Henry on Treasury and transparency

Canberra Times
The coincidence of timing that had Senate Estimates Committees spending hours last week going over the fine detail of the Government decisions of 12 October on deposit guarantees and the fiscal stimulus package, provided rare insights into what happens behind closed doors on major decisions that have to be taken promptly. As someone once said when comparing sausage making with policy development, not a pretty picture and you'd never eat a sausage again. Treasury Secretary Ken Henry's picture also tells a lot about what eight hours before a senate committee can do to you.

This was classic policy on the run (well Treasury had been thinking about the stimulus package since January or February)- great uncertainty, limited information, not much time.So it's not surprising that the process in hindsight looks, well, untidy- little consideration of options, risks, or unintended consequences; limited input from the Government's own experts such as the bank regulator;no modelling or cost-benefit analysis; some round-figures like $10.4 billion plucked out of the air.Nor is it surprising that things need to be refined as events moved forward.

There are plenty of opinions about the rights and wrongs of what was decided, but what does the exercise tell us about attitudes to transparency and accountability? One thing that emerged is that Henry thinks government decision making is best left to insiders and would be improved if pesky people didn't ask questions about it later.

Henry told the committee, “In my view, it would be better if we had not had any media reporting on this issue. [This would] allow the officials the opportunity to reflect soberly and deeply upon the implications of the various options ”

Here is some of the media commentary since.

An editorial in The Australian:

"Dr Henry's evident discomfort at media coverage at Tuesday's marathon Senate hearing is understandable, given the picture that has emerged of a flawed policy process. He is in many ways a fine public servant, but he clearly does not appreciate the importance of media scrutiny, continuous disclosure and accountability in a free and open democracy. It was, after all, his department that frustrated the release of Freedom of Information documents on the technical issue of bracket creep, a case The Australian took all the way to the High Court."

Brian Toohey in the Canberra Times :

"On the contrary, more public discussion may have lead to an outcome that caused less disruption in the financial markets than the subsequent freezing of mortgage funds and so on.

At least Henry did not go as far as the Australian Federal Police Commissioner, Mick Keelty, earlier this year called for a ban on defence lawyers and journalists criticising the role of police and intelligence agencies in a terrorism case “until the full gamut of the judicial process has been exhausted''

When the opposition leader, Malcolm Turnbull followed up The Australian’s report (about disagreement between Treasury and the Reseve Bank) in parliament, Rudd’s initial reaction was completely over the top. He even accused Turnbull of having being on the “strong red cordial”. In his appearance before the committee, Henry criticised Turnbull for earlier calling for guarantee limited to $100,000, saying it was “unhelpful” to canvas the issue publicly.

Turnbull refused to accept that either opposition politicians, or the media, should stay silent. He said, “We live in a democracy. With great respect to Dr Henry, while it might be desirable from his point of view if the civil servants of Australia could make all these decision out of the gaze of the public, and no doubt the politicians, that's not the type of society we live in”.

Turnbull was right on this. As Michelle Grattan in the SMH said

"By being overaggressive the Coalition senators failed to make the most of their hours of grilling Henry. On the other hand Henry left himself open to criticism by sounding as though these matters were secret business of the Government and the "Official Family" - the Treasury, Reserve Bank and other regulators."

Henry also made the following revealing comment about his view of the public interest in access to information about public service advice: it can be disclosed where this will correct some apparent misreporting in the media.

'Whilst I would not normally entertain questions such as this one, and in my 24 years of appearances before these committees never have, I think on this occasion there probably is a public interest in my confirming that in respect of the advice that was tendered to the Government, and that supported the decision that it took on Sunday the 12th of October, Mr Stevens and I were of one mind,'' he said.

Earlier, Dr Henry told the committee that suggestions Mr Stevens had opposed the bank deposit scheme prior to its announcement were "W-R-O-N-G”.“Were reservations expressed? No,” Dr Henry said.

“We noted there would be matters of detail to be sorted out in the implementation of the package, we did not express reservations.”

“I'm surprised that people would imagine that things could possibly be otherwise in announcing a package of this size that it could be implemented without matters of detail, having subsequent to the announcement, having to be sorted out.”

No-one seriously thinks that. If they do it's because government goes out of it's way to try to sound as if it has all encompassing solutions to black and white problems.Routine disclosure of what the government's experts think would also encourage informed debate and public understanding of the issues and options.

More not less transparency, and honest straight talk would be in all our interests.

Red book questions, FOI answers

 During Senate Estimates hearings on Monday (Finance and Public Administration), Opposition Senator Cormann asked officers from the Department of Prime Minister and Cabinet (F&PA 38) about Freedom of Information requests received for the incoming government brief. The issue was taken up later by Senator Abetz (F&PA 52).

Applications have been received from the Seven Network and the West Australian, the first two months ago, but no decision on release has been taken. Each applicant has been told the important news first, that access would cost them $3740.80, and no splitting the cost between them should they each proceed. No one appears to have raised with the PM the question of publication of parts of the brief in line with the Treasury and Finance precedents, or pointed out how this might usefully contribute to public debate on matters of public interest-even on the topic of open government. Officials and the minister at the table were strongly attached to the idea that precedents set by others mattered not a jot, and that a departmental officer independently would make a decision on the applications free from ministerial direction. Sounds good, except the questioners were right to point out that the Prime Minister could simply direct that parts of the brief be published thus providing access at no cost and presumably to anyone interested.

That would be in line with her stated commitment to a new style of openness in government. And send a message to help with that transformation from 1 November that Australian Information Commissioner Designate McMillan spoke about earlier in the week.

Some of you just love your FOI and the cut and thrust of Estimates as well. For you, extracts follow:

More submissions to Senate Committee on FOI certificates

Senator Helen Polley, ALP- Tasmania, Chair Senate Committee Finance and Public Administration

Submissions to the Senate Committee on the inquiry concerning the bill to abolish conclusive certificates jumped from four to eight this week with Rick Snell, Michael McKinnon, Moira Paterson and myself all rising, if somewhat late, to the occasion. All eight submissions are now posted on the Committee site.

None of the submitters have any concerns about abolishing certificates. Are there any defenders of the status quo prepared to publicly mount the argument against change? Has there been any advance on the Opposition's position in December that it didn't have a view?

Snell and I both comment on the slow and inelegant two stage process of FOI reform underway and each make some observations about aspects of the bill and related matters concerning Archives.Paterson is concerned about changes to Tribunal procedures. She and Snell (as PIAC and the APC had earlier) both query the attempt to fix what is claimed to be a loophole to give blanket protection to documents received by a minister from specified national security agencies. (This has nothing to do with certificates but for some reason has been given priority in this first stage bill while many possible disclosure improvements must wait for another day.) Paterson also points out some problems with another change unrelated to the abolition of certificates-a proposed qualification to third party notification requirements.

McKinnon goes into some detail about why certificates should go, illustrating the lack of fairness in the review process and the contentious public interest arguments (usually not supported by evidence) put forward in defence of non-disclosure. As McKinnon was on the receiving end of many of the 14 or so certificates issued during the Howard years, particularly by Treasury, he is well placed to comment:

"... the basis for Treasury’s certificate issue is not the claim of some higher public interest determined by a conscientious politician in the national good. Instead it is the protection of political interests on issues that would be revealed under a more rigorous and fair FOI system. Treasury’s motive for issuing certificates is to prevent apparent “embarrassment’’ to the government. It is axiomatic that no government would be embarrassed by good policy or programs. Instead, it is policy and program failures, flawed administration or management, corruption or waste that are embarrassing to governments because of the impact on voter support and judgement about the government’s performance. Effectively,( Treasury Secretary) Dr Henry argues failings should be kept secret, and indeed, can be kept secret, by the use of conclusive certificates. The attitude reflects a fundamental contempt for the electorate’s right to be informed and is only possible because of the existence of conclusive certificates."

Readers will be aware of my views about Treasury and transparency, most recently on show in the Fisse case.

McKinnon also reminds the Committee of his application for access to the incoming government brief prepared for the Rudd Government in November 2007 and what emerged about Treasury's views on certificates:

"This FOI application is before the AAT at the moment but the documents already
released show Treasury provided advice to the incoming Rudd Government on why it
should break its election commitment to remove certificates from the FOI Act. The brief advises: “We are concerned that the abolition of conclusive certificates, without
a new and transparent safeguard, will adversely impact on the provision of advice to
government….While conclusive certificates should only be used in exceptional
circumstances, they play a valuable role in cases where the material in question is of
extreme sensitivity for the workings of government. Reliance on conclusive certificates has in part occurred because the exemption for deliberative documents under the FOI Act does not expressly exempt documents on the grounds of frank and fearless advice to the government.’’

McKinnon speaks for many in suggesting another perspective:

"The release of documents to the public on policy issues and options improves debate, informs voters and provides context for judgements about government decisions. This information is not only immensely beneficial to our political system but is a right. Deputy President Forgie questioned the government’s claims in the judgement in McKinnon v Dept PM & Cabinet V2005/1033: “Why is it that the APS can only behave as a professional apolitical body if its work in giving high level advice is kept out of the public arena?’’

McKinnon highlights the energy and resources that agencies are prepared to use in protecting what they regard as sensitive information with the example of the Reserve Bank spending over $300,000 to protect Reserve Bank minutes with a certificate in 2004 and fend off a challenge.Last year the Bank decided more transparency about monetary policy would be a good thing, agreeing that a version of the minutes would be publicly released some weeks after each meeting. The earth still turns...

High Court low point for FOI

The High Court decision in McKinnon v Secretary of the Treasury is a major disappointment for open government advocates. On the other hand it will be welcomed by a government whose commitment to openness and transparency has been tarnished by its track record over the last 11 years.

In essence the decision highlights well known deficiencies in the Federal FOI Act. However the 3-2 majority verdict is sure to provide comfort and ammunition for those in government (and their legal advisers) who look for opportunities to frustrate the “public right to know”.

Ten years ago the Australian Law Reform Commission in a comprehensive report called for reform of the Federal FOI Act. That report has never been acted upon. Those reforms and many other proposals for enhancing transparency and accountability have never passed first base with the present government.

One of the report’s recommendations was that a minister should not be able to conclusively certify that it was contrary to the public interest to disclose an internal working document. While the report accepted that government at the highest level should be able to make judgements of a conclusive kind where matters of national security were involved, giving ministers such powers over “thinking process” documents was inconsistent with the objectives of FOI legislation.

This power and how it is exercised was the central matter before the High Court.

The majority found no error of law in earlier decisions in the matter. That is, on review of a decision to issue such a certificate, the Administrative Appeals Tribunal is limited to examination of whether reasonable grounds existed for such a conclusion.

The documents sought in this case are now over 4 years old. They would reveal information about “bracket creep” – the extent to which inflation has added to government coffers as wage increases put Australians in higher tax brackets – and information about fraud in the first two years of the operation of the ‘First Home Owners’ grant scheme, particularly its use by high wealth individuals.

The Treasurer certified that 39 of 40 documents about bracket creep were exempt, and all the 47 documents held on the grant scheme were exempt, in whole or in part.

Estimates are that New Limited (with contributions from other media organisations) may have spent $1million on this challenge and that the Government may have spent $1.5million. The High Court ordered costs against News Limited.

The Court said that the proper interpretation of the Act prevented the Administrative Appeals Tribunal from undertaking any independent assessment of the merits of the claims in the certificate. The only issue to consider was whether the decision to issue the certificate was a decision open to a reasonable person.

The majority decided that the requirement was to consider all relevant factors. However after reviewing what had been done, they concluded that it was open to reason on the basis of the claims put forward in the Treasurer’s certificate, that disclosure would be contrary to the public interest.

Justices Callinan and Heydon, in a joint decision (and in support of a separate decision by Justice Hayne) considered the grounds in the certificate and said that it was not unreasonable to contend that the following claims were relevant to a judgment that disclosure was contrary to the public interest: that disclosure would jeopardise candour and affect keeping of proper records; that the documents were tentative in that they were concerned with matters not settled and recommendations not adopted; that “documents prepared for possible responses to questions in Parliament should remain confidential because their exposure would threaten the Westminster system of government”. They were not impressed with arguments that suggested it would be contrary to the public interest to disclose documents simply because of "ongoing sensitivity", because the public would not be able to understand the context or technical jargon, or that the information might be misrepresented or abbrievated".

Chief Justice Gleeson and Justice Kirby, in the minority concluded that an error of law had occurred, and would have granted the appeal.

Some of the views expressed by those in the majority, are in stark contrast with comments made by the NSW Court of Appeal in a separate recent case, WorkCover Authority v Law Society of NSW (2006) NSWCA 84. The Court of Appeal was required to consider the appropriate test in determining whether disclosure of internal working documents was, on balance, contrary to the public interest.

The Court emphasised the importance of the objects of the Act, (the High Court majority said that even though the limitation on the review powers of the Tribunal were apparently contrary to the objects of the Federal Act, the express words used in the Act to describe the Tribunal’s powers had to be taken at face value), and rejected formulaic, theoretical propositions about the public interest and non disclosure test developed in the pre FOI era of closed government. The NSW Court of Appeal is of the view that simply because a document is a draft does not dictate that it is contrary to the public interest to disclose it.

The NSW FOI Act contains more restricted powers to issue conclusive certificates. The Premier only has the powers, and they do not extend to the issuing of a certificate regarding the internal working document exemption. Few certificates have been issued in the 17 years since the Act commenced. Federally, any minister can issue a certificate. There is no reporting requirement so no information is available on the number of certificates issued.

Will the Federal Treasury (and others) be breaking out the champagne in the light of this decision? Most likely.

Having successfully argued in 1985 against disclosure of budget documents to John Howard MP, in a case that laid down what came to be known as “Howard factors” for non disclosure of internal working documents), they have now again successfully supported the Howard Government’s efforts to put some significant barriers between the public and Treasury thinking process documents, even those as in this case that are 4 years old.

Treasury Secretary Dr. Ken Henry should be very pleased. He told the Canberra Times in March (according to this report in the Australian) that if the High Court decided against the Government, the only answer would be for Treasury officials to not record important steps in decision making in order to protect such documents from those who in his view, sought access in order to embarrass the Government. The best way to deal with these sort of applicants would be to be able to issue conclusive certificates.

The High Court decision has now left open to Dr. Henry and others who share his views (the Treasurer Peter Costello is on the public record as saying that FOI is primarily about getting access to information about an individual’s own affairs, and release of documents containing advice will inhibit provision of frank advice in future), to avoid the prying eyes of those who seek to know what the Government knows about important matters concerning the development of policy. All that is required will be to simply arrange for the issue of a conclusive certificate by a minister citing vague and general grounds about why disclosure would be contrary to the public interest, confident in the expectation that there will never be independent testing of those claims.

Foreign Minister Downer told an audience last week (see the link to the Australian above) that his party is proud of the fact that it runs an open government and that it had introduced FOI legislation in 1982.

Many would suggest its been downhill ever since, with FOI languishing without appropriate leadership, enforcement and resources, and as demonstrated in this case, some fairly conservative views in the Federal Courts about open government.

Memory lane and present and future challenges feature at FOI anniversary

The 30 year Anniversary event organised by the Office of Australian Information Commissioner in Canberra yesterday was an interesting walk down memory lane, and a look at today and the future.  

Commissioner Professor McMillan can take you back to his pre-FOI activist days, Dr David Solomon found FOI in his in-tray while working for Prime Minister Whitlam, AGS CEO Ian Govey's first job in AGD was with the task force developing legislation, and Alan Rose was a member of that group while at PM&C, and later president of the ALRC at the time of the Open Government report in the mid nineties.

(While on memory lane I was at the Australian Embassy in Washington from 1973 to 1976 when US experience with FOI, pre and post Watergate, was something Canberra wanted to know more about as it wrestled with the unknown beast.)

Alan Rose said the culture change recognised as necessary since 1982 is still to arrive.
He evidenced this with a number of examples of personal experience and drew attention to   the refusal of access to plans claimed to justify a grant to a car manufacturer, and what was put to the government by lobbyists. Rose emphasised that the object advanced in the 1995 ALRC report that government information is a national resource must be taken seriously. Census material for example. More creative minds could do more with it. Real time access was essential. The closed period for government information should be reduced to something like five years to let our Bill Gates and Steve Jobs see what they could do to fully utilise government information for the benefit of all.

FOI Commissioner Dr Popple gave a generally positive account of how things are working-access was easier and cheaper, most agencies were doing reasonably well and "people are generally aware of their rights." (It turns out this is a "feeling" not based on anything more that frequent references in the media-I don't think government has done anything on the demand side for yonks.) However issues concerning delay and the OAIC model both require attention. The OAIC has received 4194 applications from agencies for extension of time, and 285 complaints and 872 review applications, all far in excess of what was anticipated.

Former Queensland Information Commissioner Julie Kinross provided a global perspective, noting in particular the rights focus clearly driving developments elsewhere, but barely heard here, and other forces at work promoting transparency including anti-corruption, environmental concerns, accountability and development assistance, and technology. Kinross highlighted the absence of any regional Asia Pacific right to information activity of the kind obvious in Europe, Latin America and other regions. Australia was well placed to play a role in this. (Why was I thinking about the OGP at this stage?)

Professor McMillan spoke of the broadening information agenda and the need for a new open government policy framework. Roxanne Missingham, the former Parliamentary Librarian now in a similar position at ANU provided reasons for some urgency in this citing the dramatic decline in government publications listed in the National Bibliographic Database, and the limited retention of history (including government policy documents over time) on the National Library's Pandora system. She gave a spirited account of why leaving agencies to their own devices in this area was a grave error. And gave short shrift to copyright laws created in another era that are holding us back.

As to me, I had 10 minutes for Leading Cases?

Stephanie Forgie and Michael McKinnon should know I was only joking.

My notes, should you be interested-and it's not a list of leading cases.

Federal Treasury says: quality of advice at risk from FOI reform

The release of parts of the Federal Treasury's briefing book for the Treasurer, in response to a Freedom of Information application by Channel 7 (FOI Editor Michael McKinnon), was big news last week. Treasury's concern about the economy and the significance of climate change was consistent with the message that ministers have been telling all and sundry since the election.

Some of the document released was posted on the 7 News website. FOI Treasury documents

It's worth a look as a perfect example of the neat use of the black pen and what has been claimed exempt (almost entirely as internal working documents) seems to exceed what was released. Try page 18 on the Budget process and transparency: everything after the sentence -

"An effective budget process will need to be established almost immediately to ensure budget-decision making remains consistent with your Government's priorities and your medium-term fiscal framework".

has been deleted. You can imagine the calamity that would follow disclosure of anything more about making the budget process more transparent! Michael McKinnon says that this FOI experience shows that Treasury "is unreconstructed" when it comes to decisions about disclosure of documents of this kind. He detected no sign of any movement in their thinking about these issues.

Some parts of the document released were not published on the Channel 7 website. They include comments about matters that go beyond the Treasury portfolio, including the Government's election commitment to Freedom of Information reform, particularly the proposal to abolish conclusive certificates. What was released on this issue is here on page 51-a fair chunk was claimed to be exempt.

Treasury, consistent with views previously expressed by the Secretary Ken Henry, is again raising the flag that abolition of certificates, particularly for deliberative documents will impact on the provision of 'frank and fearless advice. This ignores the fact that provision of 'frank, honest, comprehensive, accurate and timely advice' is enshrined in the Australian Public Service Values. The Values and the associated code are part of the Public Service Act. All public servants have a duty to comply. Heads of agencies have a responsibility to encourage a culture that respects these values.

While some federal agencies have tried (with limited success) to argue this issue over the years, few courts and tribunals buy it, even when wrapped up recently in an associated claim that disclosure of a document will mean that public servants won't in future commit advice to paper. The Australian Law Reform Commission, after considering this and associated issues for two years, recommended 12 years ago that conclusive certificates for deliberative documents be abolished. Some in the public service clearly resist this as certificates are subject to limited review and will be upheld if one 'reasonable' ground can be cited to justify refusal on public interest grounds.

Treasury is wrong in its note to the Treasurer that access to information under the Act needs to strike a balance "between ensuring public interest in political debate and ministerial accountability, and .............promoting frank and fearless advice". The balance is between the public interest in disclosure, and the efficient and effective performance of government functions. Some documents including advice will be sensitive because of the content or circumstances but such claims need to be considered and weighed against the public interest in disclosure. Blanket claims that documents cannot be released in the interests of promoting frank and fearless advice just don't wash. Nor does the present system of limited review of certificates sit comfortably with the objects of the Act.

Over to you Senator Faulkner.

Where's the enthusiasm in Canberra for ending excessive secrecy?

Sometime soon (he says confidently) Senator John Faulkner's speech on the Government's transparency and accountability agenda at last night's Transparency International gathering in Sydney will appear on his website. It's not been posted so far (update- it has now and its a good and comprehensive speech of impressive achievements in many areas) but the only new news according to those who were there was an announcement of the publication of an annual report on ministerial staff employed by federal ministers- how many,what they cost etc.

There was nothing else new, reported at least: just a repeat of the commitment in principle we have heard often over the last 18 months:

"Transparency ensures appropriate visibility to government actions and the political process," Senator Faulkner said. "I've personally taken the view, after many years in both politics and parliament, that there's no better way to achieve integrity and accountability within government and government transactions than by promoting transparency and openness. "Australians must be able to know how their government works and have confidence that authority is exercised appropriately."

I'm sure Senator Faulkner is genuine, but given this sentiment, it's difficult to explain why we haven't to date seen a scrap of change or even a sense of urgency for reform in the FOI field.(Update-this year is again mentioned as the timetable for legislation to abolish conclusive certificates.) Or, apart from the occasional Faulkner speech, anything to progress the much talked about culture change to shift government away from its widely acknowledged preference for secrecy.

On the contrary enthusiasm for practical steps towards governing differently may be dimming in even higher circles, after almost a year of up-close and personal dealings with the public service and complex policy problems.

As John Roskam (of the Institute of Public Affaairs) in an opinion piece in the Australian Financial Review today notes:

"In a speech in Melbourne on Tuesday night, the Prime Minister spoke about the importance of maintaining business and public confidence during these ‘‘unprecedented times''. He went on to say: ‘‘It is incumbent upon all of us in political leadership to be very careful about what we say. Now is not the time to be questioning the head of the commonwealth Treasury. Now is not the time to be attacking the head of the Reserve Bank.''

The PM is right about personal attacks. But no questioning? Isn't that the scrutiny necessary for the transparency and accountability we have a right to expect?

Roskam seems to be reading the PM's remarks in the same way I read some signs from Treasury Secretary Ken Henry last week: these things are best sorted behind closed doors, what we say or consider there has to remain confidential, any questioning of our wisdom may have grave repercussions.Roskam continues:

"The cause of good governance in these ‘‘unprecedented times'' is best served by having more debate, not less.....The Prime Minister has two reasons why he thinks Australians should just sit down and shut up while he makes financial policy on the run. First, he says we must get economic policies ‘‘right'' and this is a process best undertaken without having an argument about them. Second, he argues that the lesson of the bank deposit guarantee saga is that ‘‘politicising'' such issues is ‘‘unhelpful in the markets''. The reply is simple. Making policy in the glare of public scrutiny doesn't guarantee that the policy will be right, but there's a greater chance of it being right compared to having the policy made in secret."

This isn't the time for the PM to be backing off his National Press Club commitment a year ago:"I'll end secrecy"

Dr Henry's encounter with Jim and hairy nosed wombats

The Federal Treasury (make that all treasury departments) has a well-earned reputation for secrecy in many aspects of its work. We commented recently that Treasury would seem to prefer that major policy issues are sorted behind closed doors, that what goes on there remains confidential, and suggests subsequent questioning of that wisdom may have grave repercussions.Treasury Secretary Ken Henry had previously commented about why important elements of the policy development process won't be committed to paper if Freedom of Information applicants succeed in seeing what went on in the making of important decisions.

Perhaps Dr Henry's couple of weeks helping hairy-nosed wombats while on leave, and his work this year on the reform of our tax laws have opened new horizons regarding the importance of public debate and engaging with the citizenry in policy development. This (with emphasis added) from his address yesterday to the National Press Club ( Jim and hairy-nosed wombats feature prominently):

"Progressing tax system design isn't easy. But I'm optimistic. Certainly, it will be more feasible if we have a sensible discourse. Recognising that, the Review Panel has committed to a few ground rules: first, we must remain open to new ideas; second, the review is both too complex and too important to rush; and third, we cannot make good progress without engaging the community.

The steps in the review process are these. In August, as I have noted, the Treasury released its architecture paper, to seed debate. Next month, the Review Panel will release a consultation paper. That paper will summarise what we've heard so far from the community, identify some key issues, draw out the choices that emerge from our analysis of the issues, and seek views on a range of more specific questions. Following the release of the consultation paper there will be a second, longer consultation period of perhaps six months. During that time, there will be many opportunities for engagement – public meetings, round table discussions, and a tax policy conference in June.

We're going to see a first in Australia: ordinary Australians like Jim will be given the opportunity to put their commonsense view directly to people like me – and not just at the pub. The tax system is for the benefit of every Australian and it follows that every Australian should be able to debate its design.

In the second half of next year we will be writing up our report, due to the Government by December 2009."

Ordinary citizens like Jim will be better able to put views regularly on a range of matters if agencies like Treasury commit to greater transparency in the conduct of government business that affects us all.

Claims about "advice to Government" don't wash with Harry

Harry Evans Sydney Morning Herald

The Clerk of the Senate Harry Evans has given a preliminary report to Senator Cormann (Liberal WA) on the compliance of witnesses over two weeks of Senate Estimates hearings with a Senate Order passed on 13 May on the Senator's motion, relating to public interest immunity claims in the course of witness response to questions. The report notes there were relatively few-around 26 occasions- when the order was actually or potentially applicable. But Evans takes issue with the oft-cited claim that advice to government can't be disclosed.. because it isn't. Here are some extracts from the report:

"On at least eight occasions ministers and officers invoked the claimed principle that advice to government is not disclosed. This is demonstrably false, as it is contradicted by all the occasions on which such advice has been disclosed. The claim was made by three senior ministers, Senators Evans, Faulkner and Conroy. The claim was also made by the Secretary of the Treasury, Dr Ken Henry, although at the last estimates hearings he answered questions about advice he and the Governor of the Reserve Bank gave to the government about dealing with the global financial crisis. The Department of Foreign Affairs and Trade repeated the often-made assertion that legal advice to government is never disclosed, apparently oblivious to all the legal advice that has been disclosed in the past. It is clear from many examples over many years that the mere fact that information consists of advice to government is not a barrier to its disclosure in the course of a committee inquiry. What seems to be really meant by these statements is that advice is disclosed when the government chooses to do so.

When asked whether he was making a public interest immunity claim in accordance with the Senate’s order, Dr Henry stated that he was not. This could be the beginning of an argument that, over and above public interest immunity claims, government has a discretion to refuse information without raising any public interest ground. In other words, information can be kept secret regardless of whether there is any public interest reason for doing so. Such a claim has no basis in law in respect of legal proceedings or in parliamentary practice. It is an unlimited discretionary claim repudiated by past resolutions of the Senate and explicitly rejected by paragraph (7) of the order of 13 May 2009.

On one occasion Senator Faulkner quoted paragraph 2.32 of the Government Guidelines for Public Service Witnesses, which indicates that material in the nature of advice etc. relating to government deliberative processes may be withheld, but he did not appear to appreciate the effect of the proviso at the end of that paragraph: “where disclosure would be contrary to the public interest”. Those words are marked for emphasis in the original text of the guidelines. It is clear in these guidelines that the fact that information consists of advice is not in itself a ground for a public interest immunity claim, and that there must be a separate consideration of whether there is a public interest ground for not revealing the advice.

On one occasion Senator Conroy stated, when attention was drawn to the Senate’s order: “It is of no relevance to the official. It is only of relevance to a senator.” It is not known what was meant by this statement. If it is the beginning of an argument that the orders of the Senate are not binding on officials, it is clearly not correct. Past orders of the Senate are binding on officials, and it is open to the Senate to make orders governing the conduct of officials during their participation in Senate proceedings or the proceedings of Senate committees.

Senator Conroy also stated: “If you’re not going to respect the conventions, you can pass all the resolutions in the Senate you like.” This appears to indicate a determination to ignore the resolution and to claim that, simply because ministers refuse to answer questions at their discretion, this establishes a “convention”. Obviously, a parliamentary convention cannot be established by unilateral (and inconsistent) assertion by the executive...

In at least five cases grounds for secrecy were raised which have not been regarded as acceptable in the past, including nebulous grounds such as “budget processes”. On one occasion a minister stated that officers may not be asked to clarify factual statements by ministers. One officer stated that information could not be provided until a minister had released it. In one case privacy was claimed for officers’ remuneration, in violation of the well-established principle referred to in past Senate resolutions that the remuneration of persons paid from public funds must be disclosed."

Evans concludes:

"As was pointed out in the advice tabled in the Senate when the order was passed, the basic principle underlying the order is the same as that underlying the government guidelines for public service witnesses: information should be secret only where there is a public interest-related ground, of which there are well-known categories, for maintaining the secrecy. This also appears to be the foundation of the current government’s stated emphasis on transparency and openness. The difficulty in securing observance of the order is the lack of understanding of that principle.Closely related to this difficulty is the apparent notion that a public interest immunity claim is merely one category of claims to withhold information, perhaps confined to the grounds suggested in the government guidelines, while there are additional categories of grounds for withholding information which are somehow different from claims of public interest immunity. It needs to be emphasised that “public interest immunity” is an all-embracing generic term covering all grounds for claiming that information should be withheld from a parliamentary inquiry. The phrase was first adopted by the courts in relation to claims of confidentiality of official information in legal proceedings, and was subsequently adopted in the context of parliamentary proceedings, in substitution for the old phrase “Crown privilege”. The virtue of the term “public interest immunity” is that it emphasises that information may be withheld only on public interest grounds. Information in the custody of officials, including ministers, performing public duties does not belong to the officials, and as the servants of the public they may withhold information from the Parliament and the public only on grounds of possible harm to the public interest." The experience of the estimates hearings indicates that an educative effort is required to secure appreciation of this principle on the part of Commonwealth office holders."

Interesting times. We may have a real barney on the Senate horizon here. In a previous post I mentioned the close parallels between the Senate Order and the Freedom of Information exemption that will apply to advice documents, as a result of the Government's Reform proposals.

More disclosure might break "gotcha " reporting

Markus Mannheim Editor of the Canberra Times Public Service Informant supplement in this month's edition (no link available) says the "gotcha" element in media reporting on government is the result of overmanaged media relations and excessive secrecy:

"Only disclosure can end this cycle. Departments that publish their work be it advice, research or financial statements allow the public to better scrutinise not only the executive but also the media that reports on it. Journalists too often enjoy exclusive access to government information, aided by political advisers who provide vetted excerpts to favoured reporters. But the media is far more likely to analyse such information maturely and rigorously if it knows its audience is equipped to uncover flaws in its coverage.

If government agencies published all of their work online an almost costless process they would encourage responsible journalism, informed debate and, ultimately, greater community engagement. Instead, the default approach is to provide limited information or deny access altogether. The royal commission into Victoria's bushfires revealed last week that Australia's governments suppressed for (three and a half) years a joint report on their capacity to deal with natural disasters. The patronising justification was that the document "could engender fear in the community if they didn't understand the context of the report".

While attitudes like this prevail, open government will remain beyond Australia's grasp. The fourth estate has mostly put cynicism aside and lauded Special Minister of State John Faulkner's proposed revamp of the FoI Act. The reforms include appointing an independent commissioner to oversee the Act, which will be extended to contractors and stripped of some of the more contentious powers to deny access. Importantly, it will also demand agencies publish more information proactively. Improvements, but hardly a revolution.

Faulkner's quest to improve accountability is undoubtedly genuine. But the limits of his efforts are highlighted in a letter he sent to departmental secretaries in April, which urges them to heed the new objects clause in the draft Bill. The new clause is almost identical to the current one, which senior public servants have happily defied for years: that the Act "shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information".

If Parliament approves Faulkner's FoI Bill, Australia's information regime will be very similar to the laws that many Britons now argue are inadequate. Britain, too, has an independent information commissioner, Richard Thomas. It's noteworthy that he argued against publishing MPs' expenses claims. The Westminster scandal is not perfectly analogous to Australia, but its lesson is: the spirit in which Britain's FoI Act was written failed to overcome the habits of a secretive and politicised bureaucracy.

There are alternatives. Federal agencies in the United States regard most of their documents as "public domain", and face stiff penalties if they hinder requests for information. Most northern Europeans have a constitutional right to access government documents, while the right of Estonians extends to all information produced by people performing public duties. Sweden's 240-year-old Freedom of the Press Act, the world's oldest, ensures all documents are public unless explicitly exempted by regulation. Swedish law takes transparency so seriously it is a criminal offence to investigate a public servant suspected of leaking.

It's hard to imagine the APS adopting such practices. Faulkner has demanded agency heads encourage "a culture of disclosure", emphasising that "the starting point for considering FoI requests should be a presumption in favour of giving access to documents". But his Bill lacks the ambition required to radically alter the way the government interacts with the public. As (Treasury Secretary) Henry admitted in 2006, the bureaucracy has means of avoiding disclosure irrespective of the law: agencies had already stopped producing some documents, he said, opting instead to discuss sensitive policy issues verbally.Perhaps Henry and the bureaucracy suffer the media they deserve."

Mannheim is right about the benefits that would flow from greater transparency, and the culture change process is still all ahead of us. Unfortunately the details of what we might expect from the new era of pro-active publication, on-line, of information about government processes are still to be revealed having been largely left to the Information Commissioner, when established. But Mannheim"s comment about "lack of ambition" doesn't give enough credit for proposed changes, many of which will have some impact, for example in areas that involve consideration of the public interest. This from a post here in March, with emphasis on what will make a difference:

"Up to now the courts have been prepared to interpret the Act as not requiring a pro-disclosure bias because the objects in Section 3 include a reference to a right of access subject to the exemption provisions. Thus "no leaning" in favour of disclosure. However in the new objects there is no mention of exemptions, simply this:

"(2) The Parliament intends, by these objects, to promote Australia’s representative democracy by contributing towards the following:(a) increasing public participation in Government processes, with a view to promoting better-informed decision-making;
(b) increasing scrutiny, discussion, comment and review of the Government’s activities.
(3) The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.
(4) The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.

The reference to Parliament's intention in the last sub-clause is not new but the rest is. Read in conjunction with the legislative demise of most of those silly "Howard" factors that favoured non disclosure since 1985, the duty to take into account the following when weighing the public interest (quibble- only relevant to some not all exemptions) will move things strongly in the direction we were trying to go in way back in 1982:

"(3) Factors favouring access to the document in the public interest include whether giving access to the document would do any of the following: (a) promote the objects of this Act (including all the matters set out in sections 3 and 3A); (b) inform debate on a matter of public importance; (c) promote effective oversight of public expenditure;"

New PM needs to set 'tone at the top'

While Prime Minister elect Rudd is involved this week in discussions with the Secretary of the Prime Minister's Department about how to move forward with the agenda, he should have a word with Dr. Shergold about how the new government is committed to greater transparency.

He should tell Dr. Shergold to stop pursuing fanciful arguments about the need for secrecy in government of the kind advanced by him in McKinnon and Secretary Department of Prime Minister and Cabinet (2007) AATA1969 . In that case a number of claims by Dr. Shergold that documents concerning government deliberations should not be disclosed on public interest grounds were rejected by the Deputy President of the Tribunal - that disclosure would reveal deliberations of senior public servants, would mean that proper records would not be created, and that frank and candid advice would not be offered.

He might also ensure that Dr. Ken Henry, Secretary of the Treasury, who is on the public record as saying that FOI is the cause of advice not being always committed to paper, is made aware of the views of the Deputy President of the Administrative Decisions Tribunal that public servants have a duty to record advice to ministers. Dr. Henry told the Canberra Times in January 2006, that FOI requests which he judged were "motivated by desire to either embarrass the Government and Treasurer or the Department" meant that communication on sensitive policy issues was likely to be verbal rather than committed to paper.

The next few weeks and months will be crucial to any new government attempt to get the public service sorted about the importance of openness and transparency.

FOI: some Canadian tips of universal value

In having a closer look at Canada in the context of "Right to Know" day (more of that later) I came across a speech by the Canadian Information Commissioner on "Transparency, the risk of setbacks: the case of Canada" to a recent conference in Mexico.

John Reid, the current Commissioner is approaching the end of an eight year stint as the Federal Information Commissioner. He was a member of Parliament between 1965 and 1984, and held parliamentary and ministerial positions in government.

In other words he has lots of relevant experience in addressing this topic. A couple of excerpts:

"...one reality has been driven home to me over and over again. That is, a strong freedom of information law is essential, but insufficient in itself, to the task of changing an entrenched bureaucratic culture of secrecy. As well, there must be tangible, clear leadership from the elected and non elected heads of government in support of openness".

The infrastructure on which a healthy open government regime rests includes "adequate resources; careful training; professionalism in the creation, retention, use, and disclosure of records; and readiness of senior officials to stay out of disclosure decisions so that the processing of access requests becomes a routine embedded process within government. Weakness in any of these areas will undermine even the strongest of freedom of information laws".

"Do not become complacent just because a freedom of information law is on the books. Passage and adoption of an open government law guarantees nothing. It is but a first step; media vigilance, citizen pressure, academic attention, judicial support - all the forces which achieve the passage of access laws must remain organized, and fiercely determined to push back the inevitable "secrecy creep" that will emerge".

Reid has some other sage advice regarding training and professionalism for access administrators, and says that it should be an offence for a government employee to fail to create records with the intent to deny right of access to information.

The Secretary of the Australian Treasury, Ken Henry, is on record as saying that the prospect that advice documents could be subsequently made available for public scrutiny would be sufficient reason to ensure no records were kept.

Don't look for a job exchange arrangement in Canada Ken, at least while John Reid is in office.

Faulkner sticking to his guns on conclusive certificates

Dr. Ken Henry AC - Secretary to the Treasury.

The Sydney Morning Herald today gives wider publicity to the revelation here on Tuesday that the Federal Treasury voiced concern to the new government about its election commitment to abolish conclusive certificates - "Treasury battles to keep secrecy laws". A spokesman for the Special Minister for State however told Matthew Moore that the Government will stick to its policy on certificates: "Our policy is to abolish them.....there is no change" and that FOI reform will be acted upon before the end of the year. That's hardly rushing things.

My post seems to be the only online access to the actual Treasury briefing note on Freedom of Information.

The Australian Financial Review today also publishes my comment on an opinion piece yesterday by former Labor Leader Mark Latham, about MPs perks - while it won't solve the perks problem, as I said, improved transparency would be a first step.

Turning the switch to transparency.

You may or may not agree with Henry Ergas of Concept Economics in The Australian that the Government is on the road to disaster with half-baked populism involving long term costs. But his list of closed decision-making processes in the economic policy area is a reminder of from where we start with the new proposed object in the draft Freedom of Information Bill of promoting "Australia's representative democracy by contributing towards.....increasing public participation in Government processes with a view to promoting better-informed decision-making" :

"John Faulkner promised full disclosure. In fact, disclosure has been pitifully inadequate. Access to the modelling underpinning FuelWatch: refused. Access to the model used to evaluate the ETS: refused. Access to the cost-benefit studies underpinning the NBN: refused. Access to the Building Australia Fund's project appraisals: refused. Access to the Treasury's assessment of alternative stimulus packages: refused. This makes a mockery of democracy, whose virtue, as the historian and philosopher R.G. Collingwood argued, lies in forcing governments to operate "in the open air, and not as a post office distributing ready-made policies to a passively receptive country".