Enhancing democracy

John Faulkner

Parliamentary colleagues, distinguished guests, ladies and gentlemen, there was once a time when it was a serious offence to report what parliamentarians said in the chamber. The justification for this 17th century prohibition was that it allowed parliamentarians to speak their mind and exercise their judgement without fear of the censure of the public.

You see, anxiety about politicians bending with the wind of public opinion is as old as politics itself. Democracy has at its heart a tension between ideas of responsible government and the disincentives for members of a government - who live and die by public opinion - to make unpopular decisions.

We still expect our parliament and our government to make decisions in the public interest, rather than their own political interests, but we no longer accept that the possibility of punishment at the polls for a necessary but unpopular decision gives a government the right to evade scrutiny.

The secrecy of parliamentary proceedings at the birth of the Westminster system is long gone. But the idea that the best way to protect responsible government is by keeping information about that government as confidential as possible has been very slow to die.

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.

This has not lifted from Australian governments their responsibilities to safeguard confidentiality, privacy and security. But it has required them to evaluate and define those responsibilities in the democratic arena.

Questions of both openness, and confidentiality, have to be treated as different aspects of the same over-riding obligation to act in the public interest.

Some of those requirements of confidentiality are clear cut. No government broadcasts the activities of its intelligence services, the contents of sensitive diplomatic negotiations, or the precise location of troops, for example. And no government should.

But our democracy, drawing as it does so strongly on the heritage of Westminster, has inherited a historical tendency to weight the protective features of confidentiality more heavily than the positive aspects of disclosure.

This has been an underlying tension in the development of Freedom of Information laws in Australia. Both in practice, and as a symbol, 'freedom of information' represents the pinnacle of citizens' right to know: a legal requirement for government to release information.

But FOI policy at a federal level in Australia has not always lived up to such expectations.

The introduction of FOI legislation in Australia in the early 1980s was an important first step in recognising the public interest inherent in openness about government information.

However, 27 years later it is clear that FOI at a federal level has, in Rhys Stubbs's words, worked 'around the assumption of closed representative government, forming a barricade that distinguishes what the public can and cannot access.'

There has been a wide-spread and not unjustified perception that, at least in practice, the culture of FOI at a federal level in Australia has been that the Act sets out minimum requirements: that decision-makers determine in favour of disclosure only where forced to and that, too often, FOI applications are viewed as a contest between applicant and agency.

This is far less prevalent in the majority of FOI requests, those which involve personal information. However, the kind of requests which the press most often make - for information concerning policy decisions or government action - are the ones most often subject to resistance, delay and refusal.

Yet this kind of information is, more often than not, material which the Australian public have both the right and the need to know - material that enhances and strengthens Australia's democracy through increased public participation in government processes, better informed decision-making, and increased scrutiny and discussion of government activity.

Labor took a number of commitments to the last election on the subject of Freedom of Information, set out in Labor's election policy, Government information: restoring trust and integrity.

That policy document encompassed changes to make access easier, and processes more transparent - legislative and procedural reforms to improve the operation of FOI.

But we also recognised an underlying challenge to create a pro-disclosure culture within government and the public service around the release of, and access to, government information. A challenge to change the culture of FOI from one of resistance to one of disclosure, to a recognition that the public interest can often mandate disclosure, rather than being a factor weighed only as a reason to refuse.

This is not an easy task. I'm sure no-one here will be surprised to hear that FOI reforms are not universally supported by public servants. It is proper for me to acknowledge those concerns. I know they are genuinely held.

I know that some in the Australian Public Service feel that FOI reforms may inhibit their ability to provide frank and fearless advice. But I believe that the tradition of frank and fearless advice is more robust than that. I believe that our public servants will work professionally within the new FOI framework as they do within other accountability mechanisms.

Last November, the government introduced legislation to fulfil the first of our commitments - a bill to remove the power to issue conclusive certificates in the FOI Act (and the Archives Act 1983).

As you know, the FOI Act has been fundamentally unchanged for 27 years. Reforming it is neither simple, nor easy, but it is a task this government is committed to. The changes needed to bring the Act up-to-date have to be considered and measured.

We have taken the time necessary to get this right. The time to talk to experts - including the media and academics - and to government agencies, to make sure our legislation will be informed by the very latest thinking.

Today I can announce that the government is releasing exposure drafts of our FOI reform legislation that will fulfil the rest of our election commitments and will deliver the first substantial overhaul of the federal Freedom of Information regime since the Act's inception in 1982.

These reforms will recognise the importance to Australia's democracy of, as the proposed new objects of the Act state, 'increasing public participation in Government processes, leading to better informed decision making; increasing scrutiny, discussion, comment and review of the Government's activities' and increasing 'recognition that information held by the Government is to be managed for public purposes, and is a national resource'.

These reforms will change the law, but they will also demonstrate the government's commitment to culture change, a shift from the culture of secrecy we saw under the last government to one of openness and transparency.

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