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Wednesday, November 26, 2008

Federal Government gets to first base on FOI reforms-conclusive certificates to go next year.

The Rudd Government has started to deliver on one element of its Freedom of Information reform commitments with the introduction into Parliament today of legislation to abolish entirely conclusive ministerial certificates.It's a welcome move, and goes further than recommended 13 years ago by the Australian Law Reform Commission, but took a year to eventuate and is nowhere near the top of most lists of urgently needed changes. On that front we are now told the Government "will release exposure draft legislation for public comment addressing broader reform measures aimed at promoting a pro-disclosure culture, as early as practicable in 2009." This culture change model, talked about for 12 months so far, should be something to behold when it is finally unveiled.

Senator Faulkner said the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008 was "a very important step towards achieving greater accountability in government decision making. It strengthens the right to obtain documents under the FOI Act and the Archives Act, and is yet another measure in the Government’s wider transparency and accountability reforms." In the Second Reading speech Senator Faulkner told the Senate the Bill includes provisions that mean "certificates issued previously will be revoked if and when a new request for access to documents covered by a certificate is received. In effect, revocation will be deemed to have taken effect at the time any new request is received. A decision will then be made under the established processes on whether or not an exemption should be claimed for any document formerly covered by a certificate."

The Bill contains a couple of other measures that tighten the FOI Act in some relatively minor ways, perhaps just demonstrating that some parts of the public service still have a wishlist that has ended up in Senator Faulkner's intray of what should be done to fill gaps in existing protections :
"To assist the AAT in reviewing an exemption claim to protect from disclosure national security documents and other sensitive information, the AAT will be required to call the Inspector-General of Intelligence and Security to provide expert evidence if it is not satisfied as to the merit of an exemption claim of this type.

The Bill also addresses an anomaly affecting rights of access to documents relating to intelligence matters where they are held by a Minister rather than an agency. Under the current Act, a document held by an agency is excluded from the FOI Act if it has originated with, or has been received from, an intelligence agency or the Inspector-General of Intelligence and Security, but the same document would not be excluded if it happens to be held instead by a Minister. The Bill remedies this anomaly."

A final comment on conclusive certificates:we assume that none have been issued in the 12 months since the Rudd Government took office but as there is no reporting requirement on use of the powers by ministers and heads of government departments, it's simply an assumption. As best anyone could work out something like 14 were issued in the later years of the Howard government.There is still no great urgency in dispatching the dreaded things: the Minister's office says it is anticipated the Bill to abolish them will be debated in the next session of Parliament-presumably February next year.

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