Abbott government weakens FOI and public service disclosure
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From a private home in Canberra, one of the last vestiges of transparency in government has, for the past six months, been trying to discharge his duties, overseeing freedom of information laws.
As his office closed and resources dwindled, Information Commissioner John McMillan was forced to work largely from home. Now he is calling it quits, having accepted a job as New South Wales ombudsman.
Even though the parliament is yet to pass legislation axing his role, his office seems to have succumbed to abolition by attrition, as staff left in anticipation of its closure. There is no sign McMillan will be replaced.
“No one in their right mind who would be a good choice for the job is going to take it now,” says lawyer and transparency advocate Peter Timmins. “Morale within the OAIC [Office of the Australian Information Commissioner] must be pretty shattered. They’ve lived for a year with the sword of Damocles dangling above them.”
The independent office was set up by the Labor government in 2010 to promote open government, as well as to review requests for information that had been knocked back.
But the Abbott government wants to abolish it.
When the Coalition was in opposition, it paid lip service to the need for transparency.
“Well, I think we should have a government which is transparent and open, and I think we should have a government that doesn’t do dodgy deals,” Abbott opined back in October 2012.
Then, just weeks before the election, in August 2013, he was asked at a press conference whether his pledge to stop the boats would be subject to scrutiny.
“The last thing we want to do is to hide anything from the Australian people,” said the then opposition leader.
This noble aspiration was swiftly followed by a caveat. “On the other hand,” Abbott said, “we do have to be guided by operational commanders as to what information is released and when, in terms of the decisions that they are taking and the actions that they are taking to protect our borders.”
Now Abbott considers it enough to reassure the public that the boats have been stopped “by hook or by crook”. He has refused to detail those hooks or crooks, even as senior Indonesian officials, the United Nations High Commissioner for Refugees and passengers confirm reports Australian officials paid people smugglers $US30,000 to return a boatload of asylum seekers to Indonesia. He no longer has qualms about hiding things from the Australian people.
“The Australian government will do whatever we need to do to keep this evil trade stopped,” the prime minister said last Friday, as 3AW’s Neil Mitchell pressed him about whether there had been payments to “evil” people smugglers.
It was at odds with previous denials from Immigration Minister Peter Dutton and Foreign Minister Julie Bishop, after reports of the payments first surfaced in Fairfax Media reports on Tuesday. Following Abbott’s lead, ministers shifted from denial to citing “operational matters” to justify their refusal to comment, before boasting about “stopping the boats” and then turning the attack on Labor or, in Bishop’s case, on Indonesia, which has demanded answers, warning that the payments amount to “bribery”.
Labor also invoked operational reasons for refusing to confirm or deny reports that, during its time in office, informants in people-smuggling networks had been paid for information as part of efforts to disrupt their trade. Leader Bill Shorten was able to say that the former government had not paid people smugglers to turn back boats, as turnbacks were not Labor policy.
Shadow attorney-general Mark Dreyfus endorses the convention of not commenting on intelligence matters, but argues that the initial denials from Bishop and Dutton and the mixed messages from Abbott give Labor licence to demand answers.
“The government by its own conduct has created the situation where people smugglers in Indonesia would be justified in thinking the government will pay them if they set out to sea with a group of asylum seekers on board,” he tells The Saturday Paper. “They’ll be paid not just by the asylum seekers to set sail but paid by the Australian government to turn around and be smuggled back into Indonesia.”
Under this government, boat turnbacks have been cloaked in secrecy and treated like military operations. It is only thanks to reports from Indonesia that we know this cloak also covers activities that are of questionable legality and morality, not to mention dubious policy merit, considering there are arguments that paying people smugglers could encourage them to embark on a voyage.
The evidence for this latest chapter was rich: the boat’s captain claimed in a police interview, in front of media, that an Australian official had paid him and the crew between $US5000 and $US6000 each to stop people smuggling and return the 65 passengers to Indonesia on two small wooden boats; the ABC obtained an Indonesian police report chronicling the incident; and Indonesian officials even provided Fairfax with photographs of the cash.
Yet Abbott dodged questions repeatedly, offering only broad assurances. “We will do whatever is necessary, within the law, consistent with our standards as a decent and humane society, to stop the boats because, as I say, that’s the moral thing to do,” he said on Tuesday.
While Abbott insists the law has been adhered to, this may rely on the fact that Australian Secret Intelligence Service (ASIS) officers, who are thought to have made the payments, are shielded from prosecution when working abroad. They are also shielded from FOI requests.
The blackout of information on Operation Sovereign Borders, the Coalition’s boat turnbacks regime, is one of a growing number of examples of this government’s predilection for secrecy over transparency, a preference that may seem ironic in a government headed by a former journalist.
“This government is building a multi-level approach to stifle the ability for people to know what is really going on,” says Stephen Blanks, the president of the NSW Council for Civil Liberties.
“Hand in hand with being secretive is a set of other measures designed to stifle free speech and stop people speaking out.”
He argues the Abbott government is more secretive than its Labor predecessor, and is more thorough and sophisticated in its attempts to prevent the flow of information about the internal workings of government than the previous Coalition government, under John Howard.
Labor and the Greens concur.
“This is an intensely secretive government that doesn’t consult before it takes action and doesn’t explain afterwards,” says Dreyfus.
Greens senator Sarah Hanson-Young says the government is treating the public with contempt. “It’s an incredibly secretive government,” she says. “It’s a secrecy that is covering every aspect of government at the moment and, as a result, it is setting up a very dangerous tension between government and parliament, and parliament and the public.”
The weakening of the freedom of information regime has occurred without fanfare, eroding an important mechanism for holding governments accountable and safeguarding against abuse of power and wrong decisions.
The government announced in the budget last year that it planned to wind up the OAIC. Ostensibly, this was a savings measure, worth about $10 million over four years, but it was also a ploy to limit FOI requests and appeals.
When it was clear the senate would baulk at passing the legislation, which Labor and the Greens argue will reduce oversight of government actions, McMillan was left in limbo, limping along on rationed resources.
His Canberra office, where 25 staff used to work, closed in December. His departure will further weaken the office, which opened in 2010. A year earlier Labor’s special minister of state, John Faulkner, said: “These reforms will change the law, but they will also demonstrate the government’s commitment to culture change, to a shift from a culture of secrecy ... to one of openness and transparency.”
FOI laws had existed since 1982, but the Faulkner reforms were the first attempt to make them really work. Faulkner pursued his reforms despite resistance from within the then Labor government and the public service.
His aspiration was at least partially achieved. The biggest sign of change was in 2010, when departments published, in response to FOI requests, the briefings they had prepared for the incoming government, providing information about the policy challenges ahead. After the Coalition came to power at the 2013 election, requests for these documents were denied, in an early sign of the tide turning against transparency.
Under legislation prepared by the Abbott government, Attorney-General George Brandis and his department will take over some of the FOI functions and appeals will again be sent to the Administrative Appeals Tribunal, attracting an $860 filing fee, which will deter many applicants.
Timmins says the public service culture has already shifted back in favour of non-disclosure.
“I think there’s been a fair bit of gaming of the system on FOI,” he says. “With the OAIC thought to be on death row, agencies have worked on the basis in some cases, I think, that if you knock back a [FOI] request, you won’t have to worry too much about someone taking you on. These days, there’s no great incentive to make a correct and proper decision.”
Senior bureaucrats have also mounted the case for a further weakening of FOI laws. Most notable were the comments from John Lloyd, the new public service commissioner, who set the tone for the rest of the bureaucracy in his first public speech in March.
“FOI laws are very pernicious,’’ said Lloyd, whose past roles include serving on the Australian Building and Construction Commission, the Australian Industrial Relations Commission and as director of workplace relations and productivity at the Institute of Public Affairs.
“I think they [FOI laws] have gone beyond perhaps what they intended to do, and I think they do make us a bit over-cautious and make some of the advice more circumspect than it should be, and I hope the government will address that and perhaps reassess the extent of some of those FOI laws.”
Brandis’s office did not respond to inquiries about whether anyone would be appointed to replace McMillan or whether he agreed with Lloyd’s description of the FOI regime.
Faulkner has since retired from the senate. But one of his final contributions was his call for greater checks and balances on intelligence agencies as their powers expand, to improve accountability and oversight in an area that is normally shrouded in secrecy.
Dreyfus says Labor’s caucus has approved the Faulkner proposals and the opposition will pursue them via a private senator’s bill within months.
“One of the Faulkner proposals, a reform which I favour and want to take forward, is that the [parliamentary] intelligence committee will be given a larger scope, in particular by being able to look at operational information,” he says.
Dreyfus adds that the parliamentary committees with oversight of intelligence agencies in Britain, Canada and the United States can all access operational information that has hitherto been denied to the Australian committee.
He is not discounting the possibility there could be bipartisan support for these accountability measures, but neither is it assured.
As the Coalition prepares to introduce its next round of counterterrorism measures, promising to introduce legislation next week to strip dual nationals of citizenship if they fight with a terrorist group, cracks are appearing in the bipartisan approach to national security, mirroring cracks within the government itself.
Dreyfus says it is “unthinkable” that revocation of citizenship should be decided on ministerial whim.
“I think that it’s very important that, when we are dealing with what is after all criminal activity, we stick with the centuries of criminal law, and the role of judges and juries that are a totally important part of the Australian system,” he says.
This new legislation follows the passage last September of laws introducing five-year jail sentences for anyone who discloses details of a “special intelligence operation”, or 10 years if the disclosure endangers lives. While the government maintains this is directed at intelligence officers, media companies are concerned it could also capture journalists and further hamper reporting on national security issues.
Journalists’ ability to obtain information from whistleblowers has also been restricted by laws that passed in March, requiring phone and internet providers to store customers’ metadata for two years.
In the United States, tough counterterrorism laws introduced since 2001 were balanced somewhat by the fact that intelligence agencies such as the CIA and FBI were subject to FOI requests. But in Australia spy agencies ASIO (the Australian Security Intelligence Organisation) and ASIS are excluded from the reach of the FOI laws. The default option is secrecy, which is beyond challenge.
“Australia has always decided to put a sacrosanct exclusion [from FOI] over matters concerning national security or defence, rather than assessing what is the harm or the risk of disclosure,” says Rick Snell, the deputy head of the School of Law at the University of Tasmania.
Another secretive sphere of this government’s activities, relating to the interception and processing of asylum seekers, is about to get even more opaque.
While “on-water” matters have been considered off limits since former immigration minister Scott Morrison introduced new restrictions on the release of information, now the code of silence is being tightened around what goes on in detention centres.
The Border Force Act, which passed parliament last month with Labor’s support and comes into force from July, threatens anyone working for or on behalf of the Department of Immigration and Border Protection with prosecution and two years’ jail if they disclose details of their work in detention centres. The act says that only the secretary of the department operating detention centres can disclose information about them.
This has alarmed doctors, who fear that they could be prosecuted for blowing the whistle on poor conditions in detention centres and could find their ability to do their job properly compromised.
“If you followed the letter of the law, it would prohibit normal medical practices, which includes things like talking to someone else to get a second opinion of a patient’s care,” says Louise Newman, the professor of developmental psychiatry at Monash University, who chaired the government’s Detention Expert Health Advisory Group before it was disbanded.
“The bigger picture, though, is our concern about what it means about ethical obligations in terms of being advocates for patients and speaking out when there are inadequacies of care in detention centres.”
The Australian Medical Association is so concerned by the new regime that it passed an “urgency motion” at its national conference this month, calling on the government to review the act and exempt medical practitioners.
The government counters that the Public Interest Disclosure Act 2013 provides protection for officials, including contractors, who want to report maladministration, but the doctors are unconvinced that this would protect them.
Even without the new legislation, the government has actively targeted those who have disclosed information about detention centres and boat turnbacks. Morrison requested the Australian Federal Police investigate whether Save the Children staff had communicated privileged information when they raised concerns about conditions. These accusations were later dropped. Journalists who revealed details of boat turnbacks were referred to the AFP for investigation of the source of their stories.
As the government narrows the avenues for the public to know what is being done with its money in its name, Abbott is betting that most people will accept this creeping secrecy if he can persuade them he has stopped the boats and is tough on terror.
There was a marked similarity to his answers this week, whether the question applied to national security or to boat turnbacks.
“I know people in Canberra obsess over these things, but as far as the public are concerned they want a government which is keeping Australia safe,” Abbott said in one version of the catch-all answer, after he was asked about a leaked document showing the government intended to use citizenship-stripping to wedge Labor. “And I want to give every single Australian this assurance: this government will do what is necessary to keep you safe.”
The generic answer was devoid of detail but heavy on sentiment and that sentiment was: trust us, we’re the government.
This article was first published in the print edition of The Saturday Paper on Jun 20, 2015 as "The government’s secrecy addiction". Subscribe here.