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Friday, October 27, 2006

NSW Minister falls on sword but public right to know rules

The 'resignation' of the NSW Police Minister, Carl Scully, this week resulted from two incidents in two weeks in misleading Parliament. Misleading Parliament - or being caught misleading Parliament - continues to be seen to be a serious breach of Westminster conventions.

The first incident involved the denial that a report concerning the Police and last year's Cronulla riots, had been received, and the subsequent "explanation" made much of a distinction not made initially between a draft and final report.

Today's Sydney Morning Herald editorial "The fall of a news manager: Carl Scully's legacy" says that the two reports concerning Police management of the riots and the revenge attacks are
"not state secrets to be disclosed only at the Government's convenience; they are important documents which relate to the ability of the police service in the past and in the future to protect public safety. The public has the right to know about such problems. By not ensuring they were completed quickly and put into the public domain, by lying about them, Mr. Scully failed in his duty to the public".
The reports (or in one case the draft) were released this week, a year after the riots, but only because of pressure in Parliament, and clear evidence from the court of public opinion.

It would be interesting to contemplate what might have happened if the reports had been sought under FOI at any time over the last month since they were completed. Almost certainly they would come within the definition of internal working documents, and there are strong precedents (including views expressed by the NSW Court of Appeal in WorkCover) that support the position that while decisions on the underlying issues have not been taken, the presumption is that disclosure would be contrary to the public interest. After decisions have been made, evidence about the harm from disclosure is required to satisfy any claim for non disclosure on public interest grounds.

Will disclosure of these reports hamper the Government in making decisions on the recommendations they contain, or will such action now proceed promptly, unhindered by satisfaction of the public right to know?

The precedent may lead to some rethinking about the sacrosanct nature of thinking process documents, while government is still thinking, where they involve important matters of public concern.

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