In more than 30 years of lobbying for gambling reforms, Tim Costello says no government has tried to silence him through the use of a legally binding non-disclosure agreement.
“I believed its purpose was to muzzle us,” the chief advocate for the Alliance for Gambling Reform told The Saturday Paper, referring to an NDA the Albanese government asked him to sign.
“I dealt very closely and confidentially with Julia Gillard as prime minister, when she was bringing in what was called then the mandatory pre-commitment card for pokies, and she never, nor anyone in government, asked me to sign an NDA.”
Costello took a day to think about it but ultimately refused the initial offer to join sports bodies and gambling companies as they lobbied the government on new gambling advertising laws. The final form of the laws is still to be revealed.
“I said, ‘This is ridiculous,’ ” he says. “One, it’s an insult to my character, that if it’s confidential, I keep it confidential. Two, it’s never happened before, so what really is the motivation here? And that’s why I refuse to sign it, and the Alliance for Gambling Reform, where I’m the chief advocate, refused to sign it. It’s corrosive. We’re not a self-interested lobbying body.”
The Saturday Paper can reveal another leading advocacy body, the Australian Council of Social Service, is also among groups that have objected to signing NDAs when taking part in government consultation.
The council’s chief executive, Cassandra Goldie, says use of the legal gags has become routine but should be strictly limited.
“Broad non-disclosure agreements needlessly stifle meaningful consultation and contribution from community sector organisations and people who hold direct experience and expertise of policies and services,” she tells The Saturday Paper.
“Non-disclosure agreements also have a chilling impact on community sector organisations. Community sector organisations or individuals may sign agreements in fear of losing funding or being cut out of policy development processes. Additionally, they may not bring through the breadth and depth of the expertise within their networks for fear of breaching an agreement.”
The broad use of NDAs is part of a growing conundrum for the Albanese government, which campaigned in opposition for greater transparency and attacked the Morrison government for its high level of secrecy and for Scott Morrison’s multiple covert ministries and infamous cabinet of one.
As the end of the current parliamentary term draws near, transparency advocates say promised reforms to Commonwealth secrecy laws, whistleblower protections, press freedom and freedom of information laws are overdue and time is running out.
“Right now, we have one whistleblower in jail, another whistleblower on trial, a whistleblowing regime that still hasn’t been fixed despite the promises of this government,” says Kieran Pender, a senior lawyer at the Human Rights Law Centre.
“We haven’t seen any reforms in the freedom of information system. We’ve got the government fighting for secrecy in several court cases. Ultimately, we have too much secrecy in our government, and the good words of this government about how important it is to protect transparency haven’t translated into robust action.”
Independent Senator David Pocock sees non-disclosure agreements as “hiding from scrutiny” and told The Saturday Paper their increasing use during consultation on legislation was “very concerning” and the “opposite to what Australians voted for at the last election”.
The opposition, freshly thwarted in getting access to documents relating to a super fund chaired by former Labor treasurer Wayne Swan, is now railing against a perceived lack of openness, describing the government as “running a closed shop”. The government said the request was political and designed to undermine superannuation.
Liberal frontbencher Michaelia Cash fumed at Labor’s use of non-disclosure agreements, describing the difficult choice they represented.
“It means that if you are going to consult with this government on something that affects you, you either sign a non-disclosure agreement and shut up. In other words, you don’t get to breathe a word of it, let alone raise any criticisms,” Cash told parliament.
“Or you don’t sign a non-disclosure agreement, and guess what happens to you then? You are blacklisted and you are shown the door. Again, the Australian people had better start to wake up and understand democracy is being eroded by the Albanese government.”
NDAs were used by the Coalition government, but their use has escalated during the Albanese government’s term in areas such as NDIS reforms, industrial relations, environmental law and social welfare.
A government source defended the practice, telling The Saturday Paper the Albanese government was a genuinely reforming government seeking consultation to create good laws with the “best balance”. The source said the previous government never, or hardly ever, consulted.
The source said a cabinet-like condition of the strictest confidence was needed to get close access to materials that included “extraordinarily” detailed drafts of bills. They said this was a “two-way street” requiring mutual respect and that the government was prepared to “listen, consult and get back” to third-party groups.
The Saturday Paper has sighted several NDAs. One warns that disclosure may be an offence under Part 5.6 of the Criminal Code Act 1995 and other laws. It also warns the deed “survives” the completion of the appointment.
Another reads that all discussions are in “strict confidence and without prejudice, to ensure members can genuinely engage on the merits of proposals. Discussions should not be considered as agreement or commitment by government.”
Some groups say it is often difficult, particularly with limited funding, to get timely legal advice to properly understand what they are being asked to sign up to.
Stakeholders are not prevented from advocating for their position or debating matters already in the public domain. It is the confidential information disclosed in the consultation process that they can’t share.
The Saturday Paper asked several departments about the use of non-disclosure agreements. None agreed the practice was routine.
“The Department of Social Services works in partnership with governments, non-government organisations and communities to develop evidence-based policies, programs and services. Central to these partnerships is robust consultation to ensure a wide range of voices are heard and considered,” a departmental spokesperson said in a statement.
“Some consultations are necessarily more confidential, such as those concerning legislation. In these instances, it is appropriate that non-disclosure agreements and other deeds are used.”
The Department of Infrastructure, Transport, Regional Development, Communications and the Arts says its consultation activities can involve varying forms of confidentiality.
“The department’s use of non-disclosure agreements or confidentiality undertakings has been a longstanding practice, on a case by case basis, to support consultation,” a departmental spokesperson said in a statement.
Some of the secrecy offences cited in the NDAs carry a penalty of up to 10 years’ imprisonment. The offence relating to “officials who breach a duty imposed by another law not to disclose information” also captures whistleblowers and journalists.
That particular offence is due to sunset at the end of this year and it is not known whether or not the government will extend it.
Part 5.6 of the criminal code was reviewed by the Independent National Security Legislation Monitor and a report was released in June, finding there was uncertainty over the scope of the laws and that they posed a threat to the rule of law, human rights and press freedom.
More broadly, it is now 10 months since the attorney-general promised sweeping reforms, after another review undertaken by the Attorney-General’s Department, to abolish some of the 875 national secrecy and non-disclosure laws and refine the penalties for breaching them.
It is understood that unpicking close to 1000 laws is a lengthy exercise that involves deep consultation with defence and intelligence organisations.
There’s also a proposed offence, as yet unseen, announced in response to the PwC confidentiality breach that will target contractors and former public servants.
Any expansion of secrecy laws is worrying, according to Pender.
“They’re using the PwC scandal as an excuse,” he says, adding the laws will “have a chilling effect on any public servant revealing wrongdoing”. “Most of those apply to public servants, but some of them apply to journalists, to lawyers, to civil society members, to anyone who comes into contact with government information.”
The Albanese government has restored the standalone Office of the Australian Information Commissioner, with separate freedom of information and privacy commissioner positions, but there is still a large backlog in FOI reviews.
Former independent senator turned transparency campaigner Rex Patrick, who is at any time engaged in multiple FOI battles with the government, says some FOI reviews can take several years and he has recently dealt with cases where documents were made secret only after he requested them.
“Transparency is a word shouted only from opposition benches. When a party gets into government, there is a huge benefit in controlling information,” Patrick tells The Saturday Paper.
“Information is the currency of a democracy. Parliament House works almost solely on information, and it’s always of great advantage to the government to determine what information they released, the form in which they release it, and the timing of the release of it.
“In terms of things like FOI, I see very little difference between this government and the last government.”
1 Comment
**TRANSCRIPT**:
In more than 30 years of lobbying for gambling reforms, Tim Costello says no government has tried to silence him through the use of a legally binding non-disclosure agreement.
“I believed its purpose was to muzzle us,” the chief advocate for the Alliance for Gambling Reform told The Saturday Paper, referring to an NDA the Albanese government asked him to sign.
“I dealt very closely and confidentially with Julia Gillard as prime minister, when she was bringing in what was called then the mandatory pre-commitment card for pokies, and she never, nor anyone in government, asked me to sign an NDA.”
Costello took a day to think about it but ultimately refused the initial offer to join sports bodies and gambling companies as they lobbied the government on new gambling advertising laws. The final form of the laws is still to be revealed.
“I said, ‘This is ridiculous,’ ” he says. “One, it’s an insult to my character, that if it’s confidential, I keep it confidential. Two, it’s never happened before, so what really is the motivation here? And that’s why I refuse to sign it, and the Alliance for Gambling Reform, where I’m the chief advocate, refused to sign it. It’s corrosive. We’re not a self-interested lobbying body.”
The Saturday Paper can reveal another leading advocacy body, the Australian Council of Social Service, is also among groups that have objected to signing NDAs when taking part in government consultation.
The council’s chief executive, Cassandra Goldie, says use of the legal gags has become routine but should be strictly limited.
“Broad non-disclosure agreements needlessly stifle meaningful consultation and contribution from community sector organisations and people who hold direct experience and expertise of policies and services,” she tells The Saturday Paper.
“Non-disclosure agreements also have a chilling impact on community sector organisations. Community sector organisations or individuals may sign agreements in fear of losing funding or being cut out of policy development processes. Additionally, they may not bring through the breadth and depth of the expertise within their networks for fear of breaching an agreement.”
The broad use of NDAs is part of a growing conundrum for the Albanese government, which campaigned in opposition for greater transparency and attacked the Morrison government for its high level of secrecy and for Scott Morrison’s multiple covert ministries and infamous cabinet of one.
As the end of the current parliamentary term draws near, transparency advocates say promised reforms to Commonwealth secrecy laws, whistleblower protections, press freedom and freedom of information laws are overdue and time is running out.
“Right now, we have one whistleblower in jail, another whistleblower on trial, a whistleblowing regime that still hasn’t been fixed despite the promises of this government,” says Kieran Pender, a senior lawyer at the Human Rights Law Centre.
“We haven’t seen any reforms in the freedom of information system. We’ve got the government fighting for secrecy in several court cases. Ultimately, we have too much secrecy in our government, and the good words of this government about how important it is to protect transparency haven’t translated into robust action.”
Independent Senator David Pocock sees non-disclosure agreements as “hiding from scrutiny” and told The Saturday Paper their increasing use during consultation on legislation was “very concerning” and the “opposite to what Australians voted for at the last election”.
The opposition, freshly thwarted in getting access to documents relating to a super fund chaired by former Labor treasurer Wayne Swan, is now railing against a perceived lack of openness, describing the government as “running a closed shop”. The government said the request was political and designed to undermine superannuation.
Liberal frontbencher Michaelia Cash fumed at Labor’s use of non-disclosure agreements, describing the difficult choice they represented.
“It means that if you are going to consult with this government on something that affects you, you either sign a non-disclosure agreement and shut up. In other words, you don’t get to breathe a word of it, let alone raise any criticisms,” Cash told parliament.
“Or you don’t sign a non-disclosure agreement, and guess what happens to you then? You are blacklisted and you are shown the door. Again, the Australian people had better start to wake up and understand democracy is being eroded by the Albanese government.”
NDAs were used by the Coalition government, but their use has escalated during the Albanese government’s term in areas such as NDIS reforms, industrial relations, environmental law and social welfare.
A government source defended the practice, telling The Saturday Paper the Albanese government was a genuinely reforming government seeking consultation to create good laws with the “best balance”. The source said the previous government never, or hardly ever, consulted.
The source said a cabinet-like condition of the strictest confidence was needed to get close access to materials that included “extraordinarily” detailed drafts of bills. They said this was a “two-way street” requiring mutual respect and that the government was prepared to “listen, consult and get back” to third-party groups.
The Saturday Paper has sighted several NDAs. One warns that disclosure may be an offence under Part 5.6 of the Criminal Code Act 1995 and other laws. It also warns the deed “survives” the completion of the appointment.
Another reads that all discussions are in “strict confidence and without prejudice, to ensure members can genuinely engage on the merits of proposals. Discussions should not be considered as agreement or commitment by government.”
Some groups say it is often difficult, particularly with limited funding, to get timely legal advice to properly understand what they are being asked to sign up to.
Stakeholders are not prevented from advocating for their position or debating matters already in the public domain. It is the confidential information disclosed in the consultation process that they can’t share.
The Saturday Paper asked several departments about the use of non-disclosure agreements. None agreed the practice was routine.
“The Department of Social Services works in partnership with governments, non-government organisations and communities to develop evidence-based policies, programs and services. Central to these partnerships is robust consultation to ensure a wide range of voices are heard and considered,” a departmental spokesperson said in a statement.
“Some consultations are necessarily more confidential, such as those concerning legislation. In these instances, it is appropriate that non-disclosure agreements and other deeds are used.”
The Department of Infrastructure, Transport, Regional Development, Communications and the Arts says its consultation activities can involve varying forms of confidentiality.
“The department’s use of non-disclosure agreements or confidentiality undertakings has been a longstanding practice, on a case by case basis, to support consultation,” a departmental spokesperson said in a statement.
Some of the secrecy offences cited in the NDAs carry a penalty of up to 10 years’ imprisonment. The offence relating to “officials who breach a duty imposed by another law not to disclose information” also captures whistleblowers and journalists.
That particular offence is due to sunset at the end of this year and it is not known whether or not the government will extend it.
Part 5.6 of the criminal code was reviewed by the Independent National Security Legislation Monitor and a report was released in June, finding there was uncertainty over the scope of the laws and that they posed a threat to the rule of law, human rights and press freedom.
More broadly, it is now 10 months since the attorney-general promised sweeping reforms, after another review undertaken by the Attorney-General’s Department, to abolish some of the 875 national secrecy and non-disclosure laws and refine the penalties for breaching them.
It is understood that unpicking close to 1000 laws is a lengthy exercise that involves deep consultation with defence and intelligence organisations.
There’s also a proposed offence, as yet unseen, announced in response to the PwC confidentiality breach that will target contractors and former public servants.
Any expansion of secrecy laws is worrying, according to Pender.
“They’re using the PwC scandal as an excuse,” he says, adding the laws will “have a chilling effect on any public servant revealing wrongdoing”. “Most of those apply to public servants, but some of them apply to journalists, to lawyers, to civil society members, to anyone who comes into contact with government information.”
The Albanese government has restored the standalone Office of the Australian Information Commissioner, with separate freedom of information and privacy commissioner positions, but there is still a large backlog in FOI reviews.
Former independent senator turned transparency campaigner Rex Patrick, who is at any time engaged in multiple FOI battles with the government, says some FOI reviews can take several years and he has recently dealt with cases where documents were made secret only after he requested them.
“Transparency is a word shouted only from opposition benches. When a party gets into government, there is a huge benefit in controlling information,” Patrick tells The Saturday Paper.
“Information is the currency of a democracy. Parliament House works almost solely on information, and it’s always of great advantage to the government to determine what information they released, the form in which they release it, and the timing of the release of it.
“In terms of things like FOI, I see very little difference between this government and the last government.”