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Monday, August 04, 2008

Old certificates won't block access if documents are sought again

The transcript of Cabinet Secretary John Faulkner's media conference last week announcing the intention to abolish conclusive certificates under the Freedom of Information Act, included a couple of points that didn't make much news, including this on other procedural changes, and documents covered by certificates that have been issued in the past:
"This legislation abolishing conclusive certificates will also include some additional measures relating to the AAT's procedures for handling FOI reviews including having the Inspector-General of intelligence and security provide evidence to the AAT in relation to national security documents.

In terms of existing certificates, they will be revoked if and when new applications are made for those documents which have been the subject of those certificates.I do stress, however, that the revocation of existing certificates will not affect the ability of decision-makers to claim exemptions under the FOI act where it is legitimate for them to do so. The abolition of conclusive certificates is the first stage of our proposed FOI reforms."

This represents movement since April when Deputy Prime Minister Julia Gillard spoke to the Maritime Services Union on this subject.The Union has a special interest in documents concerning what the Deputy PM then described as the Howard Government cover up over the 1998 waterfront dispute, complete with conclusive certificate to block access to a Freedom of Information application for documents about government involvement.

"No decisions have yet been made on how our changes to the FOI laws, which will prevent conclusive certificates being issued in the future, should deal with conclusive certificates issued in the past. That issue needs to be considered as part of our changes to the legal framework."

You can almost hear the keyboards clicking as those who have been on the receiving end of certificates in the past, such as the Union, Michael McKinnon of the 7 Network, and other journalists, dust off some of those applications to give it another shot.While technically the power to issue certificates remains until legislation is changed, Senator Faulkner was proud of the Government's record in this area:

"the critical thing here is that no conclusive certificates have been issued during the life of the Rudd Government and to my knowledge none have been proposed."

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