Secrecy has been a hallmark of the Abbott Government to this point. It barred the release of the Department of Treasury’s ‘blue book’, a briefing book prepared for the incoming government before the last election. Media appearances by Ministers must be cleared by the Prime Minister’s office. The Office of the Australian Information Commissioner, which conducts external review of freedom of information decisions, has been abolished.
Over the past month, however, it has broken new ground. In the first week of July, we were faced with a particularly disturbing situation. Our government was apparently detaining over 150 people, incommunicado and in an unknown location. And the responsible Minister was refusing to answer questions.
Australians could be forgiven for wondering just what kind of government we were living under. The Tamil asylum seekers have since been whisked from the high seas to Curtin detention centre, and now to Nauru. But the secrecy shrouding the Abbott Government in general, and asylum seeker policy in particular, persists.
Why is this alarming? Several different stories can be told that explain the pernicious influence of secrecy in government. Secrecy subverts political accountability. Utilitarians like John Stuart Mill and Jeremy Bentham recognised that only an informed citizenry could hold its government to account, in public debate and (ultimately) at the ballot box, for misusing public power.
Secrecy also makes us less free. The state interferes with our lives constantly. We usually have the information and the avenues to challenge interference that seems illegal or unjust. When the exercise of public power becomes covert, arbitrary and secretive, however, the state begins to dominate its citizens.
Finally, secrecy undermines self-respect. John Rawls thought that people’s sense of their own worth hinged on the development of their capacity to engage with questions of justice. But information is required to participate in these debates, whether in the area of asylum seekers, school funding or intelligence powers.
These are strong moral arguments for transparency in government. They suggest that we should adopt a robust presumption in favour of openness, leaving it to those who assert the need for greater secrecy to prove it.
Of course, there are instances in which secrecy is justified, or even required. First, secrecy can promote effective deliberation, allowing parties to speak more honestly and make compromises without the threat of a backlash. Second, the release of certain information can cause direct harm. We recognise that divulging confidential medical records or the identities of spies would harm innocent people. Third, transparency might undermine the efficacy of a beneficial policy. The concealment of the times and locations at which ticket inspectors operate on public transport is acceptable, because otherwise the policy itself would be defeated.
To prove that one of these exceptions applies, however, an actual argument needs to be made. The Abbott Government has asserted broadly that the release of information gives ‘aid and comfort to the people smugglers’. But given the presumption in favour of transparency, this claim should be a springboard for debate, not a gag. How does particular information provide ‘comfort’ to people smugglers? Why is this relevant? The fact that the navy does not shoot smugglers on sight presumably also provides them some comfort, but there is no call to conceal it. What kind of information – boat arrivals, turn-back procedures, conditions in detention – ‘aids’ the smuggling trade, and how? In failing to answer these questions, the Abbott Government has failed to make the case for the sweeping secrecy of Operation Sovereign Borders.
This opaque regime cannot be justified on the grounds of good deliberation. Lieutenant General Angus Campbell has stated that it helps ‘acknowledge bi-lateral and regional sensitivities in the counter-people-smuggling effort’, but it’s difficult to understand what that means. Is this information blackout for the sake of avoiding some red faces in Indonesia?
The release of information about the treatment of asylum seekers on navy vessels and in detention also would not cause harm to innocent people. Quite the opposite. It is crucial to allow the protection of those seeking aid, given their vulnerable position. Just last week, it emerged that the Immigration Department attempted to suppress information about children’s mental health problems in detention.
The most plausible justification for this secrecy appears to be efficacy. Publicising information about how boats are approached and turned back might allow people smugglers to circumvent this operation.
The fact that secrecy is necessary for the success of a policy, however, is not sufficient to justify its secrecy. The core aim of the policy must also be beneficial, and its benefits must outweigh the costs of secrecy. With respect to Operation Sovereign Borders, this is at least an open question.
Furthermore, the scope of the secrecy must be limited to what is necessary. Returning to the ticket inspector example, the fact that there are inspectors, the size of fines, and the rights of suspected fare evaders are all public knowledge. Reports of misconduct by inspectors may lead to public enquiry. None of this is inconsistent with inspectors fulfilling their valuable function. By contrast, the secrecy surrounding asylum seeker policy stretches far beyond this test of necessity.
This kind of scrutiny is one way in which liberal democracies keep secrecy in check. Where secrecy is justified, this justification should itself be public. The Abbott Government has failed miserably on both counts. It has withheld important information from the public on questionable grounds, and it has shielded itself from criticism by stifling debate on whether that secrecy is justified. As anti-terror legislation and government surveillance now move into the political spotlight, we can only hope that things become clearer.
Jack Maxwell is a second year law student at the University of Melbourne who completed an honours degree in philosophy in 2012.