Estimates: Lloyd defends right to express his FOI 'observations'

By Stephen Easton

October 19, 2015

Public Service Commissioner John Lloyd has stood up for the right of senior public servants to hold personal views and express them publicly at times, under questioning from Opposition and crossbench senators today.

Lloyd’s well-known view on freedom of information laws is that they have gone beyond their original purpose, which he says was mainly for citizens to find out what information about themselves was held by government. Now, he says they constrain the free flow of frank advice in the Australian Public Service by making bureaucrats wary about what they write down.

John Lloyd
John Lloyd

“Very pernicious” were the words that came to mind as he explained his take on how FOI laws currently affect public service work, during a question-and-answer session after a speech he gave to the Institute for Public Administration Australia (IPAA) ACT Division in March. Playing down the significance of his words, “less than ideal” was how he rephrased his opinion today.

In a Supplementary Budget Estimates hearing today, the commissioner faced yet more questions about not only what he thinks of FOI laws, but also how he had formed such a view and his decision to express it publicly.

” … I think I’ve got a right as the public service commissioner to state a view.”

Lloyd told Greens senator Lee Rhiannon it was a simple personal observation from over decades as a public servant, including various senior roles at state and federal level under both Coalition and Labor governments, and in his time with pro-free-market think tank the Institute for Public Affairs.

“I’m not a legal expert in the FOI area but I think I’ve got a right as the public service commissioner to state a view,” he said, with trademark confidence.

Going back to the issue later, Rhiannon said she felt that because of the centrality and seniority of his position and the importance of the issue, the committee should explore the view behind the public comments he had just “left hanging” at the IPAA ACT speaking engagement.

The implication was thick in the committee members’ questions: such senior officials should cultivate an air of strict impartiality on all matters in public by making such views known to the appropriate minister privately. And of course his opinion itself was widely seen as extraordinary, as it seemed to express disagreement with the current legislation.

But it’s really no big deal, according to the commissioner, just a personal observation about work in the APS, first expressed at a professional event but which he is more than happy to repeat, as he believes there is no reason he should keep it to himself.

“I’m reflecting on my experience over 20 or more years in senior executive roles and CEO roles,” said Lloyd, explaining that with increasing frequency, he had heard public servants utter the famous phrase, ‘Don’t put that in writing’ due to “a hesitation about FOI”.

“My sense is that not every piece of advice has to be conveyed in writing, obviously there’d be some done orally, that’s just the normal interaction between ministers and senior people in departments,” Lloyd explained.

However it would be “preferable” if advice — particularly on “substantial, important matters” — was written down, he concluded.

He wouldn’t be drawn by Rhiannon on any specific FOI reforms he thought would make life easier for public servants; that’s a matter for the politicians.

“No, I’m not going to do that, Senator, it’s not my responsibility, so no,” he said, explaining that a “lack of written advice” had been a feature of the Royal Commission into the Rudd government’s home insulation program.

“I just think, it’s a feature I’ve observed of public service engagement with government in Australia.”

Nor would he give the Greens senator his thoughts on the Abbott-Turnbull government’s war of attrition against the Office of the Australian Information Commissioner.

Despite saying in his original comments back in March that he hoped the government would “perhaps reassess the extent of some of those FOI laws” Lloyd confirmed he had not raised the issue via formal channels, or put it to any minister.

And he denied a suggestion from Rhiannon and one of Labor’s stronger FOI supporters, Senator Joe Ludwig, that his widely reported views could lead to the apprehension of bias or actual bias in the discharge of his responsibilities. “No, it doesn’t create a bias when I implement it because I am required to adhere to the law,” he said. “But then also as public service commissioner I have a number of roles to be informed about the management of the public service and although it’s not my direct responsibility, it does in my view bear upon it, so I put forward a view.”

He also denied Ludwig’s suggestion that his very limited views of the “original purpose” of FOI laws was a 20-year-old “opinion” that reflected someone out of touch with what the laws are now commonly understood to achieve.

Lloyd’s sentiment that FOI laws made public servants afraid to write down their advice has also been echoed by the similarly nonchalant Treasury secretary John Fraser, who said at a different IPAA ACT Division event last month that his fellow recent hire at the top of the public service commission had been a “breath of fresh air” in the APS.

Later, when the same committee turned to the Department of Prime Minister and Cabinet, deputy secretary Elizabeth Kelly told Rhiannon that questions about FOI were best directed to the Attorney General’s Department but said Lloyd was “entitled to his view”.

Kelly suggested that in her view, at least, commenting on how FOI laws affect the ability of public servants to advise government was appropriate for the commissioner, who is an independent statutory officer.

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