Secrecy and government
2.4 The secrecy of government information has a long history. As Professor Enid Campbell has explained, the notion that the activities of government should be secret goes back to a period when monarchs were motivated by a desire to protect themselves against their rivals and official information was considered the property of the Crown, to be disclosed or withheld at will. Two principal rationales for secrecy in the modern context are the Westminster system of government and the need to protect national security.
2.5 The Westminster system was premised on secrecy. As summarised by the Independent Review Panel examining the Freedom of Information Act 1992 (Qld):
Secrecy had been an essential ingredient of the system—secrecy to protect the deliberations of the cabinet, secrecy to protect the advice proffered by public servants to their ministers, secrecy to hide what happened within the public service. The democratic element that allowed this closed system to function was provided by the concept of ministerial responsibility—ministers were responsible, collectively and individually, directly to parliament and indirectly to the electorate, for what the government did, and for what their departments did.
2.6 In this way, the conventions of the Westminster system were seen to demand official secrecy. For example, the doctrine of collective ministerial responsibility was said to depend to a large extent on the secrecy of Cabinet deliberations and documents. Further, the confidential provision of advice to ministers by public servants is linked to the principle that the government of the day is served by a professional and politically neutral public service carrying out the instructions of the elected government.
2.7 For most of Australia’s history, ‘official secrecy has been the legislatively enforced norm’. The first Australian secrecy provision, introduced in the colony of Victoria in 1867, ‘set the pattern for the various public services of Australia’, requiring that:
no information out of the strict course of official duty shall be given directly or indirectly, by any officer without the express direction or permission of the responsible Minister.
2.8 The first Commonwealth secrecy provisions were passed during the initial session of the Australian Parliament in 1901. Their primary focus was the protection of national security information.
2.9 Periods of international conflict have precipitated an awareness of the need for, and experience of, secrecy provisions. For example, World War II and the Cold War ‘provided a setting where secrecy was linked to military strength’. In 1960, amendments were made to s 70 of the Crimes Act 1914 (Cth), inspired in part by the anti-communist climate of the Cold War. The amendment, which extended the reach of s 70 to former Commonwealth officers, was ‘just one of many secrecy provisions inserted or strengthened in legislation after the war’.
Secrecy and the expanding reach of government
2.10 The increase in the size and role of government in the period following World War II, combined with technological advances that increased the ability of governments to deal with large amounts of information, has had a significant impact on the relationship between citizens and government. Information, as Greg Terrill has remarked, now ‘underpins almost all of government activity’; and it is both an ‘object in its own right’ as well as ‘a dimension of all government activity’.
2.11 The increased reach of government was matched by a growth in secrecy provisions. John McGinness commented that the increase in secrecy provisions was ‘a reflection of the increase in personal and commercially sensitive information collected by the government’. In addition, the Privacy Act 1988 (Cth) was enacted to ensure that the government appropriately handled and protected personal information. Both reflected the impetus to protect certain information in the hands of government.
2.12 As the reach of government expanded, however, there was increasing pressure to ask questions about what government was doing. This led to a shift in attitude to official secrecy in the 1960s with the development of a new philosophical and practical approach to government, leading to the description ‘open government’. As Greg Terrill notes:
The logic was simple. As government became more a part of their lives, so people outside government needed or wished to know more about these influences, and to affect decisions.
2.13 A key principle of open government therefore is accountability—‘the indispensable check to be imposed on those entrusted with public power’.
The purpose of [accountability] measures is to hold governments, public officials and agencies to account for the manner of their stewardship. Government is constitutionally obliged to act in the public interest. To the extent that it is given power to do so, it must be allowed to do so. Such is its trust. Accountability provides the test and measure of its trusteeship.
2.14 The move to more open government was reflected in the development of ‘freedom of information’ (FOI) and related administrative laws.
Freedom of information
2.15 Following the introduction of FOI legislation in the United States, the move for such laws was taken up in Australia during the 1960s and 1970s, in speeches, papers and government inquiries, and at both Commonwealth and state levels.
2.16 In 1970, the then Leader of the Opposition, the Hon Gough Whitlam MP, noted with concern that ‘excessive secrecy has become commonplace in governmental decision making’. Introduction of FOI legislation became an issue in the lead up to the 1972 federal election, at which time the Australian Labor Party claimed that the government’s monopoly of knowledge had ‘led to bad decisions and bad government’.
2.17 The introduction of FOI legislation remained a key political issue during the 1970s. At the same time, other strategies were also pursued to establish a more open system of public administration. In the mid-1970s, the Ombudsman Act 1976 (Cth), the Administrative Appeals Tribunal Act 1975 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth) were passed. Then in 1982 the Freedom of Information Act 1982 (Cth) (FOI Act) was added. These legislative reforms—which became known as the ‘new administrative law’—aimed to facilitate effective public administration while at the same time safeguarding the civic rights of the individual citizen. As Associate Professor Moira Paterson has noted, FOI laws ‘form a vital part of a broader network of laws, both formal and informal, which affect the overall transparency of the executive branch of government’.
2.18 The FOI Act was considered a ‘major step in establishing open government’ and in overturning ‘a deeply entrenched tradition of government secrecy’. The importance of access to information to the accountability of government for its actions was reiterated by Senator the Hon John Faulkner, the then Cabinet Secretary and Special Minister of State, in proposing reforms to the FOI framework in March 2009:
The slow growth of the idea that government accountability extends beyond answering to electors on polling day has gradually changed the way Australian governments treat government information. With that has come a recognition that the best safeguard against ill-informed public judgement is not concealment but information. As Abraham Lincoln said: ‘Let the people know the facts, and the country will be safe’.
There is a growing acceptance that the right of the people to know whether a government’s deeds match its words, to know what information the government holds about them, and to know the information that underlies debate and informs decision-making is fundamental to democracy.
2.19 By knowing ‘whether a government’s deeds match its words’, open government also helps to provide checks and balances to discourage corruption and misconduct. As commented by the House of Lords in R v Shayler:
Modern democratic government means government of the people by the people for the people. But there can be no government by the people if they are ignorant of the issues to be resolved, the arguments for and against different solutions and the facts underlying those arguments. The business of government is not an activity about which only those professionally engaged are entitled to receive information and express opinions. It is, or should be, a participatory process. But there can be no assurance that government is carried out for the people unless the facts are made known, the issues publicly ventilated. Sometimes, inevitably, those involved in the conduct of government, as in any other walk of life, are guilty of error, incompetence, misbehaviour, dereliction of duty, even dishonesty and malpractice. Those concerned may very strongly wish that the facts relating to such matters are not made public. Publicity may reflect discredit on them or their predecessors. It may embarrass the authorities. It may impede the process of administration. Experience however shows, in this country and elsewhere, that publicity is a powerful disinfectant.
2.20 The relationship between FOI and secrecy provisions—which appear to stand in direct juxtaposition to each other—is a key issue in this Inquiry. Chapter 16 considers in detail the relationship between secrecy provisions and the FOI Act.