Crikey is giving this year’s talk to Free Speech Victoria for their Voltaire award and in pondering what to say on Wednesday night, post this speech delivered by the 1999 speaker, former Victorian Auditor-General Ches Baragwanath.

“Religion is the source of all imaginable follies and disturbances; it is the parent of fanaticism and civil discord; it is the enemy of mankind.”

(Hopefully in accepting the Voltaire award I will not be a candidate for ex-communication).

However, when one looks around the world at the moment both quotations are probably more pertinent than ever before. Unfortunately, religious fanaticism seems to be a factor in many of the disturbances in the world at the moment – Northern Ireland, the Middle East, the sub-continent and even on our own doorstep in Indonesia. Religious intolerance appears to be alive and well in our modem world. However, enough moralising.

In working on tonight’s address, I thought a good starting point would be to go back to basics and spell out where our right to know is codified. I had hoped to find something like Article 14 of the 1791 French Declaration of the Rights of Man:

“All citizens have the right to ascertain, either in person or through their representatives, the necessity for public taxation, to consent freely thereto, to observe its expenditure and to determine its apportionment, its assessment, its collection and its duration.”

This provision is mirrored in the Constitution of many administrations. Many American States have constitutionalised the right to know, eg. the Constitution of Florida provides that “It is the policy of this State that all state, county and municipal records shall be open for personal inspection by any person.”

Unfortunately, my search locally was fairly fruitless. There is no Bill of Rights in Australia as there is in South Africa, Canada, New Zealand and elsewhere, nor is the right to know specifically enshrined in our constitution. This left me in a bit of a quandary. Does an Australian citizen actually have a right to know or is it merely another motherhood statement bandied around at election time or used pontifically by people such as Auditors-General and Ombudsmen? In this context I note that at the Melbourne Writers’ Festival at the weekend, the human rights lawyer, Geoffrey Robertson, expressed the view that the adoption of a Bill of Rights was more important than changing the symbolic position of head of state. In the absence of a Bill of Rights, it is no wonder that politicians like Paul Keating can describe, as he did, the right to know not as a right but actually a privilege.

Of course we have the Freedom of Information Legislation which refers to a “general right of access to information” but in Victoria this Act is “limited only by exception and exemptions necessary for the protection of essential public interests”. Unfortunately in Victoria, the government’s interests appear to take overwhelming precedence over the public interest to such an extent that I believe the Act should be retitled the Restriction of Information Act. The 100 page Act is mainly devoted to exceptions and exemptions rather than rights of access to information.

As Sir Humphrey Appleby cynically commented:

“Open government, Minister, Freedom of Information. We must always tell the press freely and frankly whatever they would find out some other way. It is only totalitarian governments that suppress facts. In this country we simply take a democratic decision not to publish them”

However, the Courts and various Royal Commissions have been fairly outspoken on this matter, eg.

Justice Mason Commonwealth v John Fairfax and Sons (1980)

“It is unacceptable, in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticise government action.”

Commissioner Fitzgerald in the Queensland Royal Commission Report in the mid 80s, and every Victorian should revisit that report as there are similarities between Queensland in the 80s and Victoria in the 90s, states:

“Without information there can be no accountability. In an atmosphere of secrecy or inadequate information, corruption flourishes. Wherever secrecy exists there will be people prepared to manipulate it. It is essential that Government is not able to claim that secrecy is necessary when the only thing at risk is the exposure of a blunder or a crime. Secrecy and propaganda are major impediments to accountability, which is a prerequisite for the proper functioning of the political process. Worse they are the hallmarks of a diversion of power from the Parliament.”

“Public opinion can be an important check on the powerful. It is a fundamental trust of a democratic system that public opinion is given effect in regular free and fair election. But public opinion must be informed to be effective.”

“Information is the linchpin of the political process. Knowledge is quite literally power. If the public is not informed, it cannot take part in the political process with any real effect.”

That governments are accountable electorally is indisputable. This, however, does not answer the question as to what “accountable” in a government context entails. In a general sense, to be “accountable” means that the party having the responsibility to account is both ‘trusted” and “subject to independent judgement” regarding its stewardship. To be trusted and to be subject to the independent judgement of others regarding the discharge of that trust are matters that do not sit easily with the structure and practice of government in Australia today.

Accountability is a complex and multi-dimensional concept when it is applied to a government. One of the fundamental underlying tenets that is indispensable to ensuring full accountability of government is that of the availability of information regarding government activities.

It has been pointed out, and, it is proper to accept, that openness is not an absolute value. Nonetheless, the public does require reassurance with respect to those matters where an Executive Government can legitimately claim secrecy. This particular matter has been the subject of comment and concern regarding the matter of major government contractual arrangements where the contracts have been undertaken pursuant to the prerogative powers of the Crown and where the Parliament has not been provided with adequate information regarding the nature of those commitments.

It has been claimed that the Westminster system of government is excessively secretive. The capacity for public scrutiny of Executive Government under the Westminster structure and practice of government is difficult and in some cases impossible. Examples of this can be found in the way in which official witnesses from the bureaucracy may be prevented from providing information to Parliamentary committees. A number of State governments have made claims of “commercial confidentiality” to avoid public scrutiny of government business relations and the operations of government business enterprises. The WA Inc. Royal Commission was critical of this process, as it had operated in Western Australia.

In circumstances where the financial position of the State can be affected as a result of government contractual relationships with the private sector, the question has to be asked as to whether the current arrangements are adequate in ensuring accountability of government to the Parliament and ultimately to the electorate.

Responsible government is a fundamental principle of the Australian constitutional structure. Responsible government in this context meaning that the Ministers of the Crown are responsible to the Parliament for the activities of Government.

Parliament is not in a position to exact the elements of responsibility where Parliament itself is “in the dark” regarding the activities of the Crown.

As democratic principles underpin the fabric of Australian governmental arrangements the fact that Parliament is unable to obtain information translates into a broader concern in that where the activities of government regarding matters of public importance are not known it is not possible for an informed electoral judgement to be made on the basis of a government’s record. In short, secrecy prevents that record from being known and scrutinised by Parliament and the community. In these circumstances an informed electoral judgement is not capable of being exercised.

The difficulties faced by Parliaments in monitoring the activities of Executive were vividly illustrated by one of our longest serving Parliamentarians, Barry Jones, who in an address as far back as 1980 stated:

“The Australian Parliament is no longer a legislature within the Westminster tradition. It has become a mere Electoral College charged with the responsibility of certifying the election results, authorising the installation of the Executive and then, provided that the Executive has a majority in both Houses, sitting back to watch the operations of government: to ask some questions, to make some noise but essentially to take a passive role in shaping and achieving national goals.”

Barry Jones posed the question: “How can we cast informed votes in the Parliament or in the polling booth when we do not understand what is going on?” Nineteen years later, I believe that question still remains unanswered.

One of the questions I am often asked is why should there be a higher standard of accountability in the government sector than the private sector. In a report to the Victorian Parliament 10 years ago I pointed out that in the private sector, one of the main mechanisms for achieving accountability is the provision by management of audited financial statements. Such statements allow shareholders and other interested parties such as creditors to make decisions whether or not to maintain their investments or to continue to provide credit. Many of these decisions are based on an entity’s performance as reflected by its profits and it could therefore be said that private sector entities are primarily held accountable through their bottom line.

The public sector, however, by its very nature differs from the private sector and this has consequential implications for the nature of and mechanisms used to achieve accountability. Two such important differences, which have a direct impact on the concept of accountability in the public sector, are:

* Firstly, the objectives of the public sector are not entirely related to profit maximisation as is generally the case with the private sector, but rather to the achievement of a diversity of often competing social, political and economic goals on behalf of the public at large. These goals are set in broad terms through the political process and further refined through administrative processes within the government. This diversity of objectives means that “bottom line” accountability is often inadequate in the public sector since it is rarely an accurate reflection of performance; and,

* Secondly, those who participate in business ventures, be it as sole traders, partners or shareholders in companies, do so voluntarily. It is their capital that is at risk. By way of contrast, governments have the power to compulsorily acquire financial resources and use this power to tax members of the community. This compulsory power is accepted by taxpayers in the expectation that there will be a full accounting for the use of such resources in terms of probity, legality, economy, efficiency and effectiveness.

In view of such differences, the concept of accountability in the public sector takes on additional significance. In the public sector, those who have been entrusted with the resources of the public at large, and with the power to regulate many aspects of the lives of others, must recognise and respond to the consequential responsibility to fully account to the public for all resources used and for all aspects of their performance.

Over the last decade, government has changed profoundly.

* Public utilities are being privatised.

* Hospital and prison management is being contracted out.

* The public service is being downsized.

* Senior public servants no longer have tenure but are now on performance contracts and in some jurisdictions can be dismissed with a month’s notice.

Current philosophy is that while a government may be obliged to provide services it does not necessarily entail an obligation on governments to actually produce such services.

Under this philosophy the use of private contractors to provide services previously provided by the public sector has been developed to a fine art. I mentioned before gaols and hospitals and in the United Kingdom even the nuclear early warning system is now operated by a private contractor. In Papua New Guinea we have seen in the Sandline saga the attempt to contract our defence services.

Professor Arie Freiberg of Melbourne University in an address in 1997 made the point that government by contract has many implications. What accountability mechanisms are required under the new system of contractualised government? How effective are they in the face of the burgeoning claims to commercial confidentiality?

In various Australian jurisdictions a number of committees have, or are presently examining the implications of the contracting out of government services. These include the Senate Finance and Public Administration References Committee looking at public accountability for government services provided by private contractors, the Administrative Review council, looking at the administrative law implications of contracting out, and the Public Accounts and Estimates Committee of the Victorian Parliament which has launched an inquiry into commercial confidentiality and the public interest. The NSW Independent Commission Against Corruption has a watching brief on the relationship between contracting out and corruption.

It is possible briefly to sketch some of the implications of contracting out. They include:

1. The growth in the use of the concept of commercial confidentiality as a means of restricting accesses to government information;

2. The diminution of public law accountability, that is, the exclusion of the jurisdiction of the Ombudsman and public law remedies such as administrative review legislation;

3. Changes in the concepts of accountability, which becomes determined less by conceptions of the public interest than by consideration of financial efficiency and cost related numerical targets;

4. Changing notions of ‘public interest’ in that contracts limit the number of interested parties, whereas ‘public interest’ recognises a wider range of constituencies;

5. Increased, or changed, opportunities for corruption in the contracting process; and,

6. A diminution in the challengeability of contracts, brought about by the doctrine of privity of contract.

On the issue of commercial confidentiality, in my 1996 Annual Report, I expressed concerns that claims of commercial confidentiality have hampered my ability to report freely, openly and comprehensively on outsourced activities. In Victoria, both in relation to state-owned enterprises and in the budget papers relating to core government activities, less and less information is becoming available. The State Owned Enterprises Act 1993 restricts access to the financial and operating records of state-owned authorities and therefore diminishes the opportunity for independent scrutiny. The Budget papers are becoming more opaque as more government spending is channelled through contracts with the private sector. Kenneth Davidson, economic commentator for The Age argues that expenditures incurred by the process of ‘steering’ rather than ‘rowing’ are now:

Hidden behind the notion of “commercial in confidence.” This is simply a fig leaf to hide lack of accountability. Lack of accountability leads to bad government and ultimately to corruption. … I believe that if you take the Queen’s shilling , the fact of the taking and the precise reasons why it was taken should be made public in a manner that is easily accessible by members of the public who have not spent a lifetime trying to find their way through a labyrinth of state public accounts.

Linda Hancock in the book The Kennett Revolution published recently by University of NSW Press noted that: “accountability has changed structurally and directionally, with the traditional bureaucratic approach giving way to a narrow emphasis on budgetary control through corporatised structures and regulatory bodies. Parliamentary scrutiny has been diminished, and the changes have taken place in the context of politicised and silenced public and community sectors. Despite the rhetoric that the public service revolution has made government ‘more accountable’, this shift raises important questions of citizenship and accountable government.”

The combined effect of the shifts has been changes to institutional structures, loss of social capital, loss of trust, and a retreat from bureaucratic and civic accountability to output and budget accountability under market policies.

Our capacity to know has in recent years been diminished by measures such as:

* abolition of the Victorian Law Reform Commission;

* abolition of the Accident Compensation Tribunal and changes to crimes compensation;

* the sacking of 11 Accident Compensation Tribunal judges; * the removal of the Equal Opportunity Commissioner, Moira Rayner, by abolishing her position;

* amendments to Freedom of Information legislation, increasing fees, introducing charges for members of Parliament and expanding the definition of exempt and ‘commercial in confidence’ documents;

* the introduction of daily court fees for civil court action and escalated fees for the issuing of writs and other legal procedures;

* legislative changes restricting the role of the Office of the Victorian Auditor-General.

If I could conclude this address by a call to arms:

* Every time government in Australia reduces or abolishes the rights of access to courts to challenge or review the actions of government or private organisations which are the recipients of government patronage;

* Every time the right of review of an executive or administrative decision to an independent tribunal is restricted or abolished;

* Every time common law rights, which have served us well for hundreds of years, are constrained or removed;

* Every time judicial or audit independence and discretion is threatened;

* Every time rights are unilaterally, or worse, retrospectively removed by government decree or regulation;’

* We should be massing in the streets to campaign against such erosions of liberty and to prevent them ever again being subject to such threat.

If you have any suggestion as to what Crikey should say this Wednesday night then please send your emails to [email protected]

* Crikey has 1960 subscribers who for $55 get a tee-shirt, 5 sealed section emails a week with this sort of material and access to our 2.4 million word searchable archive so why not join the Crikey army by clicking here to read the daily email updates with breaking news and analysis. We’ve also got lots of other great Crikey lists in the archive.

Peter Fray

Fetch your first 12 weeks for $12

Here at Crikey, we saw a mighty surge in subscribers throughout 2020. Your support has been nothing short of amazing — we couldn’t have got through this year like no other without you, our readers.

If you haven’t joined us yet, fetch your first 12 weeks for $12 and start 2021 with the journalism you need to navigate whatever lies ahead.

Peter Fray
Editor-in-chief of Crikey

JOIN NOW