Rex Patrick’s Transparency and Opaqueness Awards 2023

by Rex Patrick | Dec 31, 2023 | Government, Latest Posts

Did 2023 see more or less transparency from Government? Is the Albanese Government more or less transparent than the Morrison Government? Transparency Warrior Rex Patrick looks back to answer these questions and give out some awards, many of them likely not wanted.

As the year comes to an end, I can advise that, since the Albanese Government came to power, I’ve submitted 280 federal Freedom of Information (FOI) requests. That’s very close to the 297 I submitted to the Morrison Government when I was a senator. So I think I’m reasonably well qualified to comment on who’s more transparent.

And the answer is … it’s hard to tell. As the old saying goes, the more things change, the more they stay the same.  

In calling a tie, I have to point out that Morrison was shameless about his secrecy. Albanese claims to embrace transparency, so in some sense, he’s worse. He’s being deceptive and he’s disappointing those who thought he’d be better.

But to be fair, FOI officers are supposedly independent in their decision-making, so the Prime Minister and ministers cannot really be blamed for individual access refusal decisions.

But they are responsible for the transparency culture, or rather the secrecy culture, and they can be blamed for that.

Culture issues – an insider’s view

With culture in mind, before dishing out a few awards, I want to direct attention to one of the most important documents on transparency written in Australia this year. It’s not written by an academic, a think tank, or a transparency specialist; rather, by a government insider writing anonymously to the Senate’s committee on ‘The operation of Commonwealth FOI laws’. Submission 29 sadly went somewhat unnoticed.

He or she opened hard.

I have seen examples of Ministers removing responsibilities and projects from senior executives to punish them for releasing documents and threats being made that if certain documents were released certain functions would be taken from senior executives.”

“In one extraordinary example, a Ministerial adviser asserted that certain exemptions applied to agency documents and, when the agency disagreed, the adviser came to the office of the agency to personally lambast the staff involved.”

And it wasn’t just towards ministers and ministers’ staff where concern was directed. It was also directed at senior executives. The insider wrote;

The culture of evading transparency has become increasingly more proactive over the years. I have witnessed senior executives:

  • involve General Counsel in correspondence or meetings about matters with the sole purpose of later claiming records are protected by legal privilege;
  • promise confidentiality to stakeholders with no legal basis and reverse engineer FOI decisions to achieve that purpose;
  • encourage, and at times enforce, bad faith interpretations of the scope of requests to either exclude important documents, artificially produce a practical refusal decision or artificially produce prohibitive charges;
  • lambast staff for taking records of politically sensitive discussions between staff or of directions which have come from the Minister’s Office verbally;
  • tell staff certain matters should be dealt with in such a way as to not be ‘discoverable’; and,
  • refuse the applicant access to certain documents because they would contradict public statements made by the Minister.”

It’s disturbing stuff. 

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The writer went on to say, 

Conduct of this nature, coming from leaders, sends a message to staff that releasing documents is career-limiting, requests for information under the FOI Act are to be seen as a threat, an annoyance or an imposition on the ‘real work’, and officials should err on the side of withholding information wherever possible.”

This ties in exactly with my own experience, where refusal and redactions are the default position: opaqueness! 

There’s pervasive bureaucratic obstruction.  When one takes the access refusal to the Information Commissioner or the Administrative Appeals Tribunal (AAT), redactions quickly fall away. Sadly, tens of thousands, if not hundreds of thousands, of taxpayer money gets spent getting to that stage. And months, if not years, of delay, diminish the currency of the information eventually released.  

Full Disclosure Award 🏆

And so, the full disclosure award goes to Senate submitter number 29.

You are thanked for confirming what those of us on the outside only guessed was happening on the inside.

Transparency Award 🏆

There were a number of Commonwealth minister’s offices and agencies I dealt with that operated with a sense of transparency. 

Tanya Plibersek and Chris Bowen spring to mind; even though they haven’t been up-front about coal mining approvals or their strong desire to do what’s in the best interests of Santos, they haven’t seemed to mind disclosing stuff on request after the event.

Of the agencies I dealt with, ANSTO, ARPANSA, the Future Fund, and, surprisingly, the Australian Submarine Agency have been relatively open. ANSTO and ARPANSA have been commendably open in releasing information relating to nuclear safety issues.

With some FOI prompting, the Future Fund has shifted away from its previously highly secretive approach to instead disclose details of their investment portfolio, at home and overseas. The Australian Submarine Agency recently released the entirety of their Senate Estimates briefings with minimal redactions (I hope no one there gets fired because I’ve given them a positive mention).

But the Transparency award for 2023 has to go to the Queensland Government for their decision to proactively disclose, and in addition to ministers’ diaries, cabinet documents. They’ve done so without the Westminster system of government collapsing (the usual excuse in other jurisdictions to keep anything with an aroma-of-cabinet confidential).

The Biggest Loser Opaqueness Award 🏆

The biggest loser award goes to the Department of Prime Minister and Cabinet and the Prime Minister’s Office who, over the past few years, have fought me in the AAT nine times … and lost nine times.

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Sadly, the other losers here are taxpayers who have met the cost of the Department/Office’s lawyers; with the bill running to more than $450K.

One might have had higher expectations for the Prime Minister’s Office and his Department. At times their performance has been an absolute disgrace and an appalling example to the rest of the public service. As is often said, a fish rots from the head.   

The Biggest Winners Opaqueness Award 🏆

The Biggest Winners Opaqueness Award has to go to the external lawyers who are paid hundreds of thousands of taxpayer dollars to help keep politically sensitive or embarrassing documents secret, or at least delay their release until the information goes stale.

There’s just no downside for them.

Politicly Stupid Opaqueness Award 🏆

When Ms Simona Gory of the PM’s office refused to process my request for 109 days of the Prime Minister’s diary on the grounds it would be an ‘unreasonable diversion of resources’, she did so in complete disregard to a Full Federal Court decision backing a decision of now High Court Justice Jagot’s, ordering then Attorney-General George Brandis to process an FOI application for 237 days of his diary.

Gory’s decision was reckless. She was a lawyer and should have known she and her fellow staffers were bound by the decision of the Full Federal Court.

But that’s not the action that delivers to the Prime Minister’s office the politically stupid opaqueness award. That belongs to people sitting above her who let the decision stand in the face of challenge. 

Ultimately, the AAT ordered the Prime Minister to process the request, but not before Albanese bore the pain of multiple Senate Estimate and Senate Committee hearing swipes and numerous adverse media articles; here at MWM, along with The Conversation, Crikey, Sydney Morning Herald/Age, The Saturday Paper and The Mandarin. And there was plenty of scathing comments on social media, with many taking note of how quickly Albanese’s commitment to transparency had faded once he took high office.

PM Albanese’s Diary: complete and total surrender after long and expensive battle

 

Boofhead Opaqueness Award 🏆

Still on the topic of ministerial diaries, which are proactively disclosed in Queensland, NSW, the ACT, New Zealand and for the United States President, as an anti-corruption measure, the boofhead opaqueness award goes jointly to Peter Dutton and Senator Simon Birmingham for voting down Senator Jacqui Lambie’s proposal for Federal Ministers’ diaries to also be disclosed.

People are entitled to see who is influencing ministers. Yet Dutton and Birmingham decided to join forces with Labor to vote down proactive disclosure of Albanese government ministers’ diaries because they simply don’t want transparency imposed upon them in the unlikely event that they are returned to Government any time soon.

No, No, No Opaqueness Award 🏆

Apart from the intelligence community, which is completely exempt from FOI, the Defence Department is the most opaque department of government in the country. They regularly refuse answers to questions at estimates on trumped-up national security grounds. They always say ‘no’ to FOI request that has any possible political sensitivity or else might expose their own leadership to scrutiny.

Unsurprisingly, it’s also the most incompetent department in the country regularly failing on unbelievably expensive procurement projects. 

Dumb Ways to Buy: Defence “shambles” unveiled – former submariner and senator Rex Patrick

 

This year’s Auditor-General’s Major Projects Report into Defence looks at 21 of their projects, together worth $58 billion dollars. Across those projects, there had been $18.5 billion in cost increases and 405 months of project slippage – slippage that denies our service men and women the best capability with which to do their jobs.

Almost $20 billion worth of projects have been canned – that is, nothing was achieved for that money. A big factor in this is Defence’s culture of excessive secrecy.

People perform better when they are being watched. Defence’s performance is woeful.

The Australian Submarine Agency may be showing some signs of a more open approach.  It’s probably too early to tell and it remains to be seen whether the Defence hierarchy pulls them back into line through 2024.  

Transparency epiphany

I do hope Prime Minister Albanese has a transparency epiphany over the holidays and comes back with a commitment to reform the FOI process and push the bureaucratic culture towards greater openness. Even though it will put me and a number of lawyers out of business, that would be a great outcome.

But I’m not looking for fallback employment options.

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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 - www.transparencywarrior.com.au.

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