Abbott and Turnbull governments: same same or different on transparency, open gov?

The article below appears in "Criminalising The Truth Suppressing the Right to Know: The Report into the State of Press Freedom in Australia in 2016" (pdf p39) published on Friday by the Media Entertainment and Arts Alliance. An update of course is the government's decision announced in the Budget this week that it will not proceed with legislation to abolish the Office of Australian Information Commissioner.

There is plenty more of interest in the report-commend it to you!!

Little Intent behind the Promise

On the transparent, open and accountable government, front, it’s that familiar story six months into the Turnbull era. Hope and disappointment. 

On his first day in office hopes were raised when Prime Minister Turnbull said  we " need an open government, an open government that recognises that there is an enormous sum of wisdom both within our colleagues in this building and, of course, further afield. The statement reminded of the Liberal Party promise before the 2013 election to "restore accountability and improve transparency measures to be more accountable to you.” 

At the time of writing just ahead of the budget and the commencement of the real election campaign, there are still few markers of serious intent that the Federal government intends to put the dark Abbott days behind.

Dark days for transparency

As Prime Minister, Tony Abbott said nothing about the importance of open transparent and accountable government. The silence was a message in itself, suggesting his government was prepared to wear an obsession with secrecy as a badge of honour. Tone at the top in the Abbott government was set by Immigration Minister Morrison and his department - on water, on Manus, Nauru and in Canberra.

The preference for closed not open government was made clear in the 2014 Budget when Attorney General Brandis announced that the independent statutory office established in 2010 and charged with leading and advocating the cause for transparent, open government, was to be abolished.  In the meantime until Parliament passed the necessary legislation the budget for FOI  functions was reduced and no funds were allocated for information policy functions for the Office of Australian Information Commissioner.

Finance Minister Cormann spent two years publicly prevaricating about whether the government would follow Labor’s lead in May 2013 to join the Open Government Partnership,. The OGP is an international initiative involving over 60 governments to promote democratic reforms through improved transparency, open government, citizen engagement and use of technology. Prime Minister Abbott was not enthused about signing up to such a reform agenda.

Public servants, experts at reading between the lines, stood shoulder to shoulder  with ministers in the bunker. Almost universally, government agencies refused access to the incoming government briefs prepared for ministers in the new government, a complete about face from the trend in 2010 and 2013 to release significant parts of the briefs that informed debate and discussion about the state of the nation.

Public Service Commissioner John Lloyd went on the public record describing freedom of information laws as "very pernicious." Treasury Secretary John Fraser confirmed publicly that public servants don’t put candid advice down on paper, in his view because of freedom of information legislation. “It’s a pity” he said.

But it’s more than that: a raft of rules and guidance encourage written advice that is “frank, honest, timely and based on the best available evidence.”

FOI applicants came up with the usual mixed bag of results but too often experienced the runaround and encountered familiar brick-walls.

Ministers for example refused access to appointment diaries, claiming either the work involved in processing requests would divert their office from other duties, or that adverse consequences would follow disclosure.

 By late 2014 the Office of Australian Information Commissioner was defunded to the extent that it closed its Canberra office and operated with one commissioner not the three positions established by an act of parliament to carry out FOI, privacy and information policy functions. 

While acknowledging that some agencies ‘gamed’ the system the office undertook one own motion investigation into the way an agency dealt with its freedom of information responsibilities in the two years of the Abbott government.

A new era, same, same or different?

Against this backdrop and after six months in office and now in the lead up to what appears to be a certain July election, how goes the early Turnbull promise of open, transparent government?

Things were off to a promising start when the Prime Minister took ministerial responsibility for public data policy, Gov 2.0 and related matters, and appointed a Minister Assisting for Digital Transformation. We have been talking seriously since about freeing up access to government data sets to promote economic and social development, with an occasional reference to how more, better published government data could improve transparency and accountability as well.

The Productivity Commission has been asked to undertake a12-month public inquiry to investigate ways to improve the availability and use of public and private sector data.

As Gov 2.0 is “the use of technology to encourage a more open, transparent and engaging form of government, where the public has a greater role in forming policy and has improved access to government information" the intersection with Freedom of Information and the Office of Australian Information Commissioner is obvious.

Responsibility for those areas remains with the Attorney General. To date there are no encouraging indications of new directions there.

Thirty (Correction: 18) months after Attorney General Brandis introduced the bill to abolish the Office of Australian Information Commissioner into the Senate, a bill never brought of for debate because there is no majority in favour, the bill has disappeared only because parliament was prorogued on 15 April and no move was made on the two sitting days since to reintroduce it. That may be the end of this drawn out saga but so far the Attorney General isn’t saying.
 
The statutory review of the Freedom of information Act completed by Dr Allan Hawke in early 2013 has hardly been mentioned since the Coalition government was elected. Hawke recommended a comprehensive review of the kind he was unable to undertake. 
 
Senior public service leaders continue to talk down right to information with no hint that ministers bring them into line. Public Service Commissioner Lloyd when quizzed in a Senate Committee hearing in February on his “very pernicious” remark replied "My view is that the FOI laws have extended beyond perhaps what I understood to be the original intention, which was particularly to allow our citizens to have access to information about their affairs that governments were holding…”

He seems unaware that the purpose and objects of the act are and have been since 1982 about open, transparent and accountable government.

Another former public service leader Dr Peter Shergold in a report for the government on lessons from the Pink Batts Royal Commission continued a campaign he has been running for years to argue for more watertight limitations on access to advice provided by the public service. Dr Shergold argues this is essential to ensure frank, candid written advice.

The Royal Commission in criticising the quality of advice provided by the public servants involved, made no mention of the need for added protections from disclosure.

Dr Shergold was supported publicly by the current head of the Prime Minister’s department Dr Martin Parkinson, sending another message sure to register throughout the public service. 

Allan Hawke the last person to look into this concluded no additional protections were warranted.

The Attorney General despite a number of opportunities provided during debate in the Senate has not sought to defend the government’s FOI record. Senator Brandis is appealing to the Federal Court of Australia a tribunal finding that refusal by his office to process an application for entries in his appointments diary for eight months in 2013-14 was not justified.

In November the Prime Minister wrote to the international secretariat of the Open Government Partnership advising that the Australian Government will finalise its membership by developing a two year plan of reform commitments consistent with the goals of the partnership. Those goals are to promote transparency, empower citizens, fight corruption, and harness new technologies to strengthen governance. The Prime Minister said the goals align with “Australia’s long and proud tradition of open and transparent government.”

 

The Prime Minister’s recommitment to the Open Government Partnership now comprising 68 other countries was followed by a consultation of sorts, led by his department about what should be included in the first two year national action plan. It’s been a low key affair thus far. Apart from his letter to the international secretariat the Prime Minister has not said anything publicly on the subject.  Neither has any minister or senior public service leader.

 

As a result public awareness of the opportunity the initiative presents to participate in developing reform proposals to democratic practices is very limited. 

There is also a gulf between what government agencies appear to think should be in the plan and the commitments suggested by the relatively few involved from outside government. High on their list are reforms to access to information law and practice, a national integrity commission, political donations, lobbying and whistleblower protection. Government officials prefer relatively minor suggestions within the confines of existing policy. Ministers are nowhere to be seen.

 

Final steps for concluding the plan are unclear but there are troubling signs that the concept of joint ownership inherent in the very idea of ‘partnership’ is not  well understood within government.

With a Cabinet sign off necessary, an OGP July deadline, and a caretaker period from mid-May likely to delay decisions that would commit a new government, Australia’s rediscovered open government ambitions may at best be deferred until after the election.

At worst, with the exception of public data, it could be that the Turnbull approach to transparency and accountability is same, same, not  all that different.

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 Peter Timmins is a lawyer who writes the Open and Shut Blog and is Convener of the Australian Open Government Partnership Network. Both MEAA and the Australian Press Council are members of the Network. www.opengovernment.org.au