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Seeing through the government

by Isabelle Reinecke. Published in

The Albanese government made promises on transparency, but its use of FOI and NDAs is still disturbingly widespread.

Former senator Rex Patrick is on a self-described transparency crusade. One of the many battles he has waged was a freedom of information request to obtain ministerial documents relating to the infamous “sports rorts” scandal. After Christian Porter left the attorney-general’s office, Patrick’s FOI request was denied on the basis that the documents “ceased to exist” under the act because they were no longer in Porter’s possession (although the government admitted in court that the attorney-general’s office does, in fact, have access to the documents). Of the various creative excuses offered by politicians attempting to evade public scrutiny, this one – first accepted by the information commissioner in 2013 and spawning a decade of “disappeared” documents – has to be one of the most audacious.

Following Patrick’s Federal Court win last month (which Attorney-General Mark Dreyfus spent up to $200,000 fighting against), governments are no longer able to use ministerial reshuffles to deny requests. More than a decade of lost documents, rejected under the now defunct “change of minister” exemption, could be exhumed. But instead of heeding the court’s signal to the government that it cannot continue to get away with riding roughshod over the core principles laid out in the FOI act, the attorney-general lodged a last-minute appeal.

This is only the tip of the secrecy iceberg. The disability community, for example, expressed its concerns that new NDIS legislation was being developed behind closed doors, making it difficult to consult with their communities despite repeated promises of a co-design process. More than two dozen disability advocates were required to sign non-disclosure agreements (NDAs) to see an exposure draft – a classic corporate tactic to maximise control and minimise criticism of ethically dubious behaviour.

It’s not the only example. With global automobile manufacturers known to be dumping climate-polluting cars in Australia due to our lack of fuel efficiency standards, Labor promised laws that would see a 60 per cent average pollution reduction in new cars by 2029. Instead, after engaging in consultations with the automotive industry behind the shroud of NDAs, the government has landed on a watered-down approach and a delayed start.

Other recent attempts to avoid scrutiny through NDAs or secretive policy development processes include consultations on the government’s promised religious discrimination bill, and the recent transfer of offshore gas approval powers from the environment minister to the resources minister. And consultations on the National Adaptation Plan to address climate risk closed in mid April, giving the public just four weeks to provide input on the government’s national adaptation priorities.

It was disappointing to hear the Albanese government’s response to critics, apparently satisfied that the extensive use of NDAs and confidentiality requirements to draft controversial legislation is a well-established practice – citing the inglorious precedent of previous Coalition governments. The standard by which Labor ought to be measured is not by how low their predecessors were prepared to set the bar, but by how well they embrace the first principles of good governance and their own transparency platform at the last election.

Yet, around the same time as fuel efficiency standards were being watered down behind closed doors, the government attempted to rush draconian new immigration legislation through parliament. This came about in response to the High Court’s unanimous, on-the-spot decision to overturn the court’s infamous Al-Kateb ruling 20 years earlier, finding that it is unlawful for governments to indefinitely detain people – something that had been widely understood as the correct position in constitutional legal circles for years. Indeed, FOI documents show that Labor was briefed by the solicitor-general within a month of forming government in 2022 that Al-Kateb was likely to fall. The opposition was ready to weaponise the decision, yet Labor was caught flat-footed.

Instead of preparing to accept the High Court’s finding, the government first rammed through parliament “preventative detention” legislation that would enable it to re-detain people under certain conditions, scheduling the vote without notice on a non-sitting day (one that had been marked to pass a condolence motion for the recently deceased MP, beloved human-rights champion Peta Murphy). Next, in March, it introduced a new migration bill, criminalising people seeking asylum if they did not assist the government to return them to their home country, in what was described by refugee law advocates as the most draconian policy shift in decades. The bill was later moved to a Senate inquiry for review.

These are important litmus tests on transparent government. The point of releasing draft legislation is to consult widely with experts and interested parties alike, to gather broad feedback without fear of consequences, to inform the final text of a bill before it’s introduced to parliament. Operating under a veil of secrecy using NDAs to stifle debate might make the job of a politician easier, but it denies the public’s democratic right to participate in lawmaking and limits the viewpoints that contribute to public policy.

The exposure draft consultation process should be public, not held behind closed doors. The danger with overusing NDAs or limiting access is that we won’t know who has been consulted unless we make an FOI request, which could take years to be resolved and ultimately denied. All the while, powerful corporations and lobbyists continue to gain access to negotiate legislation before it gets to parliament.

The use of NDAs in sexual harassment cases, contracting victims into silence to cover up misconduct and abuse, was brought to global attention in the Harvey Weinstein case. Labor is committed to implementing all 55 recommendations of the groundbreaking Respect@Work inquiry report, including new NDA guidelines that model confidentiality clauses to assist the legal profession to meet the needs of all parties in line with a victim-centric approach. But recent research published after the first year found that “despite the Respect@Work NDA Guidelines, NDAs are continuing to be used, misused – and over-used”. The research shows that 75 per cent of sexual harassment legal practitioners across Australia have never reached a sexual harassment settlement without strict NDA terms.

It’s hard to ignore the hypocrisy inherent in the government’s overuse of NDAs in the policy development process once you see the connection with how NDAs are used by corporations to shut down women survivors of sexual assault. It raises the question: where else is the corporatisation of our public policy processes having ripple effects? And how can we trust that Labor has the integrity to do the right thing and stop the overuse of NDAs to silence women victim-survivors, when it is misusing NDAs to conduct the business of parliament in secrecy?

Meanwhile, those seeking to stop the impacts of poor policy through FOI are blocked by endless delays and excuses. FOI is a core transparency function, vital for restoring integrity and public trust in government. For now, both the front and back door are closed, with FOI reform remaining stalled under Labor.

In Rex Patrick’s win, Federal Court Justice Natalie Charlesworth said, “the FOI act is not concerned with party-political matters … To the contrary, it is a regime devised to enlarge scrutiny of Government activities in accordance with its terms, including in cases where scrutiny is not wanted.” A government of vision and integrity could embrace the decision, revelling in the opportunity to fix the foundations of what was created with bipartisan support decades earlier.

Yet, as it stands, any FOI request can still legally take longer than a three-year term of government to be processed. Apart from the painful delay and red tape this implies, it also means governments cannot be held to account between elections and then, when most relevant, at the next ballot box. Another of Patrick’s battles on this issue is expected to be determined sometime this year by the full bench of the Federal Court.

Another related case in the Federal Court is transparency advocate Justin Warren’s long-running legal fight over access to key documents behind the harmful robodebt scheme. In 2017, just a year after robodebt was launched, Warren made an FOI request for early business plans and other documents produced by the Department of Human Services to justify the rollout of the scheme. The department rejected the request on the basis that the relevant documents were “cabinet documents” and therefore exempt from FOI – an apparently ever-expanding legal tool repeatedly used by governments to deny access to information.

It shouldn’t have taken a royal commission to expose the elaborate deception that allowed a cruel and illegal scheme to flourish. Had these documents been made public at the time they were subject to FOI requests, we would have known that the government held legal advice that robodebt “could not occur without legislative change” and “that Cabinet was told nothing of those things”.

The attorney-general described robodebt as a “catastrophic failure of public administration” where people were “vilified, worn down and made to feel like criminals by their own government”. Yet the royal commission’s recommendation that the Commonwealth Cabinet Handbook should be amended so that the description of a document as a cabinet document is no longer itself justification for maintaining its confidentiality was the only one among 57 recommendations ignored by the Albanese government in its response.

Prime ministers Whitlam and Fraser championed the FOI act into law in 1982, with a bipartisan understanding that sharing information where reasonable, and opening up decision-making on matters of high public importance, makes for stronger government and better societies. This is how the parliament should see transparency and accountability mechanisms such as FOI and whistleblower protections: not as threats or agitations, but as vital tools, checks and balances that enable public participation in government – collaboration that makes our schools, hospitals, jobs, industries and communities all stronger. This has never been more important, as trust in politics languishes and dangerous conspiracists exploit high levels of institutional wariness.

Labor’s record on transparency is ripe for improvement. The government can make good on its transparency promise by shifting the balance to the public’s right to know. It takes courage and vision to invite scrutiny and criticism, to allow nuanced debate to thrive in an incredibly polarised world. A return to the first principles of good governance could help. Lawmaking should be an open, rigorous contest of ideas. Closed consultations may have their place from time to time, but it is hard to think of examples where lawmaking can be enhanced through secretive draft legislation processes and NDAs.

It would be simplistic to ignore the drivers of secrecy in government. But instead of dodging a polarised public square with closed doors, a wise government might address the fundamental issues undermining healthy democratic debate with things such as a royal commission into the concentration of media ownership and serious regulation of the profit-based, misinformation-spreading algorithms of international technology giants.

If rumours around Parliament House are to be believed, Rex Patrick’s win could drive wholesale reform of the FOI system. Perhaps it is little wonder, then, that the government has appealed. Should it lose again, the pro-secrecy settings of the government make it unlikely that it will let the implication of that judgement lie. It could require the government to hand over all the ministerial dirty laundry that had previously, conveniently, been considered legally “disappeared”. But a government seeking to set itself apart from its predecessors would be wise to think about the long term. This is an opportunity to act on the recommendations of a recent Senate inquiry into Commonwealth FOI laws, as well as heed the open letter sent to the attorney-general by 16 civil society advocates seeking urgent reform.

What is in the decade of lost documents under the previous government that could be accessed by the public now if the judgement was left to stand? How enhanced could public policy become if ministers into the future knew they wouldn’t be able to hide what they do in office?

The Albanese government is headed down a well-worn path towards the next election, sticking to business as usual. Given the electorate’s thirst for open and honest government, and leadership it can trust, a wiser path would be to revive its election transparency promise, and stop the mould of secrecy from blooming and causing long-term rot.

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