Chrisinformation to missing information: net zero advice kept secret
Climate Change Minister Chris Bowen and his department have defied the Senate by refusing to release critical net zero advice despite orders to do so.
Climate Change and Energy Minister Chris Bowen and his bureaucrats are refusing to release critical advice around the challenges and potential pitfalls of the government’s net-zero plans, despite Senate authorities rejecting arguments for keeping the documents secret.
Mr Bowen and the Department of Climate Change, Energy, the Environment and Water have repeatedly resisted attempts to compel them to the release of a volume of the incoming government brief prepared for Mr Bowen in the wake of the May federal election.
Clerk of the Senate Richard Pye – the House’s top-level parliamentary officer and chief procedural adviser – declared Labor has no grounds to withhold the brief, rejecting in writing the key arguments put forward to justify the noncompliance with orders demanding its release.
In a letter to Coalition senator Dean Smith, Mr Pye made it clear that the reasons put forward by DCCEEW officials at a recent Senate estimates hearing in an attempt to explain the non-release of volume one of the brief were “not generally considered to be acceptable grounds”.
The brief has been the subject of a Freedom of Information request and multiple Senate orders to produce documents (OPDs). A failure to comply with an OPD can prompt the Senate to make a finding of contempt, which can technically lead to penalties of imprisonment or fines, although Mr Pye noted that such disputes “are typically resolved through political or procedural means”.
Incoming government briefs contain a host of detailed information aimed at helping ministers familiarise themselves with their areas of responsibility, and can contain advice on problems facing the new government in implementing election promises.
Several other major government departments, including Treasury, Foreign Affairs and Trade, Health, Education, and Employment and Workplace Relations, have all complied with requests to release their briefs, albeit typically with large sections redacted.
The releases from the other departments have caused some embarrassment for the government in recent months.
Treasury accidentally released a brief that failed to redact a contents page that indicated it had advised Treasurer Jim Chalmers that tax should be raised as part of broader tax reform, and which admitted the government’s election promise of 1.2 million homes would not be met.
And the brief by the National Disability Insurance Agency urged the government to ignore pleas from disabled Australians to slow reforms to the NDIS.
The advice to Mr Bowen would likely have canvassed issues surrounding Australia’s current and future emissions reduction targets as well as the challenges facing Australia’s push to secure next year’s COP31 conference.
Senator Smith told The Australian that the brief would have likely touched on a number of sensitive issues including advice to the government on nuclear energy, EPBC Act reforms and the ongoing algal bloom issues in South Australia.
“These incoming government briefs often highlight the extent to which officials believe government election commitments can be fulfilled,” he said.
“What will be very interesting to know is what the incoming government brief was saying about emissions targets and the pathways to meeting emissions targets.”
Mr Bowen and the DCCEEW have continued to withhold volume one of the brief, citing exemptions under the Freedom of Information Act.
In a Senate estimates hearing this month, DCCEEW official Michelle Croker repeatedly stated that the department had declined to release even a redacted version of the volume “on the basis that it contained material subject to legal professional privilege; deliberative matter the disclosure of which would be contrary to the public interest, and; information the release of which would involve the unreasonable disclosure of personal information”.
Those reasons, Mr Pye wrote, were “not generally considered to be acceptable grounds” for a public interest immunity claim that would allow the minister to not comply with the OPD from the Senate.
And in any case, he said, it was a matter for the minister rather than departmental officials to make a public interest immunity claim.
“Guidance from the Senate Procedure Committee makes it clear that, when the Senate orders ministers to produce documents, they are obliged to do so, subject to the determination of any claim that it would not be in the public interest to comply. Such public interest immunity (PII) claims must be accompanied by a statement of the ground for that conclusion, specifying the harm to the public interest that could result from the production of the document in the Senate,” Mr Pye wrote.
“While it is a matter for the Senate to determine whether to accept a PII claim, it is doubtful that the mere reference to a document being redacted (whether under FOI or otherwise) amounts to an acceptable PII claim, as it fails to specify the harm that could result from producing the document.”
In the letter, Mr Pye suggested Senator Smith move a motion noting that the FOI exemption grounds do not provide an adequate basis for withholding documents from the Senate, and requiring the minister to either table both volumes without redaction or to provide “a proper explanation” of the harm that would result from their release.
Senator Smith said he would pursue the issue when the Senate resumes next week, flagging that the opposition wanted to explore whether Mr Bowen had any influence on the department’s decision not to release the first volume.
“The Coalition will pursue what interference was exercised by the minister’s office over departmental officials in coming to a decision about how to comply with the OPD,” Senator Smith said.
“It’s hard to believe that it’s an administrative error on the part of the department when the obligations on the minister in the Senate and also the minister in the executive government are so clear and well-established.”
The controversy comes amid ongoing criticism of the government’s planned overhaul of freedom of information laws, which multiple groups have warned would make it easier for the government to keep documents secret.
The DCCEEW was contacted for comment but did not provide an on-the-record response.
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