Politicians cannot help themselves. I say this advisedly because they could help themselves very easily by opening up a little. But, oh no, everything has to be a big secret. We know best, they say, and it is not in the public interest for the public to have information about how we arrived at our decisions, even though the public paid for it through their taxes.
This week former NSW Ombudsman Irene Moss handed down the Report of the National Audit of Free Speech. It cited hundreds of examples of needless government secrecy – needless in the sense that the only reason one could fathom for keeping it secret is that it would embarrass a government minister.
The audit was commissioned by the major media organisations as part of their Right to Know campaign.
It found a creeping climate of secrecy in the years of the Howard Government. The Coalition’s attitude to freedom of information laws is to find a way to prevent information for being made public by: charging absurdly high fees; asserting national security, privacy, commercial-in-confidence or the “need” for communication between bureaucrats and ministers to remain confidential; shoveling stuff through cabinet so it can attain cabinet-in-confidence status; and if necessary issue a “conclusive certificate” that the release of the information would be against the public interest.
The original aim of the Freedom of Information Act was to ensure that government information was prima facie public information, overturning the old UK Official Secrets Act which worked on the presumption that all government information was secret unless a Minister or delegate authorised its publication.
Since 1996, however, the misadministration of the Act has resulted the onus has been a practical reversion to the Official Secrets Act — everything is to be secret unless allowed out by the political masters. All leaks have been pursued by police on political instruction with much more rigour than the average theft, assault or rape case.
When you look at the cases cited by the audit and other cases of whistleblowers and journalists being hounded, or access to information being denied, a theme emerges. In virtually every case, the public would have been better off if the information had been made public earlier. And ironically, the politician would have been better off, at least in the long term. This is because if the information or advice had been public from the beginning, the politician would not have dared make a decision for short-term gain when the long-term effects would be so obviously bad.
Two classic examples are the first home-buyers scheme and tax cuts. The former sparked spiraling house prices and the latter sparked interest-rate rises.
My bet is that Treasury advice to the Government kept secret by the Government predicted precisely those things, but Treasurer Peter Costello ignored it. (If he wants to deny that he should release the advice.) Instead, when The Australian sought the advice under Freedom of Information law he denied it all the way to the High Court which unfortunately ruled in his favour.
In the long-term Costello, his government and the Australian people would have been spared a lot a agony if that advice had been given in the knowledge that it would become public before too long.
The argument that the fear of advice becoming public would constrain public servants from giving frank and fearless advice is rubbish. The contrary is being proved. If public servants think advice will remain secret for 30 years they will dish up any amount of career-saving tosh that their masters want to hear.
Incidentally the ACT has a 10-year rule for Cabinet documents and the sky has not fallen in.
Clearly FOI needs significant change.
At least the audit has had some effect. While it was taking submissions, Attorney-General Philip Ruddock referred FOI to the Australian Law Reform Commission. Maybe he thought that would get it out of the way until after the election. But now his Opposition counterpart Joe Ludwig has promised to get rid of exclusive certificates, appoint an FOI commissioner, and modernise the Act for the electronic age.
Indeed, with electronic storage and searching and email, FOI requests should be much cheaper to do. But no the cost has risen. One media outlet had to abandon a request over MPs travel when hit with a bill for more than $1 million if it went ahead. The media has every right to suspect male fides.
FOI across government should be administered separately. It is absurd for politicians and affected departments to make decisions about the release of information which might cause them embarrassment. They are being judges in their own cause.
But a new Labor Government will have to get on with it pretty quickly before it, too, stacks up its own mistakes and incompetence that will require a new climate of secrecy.
As an act of good faith, Opposition Leader Kevin Rudd could promise to open the boxes on the inquiry into former High Court judge and Labor Attorney-General Lionel Murphy which were so egregiously sealed for 30 years by the Hawke Government in 1986.
Prime Minister John Howard has promised to make a statement about FOI before the campaign is through. My guess is that the Government has too many secrets that it wants to stay hidden to promise any significant reform. But any promised changed will be another example of Howard being nudged against his will to the left in this election.
If there is no significant change the losers will be the public and, indeed, the politicians. Sure, some things have to remain secret for a while – matters of public security, properly and narrowly defined. But lots of innocuous material would be better in the public domain. We can learn from past mistakes. And the prospect of later publicity would add greater rigour to political and administrative processes.