Governments are becoming increasingly secretive. Here’s how they can be made to be more transparent
- Written by: Gabrielle Appleby, Professor of Law, UNSW Law School, UNSW Sydney
Transparency is vital to our democratic system of government.
It promotes good government, spurring those in power into better practice. Even when what is revealed is pretty revolting, transparency means those transgressions are known, and accountability for them can follow.
Transparency is particularly important for people who otherwise do not have access to government, who are not “in the room” or “at the table”, whether that be directly or through lobbyists or other connections.
But recent data[1] reveal government transparency in Australia is on the decline. Given the connection between transparency and a well-functioning democracy, this is deeply concerning.
The Albanese government’s compliance rate with Senate orders for documents is the lowest of any government since 2016, and the second-worst of any government since 1993. Disclosures under freedom of information laws have dropped dramatically over the past decade.
The problem isn’t a lack of solutions, but that governments appear perpetually unwilling to open up.
How should transparency work?
In Australia, there is a complex system of institutions and laws that provide government accountability and transparency.
Outside of the blunt instrument of electoral accountability through the ballot box, the parliament, and in particular the non-government-dominated Senate, plays a key role in providing accountability and transparency.
The transparency work of the Senate is supplemented by a number of regimes, chief among them freedom of information. Under freedom of information, members of the public can request specific information from government departments and agencies, and this is supported by a “freedom of information champion”, the Office of the Australian Information Commissioner.
To work properly, these schemes and regimes need the ongoing support, cooperation and buy-in (literally in the form of funding) from government. This has, at times[2], been less than forthcoming, which can hobble their operation in different ways.
There are also several reasons why a government might refuse to publicly disclose what it is doing. Former High Court Chief Justice Harry Gibbs said[3] “government at a high level cannot function without some degree of secrecy”.
But limits and exceptions to transparency regimes are controversial. Does there need to be an exception at all? Does a particular document fall within the exception?
The government holds the upper hand in asserting whether a document falls within an exception, because they are the ones who know what the documents are. This gives rise to cynicism that these exceptions can be and are being abused.
Documents remaining buried
This cynicism may be warranted, as two recent reports by the Centre for Public Integrity show successive governments lack true commitment to transparency.
The first report[4] was about Senate orders for the production of documents and how often the government complies with them.
One of the Senate’s most powerful tools in holding the executive to account is its ability to order the production of government documents.
But governments have a long history[5] of avoiding compliance with Senate orders. They either outright refuse to respond, or offer broad claims of “public interest immunity” over sensitive documents, such as those relating to national security, Cabinet, federal relations or law enforcement.
While the Senate can sanction ministers who refuse to comply with its orders, such as through suspending them from the chamber, it has historically done little in response to government insouciance.
This means we don’t know whether the public interest immunity claims being made over the documents are valid, and there is currently no mechanism to find out.
The recent data show the government’s compliance rates with Senate orders to produce documents have fallen from 92% in 1993–96, to approximately 33% for the current parliament.
This is a low that only the Abbott/Turnbull government in the 44th parliament has the ignominious record of beating in the past 30-odd years.
It is coupled with the government increasingly claiming public interest immunity. Public interest immunity rejections as a proportion of non-compliance sat at 61% over the 46th Parliament, this rose to almost 68% over the Albanese government’s first term.
These averaged roughly one claim per week under Albanese, compared with about one claim every three weeks under by the Morrison government in the 46th parliament.
What about freedom of information?
The second report[6] is on the operation of the Commonwealth’s freedom of information (FOI) regime.
The Albanese government’s performance on delivering transparency this way is a mixed bag.
First, the good news: the Office of the Australian Information Commissioner is better resourced, first-instance processing times have improved, and more of the reviews received by the OAIC are being finalised.
But the plaudits end there.
Whereas the proportion of requests granted in full stood at 59% in 2011–12, by 2023–24 it had fallen to just 25%.
Over the same period, outright refusals have ballooned from 12% to 23%.
The precipitous decline in the “refusal gap” (the difference between the proportion of requests granted in full and those refused) is alarming.
Moreover, it’s difficult to have confidence in the correctness of these refusals. In 2023–24, almost half of initial decisions were found to be flawed following internal review.
Processing timeframes are also cause for significant concern. Average processing time for Office of the Australian Information Commissioner reviews has blown out from 6 months in 2016-17, to 15.5 months in 2023-24.
Fixing the mess
Of course, numbers are not a full story. But they also cannot be denied, and these tell a damning story for government.
So how could they be addressed?
The Senate should adopt an independent legal arbiter to oversee claims for public interest immunity. This would discourage secrecy by providing an independent review mechanism for parliament to check the government’s immunity claims.
For this reform to work, the Senate must not shy away from flexing its enforcement muscles either. The government must know that lack of transparency has consequences.
In response to the freedom of information crisis, there’s a number of reforms[7] that could improve transparency. These cover:
legislative changes such as clarifying that existing applications are not invalidated with a change in minister or portfolio title
greater resourcing to support information officer training and ongoing monitoring
and increasing parliamentary oversight of the regime.
Transparency is not an elite concern, but one of those who are otherwise not in the room. It is the peoples’ concern. Governments, however, have incentives to keep the status quo.
So even though Labor spoke a big transparency game[8] in opposition, they have done little[9] in government. We need to demand that they do.
The author would like to thank Catherine Williams, Executive Director of the Centre for Public Integrity[10], for her contributions to this article.
References
- ^ recent data (publicintegrity.org.au)
- ^ at times (theconversation.com)
- ^ said (www.austlii.edu.au)
- ^ first report (publicintegrity.org.au)
- ^ long history (www.abc.net.au)
- ^ second report (publicintegrity.org.au)
- ^ number of reforms (publicintegrity.org.au)
- ^ big transparency game (alp.org.au)
- ^ done little (www.abc.net.au)
- ^ Centre for Public Integrity (publicintegrity.org.au)
Authors: Gabrielle Appleby, Professor of Law, UNSW Law School, UNSW Sydney
