Labor came to power calling for transparency and open government. Sixteen months later, it seems just as guilty of obfuscation and non-disclosure as its predecessor. By Mike Seccombe.

FOI and government transparency

A bald man wearing glases and a suit sits by a microphone.
Former Commonwealth freedom of information commissioner Leo Hardiman.
Credit: Supplied

Probably without exception, reckons Professor John McMillan, every politician would be on the record somewhere expressing their “fervent belief” in transparency and open government. Mostly, he says, they do it from opposition.

That pattern continues with the Albanese government, which came to power campaigning against the pathological secrecy of the Morrison regime. In the past week, several events have shown the new government is less than fully committed to transparency.

For one, it has refused to reveal details of $3.6 million worth of flights by the RAAF VIP fleet – where the planes went and why, and passenger manifests – citing “security” grounds.

On the decision to deny Qatar Airways greater access to the Australian market, it has refused to fully explain its reasoning. Anthony Albanese has also refused to release his official diaries, which might show whether or not he met with executives from rival airline Qantas.

Against this backdrop, a Senate inquiry into the operation of the freedom of information regime has shown how comprehensively broken it is. Among the damning evidence presented was that of former FOI commissioner Leo Hardiman, who quit in March, only a year into his five-year term. Hardiman detailed his frustration with chronic delays in the system, resulting from poor resourcing and administration, which he says he was actively prevented from fixing.

The government is yet to appoint a successor to Hardiman. The Office of the Australian Information Commissioner (OAIC) remains dysfunctional and the backlog of decisions on FOI requests – which can take as long as five years to be made – remains.

McMillan has firm views on all these issues. On the matter of the prime minister’s official diary, he says the contents should be “proactively disclosed”, as occurs with ministers’ diaries in several Australian states.

“I think that any minister who is not publishing their diaries is not displaying any true commitment to transparency,” he says.

“Information about government VIP flights should be in the same category.”

McMillan also has serious concerns about the structure, processes and culture of the OAIC, which is an independent agency in the attorney-general’s portfolio, established in 2010.

The OAIC was intended to fulfil several functions, one of which was to review determinations of FOI requests made by government departments and agencies. Another was to safeguard privacy.

“But privacy and FOI don’t naturally fit together,” says McMillan. “One’s concerned with confidentiality and the other with maximum release of information. And privacy is one of the greatest obstacles to effective transparency.

“The whole reason for the establishment of the OAIC was to give FOI a stronger basis. The privacy office already existed and was motoring along quite well, but FOI was not being well supported and kind of languished…”

What is clear from Hardiman’s experience and from the evidence of long delays and unsatisfactory outcomes to FOI requests is that the OAIC did not devote enough resources to it.

“And so, if you want to try to make the work better…” McMillan says, “maybe take FOI out of the OAIC and give it a new home.”

McMillan is a former Commonwealth ombudsman and an academic expert in administrative and constitutional law. He was a founding member in the 1970s of the Freedom of Information Campaign Committee, which ultimately led to the establishment of Australia’s Freedom of Information Act in 1982.

In 2010 he worked with two politicians he believed were committed to open government, Labor senators John Faulkner and Joe Ludwig, to set up the OAIC, a body he now says has become dysfunctional. He became its inaugural head.

Four years later he was at the centre of a legendary political battle, when the new Coalition government showed its disdain for transparency by attempting to abolish the OAIC. When the Senate would not let it do so, it responded by starving the office of funds to operate.

Famously, McMillan soldiered on without staff in the Canberra office, working from home, before finally resigning in June 2015. The Coalition left the position of FOI commissioner vacant for almost seven years, until Hardiman was appointed in March 2022.

For much of the time when there was no actual FOI commissioner, another bureaucrat, Angelene Falk, acted as both information commissioner and privacy commissioner. In his evidence to the Senate committee last week, Hardiman laid much of the blame for the lags in FOI determinations on her. The essence of his complaint was that Falk starved the FOI section of staff.

He said the cultural problems at the OAIC were “entirely a product” of Falk’s leadership. “Try as I may,” said Hardiman, “I simply could not change that culture and its performance on the FOI functions.”

Falk disagrees and has been given three weeks by the committee to prepare a response to Hardiman’s claims.

The inquiry received numerous submissions detailing dubious decisions and long delays.

In one, a journalist requested access to information about robodebt from Services Australia. By the time the OAIC had finalised its review, almost three years later, the scheme was being shut down.

In another, then senator Rex Patrick requested information about the allocation of grants for the Community Sport Infrastructure Grants program, better known as “sports rorts”.

Patrick’s request was finally decided in February 2023, almost three years after he submitted it and more than a year after Scott Morrison lost government.

The fact that the responsible minister, the attorney-general, has changed twice during the intervening years was cited by the OAIC as reason for refusing his request.

Other submissions gave detailed time lines of the various steps in the review process, extending for five years or more.

One aspect of the Rex Patrick matter that the former independent senator finds “bizarre” is that when it eventually found its way to the Federal Court, the now attorney-general, Mark Dreyfus, submitted an affidavit supporting him, saying the system was broken.

“And yet,” says Patrick, “it’s now his responsibility, and there’s no additional funding going to FOI.”

These days, Patrick assists others with FOI requests and is paid by the government to instruct political staffers on how to navigate the system.

One matter he has taken on is a request for Albanese’s official diaries.

“That has been rejected on the basis that to process the prime minister’s diary would involve an unreasonable diversion of [his office staff’s] resources,” he says.

Curiously, he says, on the day he sought access to Albanese’s diary he did the same for the diaries of the environment minister. “They both have much fewer staff. And both of those returned their diaries to me.”

Part of this is about legal precedent. When Dreyfus was shadow attorney-general, he sought access to the ministerial diaries of the then attorney-general, George Brandis. It took three years and went all the way to the full bench of the Federal Court, but Dreyfus won.

“So,” Patrick says, “we’ve got a full Federal Court decision that’s exactly on point. And the prime minister’s office is just ignoring it.”

Patrick is a particularly irritating thorn in the side of this government, as he was with the previous government. He is pursuing transparency on a wide range of issues, including the advice the government received about a gas reservation policy, the stage three tax cuts and the disposal of waste from Australia’s planned nuclear submarines.

“Collectively, these things relate to expenditure of hundreds of billions of dollars,” he says. “We should know.”

The Greens and other members of the cross bench are also major irritants to government. It was a Green, David Shoebridge, who pushed for the current inquiry into FOI.

He, too, believes it suits the executive to have an OAIC system that doesn’t work properly, because long delays in the process “destroy the utility” of potentially damaging information.

“Because of the lack of accountability for non-disclosure decisions, it’s empowering government agencies to make the worst decisions,” he says. “A refusal doesn’t have to be meritorious. It doesn’t have to even be basically defensible, because no one’s going to look at it for five years.”

The evidence to the committee, he says, suggests “a very powerful tendency for privacy to trump FOI”.

Citing Hardiman’s evidence, he said it appeared the OAIC “actually, consciously, wants to sabotage the FOI system”.

In his view, the resourcing issue, if not the cultural one, could be pretty easily addressed.

“A tiny amount of money could create such a significant benefit,” he says. “We’re talking about $10 million a year to break this backlog in the review process. And, you know, in the context of a federal budget, that is like a rounding error.”

This week, in response to the government’s refusal to reveal details on the VIP flights, the Senate passed a motion ordering the production of relevant documents. It did the same in relation to the Qatar Airways issue. The question now is whether the government will comply.

The chances aren’t great.

A report from the independent Centre for Public Integrity in April found the rate of compliance with such Senate orders was 92 per cent under the Hawke government in 1992-93, before beginning a long slide.

For the current parliament, the rate is 20 per cent – worse than it was under Scott Morrison.

Like so many before him, Albanese came to power promising transparency, but things always look different from the government benches.

This article was first published in the print edition of The Saturday Paper on September 9, 2023 as "Seeking disclosure".

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