November with the commencement of amendments to the FOI act, a new equation tilted even more firmly in the direction of disclosure will apply, including a consideration in favour of disclosure where this would "inform debate on a matter of public importance." Frank and fearless will still be required. Potential public scrutiny should keep them even more honest.