International Law

Wisdom of some advice to PM not self evident

By Peter Timmins

"Dear Mr. Rudd, Ideas for a Better Australia", edited by Robert Manne is packed full of bright ideas on 19 topics relevant to the 2020 Summit in April, even though Manne and his contributors kicked all this off in the middle of last year. Three contributors address issues associated with good governance.

Harry Evans, the Clerk of the Senate, puts forward some good suggestions about improving the way Parliament operates and former WA Premier Geoff Gallop has some interesting angles on making the Federation work more effectively. Patrick Weller of Griffith University also makes mostly valuable comments about getting the Federal public service back effectively serving the government and the Australian people.

However I'm a bit taken aback by a couple of Weller's observations about freedom of information. The following passage in his letter to the Prime Minister appears on pages 77 and 78, with my comments in parenthesis:

"Remember that even good causes can have some serious unintended consequences for government. Freedom of information is one example. FOI may be one of the better causes of recent years; citizens deserve to know what government knows about them".
(This isn't what FOI is primarily about although much use of the Act is by people seeking access to personal information. The Government's own documentation states that "the underlying rationale behind the FOI Act is open and accountable government. Its object is to extend as far as possible the right of the Australian community to access to information in the possession of the Commonwealth").

"Yet Ministers still need to be able to debate alternative strategies with their public servants; they need to be free to explore possible solutions without each one becoming public knowledge".
(Yes, ministers and public servants need "thinking space" to weigh issues and options and in most cases this is probably best done, as the Deputy President of the NSW Administrative Decisions Tribunal put it, "without someone looking over their shoulder at every step of the way". It's a different matter however to suggest that various options considered shouldn't become public knowledge after the thinking processes are complete. Content and how best to advance community interests should determine whether documents should be disclosed or not disclosed.)

"If all government papers are readily available to the media, ideas will not be developed in full and ministers will have to rely on oral briefings".
(Really? While obligations to create records are a little vague in the Federal Archives Act, the Archives Authority, the Auditor General and the Public Service Commission, all advocate systematic processes to document the activities of a government agency. Here is just one example from the Public Service Commission: "...it is good practice for departments to use written briefings to provide assurance that the issues and options are clearly presented to the Minister....it is also good practice for departments to maintain a record of all briefings of significant issues and any resulting discussions and decisions". The Administrative Decisions Tribunal has recently rejected the view that documents should not be disclosed because of the effect on record keeping.)

"Good policy deserves to be fully developed and widely considered in private and in cabinet, before decisions are finally made".
(Yes, and this is reflected in the FOI Act, with the important proviso, that any decision to refuse access must take into account public interest factors for and against disclosure).

"It seems reasonable that papers about the consequences of policies actually adopted be made public, while papers exploring other options remain confidential".
(Just why this would be reasonable is a bit hard to fathom. Weller's position seems to suggest we go back to pre FOI days. After all since 1982, the law has been that papers exploring other options will only be exempt from disclosure when the public interest in confidentiality outweighs the public interest in disclosure).

Then there is this on page 84: "Advice to the minister must remain confidential, whether it is policy advice from departmental staff or political advice tendered by ministerial staff. Ministers have to be able to talk over options, to discuss strategies, to consider the political ramifications of proposals, to calculate the levels of support they will get from there colleagues".
(This seems to suggest that documents containing advice are best kept confidential until they are publicly released after 30 years. Advice documents that contain sensitive information about aspects of government operations that if disclosed would harm important community interests, should remain confidential until the reasons for sensitivity have passed. But they shouldn't be regarded as confidential just because they contain advice. The best way to ensure high quality advice is to put advisers on notice that their work may be subject to scrutiny).

I expect given Weller's well deserved eminence as a scholar of the way government works, that he is a certainty for the summit. But on this point at least, his wisdom shouldn't go unchallenged.

Full post as published by Open and Shut on March 24, 2008 (boomark / email).