Information is the currency of power in a democracy. It’s what allows informed debate and scrutiny of Government. So, how is transparency shaping up in the 48th Parliament? Rex Patrick takes a look.
Parliamentary power lies in the numbers. With 76 votes in the House and 39 votes in the Senate, a government is only limited by the Constitution.
In the 48th Parliament, Labor will have a clear majority in the House of Representatives with at least 93 members. Labor will only need to feign respect for others and then get on and do whatever they want. They will be able to push any legislation they want through the House.
The same is not true for the Senate.
Working with current ABC estimates, Labor will have 30 senators, the LNP 27, the Greens 11 and independents 8. To pass legislation, Labor can successfully team either with the Greens (41 votes) or the LNP (57 votes), but not the independents alone (who, together with Labor, only count to 38 votes, which is a tie, and a tie is a ‘no’).
On the flip side, the LNP and Greens (38 votes) can join forces to block legislation (or more votes, if independents also vote against Labor’s legislation). For the avoidance of doubt, the LNP and independents together (35 votes) can’t stop legislation, nor can the Greens and independents (19 votes).
These calculations may change if there are any defections and other changes in allegiance, something that happened in the Senate in the last Parliament, but that’s how things appear to stand now.
Transparency
Let’s pause for a moment on the numbers and talk about transparency basics.
Everything the government does it does for public purpose and on the public dime. Sure, some information should be kept secret – military plans, discussions with ambassadors, policing operations on foot, etc, but the rest should be made available to permit informed debate and scrutiny of government.
But that’s not how governments see it. Governments like to control the timing and content of the information they release. Governments don’t want opposing political parties, the media or the public standing in the way of their plans. And accountability … well, that requires information.
The truth is, transparency is a word only shouted from opposition and the cross-benches in parliament.
Albanese promised greater transparency in opposition. And yet he hasn’t delivered.
Freedom of Information requests and Senate orders for the production of documents yield the same poor results under the Albanese government as occurred under the Morrison government.
PM Albanese’s Diary: complete and total surrender after long and expensive battle
Significant delays still occur when appealing an FOI decision to the Information Commissioner – the Office of the Australian Information Commissioner has been left underfunded.
Why would things change in a second Albanese term?
Senate influence
The Senate has a number of tools available to force transparency and accountability of the Government.
One measure is the ability to initiate an inquiry into an issue. This requires a majority vote of the Senate. The LNP and Greens would have to join forces (38 votes), with at least one independent (39+ votes), to get an inquiry up in the face of Labor opposition. Getting the LNP and Greens to agree might be challenging, but if that occurs, it won’t be hard to get at least one independent onboard.
Another measure is the ability to order the production of documents (a Senate ‘Freedom of Information’ order). This requires the same 39 votes but is more problematic because the order may also require enforcement. Enforcement is a different process that again needs 39 votes.
In past parliaments, the government of the day has allowed an independent senator’s order for the production of documents to pass the Senate as a way of developing a working relationship with them, because the Government might need their vote at some future point. Senator David Pocock enjoyed this advantage in the last parliament and made good use of it. But he has lost this advantage. He will be cast aside by Labor now.
The ‘parties of Government’
The reader can easily imagine the difficulties of getting the LNP and Greens to align on an inquiry. There will certainly be no inquiries on “drill baby drill” or “LGBTQI rights in the community” while such an inquiry requires right-and-left support.
Everything would be so much better if it were instead about right and wrong.
Political differences will also fetter orders for the production of documents.
Then comes enforcement, when the Government refuses to release documents to the Senate on account of a claim of public interest immunity.
The Senate has tremendous powers to force a government to hand over documents, but has rarely used that leverage. This power can be yielded by the total disruption of the Government’s legislative agenda, the stripping of a minister’s privileges in the chamber, through to expulsion of a minister from the chamber.
Expulsion of a minister was a power exercised in the NSW Legislative Council in 1996, with then NSW Treasurer Michael Egan turfed from the chamber until he handed over documents. This led to the High Court Case of Egan v Willis, where the Court affirmed, as a matter of law, the power of a House or Parliament to demand documents and the ability to expel a minister from the chamber for failing to comply with such a demand.
That ultimately led to an amendment to Standing Order 52 in the NSW Legislative Council whereby all papers ordered to be tabled in the chamber must be made available to members of the Legislative Council. It also provides a member with the right to challenge the withholding of documents from the public, where an independent arbiter (a King’s Counsel or a retired Supreme Court judge) can adjudicate the Government’s claim. This is now a standard practice, where only Cabinet documents are not handed over to the Legislative Council.
Coercive measures are not employed in the Senate because both Labor and the LNP consider themselves to be ‘parties of Government’ – code for, we won’t do it to the current Government in case they do it to us when we are in government.
Nothing like putting a party’s interests ahead of a constitutional duty of oversight of the executive government.
A pivotal moment?
Resistance to coercive measures to hold a government to account centres around ‘party of government’ concerns.
But maybe the election results have delivered democracy an opportunity. Maybe the LNP will realise they face at least two terms in opposition (more if they think they need to shift further away from the centre where most people live) and will allow for the full exercise of its (Section 49 and Section 50) constitutional powers.
A short time into the 47th Parliament, I sat down with Greens Senator David Shoebridge. He had just come from the NSW Legislative Council into the Senate and was interested in my take on what he observed to be the government’s unimpressive response to Senate orders for production.
After sharing my own experience from the 45th and 46th Parliament, where the floor of the Senate had repeatedly refused to actively exercise its enforcement powers, including failures of the Senate Privileges Committee to give force to orders for papers, he looked at me and said “A time will come when the super majority of non-government Senators will realise, they have a job to do on transparency and the Senate should wake up and use the powers it has to force the issue.”
Maybe that time has arrived? Maybe LNP Senators will start to think like an opposition rather than a government in exile? Maybe a collective LNP, Greens and cross-bench can break Labor’s resistance to transparency?
Only time will tell. But for now, we’ll all just have to continue working with a broken FOI regime as a means to get at least some transparency.
More than ever, it will be ‘an FOI a day’ that stops democracy decay.
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Rex Patrick is a former Senator for South Australia and, earlier, a submariner in the armed forces. Best known as an anti-corruption and transparency crusader, Rex is also known as the "Transparency Warrior."