This piece is part of a series. Read the introduction and find the full series here.
Labor spent more than a decade in opposition lamenting the backward steps on transparency and accountability during the Abbott-Turnbull-Morrison governments.
But a year after winning office, the Albanese government’s tardiness in comprehensively turning around the laws, policies and practices it inherited — and its virtual silence to date on freedom of information reform — is further proof of that maxim that opposition is the time for advocating change, but not so much delivering it when in government.
A potted history
Both major parties reach back to remind us they have transparency credentials.
Think of Labor as the party of Gough Whitlam, whose commitment in 1972 to act on excessive secrecy subsequently saw the introduction of the Freedom of Information (FOI) Bill. The initiative was foiled by the Dismissal and led to a merry-go-round of reports but no legislation through the 1970s.
The Coalition identifies as the party of Malcolm Fraser, who presided over the introduction of the Freedom of Information Act in December 1982 despite public service concerns and advice that echoed the lines of Sir Humphrey Appleby in Yes Minister: “Minister, you can be open or you can have government but you can’t have both.” Fraser in retirement described the passage of the FOI Act as his greatest achievement.
And yet the Coalition record from 2013-22 was not exactly notable for its wholehearted embrace of the spirit, intent, interpretation and implementation of Fraser’s gift to the nation.
Instead, excessive secrecy became its hallmark. This included a failed attempt in 2014 to legislate to abolish the Office of the Australian Information Commissioner (OAIC), the oversight and external review body that is an essential element of the FOI system. Thwarted by the numbers in Parliament, there followed a decision to make do with one commissioner responsible for FOI and privacy protection — not three as legislated — and sharp and significant reductions in funding.
A commitment in Australia’s first national action plan 2016-18, required by our membership to the Open Government Partnership (that’s another story!), was “Australia will ensure our information access laws, policies and practices are modern and appropriate for the digital information age”. The commitment went into the inbox but was never seen again.
On transparency and accountability, the Morrison government was in a class of its own. It was, as Guardian Australia’s Paul Karp described it, attached to “secrecy at all costs and innovative or legally dubious means to achieve it”.
Labor, the promise
In 2021, gearing up for the election it would win in 2022, the ALP adopted a National Platform that included a whole chapter devoted to strengthening democracy, including a commitment that “the party will make government open and accountable” and “will strengthen freedom of information laws and foster compliance throughout the government”.
Given the points scored against Morrison and company on transparency, the expectation was that Labor was serious about reform.
Things are different to some degree since May 2022. The government, and Attorney-General Mark Dreyfus in particular, has been busy establishing the National Anti-Corruption Commission, taking first steps with regard to whistleblower protection, getting underway with a review of secrecy laws and finishing a review of the Privacy Act.
The attorney-general has spoken about refreshing Australian engagement with the Open Government Partnership, and has appointed non-government members to the Open Government Forum to assist in developing an action plan (we’ve had no plan since 2020). But it has been an opaque process to date — the forum has met once and the minutes are sparse.
On FOI, there has been some departure from the silliness that the national cabinet was part of the Commonwealth government cabinet and thus entitled to a cloak of secrecy, although there are other exemptions available and relied upon. The Department of the Prime Minister and Cabinet told Senate estimates last week that it had released documents related to agenda and records of meeting, but other exemptions may cover distributed papers. Some ministers, including Dreyfus, have released their appointments diary, but others, including the prime minister, have not.
Dreyfus has advised public servants “that rather than looking to how little information can be given out”, they should consider “how to maximise the amount of government information that is made available to the public”.
But there’s the rub. In the same breath, hopes of comprehensive reform on transparency and accountability were dashed when, one month in office, the attorney-general said, “I’m not sure that we need to amend the Freedom of Information Act … I think what needs to happen is that there needs to be a different approach and, if you like, an implementation of the existing provisions of the Freedom of Information Act.”
He has barely mentioned it since.
When Greens Senator David Shoebridge, on March 28, successfully moved a reference to the Legal and Constitutional Affairs References Committee for an inquiry into the operation of FOI laws, all Labor senators voted against the reference or were absent from the vote.
On the rorts front, last week the independent member for Wentworth Allegra Spender moved an amendment to the government’s infrastructure bill that would require a positive economic evaluation from Infrastructure Australia, the peak agency for big projects, before the government could commit any public funding for major projects. Government members voted down the amendment.
Freedom of Information commissioner Leo Hardiman KC resigned in March, citing resource issues and serious concerns about chronic delays in the FOI system, the consequences for government transparency, and the lack of power he held as obstacles in bringing about change.
While there was an increase in funding and staff for the commission in the recent federal budget, the OAIC announced it is ”to protect Australians’ privacy” with no mention of FOI.
There is a need for a wholehearted examination of issues to do with transparency and accountability. Senator Shoebridge’s inquiry may prove to be influential in this, but it alone will not be the answer.
Voices that should be heard
Attorney-General Mark Dreyfus has expressed a view that words are meaningful and will bring about necessary change. Tone at the top and leadership are important, but there is little cause for optimism that words will do enough to turn things around. Others see that a broader approach is needed.
The attorney-general may have forgotten that when he was in the same position in 2013, just months before losing the election in September, his commissioned review of the FOI Act by the late Dr Allan Hawke made 48 recommendations. The first was for “a more extensive review … to consider in detail the issues raised in this report that require more analysis, and those issues that could not be given adequate consideration by the review.”
Hawke added that the form and structure of the FOI Act was as it was in 1982: “I believe a complete rewrite of the FOI Act in plain language is now necessary, so that it is readily accessible and easily understood.” No government since has responded to Report 112 from the Australian Law Reform Commission in 2010 — Secrecy Laws and Open Government.
Dreyfus may have been there in person, or would at least know of the compelling case for transparency and accountability reform put forward by Bret Walker SC in 2018 during his Whitlam Oration, “The Information that Democracy Needs”.
He has met with the Your Right to Know coalition, which includes Nine, Guardian Australia, News Corp, Private Media, the Media, Entertainment and Arts Alliance (MEAA) and others, as they continue to alert Australia that it’s being “kept in the dark”.
The Grata Fund, Australia Institute, and the Centre for Public Integrity have all expressed concern over transparency and the freedom of information system.
“It’s time” is a well-known, oft-used term in ALP circles.
The time is now to put transparency and accountability back where it belongs — as key pillars in our democracy.
