Senior officials regularly give advice to Ministers and are paid very well to do so. But how frank and fearless is that advice when kept secret from the people it ultimately affects? Rex Patrick reports on cowardice within the public service executive ranks.

I remember my days as a young, adventurous, technically competent and sea-proven sailor travelling beneath the waves in an Oberon-class submarine. But looking back, I also remember how naïve I was to politics. If the defence minister said something, it was taken seriously and treated with respect – the demigod had decreed.

It wasn’t until decades later, when I had the great pleasure of serving South Australia in the Senate that I realised the extent of my naivety.

As a cross-bench senator with the balance of power, I spent a lot of time talking to ministers in their offices and in the chamber. Some of them were smart, some less so. In many cases, their only qualification for being placed in the job was loyalty to the leader or membership of a particular faction.

None of them were even close to a demigod.

Ministerial briefs and submissions

Most ministers, even the smart ones, know very little about their portfolios.

When first sworn in, they are handed their ‘Incoming Government Brief’, and their department spends day after day briefing them, getting them up to speed. As they progress through their time, they’re kept connected to the departmental teat, suckling on briefs that arrive in their office by way of the ministerial submissions, briefs and talking points.

Ministers, sometimes at the direction of Cabinet, propose policies, but it’s the department that constructs the policy and presents answers to the Minister to consider signing off on or taking to Cabinet. In some cases, the department can even veto an unworkable policy.

And it’s the department that guides them on a day-to-day basis through their journey.

Some departments completely capture their Ministers. The current Defence Minister, Richard Marles, is a good example. He’s moved in with the Department and is drunk on their Kool-aid.

Requesting the brief

Ministerial Brief Cover (Source: FOI)

If I want to know what’s happening in the ministerial wing of Parliament, I use Freedom of Information (FOI) to access the briefs flowing through the teat. I seek out the advice that the Department is giving its minister.

But more often than not, I am confronted with an FOI Act Section 47C exemption describing redacted text as advice, opinion, and recommendations and stating that its release to the public will “inhibit full and frank deliberations, prejudicing the ongoing thinking processes of the board and its advice to government.”

Eminent silk Bret Walker SC’s reaction to such claims says it all:

How very odd! The fearlessness of a person confident that his or her position will be known to very few. The frankness of a person who can be confident of the limited audience he or she has.

Ministerial submissions are always cleared by Senior Executive Service personnel; officials on a minimum of $180K per annum but stretching up to $977K per annum. They take money to provide advice that they don’t want us to see. They expect the minister to act on it, but they don’t want it scrutinised.

No secret dealings

On 1 September 2023, Laura Berger-Thomson, a First Assistant Secretary in the Revenue Group at Treasury, swore an affidavit in support of the idea that Stage Three Tax Cuts advice given to Jim Chalmers a month into his new role as Treasurer should be kept from the public.

In trying to defend the decision, Ms Berger-Thomson laid out her case:

“I am concerned about the damage to the relationship of trust and confidence between the Treasurer and the Treasury that can be expected if the ministerial submission is required to be released at this time …”

I wasn’t asking Ms Berger-Thompson to meet me in a discrete place somewhere in Canberra to hand the advice to me in a brown envelope. I was formally asking for the document in accordance with the right given to me, a right given to all of us by Federal Parliament.

A breach of trust and confidence can not occur in circumstances where a call for the documents is made under FOI, and the documents are released in accordance with the FOI Act.

I know Jim Chalmers and I know that he would never consider the release of documents in accordance with the FOI Act to be damaging to the level of trust and confidence he might have with Treasury. The claim was ludicrous.

In conflict with the law

Then came the all too common argument from Ms Berger-Thomson:

“If the Treasury officials could no longer prepare and engage in developing scenarios and advice for the Treasurer related to Cabinet processes on the presumption they are a confidential communication within government, I expect it would change the nature of the advice we provide in a substantial and detrimental way. Policy advice on highly sensitive policy areas, if prepared at all, would be prepared in a much flatter, less targeted way, which would be much less useful for the Treasurer.”

“This would not be done to defeat potential FOI requests, but to avoid the risk that any disclosure would jeopardise future decision making.”

The problem with that argument is Treasury officials would be acting in contravention of Section 10 of the Public Service Act, which demands professionalism and integrity from our public servants.

Section 10(4) states that the public service “is open and accountable to the Australian community under the law …” and Section 10(5) places an obligation on officials to provide “the Government with advice that is frank, honest, timely and based on the best available evidence.”

There is no scope for a public servant to be less detailed in their response to a minister, or flatter, or not to respond.

The performance of their statutory duty is not conditional on whether or not their work may be subject to public release or scrutiny. The FOI and Public Service Act live in the Federal Register of Legislation in harmony.

When cross-examined in an Administrative Appeals Tribunal (AAT) hearing, Ms Berger-Thompson struggled to reconcile her sworn statement with the law.

The last sentence of Ms Berger-Thompson’s affidavit alleging the tax cuts brief’s disclosure says, “It would undermine good public administration and effective decision-making.”

But that proposition ignored the views of the Parliament expressed in the FOI Act which state clearly that one of the objectives of FOI is “increasing public participation in Government processes, with a view to promoting better-informed decision-making.”

A hollow win against secrecy

The AAT ordered the release of the information relating to the stage 3 Tax cuts that I’d sought, albeit almost 18 months after I’d requested it and after Parliament had amended the tax cuts. I had won the legal battle, but Treasury – through delaying the brief’s release – won the secrecy.

AAT Deputy President Britton-Jones rejected Ms Berger-Thompson’s arguments. In his decision, he stated:

I do not accept the submission of [Treasury] that disclosure of the document in issue would inhibit frank and candid advice from public servants in the future.

Nothing will happen to Ms Berger-Thomson for her misguided arguments and transparency betrayal. No public servant has ever been sanctioned for saying “no” to the release of documents.

Tell me I’m dreamin’

Ministerial submissions are not cabinet submissions. They do not enjoy the protection of the Cabinet confidentiality doctrine, because they’re views of the Department and not the views of the minister.

Most Australians would be happy with proactive disclosure of ministerial briefs seven days after the minister has received them. Wouldn’t that encourage citizens’ participation in a democracy? Imagine a world where the Government didn’t present every decision as a fait accompli.

But as I wake from my transparency dream and come to refocus on the secrecy culture that’s festering inside the Senior Executive Service, I can’t help but feel it’s part of the reason, fuelled by RoboDebt and other public service scandals, that the public’s trust in the public service is diminishing.

It’s the Senior Executive Service that must promote transparency and integrity change, supported by their ministers. That’s something that doesn’t seem to be happening under the current Public Service and political leadership.

For now, I’ll just have to submit FOI applications for ministerial briefs and then go on to fight the fights I inevitably get made to fight.