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Wednesday, May 28, 2008

Access to legal advice-the more things change.....

Senate Estimates committee hearings on the Federal Budget commenced in Canberra this week, just as the Government was dealing with its first embarrassing leak. And, as the investigation got underway, plenty of reminders that it is yet to deliver on its whistleblower protection promises .

The commencement of the committee hearings prompted a look at answers provided subsequently by the Government to some questions taken on notice on disclosure of advice issues the last time the committees met in February.

To Senator Ray's question PDF 55KB about any consideration being given to mandatory tabling in Parliament of legal advice received on the consitutionality of an act of government , which in his view went beyond the normal bounds of privacy and confidentiality, this response:"It is a longstanding practice, observed by successive Governments that legal advice is not disclosed unless there is a compelling reason to do so.While there may be circumstances where the Government may wish to make certain advice available any such decisions are matters for the Government of the day to make having regard to the facts of the particular case."

So the circumstances must have suited the Government to respond to another question by Senator Ray by releasing legal advice received that justified the tabling of an Auditor General's report critical of the Howard Government's rural grants program during the caretaker period just before last year's electionPDF 262KB

But they didn't suit when asked about whether legal advice had been obtained and from whom, about the constitutionality of quickly aborted plans for sittings of parliament in February, or about the apology to indigenous people. The response to both questions:"The Attorney-General has indicated that it would not be appropriate for the Department to provide the information sought." (Questions 55 and 56 here).It was the same response to the same questions(21 and 22) asked of the Australian Government Solicitor.

Its hardly the way to illustrate the difference between this government and its predecessors particularly given the commitment to "end the culture of secrecy"(Mr Rudd at the National Press Club in November last year), and Mr Rudd's view that "access to government information and decision-making are keys to a healthy and vibrant democracy."

Oh, and by the way the Federal Government's FOI Guidelines: fundamental principles and procedures which predates the Rudd Government but appears to still apply, includes the following from a memorandum from the then head of the Attorney General's Department to government agencies, cautioning against overuse of the legal professional privilege exemption in the Freedom of Information Act:" Federal Cabinet decided in June 1985 that agencies should not claim exemption for documents which have no particular sensitivity....The client should be advised that legal professional privilege should be waived unless some real harm would result from release of the documents."

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