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Background Briefing

Sunday 7 April 2002

 

Kirsten Garrett: There was a time when the price of wheat sold to China was a secret, and when even the contracts for hiring pot plants in Parliament House were kept confidential. And these are only two of the hundreds of examples of secrecy in what are now seen as a very old-fashioned style of government.

Then came the Freedom of Information legislation, about 20 years ago; and things are better. There is at least the rhetoric of open government. Yet still, many people who work in the media, and members of the community, are frustrated and dismayed at how hard it can be to get government documents and information on government processes. Often it is impossible.

Today Radio National's Background Briefing brings you edited highlights from some recent talks about the public right to know, and why governments and the bureaucracy baulk at it ever more frequently.

Hi, I'm Kirsten Garrett.

Some speakers today make the important point that Freedom of Information is not designed to stop governments making decisions, but merely to disclose the basic agenda for those decision, and to show how the decisions were made. Governments must be allowed to govern.

Today you'll hear from journalist Ross Coulthart, Privacy Commissioner Chris Puplick, and Professor John McMillan of the ANU.

The first speaker today is Ross Coulthart. He was a member of a forum on open government in New South Wales Parliament late last year. His talk was titled Why the Freedom of Information Act is a Joke'. Ross Coulthart.

Ross Coulthart: Thanks very much. I have a favourite political quotation that I keep above my desk at work, and I challenge you all to figure out who it is: 'The greatest thing that could happen in the State in the nation is when we get rid of the media, then we would live in peace and tranquillity and no-one would know anything.' The author was of course Sir Joh Bjelke-Petersen, the former Queensland Premier. He said that without a trace of irony back in 1986 but it's an extreme view, but old habits and old attitudes die hard. If we're seriously going to talk about what the media thinks about making governments more accountable and more transparent by the use of FOI, then we've got to talk about the fact that many politicians and senior bureaucrats treat the media with patronising contempt.

It's fashionable these days to criticise the media for its sensationalism, to lament the dearth of informed analysis and to attack the way that the media is so reliant on leaks and whistle-blowers from inside government.

We're told that the media only ever tells part of the story, or worse, that we get it wrong. The critics also like to whack us around the head about the fact that we don't use these wonderful FOI laws as much as we should. Well, they're right, we don't, and many of the criticisms are correct. But I hope I can explain to you today why that is the case and how a few simple initiatives could actually dramatically improve the quality of investigative journalism in this country, and make governments and the bureaucracy more accountable.

The biggest hindrance to the FOI laws working effectively isn't the legislation, it's a problem, but that's not the biggest problem. Our FOI laws in black-and-white on the page are pretty good. But I think the application of those laws inside the bureaucracy has become excessively politically sensitised, to the extent that FOI has become a way merely of getting the politicians and the senior bureaucrats a head-up on whatever hot story it is that we're chasing by looking for that information. Whenever any journalist makes an FOI these days, the request goes straight to the Minister's office. The issue for the minders then becomes, Is this good or bad for the Department, or my Minister? If it's bad, what excuse can we use to not give this information to this journalist?

The emphasis then in government becomes on crisis management, on minimising the perceived damage to the political masters. And if that means obfuscating, avoiding, evading or just plain lying about their perceived obligations under the FOI laws, that's exactly what they'll do. I'd lost count of the number of good, honest bureaucrats who've told me privately that their decision in our favour on FOI has been over-ruled by the Minister's office or the Secretary of the Department, in blatant political damage control. Every political minder knows that for most journalists on news rounds, the minimum two months to make an FOI is already an eternity in a news sense. If a request is further stymied by a flat refusal on the grounds of commercial-in-confidence, or the excessive cost in processing an application, or that other hoary old chestnut, privacy, most journalists won't bother going further to challenge the decision even on internal review. This is because by the time the months have passed before the decision has come back, the story's long dead.

I reserve particular opprobrium for the claim that processing an application would be excessively costly. It's one of the most common knockbacks that we get from government these days, the cost. I think that is a particularly obscene excuse when you consider the huge amounts of money that are spent every year on increasingly bloated budgets for ministerial and departmental media advisers. While the media is often told that an FOI would cost too much to process, taxpayer-funded media advisers micro-manage to absurdity every departmental decision that might have negative media implications. Millions of dollars are spent every year in a largely unaccountable way by politicians and bureaucrats on sanitising the image that a department presents to the public, and if that means sabotaging FOI requests, so be it. Even more outrageous is the ridiculous amounts of money spent on consultants, the people governments hire when they want to have somebody else to blame for a decision. Or worse still, when governments want to keep a particularly controversial decision or policy idea outside public scrutiny. We're seeing vast areas of government policy determined in secret by God forbid, former journalists and political spin-doctors, on substantial consultancy fees. Yet at a time when gutsy FOI journalism has never been needed so much before, the same governments say it'll cost them too much to process our requests for information.

Kirsten Garrett: You're with ABC Radio National. Background Briefing is covering a forum on open government. At this point, journalist Ross Coulthart detailed the way he has seen freedom of information operating in America, where journalists have a much better access to government information, and there is a deeply felt belief in all tiers of government in the public right to know. Then he went on to give some examples.

Ross Coulthart: There's a wonderful organisation in the United States called IRE, Investigative Reporters and Editors. I wangled a trip to one of its conferences in Miami a few years ago and was bowled over by the quality of access that journalists, members of the public enjoy, to basic public information. I should explain that most Australian journalists have given up using FOI as anything other than a legal way of getting a leak from a friendly bureaucrat. The friendly bureaucrat tells you the name of the document, you make an FOI for it, and then it's facilitated and expedited through the system.

That mode of storytelling though is just as open as leaks and whistle-blowing to the accusation that the media can be manipulated through the use of selective information, and it's one of the big problems that I think is actually holding back the quality of investigative journalism in this country. What shocked me about what I saw in Florida, was that journalists there are now accessing (and they've been doing it for years) entire databases of information, often with the enthusiastic, proactive co-operation of FOI officers, who recognise that FOIs can often elicit information that's very much in the public interest. It's called Computer-Assisted Reporting, and it's fairness and objectivity derives from the fact that the journalists are cross-matching the government's own data with other information to find stories that even the spin-doctors didn't know existed.

Kirsten Garrett: The greatest problem for journalists attempting to get at documents through Freedom of Information requests in Australia is the response from the bureaucracy that the information is 'private'. Ross Coulthart.

Ross Coulthart: The problem is that in our experience, those privacy principles are being applied far too broadly. Bureaucrats have been warned quite properly, about the need to protect individual privacy, but so much so that they're erring on the side of zealous over-caution. Privacy is now becoming the big excuse, along with commercial-in-confidence and the cost of processing, for bureaucracies to cover up their dirty secrets.

Just this year, "Sunday" wanted to investigate a tip that weapons stolen from police stations and Defence Force bases, were turning up at crime scenes with alarming frequency, including many weapons turned in during Queensland gun amnesties. We learned that the Police Department here keeps a list of all such reports, detailing the type of weapon, where it was stolen and whether it's been used in a subsequent crime. Good story, you're thinking; in the public interest, you'd think. Well the Police Department told us it was going to treat the theft of weapons from its stations with the same confidentiality that it treats the names of citizens who are victims of gun thefts from their private homes. Our request for this very basic information was denied on privacy grounds.

Another ground-breaking story in the United States involved an FOI on the military training of overseas troops by American forces at Fort Benning military base in the United States, pejoratively named The School of the Assassins. Critics of this military training scheme in the United States successfully obtained on FOI, a copy of the entire class list for Fort Benning over a period of 20 years. They then cross-matched that data with the names of soldiers from Central and South American countries who'd been named as committing human rights abuses. We learned about similar information that's kept on what's called the Defence Co-operation Database in Canberra. Soldiers from our elite Special Air Service told me how they were very concerned that many of the Indonesian Special Forces Kopassus troops that were being trained by them, here in Australia and in Indonesia, in guerrilla warfare and ambush techniques. They were obviously using these techniques against the East Timorese in particular. And what worried the Diggers was their suspicion, correct as it turned out, that Australian soldiers would one day find themselves fighting Indonesian soldiers or militia that they'd trained, using techniques that they'd learned from the Australian SAS. Well we figured if it was good enough for the US military to release the names of overseas-trained soldiers, why shouldn't Australia? Why should the public interest be any different here? But our request was denied, mainly because Indonesian soldiers were deemed to have privacy rights, and the nebulous notion that international relations might be jeopardised. Incredibly, Defence argued that there was a risk if the Indonesian soldiers names were published, then they might suffer harassment by peace protesters here in Australia.

Our legal advisers estimated the likely cost of fighting this would have been about $15,000 to $20,000, and that sort of money is completely out of the question. The Defence Department of course, would have had access to the very best legal advice at taxpayers' expense.

The postscript of this was I went last year, late last year, to West Timor shortly after militia had murdered several UN workers at a place called Atambua and we went up under an Indonesian military escort, and we got quite friendly with many of the Kopassus soldiers who were actually escorting me. They were very worried that we were going to be killed so they decided to put up the best-trained people, who happened to be Australian-trained soldiers. And many of these Indonesian soldiers were wearing the parachute flashes from the Australian battalion that had taught them. And rather than being worried about their privacy, or worried about their international relations with Australia being jeopardised by the revelation, they were proud of the fact that they'd learned how to become more effective killers, courtesy of the Australian Defence Department.

So that kind of contempt from the Australian public's right to know doesn't wash with me, but it continues unabated.

Just recently, Rick Snell and I used a team of his law students at the University of Tasmania's Law School to fight an FOI against a public hospital in Queensland. We argued that it was in the public interest for the performance data that hospitals keep on individual surgeons to be released, so that the public can make more informed decisions about their health care. "Sunday" won a truly significant victory on FOI with Rick's assistance and that of his students. Queensland's Information Commissioner acknowledged that it was in the public interest for patients to know whether their surgeon had a high or low death rate or injury rate with his or her patients, and he said that this risk adjusted data should be made available to the public. The fight took two years, and I should say that without the free legal help from Rick's student team, it would have cost us tens of thousands of dollars, and we would never have been able to do it.

But we're proud of the fact that this precedent is now available. But what does Queensland do in response to our FOI victory? I took my family on holiday to a lovely place called Mission Beach in North Queensland shortly after I'd heard that we'd won this FOI. Sat down on the beach and I opened up my copy of The Courier Mail newspaper to read this front-page story: 'Blunders by hospitals to stay secret'. It reported that the Beattie government is bringing in new legislation. It would ensure 'a tough new privacy regime' (there's that word again) 'to protect the Health Department and medical staff from public scrutiny of hospital mistakes'. Now we're going to put in our request anyway for the cardiac mortality data for all Queensland's public hospitals, and if they don't give us the information, we'll try and shame them for their refusal to give the public what it has a right to know. But we're assured by our own sources that that move by the Queensland government is a direct response to our FOI. How can you compete with something like that when a government is prepared to pass legislation to stop the public from getting access that its own Information Commissioner has said the public has a right to know?

In summary, what I'm arguing is that the one thing that could improve the standards of investigative journalism in Australia is being hindered by a cultural antipathy, to journalistic scrutiny of government. The sort of computer-assisted journalism I've been talking about today can't happen in Australia without a change of bureaucratic attitude. Yet it represents exactly the sort of broad, considered, fair, objective, unbiased journalism that we all want and aspire to. Why can't there be collaboration here between FOI officers and members of the public to ensure that the stories can be told using this wonderful objective data that sits ignored in government archives?

And I'll leave you there; thanks very much.

Applause

Kirsten Garrett: Journalist Ross Coulthart of Channel Nine, speaking at a forum at Parliament House in New South Wales late last year.

You're listening to edited highlights from that Forum on Open Government. Also among the speakers was Privacy Commissioner Chris Puplick.

Chris Puplick: The attempt, which I agree, is being made quite vigorously by governments all round Australia at the moment, to use privacy as an excuse not to release information, is because they have been able to get away with conflating privacy, secrecy and confidentiality into one amorphous concept: Fooling people that in fact they're talking about a privacy issue, when in fact they're talking about something which is not privacy in its legal or in its generally recognised sense at all.

The second point that I want to make however, is that privacy is an important human right. The right to privacy is one of the critical things which defines the relationship between citizen and citizen, between citizen and government. And if you look at any of the great literature about the corruption of civilisations, whether it happens to be '1984', whether it happens to be Franz Kafka, whether it happens to be any of the current films, 'Enemy of the State', 'Gattaca", whatever they happen to be, the key thing that has happened in turning the life of the citizen into a nightmare rather than a life, has been the loss of privacy. The total availability of all of the information about them, to people in authority and in particular to people in government. And that's the point where I want to make the first important statement about the relationship of privacy and open government, and that's this:

Privacy legislation recognises and seeks to address the unequal outcomes arising from the way in which personal information is collected and held about us by government. Public sector organisations acquire power over citizens because they acquire information about citizens and they have the right to act on that information, whether that happens to be information about your welfare entitlements, whether it happens to be information about your legal entitlements, whether it happens to be information in the hands of the police or the Education Department or anywhere else. It is the possession of personal information which leads to governments granting or withholding, doing or not doing, discriminating or not discriminating against individuals on the basis of that information. And what privacy legislation seeks to do is in fact to provide a regime in which that power imbalance is modified, corrected, adjusted, by imposing rules about the way in which that information is collected, used, stored, verified, provided to other people. And that is the critical question in relation to the balance that needs to be struck between information in the public domain and information which is genuinely private. And it's important to recognise that privacy legislation in New South Wales in particular, relates to personal information. As far as I am concerned, as the Privacy Commissioner, non-natural bodies - companies, governments, organisations - do not have privacy. Privacy belongs to individuals. That's what my legislation says, that's what my legislation is all about. And interestingly, in the most recent discussion of privacy legislation in Australia, a case involving the media, the ABC and the possum killing case, if you look at what the judges of the High Court say, they're actually working their way tentatively towards a recognition of some sense of personal privacy in a tortuous form, but are quite clear that organisations don't possess a privacy right.

The next thing is that political considerations are always paramount in the debate about privacy. Draw a line on 11th September, the debate about what government department should have access to what information has changed immeasurably since 11th September. All of a sudden, the security services need, the police need, the government need, access to more and more information about us. Because of a political change and because all of the people who previously were blowing in the ear of government about how they needed access to this information and were being told to go away because that wasn't compatible with the way in which we run our democratic institutions now have all sorts of extra friends at court. And of course it's going to be a battle to ensure that the demands of the police, or ASIO, of ASIS, of every other government department around the place for more and more access to more and more information, all on the basis that it's going to make us safer without realising that part of the trade-off for living in a free, open, democratic society is that you live in a vulnerable society, you can become less vulnerable by giving up all of those rights. The question is, are we prepared to be part of that trade-off?

The final point I want to make in terms of responding to many of the things that Ross said, the overwhelming majority of which I agree with entirely, is for example in New South Wales in terms of New South Wales Health. New South Wales Health Department wanted to publish, on its website, information about hospital waiting lists, and about the waiting lists of individual medical practitioners. They were sensible enough to come to me as Privacy Commissioner and say 'How can we publish this information?' and we've settled down and worked out a way in which on the New South Wales Department of Health website, you can get information to the waiting lists of individual medical practitioners. So these things are possible if people are prepared to address them properly, and if Ross wants to replace Joh Bjelke-Petersen's quotation over his desk, let me remind him of what Emerson said: 'A democracy is the government of bullies, tempered by editors'.

Kirsten Garrett: Privacy Commissioner, Chris Puplick, speaking at a Forum on Open Government held in New South Wales Parliament House late last year. At this point there were questions and comments from others taking part.

Michael Jones: Michael Jones, I'm a solicitor. I deal mostly with Commonwealth legislation, but I think it's the case also in New South Wales that in fact in our legislation Freedom of Information is a misnomer because it's all about documents; you can't apply, under our legislation, for information, you can only apply for documents, so you can't ask a question of government and have it answered, you can only ask for a particular existing document. Document has a wide definition; it can include audio tapes, computer information and the like. But it's not Freedom of Information as such, certainly not what's in the mind.

Kirsten Garrett: The point addressed by Michael Jones was taken up by Privacy Commissioner, Chris Puplick.

Chris Puplick: Under the New South Wales Privacy and Personal Information Protection Act, each agency in New South Wales does in fact have to publish a list of the information that they hold, which is covered by provisions of the legislation. Now this is something which obviously has taken a great deal of time. Agencies that have resources have been able to get on with this and have started to publish some of this material, it's part of our responsibility to follow up on this over a period of time, but the legislation in New South Wales requires that. It's been hampered by the fact that when we first were created as the Privacy Commission, we went to the government and said, 'Can you please give us a list of all of the New South Wales government agencies?' and they said, 'No.' And we said, 'Why?' They said, 'Because we don't have a list.' We eventually found that there was one place that did have a list that looked as though it was pretty comprehensive, and that was the Superannuation Authority. So it was at that stage that we discovered that we have two Banana Marketing Boards, and a Wild Dog Destruction Board, and a whole series of other things.

But simply assuming, and I make this point, simply assuming that every time you get a 'No', it's because there's a deep conspiracy there, I just remind you that between the conspiracy and the cock-up, it's usually the latter.

Kirsten Garrett: You heard first from Ross Coulthart, journalist with Channel Nine, and then Privacy Commissioner Chris Puplick, two of the speakers at the Forum on Open Government arranged and chaired by Democrat, Arthur Chesterfield-Evans last year in Parliament House in New South Wales.

You're with ABC Radio National, and this is Background Briefing.

Kirsten Garrett: This year, in early March, the issues of Open Government and Freedom of Information were also addressed in a lecture at the Australian National University. Speaking was Law Professor, John McMillan, who has been closely involved in the Open Government movement in Australia since the 1970s. Professor John McMillan surveyed the many achievements, and the continuing challenges for open government, and Background Briefing presents some edited highlights from his speech at the ANU. John McMillan.

John McMillan: In the early 1970s the concept of Open Government did not enjoy widespread acceptance, indeed the mood was happily captured a little later by that well-known observation of Sir Arnold Robinson to Sir Humphrey Appleby that open government is a contradiction in terms: you can be open, or you can have government. Sir Humphrey agreed, noting that the word 'secretary' is after all, a derivative of 'secret'.

Well, in Australia that parody was reality. Jim Spiegelman, now Chief Justice of New South Wales, in 1972 published a book, 'Secrecy, Political Censorship in Australia' which contained nearly 200 pages of examples of secret documents that are nowadays on the public record. They included the Department of Social Services Internal Manual; Proceedings of the Loan Council; Public Service Employment Statistics; the Register of Health Funds; Consumer Test Reports; the Price of Wheat sold to China; Aboriginal Health Surveys; Membership of Cabinet Committees; and countless departmental and inter-departmental reports on most aspects of Australian society.

In 1975, in response to one of a number of routine and rather meaningless requests that I sent to government agencies, the Auditor-General refused to disclose to me a copy of its hiring contract for office pot plants. Well, two decades later the Auditor-General is probably now the leading campaigner against commercial confidentiality in government.

In the 1970s the Australian Security Intelligence Organisation had no published telephone number or mailing address, being known enigmatically as 'Attorney-General's Department, D-Branch'. Well now ASIO has even a website that outlines the rights people have to be informed of, and to challenge, adverse security assessments.

Kirsten Garrett: You're listening to Professor John McMillan giving a talk on the history of the Freedom of Information legislation in Australia. He's talking at the Australian National University, and these are edited highlights.

John McMillan: The importance of information has long been recognised. Familiar and long-standing aphorisms which capture that point include that information is the currency of power, the lifeblood of democracy, that knowledge governs ignorance, and that the public has a right to know. But in a system of secret government the implications of those terms was never unravelled. Secrecy was one dimensional. It involves the suppression of information. Yet as Greg Terrill in a marvellous book on the History of Open Government in Australia has observed, 'Openness is more than the obverse of secrecy.' Open government is multi-dimensional; it is more than the disclosure of hitherto secret documents, it's also about how society is governed, who participates in government, how decisions are made, how information is managed. In a system of open government we can begin to view information, not just as an object, as a document, a report, a press release, but, as Greg points out, 'as a dimension of all government activity. Every relationship in and with government involves and is built upon a flow of information.'

Now those are still radical notions within government, as illustrated by the fact that every attempt Federally to develop a comprehensive information policy across all facets of government has foundered. But the gusts of change have raised some dust. If we start firstly at the level of grand theory, we find that most of the themes in contemporary political theory, civic republicanism, deliberative democracy, and the like, give more emphasis than formerly to access to information as an essential condition for democratic deliberation on public policy. That's not to say of course that government is as open as it should be. In any month allegations swirl in the media of illegitimate political secrecy. Recent examples include the children overboard affair, the management of detention centres, the takeover bid for Woodside Petroleum, and the like.

We will never supercede either what I described early as the self-protective reticence of the Public Service, nor the toughness of politics. But nor, of course. does every allegation of secrecy tell the full story. Sometimes they merely show, as Sandy the Sandman says of the Sunstruck Guest House, that 'closed doors create interest'. Well it is however, the task of the FOI Act to limit secrecy and as its Objects clause declares, 'to extend as far as possible the right of the Australian community access to information in the possession of the government.'

So how suited is the Act to achieving that objective? Suffice it to say that some criticisms of the Act and its administration emerge commonly and trenchantly. They include that FOI works well in facilitating public access to personal affairs information, but not to information at higher levels or that is more politically sensitive. There is a misuse by government agencies of two exemptions in particular: the Cabinet Documents Exemption and the Commercial Affairs Exemption. Decisions by courts and tribunals that give a conservative interpretation to the Act, such as the Howard decision are seized upon and over-used by agencies. The coverage of the Act has not kept pace with developments in government, notably outsourcing, with the result that some record holdings now escape the coverage of the Act. There's an uneven culture of support for FOI across government. Administration and oversight of FOI administration is too de-centralised. And gaining access can be prohibitively costly, arduous and slow.

Kirsten Garrett: You're with ABC Radio National and this is Background Briefing, with an edited talk by Professor John McMillan on Freedom of Information in Australia.

John McMillan: Some of the most intense political disputes concern the disclosure of information as the children overboard affair reminds us. Moreover, within government there are some very tough-minded Ministers. Any tribunal which has to confront a Minister on a sensitive issue of document disclosure, should enjoy security of employment. In my view, at least some tribunal members need a long and secure tenure in office if for no other reason than to safeguard the robust administration of the FOI law.

Secondly there's the issue of the cost of FOI, a potential problem that was recognised but studiously circumvented in the FOI campaign. There is an unavoidable dilemma, a high cost regime can be used by government to deter requests and to corrode the Act, but on the other hand individual document requests can consume an enormous amount of administrative time and resources. The scale of FOI fees is clearly an important issue.

We are driven back to the point, I think, as we so often are in public administration, that the answer lies as much in the wise exercise of discretion. For that to occur there must be an administrative environment that gives room to move, which understands that FOI is part of the cost of running a democracy, and that's backed up by permanent bodies such as an FOI Commissioner. It may furthermore be easier to gain acceptance of some FOI resource costs if they're viewed not merely as a product of FOI law but as an element in a more broadly framed government information policy.

Thirdly I come to the most challenging issue of all: a recurring theme in the history of FOI laws around Australia is that governments gradually lose their enthusiasm for FOI. One of the truisms of FOI law reforms is that it is brought in on a wave of government enthusiasm against Public Service scepticism, yet the Public Service then learns to live with the law at about the same pace that government antagonism grows. Government resistance can be manifested in many ways, such as the increase in FOI charges, the failure to implement recommendations for legislative reform, and hardline attitudes on document disclosure.

This has been less of a problem in a US-style system, because the culture of support for FOI within the Congress usually grows stronger over time. By contrast, I fear that Australian FOI proponents, in explaining with such conviction that the system of responsible government should not be an obstacle to FOI, overlooked that responsible government would re-emerge as an obstacle further down the track because of the control which governments have over both the legislature and the executive.

I think we need to draw from the US experience and to attempt to build a non-aligned culture of support for FOI within the legislature. I well appreciate the difficulty of focusing Parliament's attention on such an issue, given the intense political rivalries that dominate Parliamentary proceedings. But it is an issue to which further thought should be given. At a minimum, there should be a parliamentary committee with a dedicated focus on information as a dimension of all government activity. Perhaps too, it may be feasible to develop constitutional conventions or standards of a sort, in support of FOI that are endorsed by parliamentary resolution at the beginning of each session.

To those problems and challenges one could add many others. Two that I've mentioned only fleetingly are the increased reliance on commercial confidentiality claims, and the remarkable growth in the size of ministerial officers operating at times as an unaccountable filter on the information stream.

Kirsten Garrett: Professor John McMillan reiterated that Australia today is much better informed than it used to be about government processes and decision making. And, as you'll hear, he says we have to raise the question of whether Freedom of Information has increased the cynicism about government and lack of respect for the processes. In the final analysis he believes open government and freedom of information are essential to a thriving democracy.

John McMillan: In the last few minutes, I want merely to note those points and to ask a different question that should I think be asked in any retrospective analysis of open government. And it's this: Has open government itself given rise to any problems? At a broad level, it's certainly true that an open society is a more critical society, a more demanding society. It's often said in justification of open government that it will restore faith in the institutions of government. Ultimately that is correct, in my view, but institutions that are exposed to the public gaze are also exposed to cynicism that at times do capture some ill-founded criticism. That's not an argument against openness, simply a reminder of the adage that freedom should be enjoyed wisely.

In two respects however, I do question whether the objectives of open government have been misread or misapplied. The first concerns an issue that I've taken up in other forums as to whether the criteria for lawful decision-making in administrative law have been extended too far and become unrealistic. That concerns overlaps with the open government issue at some points, chiefly in relation to natural justice. The doctrine of natural justice imposes on government an obligation to initiative disclosure, to disclose adverse information to a personal corporation before an administrative decision is made that adversely affects their rights or interests. And failure to comply strictly with that obligation results in the most dramatic of all consequences for government: a finding of invalidity and erasure, as it were, of the historical record.

Well, taken too far and applied to strictly natural justice can prevent policies being formulated and decisions made in the public interest.

Kirsten Garrett: The doctrine of natural justice means that governments have to disclose information which will adversely affect the rights and interests of a person or corporation.

Professor McMillan says this concept has sometimes been used incorrectly to stymie governments' right to make decision.

John McMillan: In the early days at least of public interest advocacy, that was never the objective. The more limited objective was, as I said, to ensure that before government made a decision, that it disclosed the agenda and heard the informed voice of others, not that it lost its authority to make decisions. We should not lose sight that the objective was to change how decisions are made, not who makes the decisions.

Well, may I conclude. Twenty years of open government, and we have learnt a great deal. There is hardly an aspect of government and society that has not been touched by the development of open government in Australia. Yet if asked to crystallise 20 years into a single observation, I would respond as follows: Openness can be portrayed as an end in itself, as a worthy human objective. But there is a dualism. Openness in addition is an essential plank in the platform for realising other social and political objectives. Without openness, executive accountability cannot properly be realised. Without openness, administrative justice is diminished. And without openness, democracy is destabilised. In the clash of ideals that mark out the terrain of legal and political debate as to how our society is governed, a campaign to maintain open government should remain a central objective. Thank you.

Applause

Kirsten Garrett: You've been listening to a program on Freedom of Information and open government.

Background Briefing today was produced by David Bates. I'm Kirsten Garrett. You've been listening to Background Briefing, and this is ABC Radio National.