Then-minister for aged care Anika Wells redacted advice and “deliberative material” from her staff and public servants in a response to a freedom of information (FOI) request, which has now been rejected by the FOI commissioner.
In a case that pierces the veil of government secrecy, FOI commissioner Alice Linacre has overturned a decision made by Wells’ office in February 2025, in which it claimed documents about its response to a multimillion-dollar contract scandal in the then Department of Health, identified for potential release, were exempt from being made public under section s.47c of the Freedom of Information Act.
This section of the act is routinely used by federal government agencies and ministers to protect the “opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place” in the course of formulating or responding to policy issues.
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Transparency experts, and robodebt royal commissioner Catherine Holmes, have argued, however, that governments have and continue to use the FOI Act to thwart access to information even when it is in the public interest.
Holmes herself recommended a different section of the act be repealed entirely — s.34, which gives blanket protection to briefs and documents prepared for cabinet consideration — and the Albanese government deliberately pretended that this was never an official recommendation, erasing it from all communications responding to the report.
“Nothing I have seen in ministerial briefs or material put to cabinet suggests any tendency to give full and frank advice that might be impaired by the possibility of disclosure, and the cabinet minutes which are in evidence are sparing in detail, with a careful mode of expression revealing nothing of individual views,” Holmes wrote in her final report on robodebt.
Public servants and ministers have long made similar arguments about any advice prepared for any reason, and the FOI Act provides conditional exemptions for this material.
Wells argued to the commissioner on May 1 last year, less than a fortnight before a cabinet reshuffle moved her to the role of communications minister, that disclosing the documents in this matter would create an environment “in which there is a chilling effect on the open consideration of all options available to the minister” and “establish a precedent” to release such advice.
Linacre rubbished this claim, however, in a decision made on August 7, obtained by Crikey but not yet published online.
“Having regard to the minister’s submissions, it is apparent that the minister essentially contends that disclosure would result in the inhibition of frankness and candour,” she wrote in her decision.
“Frankness and candour arguments have been specifically discussed in … review decisions and the FOI guidelines relevantly explain that … agencies and ministers would generally have to demonstrate that the circumstances are special and specific in order for such a claim to be successful.”
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The decision went on to explain that, other than a “general assertion” that staff would be unwilling to give “robust and frank written advice” if it were to be disclosed, Wells had not “provided sufficient evidence” to show this would be the case.
“Similarly, the minister has not adequately explained why the circumstances in this case warrant a departure from the assumption that public servants are obliged to provide robust and frank advice at all times,” the decision says.
Linacre found the public interest in this case outweighed any factors in favour of exemption and ordered they be released.
The matter relates to almost $8 million in contracts awarded to private consulting firm Miles Morgan Australia (MMA), to help “transform” Meals on Wheels services ahead of controversial aged care support at home changes.
What started as a reform program quickly turned into a farce, however, as MMA became locked in escalating legal threats with some Meals on Wheels services and peak bodies, and the government lost control of a software platform it had paid for them to build.
MMA was awarded its final $1.6 million contract extension while it was trading insolvent. The ATO issued a notice to the Department of Health in early 2024 advising that part of this final payment was being taken by the tax office to pay creditors.
The FOI which has now been addressed by the commissioner related to Minister Wells’ response to questions from this journalist, writing then for The Saturday Paper, about whether it was aware of various issues with awarding these contracts, a process the Australian National Audit Office later found “fell short of ethical standards”.
Despite giving complete clearance for my own details, such as my name and role included with my emailed questions, to be released as part of the FOI, Wells’ office also redacted these.
This culture of FOI trickery appears to be ingrained across the federal government, and separate state and territory governments across the country, as shown in remarks made by former Australian Public Service commissioner Gordon de Brouwer, who argued the act had failed because public servants didn’t want to write anything down in order to avoid it being released under FOI laws.
In December, he told a Senate estimates hearing that public servants will sometimes give their “genuine thoughts” on a “yellow sticky” attached to a more prosaic brief, and that the real advice then conveniently disappeared.
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“That’s illegal,” Senator David Pocock told him. “That’s illegal!”
De Brouwer initially responded: “No, it’s not illegal. They’ve given advice to ministers, they’ve just been selective in what they’ve written down.”
Coalition Senator James Paterson caught the thread, asking: “How is that consistent with the public servant’s obligation to keep accurate records?”
“Well, I think that’s right,” de Brouwer said.
“And that’s what we found in robodebt was also people didn’t keep records.”
De Brouwer, who led the Australian Public Service Commission during its disciplinary investigation into current and former public servants involved in the robodebt scheme, was pressed again by Patterson that he had just described something illegal.
“I don’t know that sticky notes themselves are illegal,” he said.
Patterson pushed: “But failing to keep records is.”
De Brouwer, who has just been appointed Chancellor at the scandal-plagued Australian National University, then remarked: “Yeah, but, no, no that’s right. I, I, I take that, senator. Uh, I, uh, nah, that’s a, I understand that.”