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Freedom from information in Canberra's utopia


Canberra’s addiction to secrecy is damaging democracy, argues Nick Xenophon Team senator Rex Patrick.

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There’s an episode in Utopia – the ABC’s cynical satire on the role of government, the public service and spin doctors – that sticks in my mind.

There’s a junior public servant working away at her desk, being asked by her superior what she’s doing.

Her response that she’s processing her first Freedom of Information (FOI) request earns a swift rebuke from her boss – telling her to reply that the request can’t be processed because it’s too onerous and time-consuming. The fact that the senior public servant knows nothing of the request is irrelevant.

Unfortunately, art imitates life when it comes to FOI in Australia. With the Commonwealth Government spending over $460 billion of taxpayers’ money each year, and with Government playing an increasing role in our day-to-day lives, effective FOI laws matter more than ever.

Poor, bad, wasteful and (especially) corrupt decisions thrive on secrecy. FOI laws are meant to provide the very antidote to that.

The great US jurist Louis Brandeis said “sunlight is the best of disinfectants” – which really sums up the true role of FOI laws.

The problem is that Australia’s FOI laws and the policing of them seem to be stuck in a long-term eclipse.

When my predecessor Nick Xenophon sought documents from Defence over the largest single procurement in Australia’s history – the $50 billion future submarine project – he was stonewalled.

All he wanted was access to unclassified documents sent to the French, German and Japanese bidders for the subs project, so taxpayers could see exactly what was being asked of participants by Defence. In turn, we should be able to work out whether the Government made the best decision on this multi-billion dollar and multi-decade program.

Defence told Xenophon there wasn’t one word of the 1300 page document that could be publicly released. He challenged the decision and we’re both headed to a full-blown hearing before the Administrative Appeals Tribunal (AAT) early next year.

The decision of Defence bureaucrats wasn’t really a surprise. But what shocked both of us is that the supposed watchdog of FOI laws, the Information Commissioner, agreed entirely with Defence. Never mind that – no thanks to the Information Commissioner – Defence has now abandoned its exemption claims over many of the documents.

The case, when it’s heard next year before the President of the AAT, Justice Kenny, will be as much a test case of the effectiveness of our supposed FOI watchdog, as the FOI laws themselves.

And to say our current system for the release of information is full of smoke and mirrors is perhaps best illustrated in another case of unnecessary secrecy involving no less than big tobacco.

The plain packaging legislation from the Gillard Government provoked a furious challenge by Philip Morris involving an investor state dispute resolution clause in a little-known Hong Kong-Australia trade agreement signed up decades ago.

Australia fortunately won the case hands down against big tobacco, scoring a costs order in its favour for the lawyer’s fees involved – believed to be about $50 million.

When Xenophon asked via FOI for details of the cost he was initially told it was ‘Cabinet-in-Confidence’ (a reasoning that public servants love to rely on).

The Information Commissioner’s preliminary view backed the Government’s ridiculous claims – even though they conceded the document under review had never been to Cabinet. Again, it was a concession made no thanks to the Information Commissioner.

There’s now a new line of argument that’s been concocted after the Cabinet exemption excuse was dropped – and this case too seems destined to end up in the AAT, or even higher up the judicial chain.

The Abbott Government tried to shut down the Office for the Australian Information Commissioner during the last parliament but the move was opposed by the Senate. Openness and transparency is the lifeblood of good governance and the Senate wasn’t having a bar of killing off this important office. The Turnbull Government subsequently dropped the plans but has, at the same time, squeezed funding and has refused to appoint a Privacy Commissioner and a legally trained FOI Commissioner as required under legislation.

And it seems that the Information Commissioner (who isn’t legally trained) is now undertaking all three roles and doesn’t seem to have a problem with that.

FOI laws have been around since 1766 in Sweden. It took more than 200 years with the election of the Whitlam Government in 1972 to see moves for an FOI Act here. Even Malcolm Fraser took up the baton when in 1976 he said: “If the Australian electorate is to be able to make valid judgements on public policy, it should have the greatest access to information possible. How can any community progress without continuing and informed intelligent debate? How can there be debate without information?”

The father of the consumer rights movement, Ralph Nader, made the point that: “A well-informed citizenry is the lifeblood of democracy; and in all arenas of government information, particularly timely information, is the currency of power”.

Right now, in Australia, that currency has been devalued to something that is approaching worthless.

That might be utopia for the Government and public servants, but a nightmare for the rest of us.

Rex Patrick is a Nick Xenophon Team senator for South Australia.

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