Sunday, December 19, 2010

Sunday Essay - Information, Assange and the workings of representative democracy

Paul Barratt had an opinion piece in the Melbourne Age that he repeated on his blog, Secrecy, national security and the internet. Paul begins his piece this way:

Nations need secrets. They are fundamental to the preservation of national security.

Democracy demands openness and governments dealing frankly and honestly with the people to whom they are accountable.

If the point of national security is to preserve our open democratic society, we must start with a presumption of openness and ask what tests a document must meet to warrant the protection of a national security classification.

You can see that Paul contrasts the need for national security with democracy's need for openness and accountability. The issue then comes where you draw the line.

I have a different perspective from Paul. Like Paul, my perspective leads me to the same question, where do you draw the line. Like Paul, I have a presumption in favour of openness. However, the underlying principles we work from are, I think, different. They reflect different views about the nature of Government information.

Australia is a representative democracy operating within the Westminster system. In that system, officials advise and implement, Government decides. In deciding, Governments take into account a range of political considerations including the desire to stay in power.

Traditionally, advice provided to a Government belonged to that Government and was confidential to that Government. There is a very funny scene in Yes Minister that captures this principle. There the Minister, frustrated by his inability to get access to policy work done under the previous regime, finally traps Sir Humphrey by gaining a copy of the policy paper from his predecessor.

Australia was never as purist as Westminster. Still, in 1972 when the Whitlam Government came to power after a long period in opposition,  I remember my then Branch head in Treasury discussing this issue in the context of just what previous papers might be made available to the new Government. In practice, the incoming Whitlam, Fraser and then Hawke Governments had access to advice and information on past policies and programs as required, but not access to the papers and information that dealt with the internal workings of the previous Government. 

There was always an expectation that papers should be made available for use by later historians. In England, the Public Records Office maintained key records which were then made available after a period of seventy years.

Australia was very slow to introduce its own national archival system. Agencies kept their own records and also destroyed them as they saw fit. This became a problem during the Second World War when the destruction of past records proved to be, in the words of the historian Hilary Golder, an act of administrative lobotomy. This led to the appointment of Ian McLean as the first Government archivist in 1944. However, it would 1983 before the first full national archives act was passed by Federal Parliament.

From its beginnings in 1944, the Australian Archives had the dual role of improving the management of records now while ensuring that key records were preserved for future generations.      

The formal system of security classifications that Paul referred to - unclassified, restricted, confidential secret, top secret - was introduced as an add-on, but did not affect the underlying principle about the confidentiality of Government information. In addition to these formal classifications, others were used as well including commercial-in-confidence and cabinet-in confidence. In all cases, the purpose of the classification was to signal the degree of special protection to be afforded the information.

While I did deal with some Defence and security matters and therefore had a top secret clearance, I rarely used a formal classification above confidential. There were good practical reasons for this.

Most of my staff were only cleared to confidential, so using a higher classification created a real access problem. Further, the procedures for handling secret and top secret material were cumbersome to say the least. Given that all our advice was confidential in any case in the sense I talked about before, there was actually no real need to use a security classification. Generally, the only times I did so were matters requiring confidential because they dealt with Cabinet issues where confidential was mandated. To our mind, the classification creep you found in Defence and Foreign Affairs was both silly and dangerous.

Despite the restrictions, information actually flowed quite freely in a way that would seem strange today. It had to if we were to be effective. We dealt with companies, industry associations, unions, lobbyists, other agencies, the press and other Governments. We were constantly testing ideas, exploring new possibilities, providing briefings on issues. In all this, my own people had to know what was going on and why. Need to know was interpreted quite widely. 

As I read the wikileak cables I couldn't help smiling, wondering what the equivalent cables would have said then about our work. For example, one of the issues at the time was the development of the Australian defence industries, the extent to which we should be locked into US supply. As part of this, there were a range of discussions with various embassy or high commission staff, discussions that I am sure were reported. It wouldn't have made much sense otherwise.

In discussing our work with others, we followed principles that were determined to some degree by trust. We had to make information available, but had to do so in ways that did not breach confidentiality. We could be open generally where we were discussing issues and principles, collecting information. We could be generally open where we had cleared approaches. However, there were still things that we could not discuss without breaking rules. Sometimes I did sound a bit like Sir Humphrey! It was during this period that I learned that the best way of killing a press story was simply to overload the journalist with information.

Despite general confidentiality rules, there were leaks from time to time, although I am not aware of any from the areas I managed. Many of these came from Ministers or their staff, others from public servants who were discontented with some aspect of policy. However, they were exceptions to the general rule.

I left the Commonwealth Public Service in the middle of 1987. Twenty years later I went back inside another part of the system to do some specific contract work. During the intervening period I had dealt with Government quite often, but always as an outsider. I was surprised and a bit appalled at what I found.

In 1982, the Fraser Government introduced the first Freedom of Information Act for reasons that I thought were good and proper, although I wasn't quite sure how things were going to work in practice. A key reason for that Act was, among other things, to give individuals access to information that might otherwise and improperly be restricted. Twenty years later, I found that Freedom of Information had become a weapon to be used by the press, powerful bodies and political parties to beat Governments and officials round the head.

This may sound fair enough, but it actually affects the way that policy is formed. The freedom that we had had to test new ideas had largely vanished. Those involved in policy or program development had always to take into account that anything they wrote or said could appear on the public record. This constipated policy development.

I also found a somewhat obsessive focus on secrecy and need to know. Twenty years earlier if I were drafting a cabinet submission, I would involved my whole branch as required. I could also, if subject to certain constraints, canvass issues quite widely inside and outside the system. Now Cabinet Minutes (the NSW equivalent) were treated as highly protected species. I also found that were no no central records of previous Cabinet Minutes, Cabinet Decisions or even press statements. The last has changed, with press releases now available on line.

In trying to write a Cabinet Minute, I had to depend upon people's individual caches of past material. I discussed this over drinks with a journalist colleague. I was a bit appalled to find that he didn't regard it as a problem. It simply was.

To introduce my next point, I need to go back into time. Back in October 2006 in Confessions of a Policy Adviser 3: - Administrative Trainee 1 I quoted from evidence to a 1970s Inquiry into the Commonwealth Public Service:

Asked about the objectives of his Department, Sir Lennox Hewitt replied:

I have not previously encountered the suggestion of objectives for a
department of state. The Royal Commission will presumably not need
anything more from the department than a copy of the administrative

Sir Frederick Wheeler's response to the same question was:

The function of the Treasury is to advise and assist the Treasurer in the
discharge of his responsibilities. The objectives of the Treasury are, in
essence, to carry out this function as effectively and efficiently as possible.

This is the old style Commonwealth Public Service. From the mid eighties, all agencies began to be treated as though they were quasi independent corporate entities with their own plans and public objectives. In theory, this aided transparency and accountability and in some cases it was a good thing. But it also introduced new decision and reporting processes whose practical effect was to centralise decisions, including decisions about about supply of information. Now we have the agency PR machine as well as the traditional political one.

I now want to turn to a different if related point.

Pretty obviously if you look at my chronology, I began my public service career when computers were just used for certain type of grunt  processing. Even when I left the Commonwealth Public Service in 1987, personal computers had just started to penetrate. I came back in the new information age. This allows for centralisation, something that contributed to industrial scale of the wikileaks' leak. However, it also fragments. 

You all know how tree structures work in Windows. You also know what managing emails is like. Imagine this writ large in an agency environment. Add to it judgements about what should be actually recorded. For someone like me who actually believes that decisions should be traceable now but especially in the future, the inability to actually find key pieces of information was a great frustration.

People accommodate themselves as I did. When I became CEO of the Royal Australian College of Ophthalmologists in 1998, one of the first things I did was to stamp out personal record collections, replacing them with a proper records system. Nine years later I found myself, as with others, keeping a spring back binder with key documents that I worked from. The only problem is that this means that key decisions are less traceable since people throw the folders away when they leave.

Archives agencies are obviously aware of this, and are trying to lay down rules to manage the problem. Yet the difficulty is that the officials who have to implement those rules just don't have the time nor, for that matter, the incentive.

I may have seem to come a long way from Paul's points, so let me summarise:

  1. The way that issues such as freedom of information work always depend upon actual institutional arrangements.
  2. The changes that have been made actually affect our very perceptions of representative democracy.
  3. When you introduce a new rule such as freedom of information, you always have to be aware of its impact on other things such as the way information is recorded, the actual efficiency of Government. Openness and transparency can actually work against real openness and transparency. 

The concerns that I have expressed about Mr Assange and the leaks centre on the likely impact on the way Government works and on real transparency. I expect these to be negative.

I think that we really do need to have, to use a modern cliche, a national conversation on issues of transparency and openness, but I don't think that we can regard access to information as an absolute in its own right.

If my analysis is right, I accept that it's personal and partial, then our current emphasis on the right to information is actually having quite negative effects.   


Anonymous said...


There is a polite (I hope) response to your post which no doubt, because of length, will get caught in the spammer – so feel free to leave it there if anything offends.


Anonymous said...

Dear Jim

I have read Paul Barrett’s piece, and I have read yours above, and I can only state that whilst his reinforces (and best captures) my view, yours provides further proof of the need for greater transparency.

I think everyone recognises the need for secrecy in matters of national security, and in matters of commercial in confidence dealings by governments. Where we seem to part ways is how those two basic needs have been allowed to creep into every recess, every corner, of the day to day quite mundane affairs of government. To value every piece of paper emanating from every government department as equivalent to, say, the tactical effectiveness of our latest defence acquisition is just plain bureaucracy gone mad with petty power. It is an insult to the intelligence of the Australian public to suggest that 70 years need elapse before the ditherings and deceptions of the particular party in power can be “safely” made public – available for the almost religious laying on of hands by the historians.

As to the again almost religious need to preserve complete information trails of each petty decision, passing opinion, or musing as to possible course of action by every government department, again I would simply suggest that those seeking such “secrecy” consider the possible harm, possible misuse, and potential subversion of democratic process placed so unwillingly into the hands of our “public servants”. What a disgraceful misuse of the English language that phrase has turned out to be.

I think what most offends me is the complete contempt in which the public is held in matters such as the outlook for Afghanistan. How on earth can anyone justify holding a public view of “we’re in it for the long haul” with the private view that this conflict is unwinable? And follow up that level of dangerous insincerity with the need to keep such deception “secret” for 70 years? Where is the public good in this?

Conversely, if I were to agree with your view, just how incompetent are our own and other governments that matters of such “import” be so easily available to the unwashed masses? By all means label something secret, but please at least put in place adequate procedures so that such information is actually protected.

I hold no brief for Assange, but at the very least he has done us a service by demonstrating the ineffectiveness (not to say duplicity) of our governing class. And for that alone he should get a medal.

Sorry to carry on, and I hope I have been polite.


Jim Belshaw said...

KVD, I did indeed find your comment in spam and have corrected that.

A purely factual point first. The PRO seventy years is long gone. In Australia, the current release date is thirty years unless there are national security reasons for not so releasing. This means that my own directly signed minutes to ministers are now becoming available.

Now turning to some of the points you raise, recognising that I arguing an unpopular case.

First,I have always been a supporter of of more and better information about Government decision processes. That is why I try to fill a gap in my writing on public policy. There is not a lot of good analysis around.

Secondly, the reason why I tried to explain some of the constitutional background is that if we are going to change the workings of our system we should at least recognise that we have done so.

Thirdly, with one exception that I will come to in a moment, I know of no evidence that rules such as FOI, the emphasis on accountability and transparency, have in any way improved the standard of Government decision making. I believe and have tried to provide evidence that the opposite has occured.

The exception lies in the personal arena. There, I think, they have somewhat reduced the risk of injustice. I say somewhat because I am mindful of Haneef et al.

Your criticism of my point on on decision trails is, I would argue, misguided. I am not talking about every decision, although the question of trivial is in the eye of the beholder. I believe that the question of accountability, of the tracking of the decision process,is absolutely critical.

We actually don't know fully what went wrong with pink batts because it appears that the decision trails weren't there. This is not a lone example, but one replicated across Governments.

Do you really expect that wikileaks will improve accountability and transparency in decision making? I can't see how.

Like everybody else, more so because of my background, I have been transfixed by some of the material. Mr Assange has to be defended because to not do so would simply compound problems. However, the rules and controls that result are likely to make things worse.

In an earlier post I referred in passing to the decision to move the current review of internet governance into the inter-Government sector. This followed an earlier comment of mine noting that national governments controlled the entire infrastructure on which the internet depends.

Australians attack China or Iran for internet controls, we try to defend internet freedom against Minister Conroy. We now have a situation where every national government has an interest in further controls and, in parallel, in changing their own systems to reduce the risk of unforseen information flows. I don't think that's a good thing.

Like some of Paul's arguments, this comment has joined together different things. I think that we need to put aside the very specific arguments associated with Mr Assange and just disentangle the issues.

Paul has very particular positions on Palestine, on Iran, on the role of Parliament in cases where Australian troops are to be committed. In some cases I agree with him, in others not, although I always respect his expertise.

My personal view remains that the most likely outcome from the current imbroglio will be to disadvantage every cause that Paul supports.

My own general view is a little different from Paul's because I am running a somewhat solitary campaign arguing the need for reform in Australian public administration. I don't think what's happening now helps.

Anonymous said...

Thank you Jim

I value your comments and expertise in this area, so I just want to assure you that my own comments are not made simply to contest your views; more hopefully, to get you to put more completely why you would hold them - and to that end, your response above goes a long way.

Everything is messy, nothing clear cut. But I would hate to think you in any way feel I dispute your case, other than with great respect and for my own further understanding.


Winton Bates said...

I agree with Paul (and you) that we should start with a presumption of openness. To me that means that it should be lawful for publishers to publish just about anything (exceptions would relate mainly to national security)provided they do not offer inducements for people to leak information.
I can also understand where you are coming from. One of the consequences of WikiLeaks will presumably be a tightening of security within the U.S. government. People within the Australian government who have access to interesting information would have reason to feel a lot safer talking to journalists, who have a reputation for protecting their sources, than talking to U.S. diplomats.

Jim Belshaw said...

David, I have never been worried about your comments. They make me think.

Maybe I'm old fashioned, but I keep thinking how to get mymessage across in a general sense.

My primary concerns are not with security, defence or foreign policy issues, but with the ordinary machinery of government.

As I said in the post, public servants advise, ministers or governments decide. When both sides know that the things that they say may go onto the public record at any time, it changes everything.

Public servants are less willing to provide alternative advice in writing. They have to think of their backs, as well as the Minister's position. English becomes convoluted, passive. "It is recommended" replaces I or we recommend. Fewer ideas flow. Key discussions don't get recorded.

It is very difficult to explain this without being unduly frank. Perhaps I should try, for I am deeply pessimistic about the real possibilities of change regardless of any change in Government.

Jim Belshaw said...

Good morning, Winton. Like you, I think that openess means that we should be very careful about any proposal to restrict publishers. There have, I think, been enough historical examples to show that Governments will misuse such powers.

One of the difficulties from my perspective in all this is that Governments misuse powers for what seems to them to be the very best of reasons. One of these days I should dig out some Australian historical examples just to look at the pattern. I have the strong impression that very few of those local actions actually stood the test of history.