More submissions to Senate Committee on FOI certificates

Senator Helen Polley, ALP- Tasmania, Chair Senate Committee Finance and Public Administration

Submissions to the Senate Committee on the inquiry concerning the bill to abolish conclusive certificates jumped from four to eight this week with Rick Snell, Michael McKinnon, Moira Paterson and myself all rising, if somewhat late, to the occasion. All eight submissions are now posted on the Committee site.

None of the submitters have any concerns about abolishing certificates. Are there any defenders of the status quo prepared to publicly mount the argument against change? Has there been any advance on the Opposition's position in December that it didn't have a view?

Snell and I both comment on the slow and inelegant two stage process of FOI reform underway and each make some observations about aspects of the bill and related matters concerning Archives.Paterson is concerned about changes to Tribunal procedures. She and Snell (as PIAC and the APC had earlier) both query the attempt to fix what is claimed to be a loophole to give blanket protection to documents received by a minister from specified national security agencies. (This has nothing to do with certificates but for some reason has been given priority in this first stage bill while many possible disclosure improvements must wait for another day.) Paterson also points out some problems with another change unrelated to the abolition of certificates-a proposed qualification to third party notification requirements.

McKinnon goes into some detail about why certificates should go, illustrating the lack of fairness in the review process and the contentious public interest arguments (usually not supported by evidence) put forward in defence of non-disclosure. As McKinnon was on the receiving end of many of the 14 or so certificates issued during the Howard years, particularly by Treasury, he is well placed to comment:

"... the basis for Treasury’s certificate issue is not the claim of some higher public interest determined by a conscientious politician in the national good. Instead it is the protection of political interests on issues that would be revealed under a more rigorous and fair FOI system. Treasury’s motive for issuing certificates is to prevent apparent “embarrassment’’ to the government. It is axiomatic that no government would be embarrassed by good policy or programs. Instead, it is policy and program failures, flawed administration or management, corruption or waste that are embarrassing to governments because of the impact on voter support and judgement about the government’s performance. Effectively,( Treasury Secretary) Dr Henry argues failings should be kept secret, and indeed, can be kept secret, by the use of conclusive certificates. The attitude reflects a fundamental contempt for the electorate’s right to be informed and is only possible because of the existence of conclusive certificates."

Readers will be aware of my views about Treasury and transparency, most recently on show in the Fisse case.

McKinnon also reminds the Committee of his application for access to the incoming government brief prepared for the Rudd Government in November 2007 and what emerged about Treasury's views on certificates:

"This FOI application is before the AAT at the moment but the documents already
released show Treasury provided advice to the incoming Rudd Government on why it
should break its election commitment to remove certificates from the FOI Act. The brief advises: “We are concerned that the abolition of conclusive certificates, without
a new and transparent safeguard, will adversely impact on the provision of advice to
government….While conclusive certificates should only be used in exceptional
circumstances, they play a valuable role in cases where the material in question is of
extreme sensitivity for the workings of government. Reliance on conclusive certificates has in part occurred because the exemption for deliberative documents under the FOI Act does not expressly exempt documents on the grounds of frank and fearless advice to the government.’’

McKinnon speaks for many in suggesting another perspective:

"The release of documents to the public on policy issues and options improves debate, informs voters and provides context for judgements about government decisions. This information is not only immensely beneficial to our political system but is a right. Deputy President Forgie questioned the government’s claims in the judgement in McKinnon v Dept PM & Cabinet V2005/1033: “Why is it that the APS can only behave as a professional apolitical body if its work in giving high level advice is kept out of the public arena?’’

McKinnon highlights the energy and resources that agencies are prepared to use in protecting what they regard as sensitive information with the example of the Reserve Bank spending over $300,000 to protect Reserve Bank minutes with a certificate in 2004 and fend off a challenge.Last year the Bank decided more transparency about monetary policy would be a good thing, agreeing that a version of the minutes would be publicly released some weeks after each meeting. The earth still turns...