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RUBY:

From Schwartz Media, I’m Ruby Jones. This is 7am.

The Albanese government was elected on a promise of transparency and accountability.

It also said that, compared to the previous Coalition government, it was prepared to consult and listen to make sure a wide range of voices from the community and advocates were heard.

But a number of groups say there’s been a creeping trend of the government using non-disclosure agreements during closed door consultations, even threatening imprisonment if the gag orders are breached.

Today, chief political correspondent for The Saturday Paper Karen Barlow, on the government’s turn towards secrecy and how it justifies it.

It’s Wednesday September 25.

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RUBY:

So Karen, you recently began looking into non-disclosure agreements that are being used by this government. Tell me about how that started and what you found.

KAREN:

Well, I was having a look at how the government has been going with secrecy and transparency. There's been a lot around at the moment with the way the National Anti-Corruption Commission is going and about other issues to do with whistleblowers but I started looking deeply at the comments of Tim Costello, the chief advocate for the Alliance for Gambling Reform. And that was in particular about how he was asked to sign an NDA and arked up about it immediately.

Audio excerpt - Karen Barlow:

“What did that NDA say?”

Audio excerpt - Tim Costello:

“Well, basically, I don't quite know because it's 15 pages and it had to be sent off to lawyers to actually say…”

KAREN:

He was asked to sign a non-disclosure agreement, much like the major sporting codes and the gambling bodies such as SportBet, to be inside the tent as the Albanese government sorted out its gambling reforms, which we are still to see.

Audio excerpt - Karen Barlow:

“Now, we are recording. Tim, you were presented with…”

KAREN:

So I wanted to actually speak to him about it and he cheerfully told me that this was something that was completely remarkable, in a long history of advocating for people in areas such as charities and gambling reform, it's never happened to him before.

Audio excerpt - Tim Costello:

“And in, you know, 30 plus years of dealing with gambling, I had never been asked to deal with that. I dealt very closely and confidentially with Julia Gillard as Prime Minister.”

KAREN:

He’s had negotiations directly with Julia Gillard and he was never asked to sign a gag. And he took great personal offence about it.

Audio excerpt - Tim Costello:

“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 refused to sign it. And the Alliance for Gambling Reform, where I'm the chief advocate, refused to sign.”

KAREN:

This was something that led to him speaking to the communications minister. He asked her about this and said, you know, you're trying to muzzle us by using these, these gags. And she said, well, no, actually, this is just government practice, routine government practice now.

RUBY:

So what we know about the detail of these kinds of non-disclosure agreements, have you seen one of them?

KAREN:

I have. I've been given a couple of examples, but I understand they change for the circumstance. And that's an issue to the people who are concerned about signing them. And let's just take a step back — these are used quite widely and I'm finding out it's quite routine. But you only find out about them if people don't sign them. People who sign them, by their very nature, keep it quiet. What are they about? Well, they're about keeping people locked away and unable to discuss the details of what they're discussing, whether it's legislation or advising on a particular body that's being set up or a particular reform. The government wants to get expert advice but this particular government is making sure that those discussions are kept on the quiet. And the issue for some of these bodies is that they may not have a lot of cash around to pay for a lawyer who is expert in non-disclosure agreements to sort out exactly what they're signing up to.

RUBY:

In that case, then, do you get the sense that these groups who are providing advice to the government feel like they have to sign these agreements in order to engage? Is there some pressure here?

KAREN:

There's absolutely pressure to sign this. I spoke to the head of the Australian Council of Social Service Cassandra Goldie, whose been around for many years advocating on behalf of people who are on low incomes and people that are desperate in the community. And she objects to signing these non-disclosure agreements. She's been around for a while. She feels that she can speak to me about it. And I spoke to her about it, that it really concerned her. But she says that other bodies feel that they can't. She describes the use of these non-disclosure agreements as routine and she also describes it as a veil of secrecy layered over these really important discussions.

She says, they needlessly stifle meaningful consultation and contribution from these organisations. And it stops those groups inside the tent from going back out to people who have lived experience and asking them what they think and whether these reforms will work for them.

RUBY:

And so what are some of the consequences then, attached to these NDAs, if someone was to break one?

KAREN:

Well, I looked into some of the examples I had and what was a recurring theme is that they could face ten years in jail. Now, whether this actually has been used against someone, I don't think so but we don't know. And I did ask various departments whether they had pursued someone over a breach and they did not answer that particular question.

RUBY:

And whether or not that penalty of jail time is enforced, the threat itself, I think, is enough to make someone feel like they absolutely cannot reveal what they've been told or what's being discussed, right?

KAREN:

That's exactly the force of it. That's exactly right.

RUBY:

Coming up after the break - how a party that campaigned on transparency let secrecy creep in.

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RUBY:

Karen, when the Albanese government came to power, it was on the back of a lot of promises around transparency. You've been speaking to people, advocates in the social services sector who say that the opposite is happening. They're being made to feel like they can't speak openly because of the use of non-disclosure agreements. So tell me how this use squares with the Albanese Government's commitments.

KAREN:

Yeah so in finding out that there's been this escalation of the use of these gags under the Labor Government, it's been quite surprising and it's been surprising to some of the groups that have been experiencing it, and they do point to the Coalition that it did happen under the Coalition, but not to such an extent. Yes, the Labor Government, when it was in opposition, did campaign on a platform of transparency and openness because, you've got to remember, I mean it's not hard to forget that the Morrison government, at its very end was, you know, the government that brought in the Scott Morrison secret Ministries. I mean that was quite an extraordinary time and now we have this creeping of non-disclosure agreements and other confidentiality arrangements that are required as a way of doing business. This story has also got some interest from some of the independent crossbenchers.

Audio excerpt - Lidia Thorpe:

“I ask... Thank you, President. I ask that general business notice of motion number 636 be taken as a formal motion.”

KAREN:

Lidia Thorpe has actually stood up and used Senate powers to ask the government to produce documents relating to non-disclosure agreements. And that will be really interesting to see what she gets back.

Audio excerpt - Speaker:

“Is there any objection to this motion being taken as formal? There being none, I call Senator Thorpe.”

Audio excerpt - Lidia Thorpe:

“I move the motion.”

KAREN:

She's asked that the government inform and lay on the table what participants are asked to sign, how many non-disclosure agreements are signed by community sector organisations and other stakeholders, and she also wants to know — and I'd be really interested to hear this — the number of breaches of government non-disclosure agreements.

RUBY:

Okay. So, how does the Labor Government defend the use of NDAs then? What do they say about it?

KAREN:

So I did speak to a senior member of the government. It's a difficult one for Labor because of how they campaigned on transparency and then the reality of being inside government. But a government source did tell me that the government was a genuinely reforming government and they were just seeking consultation to create good laws with the best balance and really trying to point out that this is what the source said, the government was prepared to listen, consult and get back to these groups, pointing out that in their view, the Coalition didn't do that. Now, I also spoke to departments. I went to the bureaucracy about their use of these non-disclosure agreements because they do it as well when they are consulting on legislation, reforms, other talking points. I did ask various departments whether they had pursued someone over a breach and they did not answer that particular question. They also did not answer my question as to whether these uses of non-disclosure agreements are routine. But look, the understanding is that the stakeholders who signed these NDAs, they are only restricted in sharing the confidential information disclosed during the consultation process, but they are not prevented from advocating, you know, the broad position of the area that they are being consulted on. So they're trying to point out that they're not entirely gagged, but they cannot discuss those particular items, those particular pieces of legislation, the big piece of reform that they are being brought into the tent on.

RUBY:

Does the federal government have a case here, if what they're saying is true, that they are consulting more with these groups, do you think that it's a fair enough defence that they therefore want to attempt to keep, as you say, what could be quite robust discussions private?

KAREN:

It's a delicate balance. And I guess what we're seeing here is that the groups that are taking part feel that the balance has been tipped too far towards secrecy, that they do understand and they genuinely want to be inside the tent, but they feel that they are being stifled. I mean, just going back to Tim Costello. He's still got a meeting with the Communications Minister, probably as a mark of his long standing advocacy and good standing in the community. Not everyone gets that. So the core message is there, this has to be strictly limited in their view.

RUBY:

And Karen, NDAs – they were originally intended to be used for sensitive commercial dealings. So, you know, for example, you can't share the secret recipe to make Coke with the company Pepsi, but we now see them all over the place. Celebrities use them. We know that women who've been sexually harassed have felt pressured to sign them, in some cases. They've turned up in normal work contracts. So what does this kind of creep, the creep of NDAs, what does that say to you about a level of distrust and perhaps even paranoia that's entered life and politics?

KAREN:

I think there's incredible distrust and paranoia. I would really agree with that. I think politicians are so shy of reform and taking on the big chances these days. I mean, you only have to look at the current debate over housing and negative gearing. Labor seems so burnt from being knocked back by voters in 2019. It's a torturous process to to float these ideas.

To do the big reform, to get the legislation right, you have to get all your ducks in a row these days. So, there you understand the requirement for the NDAs. But look, it's not just NDAs. You've got other elements of getting big reform right. You've got like market testing and you've got internal polling. There's a lot that goes on behind the scenes before a politician dares to say, this is what I'm going to do and this is what I'm going to stake my political future on and this is what I'm taking to the next election. And we're really nearing the election now. So, you know, to be brave is a big problem. So, yeah, I think there's quite a large amount of distrust. It also has to do with the 24 seconds media cycle. But is this the right level of transparency? It's a real problem for them.

RUBY:

Karen, thank you so much for your time.

KAREN:

Thank you very much.

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RUBY:

Also in the news today...

The Australian government is warning that they don’t have the capacity to provide assistance to all Australian citizens trying to flee Lebanon.

On Monday, Israeli air strikes in Lebanon killed nearly 500 and injured more than 1500, marking the deadliest day of conflict between the two countries since 2006.

Foreign Minister Penny Wong is urging Australians in Lebanon to leave immediately while commercial flights are still available.

It’s estimated there could be as many as 30,000 Australians in the country.

And,

The Reserve Bank of Australia is keeping the interest rate steady at 4 point 35 percent unchanged since November 2023.

It comes as the US federal reserve cut its interest rates by 0.5 per cent last week, but Australia’s major banks are predicting we won’t see a rate drop until late this year or early 2025.

I’m Ruby Jones, 7am will be back tomorrow.

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