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Thursday, January 08, 2009

30 years on some documents still too sensitive for the public domain.

Malcolm Fraser Prime Minister 1975-1983

The annual release by National Archives of 30 year old Federal cabinet documents on 1 January led to quite a bit of media coverage of the big decisions of 1978, but two questions: is the 30 year rule still justified and are there reasonable grounds for still withholding some documents or parts of documents from public disclosure even after that time?

The 30 year secrecy regime for cabinet documents is completely arbitrary. Of course it's better than locking public records up for 50 years or so (still the rule for cabinet notebooks) but is it in the interests of good government, accountability and the broader public interest to keep virtually all cabinet documents from public scrutiny for this long?

Sure, some intelligence, national security, defence and international relations, and other considerations such as danger to life or safety should come into play.But most issues that go to cabinet don't involve matters of continuing sensitivity of this kind and disclosure wouldn't compromise those interests.The Freedom of Information Act provides very broad protection for documents prepared for submission to cabinet and cabinet decisions regardless of content or sensitivity, so the current system means we wait for 30 years to pass before public access to the detail of what cabinet considered and decided on the most important issues of the day. Over 0ne thousand submissions and almost three thousand decisions taken in 1978 were released on 1 January.Most could or should have been in the public domain years ago. I'm with the Canberra Times- "Time to open archives earlier"- on this one.

The Commonwealth FOI Act has no time limit on the cabinet document exemption and badly lags some of the states where the corresponding act protects cabinet documents as such for a shorter time (10 years in the case of NSW), although other exemptions may still apply to those documents thereafter.

Our 30 year rule is a holdover from the days of empire but even the Brits are having a look at whether it still makes sense- Prime Minister Gordon Brown initiated an inquiry into the matter in 2007. Nothing has emerged publicly since, but our policy makers should be giving some thought to whether the 30 year rule is consistent with the principle of open government.

On the second matter of information still not released after 30 years in accordance with exemptions in Section 33 of the Archives Act, many more documents or parts of documents than previous years were not disclosed this year according to National Archives.The reasons given were that there were significantly more records created in 1978 and "matters being considered by Cabinet from the mid 1970s tend to be more sensitive than those considered in earlier years."

About 30 submissions or decisions were not released in whole or part mainly because Archives decided "disclosure could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth". Two submissions and decisions taken on them are said to be so sensitive everything including the subject, date and ministerial proponent have been claimed exempt.In another lodged by the Foreign Minister Andrew Peacock everything is blacked out except his name, the date and the partial title "[blacked out] of Indo-Chinese Refugees."What could [blacked out] have been?

It's not possible for those on the outside to make any judgment on what hasn't been disclosed but you have to wonder why parts of the following 30 year old documents would endanger any current Australian interest: a submission and decision on the status and salary of Director, Australian Secret Intelligence Service; Forward Estimates for the Defence Budget 1978/9; and various papers and decisions on foreign policy issues including Australian policy on the Law of the Sea and relations with PNG Indonesia and East Timor.

The stand-outs however are claims of legal professional privilege and contrary to the public interest for parts of nine documents regarding the establishment of the Uranium Marketing Authority- from a quick search, it doesn't appear to have ever been established and in any event doesn't exist in 2009. Quite apart from the mystery of the basis for this claim, it's worth noting that a Senate Committee 30 years ago, and the Australian Law Reform Commission 10 years ago, recommended against exemption for documents held by Archives on legal professional privilege grounds, but succesive governments have ignored this (and other ALRC recommendations on the Archives Act despite Minister Faulkner's claims.)

Thanks to Elizabeth Masters of National Archives for the prompt response to a request for a hard copy of the media kit which provided information about the release- but a suggestion: put this type of information up on the web. There is a broader interested audience than "accredited journalists" who make it to Canberra for the media briefing.

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