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'the right to know'

By Don Aitkin - posted Friday, 26 June 2015

In the past few weeks there has been a lot of talk about 'the right to know' what is happening about people smugglers, with the Government saying, with respect to border protection and stopping the boats, that it does not and will not discuss these matters, which are operational in character. Further, its Ministers claim, to do so would only give aid and comfort to the people smugglers themselves. 'Did the Governent pay people smugglers to take their human cargo back to Indonesia?' 'We won't discuss that, because it concerns operational matters.' And so on. Here's a perfect example from last year.

Amnesty International condemns the Australian Government's silence around the whereabouts of two asylum seeker boats intercepted separately in Australian waters over the past few days, and said to have been handed over to the Sri Lankan navy.

"Secrecy around border security just won't cut it," said Amnesty International Australia's Refugee Spokesperson Graeme McGregor. "The Australian public have a right to know what has happened to these people, despite the Immigration Minister's question dodging and denials."

What is the status of this supposed right to know? I have written about 'rights ' before, and see most of them as empty of meaning. Children are not endowed with natural rights, and 'human rights' are aspirational - that is, those who use the phrase are usually talking about the way things should be, not as they are, and invoking 'rights' as though someone who should be granting them has forgotten to do so. In that essay I argued against a Bill of Rights, and all that goes with one. Talking passionately about rights is hand-waving stuff most of the time. Real rights that mean something come from legislation, and they are always hedged about with qualifications and restrictions. Not every 65 year old has a right to the old age pension. Dear me, no.


There is, nonetheless, a genuine 'right to know'. It too is embodied in legislation, and it is available to us all, indeed, available to anyone in the world, if they choose to take advantage of it. It is what we call, in short form, 'FOI', or 'freedom of information'. The legislation was passed later in the period of the Fraser Government, and has endured ever since. It has been used thousands of times by those determined to track down something that they believe has been improperly hidden. By and large, FOI has been of greater service to media companies than to individuals, in part because the companies have the capacity and the patience to persist, behaviour that is often required.

Freedom of information in Australia applies to 1580 authorities, which include all governments, federal, state and local, and the agencies that derive their own authority from legislation. I am in favour of it, because there is a need to keep politicians and governments accountable, which grows more difficult the larger the reach of government becomes. It is worth noticing that when the Coalition Government introduced its bill in 1982 the Labor Opposition said it didn't go far enough, and promised wider disclosures and fewer exemptions when it regained power. When in power a couple of years later, what it did to the Act made little difference other than making the processes more expensive for those wishing to use the FOI system. This right to now also comes with qualifications and restrictions. You will find that you cannot use it to find out about matters which the Government defines as 'security'.

Governments don't much like FOI, for obvious reasons, but it is also true that some parts of government get few requests for information. Two aspects of the issue stand out for me. The first is that the whole business of transparency and accountability is muddied by governments themselves, in the race to be up there each night in the television news. In the budget period a few weeks ago we had almost daily leaks about what was going to be in the budget, so that by the time the Treasurer spoke there was nothing important in his speech that was not already known.

Governments (and opposition parties, for that matter) also leak possibilities: there will be a news item suggesting that ministers are thinking of doing X or Y. There was one the other day about the possibility of radical changes to the Commonwealth's involvement in the funding of school education. To me this is a form of kite-flying - offering an idea to see if anyone reacts, and who the reactors are. There is plenty of freedom of this kind of information.

The second is that by and large the people who say they have a right to know about, for example, people smugglers, or potential changes to health benefits, are not supporters of the party in power. They are carrying on the conflict between the parties in another way. I have a somewhat simple-minded view that the government is there to govern. To take a somewhat Canberra-centric example, I do not know whether or not the ACT Government is correct in planning for light rail within the city. But it is unquestionably its job to make that kind of decision. If it gets it badly wrong, and the issue is important enough, then it will lose office. The ballot box is the way for us to deal with poor governments; pursuing them through FOI requests seems to me misguided.

I've written about people smugglers before, too. Like so many others I am cross-pressured. On the one hand, I doubt that most of the people on their boats are genuine political refugees; most seem to be economic refugees seeking a better life. Why wouldn't they want Australia rather than Papua New Guinea or Cambodia? And they have more money than those languishing in refugee camps in Africa, by definition. But keeping people in detention for long and indefinite periods seems inhumane to me, and not good for us in the long run if these people are finally allowed in. I have no solution, and it is plain that Italy is in a much worse situation than Australia (though, as I understand it, the Libyans want to go through Italy to wealthier countries like France, Germany and the UK).


Equally, I do not think I have a right to know what the Government is doing here or why it is doing it. As with the Canberra light rail example, sorting this out is the government's job, not mine. If I don't like what they do, I will turn to the ballot box when it is my turn to do so. I only believe about half of what governments tell me, in any case, and even less of what is said by oppositions. If our Government is paying people smugglers to turn their boats around again, then that is probably cheaper in the long run than any other policy. I assume that it is not an invention of the Abbott Government, but is one of those quiet agreements between governments and oppositions that occur in many areas.

And, outside the domain of FOI, no one else has 'a right to know', either, no matter how stridently they say it.

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About the Author

Don Aitkin has been an academic and vice-chancellor. His latest book, Hugh Flavus, Knight was published in 2020.

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