Of particular interest are the commissioner's observations about public service advice (Chapter 14) in light of the decisions about the need for confidentiality in the advice process by the Australian Information Commissioner, and agency FOI knock backs I have seen since arguing refusal of access is necessary if public servants are to retain the trust of ministers and in order to ensure frank, comprehensive advice is forthcoming in future:
- senior managers failed to provide candid advice to Ministers including briefings to Minister Garrett (14.3.2);
- if "frank, honest, comprehensive, accurate and timely advice of the kind referred to in section 10(1)(f) of the Public Service Act had been given at key junctures", there is little doubt the tragedies that occurred would have been avoided (14.3.4);
- in a section on frank and fearless advice in the context of the public service today (14.6) a call for the Australian Public Service "to reinvigorate its willingness to provide in writing advice that is as frank and robust as the advice it is willing to give verbally. This requires cultural change of two kinds:22.214.171.124-senior officials and Ministers being aware they are entitled to act contrary to advice. The fact they received advice contrary to the way in which they act is no necessary or automatic basis to impugn the decision. 126.96.36.199- public servants giving advice must be encouraged to think clearly, to free themselves as much as possible from institutional biases and taboos and to have courage when giving advice."
While there is nothing in the report that supports the line of current thinking in some Canberra circles that advice must be protected under FOI from the glare of the public spotlight even after the thinking/deciding stage has passed, that potential FOI disclosure poses a threat to frank and candid, and that stronger FOI protections are required if public servants are to do their job properly, I'm sure those who argue this case will try to use this case study to effect somehow.
The Commissioner (1.3) also comments on issues concerning the conduct of the inquiry, none of which are flattering to the government or the public service:
- over reach on public interest immunity claims that were advanced in a slow and cumbersome manner ;
- gaps in his powers for example to compel the production of a statement by a potential witness (despite a recommendation never acted upon, from the ALRC four years ago), and constraints on current and past public servants arising from section 70 of the Crimes Act (the ALRC recommended five years ago repeal of the current draconian 'unauthorised disclosure' provision and a replacement based on identifiable harm - that also hasn't been heard of since);
- conduct by the Commonwealth and public servants that hampered his work including a failure initially to locate a large number (tens of thousands) of emails; that 'current public servants were not entirely forthcoming with the Commission as none volunteered any information, many had no recollection of important events and none was prepared to contradict another; that with very few exceptions public servant witnesses chose not to make submissions and "extraordinarily" the Commonwealth chose not to make submissions when invited to do so.
- the Commonwealth did not suggest one witness that should be called and produced documents piecemeal and haphazardly in 147 tranches. In commenting on the inadequacies of the government document management system the Commissioner notes that mysteriously 100,000 documents were produced towards the end of public hearings that were said to "not form part of the established filing system."
Look forward to his wisdom in due course.