Transparency during the crisis, business as usual?

The full extent of how the COVID 19 crisis is impacting on transparency and accountability at the federal or state level is unknowable to us outsiders-maybe information commissioners could have a look and tell us, warts and all ? But what you can glean from the public record suggests the longstanding attachment, in Canberra certainly, to secrecy, confidentiality and guarding the barricades against the inquisitive and interested is hard to shake.
Particularly when you try to get close to the cabinet door.

The Senate- No date-Executive Privilege?

The  ongoing hearings of the COVID 19 Senate select committee has seen parliamentarians dig deep with some warranted success given Parliament's role and responsibility to oversight executive government, and the response to the pandemic.

However those appearing before or providing information to the committee are sticking to the usual ground rule that if information asked for or sought gives rise to something close to a plausible reason to keep the shades drawn, go for it.

When Senator Katy Gallagher Chair of the committee on 13 May asked officers from the Department of Prime Minister "the date on which Professor Murphy (Chief Medical Officer) first briefed the Cabinet about COVID-19?" the question was taken on notice.On the same day PMC came back with the Answer (No 30)

"Revealing information about when the Chief Medical Officer, Professor Brendan Murphy, first briefed the Cabinet on the coronavirus pandemic would or could reasonably be expected to disclose the deliberations of the Cabinet. 

It is a longstanding practice not to disclose information about the operation and business of the Cabinet and its committees, including when a matter went to the Cabinet, who attended, and what form of submission was provided, as to do so could potentially reveal the deliberations of the Cabinet, which are confidential. 

The deliberations of the Cabinet and its committees should be conducted in confidence so that the freedom of those deliberations can be preserved. It is not in the public interest to disclose information about the Cabinet’s deliberations as it may impact on the Government’s ability to receive confidential information and make appropriate decisions impacting on the Australian community. 

This approach has been used consistently for several years and is consistent with the approach taken by previous Secretaries."

(All the date would reveal was that the cabinet met that day and heard words from Professor Murphy's lips. It wouldn't reveal what he said, what discussion if any ensued and who said what, what if any decisions were taken, but that a deliberation had taken place.

Head things off at the pass

Something similar occurred at a hearing on 26 May when Senator Gallagher asked Professor Murphy:

"I presume you've been briefing the National Security Committee of cabinet on those improvements in the modelling of the health data over the last eight weeks.

Prof. Murphy : The national cabinet has been briefed on those and the National Security Committee less so. At the national cabinet, the premiers and the Prime Minister generally get an update on the modelling at every meeting.

CHAIR: What about the federal cabinet?

A simple Yes, maybe even a No might have done it but Acting Secretary of the Department of Health (seconded from her job as Deputy Secretary of Department of Prime Minister and Cabinet was up to the mark:

 

Ms Edwards : Of course, Professor Murphy is not really at liberty to discuss what advice he's given to cabinet.

Leading to:

CHAIR: I'm talking about the modelling and whether or not that's been provided. I'm not asking what the modelling is and what it's saying and what might not have been released. I am asking whether the Chief Medical Officer has provided modelling to the NSC.

.....

Ms Edwards : Very comprehensive advice is provided to government at all stages through the ordinary processes, including the confidential cabinet processes.

CHAIR: But you won't confirm whether the modelling has been provided to the cabinet?

Ms Edwards : In accordance with the standard practice, we don't provide detail of what advice has been provided to cabinet in confidence.

CHAIR: No, the committee hasn't accepted that, and we have repeatedly made it known to witnesses that if you are going to deny an answer to questions then you must indicate whether you are going to seek public interest immunity. You need to explain the public harm that comes from letting us know whether the cabinet has received modelling information as the health curve has been flattened. That is the question. If you think that's a harm to public interest then refer it to your minister and go through that process, Ms Edwards. I would think it's a fairly straightforward question for this committee to ask.

Ms Edwards : We'll refer to the minister whether he wants to claim public interest immunity in relation to what's been provided to cabinet.

CHAIR: About whether they're doing their job properly.

....

CHAIR: My question is whether the NSC of the federal cabinet have been briefed on the modelling as the curve has flattened. That is my question. If you're unable to answer that simple question today and it needs to be referred to your minister, please indicate if that's the case.

Ms Edwards : That's what we'll have to do.

CHAIR: Right. It really makes the scrutiny role of this committee an absolute joke. ....

Give a little-pass the parcel 

Questions about briefs and modeling were also asked of Treasury Secretary Dr Steven Kennedy.  As the Sydney Morning Herald reported in April Treasury released parts of this ministerial brief dated 30 January on economic impacts-before the full scale of the damage to the economy was realised. 
It has published and updates the Government Economic Response. 
The Senate committee asked for more. Dr Kennedy in a letter of 19 May provided a copy of another January ministerial brief providing background on the SARS epidemic of 2003 and commentary about its current relevance, and referred to some publicly available documents, but said other documents requested were prepared for cabinet deliberations and were a matter for Department of Prime Minister and Cabinet. 

The National Cabinet

Brewing away in the background here is the significance in terms of transparency of the claim put out there most notably by PMC Secretary Phillip Gaetjens at that hearing on 13 May that the National Cabinet is part of the Federal government governance structure, indeed part of the federal cabinet. Suffice here to say Mr Gaetjens was clear and definite in his evidence:

Senator PATRICK: In relation to the national cabinet, I heard you saying at the start—and I apologise; I came in late—that, in effect, it is part of the federal cabinet?

Mr Gaetjens : Yes.

It's very doubtful in my opinion.

More on that in the next post.

FOI- we're hard pushed

On the Freedom of Information front, delays and requests for extra time are the order of the day and many/most are understandable. However from what's visible through FOI applications using the Right to Know platform "complex or voluminous" is getting quite a workover.

Just hard

On access to documents not a lot in the public domain at present.

PMC dealt with a Freedom of Information request from Senator Rex Patrick for the early briefings provided to Prime Minister Morrison on the beginning of the coronavirus outbreak by giving nothing away.

As Senator Patrick recounts:

"I was hopeful that the Department would release some useful information that would shed light on the Government’s early assessments and responses in January. A high level of transparency is essential if we are to learn all the lessons we can from the experience of this terrible pandemic."
However the Department of Prime Minister & Cabinet has refused access to all of the requested briefings given to the Prime Minister at the beginning of the crisis.
"The Government has piled on every exemption category it can think of – international relations, national security, internal government deliberations and Cabinet business – to withhold every word of five briefings provided to the Prime Minister between the first and thirty first of January. This was the critical time in which the Government first received reports of the coronavirus outbreak, and first learned of human-to human transmission, but decided to only screen flights from Wuhan and hand leaflets to passengers arriving from China."
"The Department of the Prime Minister and Cabinet’s blanket refusal to release early briefings to the Prime Minister at the beginning of the COVID-19 crisis is deeply disappointing and quite at odds with the Government’s claimed commitment to transparency," said Senator Patrick.

Ariel Bogle online technology reporter at the ABC also struck out, giving this cryptic account on Twitter 

"I've been refused FOI access to the government's privacy impact assessments for the coronavirus WhatsApp channel & info app. Seems odd given the one for COVIDSafe was released for public confidence. (They say it would inhibit frank advice from legal advisers, among other things)"

Senator Patrick is out there again at the moment this time flagging 'cabinet in confidence' may stand between the public right to know and Treasury modeling that led to the $60 billion Job Keeper bungle, calling  

" ..on Treasurer Josh Frydenberg to immediately release Treasury JobKeeper modelling after the Government committed the biggest accounting error in Australia’s public administration history."Treasury modelling may well have caused Government to suffer from a bad case of confirmation bias," said Senator Patrick.Senator Patrick pressed Treasury Secretary Dr Kennedy last Thursday for the modelling to be released to the Senate’s COVID-19 oversight committee. "I put to you that all the modelling your department does is done on the public coin and for public purpose, and the public has a right to see what it is that your department has done. I think it is disrespectful for the Treasury to withhold that information from the public.""If there wasn’t enough reason last Thursday, there’s 60 billion more reasons now."Dr Kennedy hinted a cabinet-in-confidence claim would be used. "I think most Australians are getting sick and tired of the Government sprinkling ‘Cabinet fairy dust’ on just about anything that might prove embarrassing to Government," said Senator Patrick.

Sure to be plenty more of this in the pipeline.

The Greens skirmish in two states over parliament's right to documents

The case brought by Victorian Greens MLC Greg Barber seeking a declaration that the parliament has power to order production of documents prepared outside Cabinet and considered by Cabinet, or prepared by an independent contractor and considered by Cabinet was back in the Supreme Court last month. 

Barber's suit had survived a bid by the State of Victoria last November to have the matter summarily dismissed. This time around Justice Emerton ruled in favour of the Defendant, rejecting Barber's argument for a single hearing, ordering the following question be heard and determined as a preliminary question at an early date:

Should the Court decline to hear the proceeding on any of the following grounds: (i) there is no justiciable dispute between the parties;
(ii) a claim for a bare declaration as to the powers of Parliament is not justiciable;
(iii) the proceeding seeks relief that is merely hypothetical or advisory and would not determine any rights between the parties;
(iv) the plaintiff does not have standing to bring the proceeding?

In NSW the Legislative Council has broad powers to require production of documents and exercises it regularly, and the sun continues to rise each morning despite claims to the contrary seven years ago by NSW Crown Solicitor Ian Knight.

However The Greens Jeremy Buckingham points out that Parliament may not have got the full story when it called for papers in 2009 concerning one of the issues now before the ICAC where former minister Ian McDonald occupies a very hot seat.

Buckingham says "a mountain of important documents that were hidden from the Parliament,”have been unearthed by the ICAC.

“The urgent question is why these documents were withheld, and who withheld them, and why? “Barry O’Farrell must refer this matter back to ICAC to investigate as soon as possible. The Government must not delay ICAC investigating through an internal Parliamentary Committee.

With the issue of parliament and its NSW prerogatives involved I'm guessing it won't be long before 1689 and all that get another run.

Victoria not for turning, yet, on FOI reform

Melissa Fyfe in The Age provides a run down on transparency issues as Victoria moves into election mode, with Attorney General Hulls defending the record on executive privilege claims and blaming the Opposition for voting down Freedom of Information reforms in Parliament.  Those proposed reforms contained some positives for example on charges but included extending the time limit to 75 days, so "reform" wasn't the word that came instantly to mind. After one go in February 2008, the Government retired hurt. One positive, the Government's recent commitment to Gov 2.0, well worth a tick according to some, doesn't rate a mention in the article.

On the general picture, I'm with Ken Coghill and Rick Snell:

Despite the government's claims to be transparent, governance experts describe Victoria's approach to information as being from the ''horse and buggy era'' and have called on the Premier to introduce right-to-information laws that put the onus on the government to ''push'' information out, rather than the public having to ''pull'' it from the government through freedom of information. Such laws have been adopted by Queensland, New South Wales and Tasmania, said former Labor speaker of the lower house, Ken Coghill, who now lectures in governance at Monash University. ''I know John Brumby has a belief in accountability,'' said Dr Coghill. ''This election is a great opportunity to announce further steps and introduce right-to-information legislation.''...

(FOI law based on pull rather than push is) all upside-down for Rick Snell, a freedom of information expert and senior lecturer in law at the University of Tasmania. Like Dr Coghill, he believes Victoria's approach is antiquated, that it must introduce the right-to-information laws other states have. ''Your version of FOI is the 19th century, horse-and-buggy approach where ordinary people have to pull information out of the government,'' he said. ''What we need to do is train public servants and politicians that secrecy is not the only game in town.''