… modest doubt is call'd
The
beacon of the wise, the tent that searches
To
the bottom of the worst.
Troilus and Cressida, Act 2, Scene 2
This is a short
postscript to my last post, Traversing the Indigenous policy FOI Labyrinth:
high level implications (link
here). It was prompted by some commentary I received from regular readers.
I normally
don’t elaborate on the quotes I have chosen as the epigraph to a post as
Shakespeare’s language is generally clear albeit sometimes requiring close
reading. I describe my purpose in including quotations from Shakespeare in my
early post A Walking Shadow: rationale and declaration of prior interests
from January 2016 (link
here). The quote above, and in particular the use of the word ‘tent’ is
unusual in that it is quite obtuse to most modern readers. ‘Tent’ refers to a
surgical probe or instrument for keeping a wound open while the deeper flesh
heals. It describes healthy, cautious scepticism as a wise guiding light and a
method for deeply investigating difficult problems and suggests digging into
the worst-case scenarios to uncover the true, underlying issues.
This post,
based on some commentary from readers, is also an opportunity which I shouldn’t
miss, namely, to thank all the readers of this blog, and particularly those who
take the trouble to email their thoughts and responses. Some are lodged as
public comments, many are private words of encouragement. I sometimes receive
constructive critique usually aimed at identifying issues I have missed. I
appreciate all feedback, take it seriously, and as is the case below, seek to
remedy my mistakes or errors of judgment when they surface.
In relation to
my previous post, one reader noted, inter alia:
There
are other reasons for delay and obfuscation on such matters that you kindly do
not mention: like protecting incompetent politicians and their compliant
bureaucrats…
While this
hypothetical possibility had crossed my mind, I had deliberately not gone there
as I didn’t have the evidence required to make the assertion. Though on
reflection, I don't think it is a genuinely rival hypothesis to the one I
develop below. An officer's instinct to shield a minister, or a department,
from embarrassment is just as plausibly self-preservation reaching upward as
the self-preservation reaching sideways that I describe later — the same
path-of-least-resistance drift, not a separate, more orchestrated explanation
requiring anyone to have planned anything. I return to that pattern, on firmer
evidentiary ground, later in this post
A second reader
— a former Commonwealth lawyer with substantial experience overseeing FOI
decision-making — emailed me in response to argue that my efforts to generalise
from the two cases in the concluding section was over-reach insofar as I had
not provided the evidence required to draw the conclusion I did.
I take all
feedback I receive seriously, and upon reflection and deeper consideration, I
think the second reader’s argument was in substance correct. It is worth
explaining why, and what I think survives it.
The claim in
question was this: that the conduct I documented at ORIC and NIAA ‘emanate[s]
from the antipathy of the Executive arm of government to transparency,’ and
that the resulting labyrinth is, in some sense, ‘designed to minimise
transparency.’ The reader’s objection, stripped to its core, was that two case
studies cannot carry a claim that large, and that there is a more familiar and
more parsimonious explanation sitting in plain sight, namely, Hanlon's razor —
never attribute to malice that which is adequately explained by neglect,
ignorance or incompetence. Notwithstanding the litany of administrative
shortcomings — decision-makers on leave; deadlines missed under time pressure;
the wrong subsection cited by someone who hasn't read the Act closely enough;
and officers who would rather not make a controversial call and so default to
the cautious, restrictive one — there is nothing that demonstrates that anyone,
anywhere, is executing a strategy along the lines I alleged.
I think this is
correct, and I will concede it plainly: the language of ‘design’ and ‘emanation’
claimed more than the evidence available to me could support. I have no insight
into what any individual decision-maker at ORIC or NIAA actually intended.
Indeed, I said as much in places — I described the ORIC sequence as "an
unfortunate and almost comical accumulation of administrative
misadventures," which is Hanlon's-razor language, not conspiracy language.
Having written that, it was inconsistent of me to then reach, in the
conclusion, for language implying deliberate top-down design. The reader
identified a real defect in my claim. The reader’s acuity and experience inside
the APS gives the argument for an alternative explanation substantial weight,
and without adequate evidence, it outweighs my speculation about executive
intent.
Nevertheless, conceding
the individual-motive question (which is important and which I am happy to do)
does not detract from the existence of real problems within the administration
of the FOI regime. I normally try to see things from alternative vantage
points, and in this case through a bottom-up lens of individual instances and
decisions, and through a top down systemic lens which views the entire set of
decisions made on the issues around Groote and the ALC. What a top-down view
reveals, and what Hanlon's razor doesn't explain, is that administrative errors
only ever run in one direction.
Over a couple
of years’ worth of FOI applications, I have not once seen an agency
accidentally over-disclose, accidentally publish something it wasn't required
to, or accidentally err on the side of the applicant. Misaddressed emails,
missed deadlines, incomplete searches, wrongly cited subsections, decisions
made without engaging fully the statutory public interest factors — every one
of these failures, however innocently arrived at, lands on the side of less
access, not more. Individually, each is plausibly just accident or neglect. Yet
as a pattern, the errors or failures are not randomly distributed. That
asymmetry doesn't require anyone to have planned it. It only requires that the
path of least resistance, for a busy or under-trained or risk-averse officer,
points one way — and that nothing in the system corrects for that drift. That
is a claim about incentives and institutional culture, not about what is in
anyone's head, and it is, in my reconsidered opinion, the claim my original
post should have made instead of the one it did.
There is a
further point worth separating out, because I think it is actually the more
important one, and it survives the motive question entirely. When an agency
declines to explain itself — or explains itself badly, or explains itself in
terms that doesn’t withstand scrutiny, as happened with ORIC's non-publication
rationale — it leaves the person on the other side of the request with an
evidentiary vacuum. People do not sit comfortably in vacuums. In the absence of
a credible account of what happened and why, the least charitable available
explanation tends to fill the space, particularly where there is already a
power asymmetry between the party withholding information and the party seeking
it. This is true whether or not the least charitable explanation happens to be
correct. Put differently: opacity has a trust cost that is independent of the
truth of the matter being concealed. A government that cannot or will not
distinguish its own incompetence from bad faith, in the accounts it gives of
its own decisions, should not be surprised when the wider public narrative stops
making that distinction on its behalf.
I am not
seeking to use a back door to reinstate the error I made. I am not trying to be
too clever by half, and to suggest "I'm not claiming malice, but look how
opacity makes malice look plausible" as a way of undermining my admission
of error. I genuinely don't know whether what I've documented reflects
incompetence, self-preservation, institutional risk-aversion, something closer
to the second reader’s account, or some combination that varies by agency and
by officer. My point is narrower and, I think, harder to refute: a system
opaque enough that a reasonably well-informed applicant cannot tell the
difference between neglect and bad faith is a system that has already failed,
on its own terms, whichever explanation turns out to be true. The objects of
the FOI Act — set out in section 3 and quoted in my last post — are about
promoting better-informed public participation and scrutiny. A process that
leaves a diligent applicant unable to distinguish incompetence from concealment
is not achieving those objects, regardless of which one it is.
Trust in
democratic institutions is not infinitely renewable. It is drawn down by
exactly this kind of accumulated, unresolved ambiguity, and it is not obviously
restored by an agency later proving, case by case, that any individual failure
was merely incompetence rather than design. By the time that proof arrives, if
it ever does, the applicant — and often the wider public — has already updated
toward the worse explanation. Governments that want to be trusted with the
benefit of the doubt need to stop generating situations in which the doubt is
reasonable.
A final word,
since a further post on the specific treatment of the late Mr T. Wurramarrba in
the NIAA releases is still in preparation. Nothing in this post should be read
as pre-loading that argument. Whatever I say there about patterns of omission
and redaction concerning a particular individual will need to stand or fall on
the evidence particular to that case — consistency, or its absence, across
releases; whether the pattern tracks any coherent application of the claimed
exemptions, or something else. The argument made here, about the impact on
levels of trust of unresolved opacity in general, is a different and more
modest one, and I have tried to keep the two apart.
This post has
been produced with research assistance from Claude Sonnet 5
19 July 2026
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