New leader, same old secrecy. Didn’t Albanese promise to shine a light?

Anthony Albanese went hard against Scott Morrison one year ago when the former prime minister deserved a resounding rebuke for holding five cabinet ministries without disclosure, in what was the most egregious case of government secrecy in recent times.

“We’re shining sunlight on a shadow government that preferred to operate in darkness, a government that operated in a cult of secrecy and a culture of cover-up,” the prime minister said on November 25 last year when he released the report into what Morrison had done.

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Albanese has gone soft, however, on making sure his government does not slide into the bad habits of suppressing the facts and shunning disclosure. The truth is that Labor has made no stellar gains in giving Australians a more open administration, which means there is a real danger that the culture of secrecy continues in the vast machinery of government.

Yes, Albanese has no secret ministries. The law to prevent hidden portfolios was finally passed by parliament last week. The new government has improved on a dismal benchmark. Even so, the facts show that Labor is presiding over flawed decisions to hide too much from citizens.

A new review into secrecy is meant to fix the problem but looks like making it worse. The report, issued by Attorney-General Mark Dreyfus on Tuesday, highlights the long obsession with hiding information. While there were 506 secrecy provisions in Commonwealth law in 2009, there are 875 today. Yet the new plan suggests a sweeping provision that would make it easier to punish people who reveal government secrets.

The radical suggestion is that secrecy laws – and, most likely, criminal penalties – should apply to the disclosure of information that undermines trust in the government. It is shockingly broad.

“The review’s view is that disclosure of information that harms the effective working of government undermines the Australian community’s trust in government,” the report says. “It is appropriate that conduct which causes or is likely to cause prejudice to the effective working of government be captured.” In other words, leaks that undermine community trust should be made illegal.

It is not hard to imagine how a politician might interpret this rule: as grounds to prevent voters knowing any awkward facts that might weaken their trust in that same politician.

The revealing fact about this bad idea is that it comes from unnamed officials, not an eminent independent adviser. The review is authored by the Attorney-General’s Department. And its finding is totally at odds with an independent review by the Australian Law Reform Commission, which said, explicitly, that harming the effective working of government was not enough to warrant a criminal penalty.

This new idea appears to be aimed at public servants rather than citizens in general, but plenty of the existing secrecy provisions capture – an ominous word – any member of the public. For some of these offences, you or I could be prosecuted and possibly jailed for receiving information that is meant to stay secret.

“The new secrecy provision is unnecessary and goes too far,” says Kieran Pender, the senior lawyer at the Human Rights Law Centre. He welcomes some of the principles in the review but not the new proposal.

The hugely frustrating aspect of this proposal is that it responds to a clear case of government overreach, when police raided the media four years ago to find the source of leaks about the Department of Home Affairs. That led to a parliamentary inquiry, which prompted Dreyfus to ask for the review. So the response to the first overreach is to recommend a second.

Dreyfus will, however, remove criminal liability from 168 of the 875 secrecy offences. And he will require ministerial approval for the prosecution of journalists, which might avoid a repeat of those raids of four years ago.

If only the government was tackling the problem from a position of strength. In fact, it is in a weak position on shielding whistleblowers who reveal wrongdoing. The government refused, for instance, to intervene to help David McBride, who went to the ABC, exposing alleged war crimes in Afghanistan, and Richard Boyle, who revealed wrongdoing at the Australian Taxation Office.

And the freedom of information system is deeply, tragically broken. The former freedom of information commissioner, Leo Hardiman, quit after less than a year in the job because the regime was so flawed, and the latest numbers show it is getting even worse.

A staggering 15,915 requests for information were withdrawn last year, a 915 per cent increase from the previous year. There is one simple conclusion: Australians are giving up on getting information out of their own government.

While the media uses FOI when it can, the system is really about ordinary citizens. Of the 34,255 requests last year, 74 per cent were for personal information – such as decisions on applications for visas or income support. People use the system to find out about, and sometimes challenge, decisions that have an impact on their communities.

In theory, agencies and ministers have 30 days to make a decision on whether to release information. In practice, only three-quarters of the cases are decided within the legal timeframe. At the Department of Home Affairs, that meant an astonishing 2736 requests were handled late. In other words, public officials are flouting the essential obligation in the law.

This is happening because an appeal against an FOI decision will take years and will cost at least $1082 with a challenge at the Administrative Appeals Tribunal. Even if public officials make bad decisions at odds with the law, the cost barrier can shield them from accountability.

Rex Patrick, the former independent senator for South Australia, has a case that highlights the kind of information Australians should be able to see. Patrick asked in April for documents about the cost blowout with the Snowy Hydro expansion, which was meant to cost $2 billion but looks like costing $12 billion. This is clearly a matter of public interest, but Patrick has been blocked at every turn. The case goes to a hearing in the AAT next April or May.

“Morrison was a secrecy wolf,” Patrick says. “Albanese is a secrecy wolf in sheep’s clothing. In some sense, the latter is worse.”

The last thaw in the information freeze came 15 years ago when Labor took power and the special minister of state, John Faulkner, rightly said voters had a right to know whether a government’s deeds matched its words. Documents routinely hidden during 11 years of Coalition rule were revealed under Labor, such as the advice from public servants to incoming ministers.

The Coalition slammed the door on disclosure when it gained power in 2013 and made the culture of secrecy steadily worse over the next nine years. Now, with Labor returned to power, the lack of ambition on transparency and disclosure is turning into one of the glaring failures of this parliament.

Albanese was happy to shine “sunlight on a shadow government” one year ago. He should accept more sunlight over his own government.

David Crowe is chief political correspondent.