Prime Minister Albanese’s plan to amend FOI laws and increase government secrecy may be unconstitutional, and the LNP, Greens, and Independents are all opposing it. Rex Patrick reports.
Sussan Ley’s opinion piece in the Canberra Times this week, coupled with strong statements of rejection from Greens justice spokesperson Senator David Shoebridge, looks to be the final nail in the coffin for Prime Minister Anthony Albanese’s hypocritical and evil attempt to clamp down on the ability of citizens to participate in democracy and review the performance of their government.
Every document the government produces is generated for public purposes and on the taxpayer’s coin. The Freedom of Information Act itself states that
information held by the Government is to be managed for public purposes, and is a national resource.
Of course, there is information we should not see; defence secrets, law enforcement tactics, commercially sensitive information shared with government, and citizens’ personal information held by government.
Justice Mason articulated it well in the High Court decision in The Commonwealth of Australia v John Fairfax & Sons:
“It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticise government action.
“Accordingly, the court will determine the government’s claim to confidentiality by reference to the public interest. Unless disclosure is likely to injure the public interest, it will not be protected.”
This judicial declaration was made in 1980, two years before the Freedom of Information Bill was enacted. The principles laid down by Justice Mason were subsequently incorporated into the Act, whereby the default position is that requested information is to be made available to applicants “unless access to the document at that time would, on balance, be contrary to the public interest” – although this default position is
effectively being defeated due to a flourishing culture of government secrecy.
Horse trading risk
Could the Coalition opposition falter in their resolve – maybe in exchange for less stringent environmental regulations for industry? Could the Greens seek to do a deal – maybe in exchange for tighter emission controls?
The problem is that when you horse trade, you sometimes end up with a donkey.
But anything is possible in politics. The Bill is not scheduled to be debated this year. A week in politics is a long time; a few months an eternity.
Unconstitutional?
The fallback, if the Bill passes, would be to mount a constitutional challenge to the prospective crackdown on public access to government information. There is force in the proposition that the
Bill intrudes on the implied freedom of political communication in the Australian Constitution.
The implied freedom of political communication exists to ensure that Australians are able to exercise a free and informed choice as electors.
In the 1992 High Court case of Australian Capital Television Pty Ltd & New South Wales v Commonwealth, the court ruled that the implied freedom is a necessary incident of the representative democracy which the Australian Constitution provides. Communication is protected because it is the means by which electors inform themselves about government and political matters, which allows them to exercise an informed choice at elections.
Anthony Mason, by then High Court Chief Justice, said in that case:
“… The point is that the representatives who are members of Parliament and Ministers of State are not only chosen by the people but exercise their legislative and executive powers as representatives of the people. And in the exercise of those powers the representatives of necessity are accountable to the people for what they do and have a responsibility to take account of the views of the people on whose behalf they act. Freedom of communication is an indispensable element in representative government.
“Indispensable to that accountability and that responsibility is freedom of communication, at least in relation to public affairs and political discussion. Only by exercising that freedom can the citizen communicate his or her views on the wide range of matters that may call for, or are relevant to, political action or decision. Only by exercising that freedom can the citizen criticise government decisions and actions, seek to bring about change, call for action where none has been taken and in this way influence the elected representatives. By these means the elected representatives are equipped to discharge their role so that they may take account of and respond to the will of the people.
“Communication in the exercise of the freedom is by no means a one-way traffic, for the elected representatives have a responsibility not only to ascertain the views of the electorate but also to explain and account for their decisions and actions in government and to inform the people so that they may make informed judgments on relevant matters. (Author’s emphasis.)
“Absent such a freedom of communication, representative government would fail to achieve its purpose, namely, government by the people through their elected representatives; government would cease to be responsive to the needs and wishes of the people and, in that sense, would cease to be truly representative.”
The FOI Act recognises this Constitutional foundation, with the Parliament declaring one of the objectives of the legislation is to… “promote Australia’s representative democracy.” In 1988, in the High Court case of Egan v Willis, Justices Gaudron, Gummow and Hayne stated:
In Australia, s 75(v) of the Constitution and judicial review of administrative action under federal and State law, together with freedom of information legislation (author’s emphasis), supplement the operation of responsible government in this respect.
Beyond reasonable secrecy
Although the High Court only declared freedom of political communication in the 1990s, it has existed in Australia since 1901.
Whilst the FOI Act only came into effect in 1982, it effectively codified a mechanism and a reasonable limit on what government information could be available to fulfil the Constitutional freedom of political observation.
The Cabinet provisions in Prime Minister Albanese’s FOI Amendment Bill depart from necessary confidentiality in Cabinet solidarity and collective responsibility, and, in a radical departure from established understanding and practice,
wrap a secrecy blanket over all things being carried out at the top echelons of government.
Secrecy for the sake of secrecy is wrong. Exaggerated secrecy, that is, secrecy beyond the public interest, will warp the foundations of our democracy and will most likely be unconstitutional.
Sections 7 and 24 of the Constitution, which state respectively that the Senate and the House of Representatives shall be composed of senators and members directly chosen by the people of the Commonwealth, imply that citizens have a right to be informed so that they can properly consider their vote.
As such, the passage of the Bill will likely give rise to a challenge as to the validity of
laws that seek to hide what the public own and should reasonably be able to see.
Complacency
So, although passage of the Bill through the Parliament looks set to fail, the Government will be working up a negotiating scenario – maybe offering something that the Coalition hates but the Greens really like or something the Greens hate but the Coalition really likes.
But no good could come from negotiation on this Bill. It’s a poison pill for democracy.
Information is to democratic participation as water is to life. We take the water for granted until it stops flowing. Complacency must not set in, and there should be no deals. Albanese’s toxic FOI suppression Bill should be voted down.
The Senate’s Legal and Constitutional Legislation is holding its first hearing into the Bill this Friday.
One hundred days of Albo’s diary – plus a set of steak knives
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."