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Tuesday, April 14, 2009

Government by the people,for the people,and Parliament.

A significant aspect of the Victorian Court of Appeal decision in the Osland case (apart from apparently putting an end to Mrs Osland's legal attempts to find out more about the decision to refuse her petition for mercy) was the Court's finding that the Freedom of Information Act does not bring anything new to, or enlarge, traditional notions of ministerial accountability. If the Court is right,Victoria (where FOI reform is yet to reappear on the Government's agenda) should consider a leaf from the current Federal reform proposals to include in the objects of the Act "increasing scrutiny, discussion, comment and review of the Government’s activities", and specifying a public interest in disclosure to promote those objects.

The Court stated that it is "the accountability of a Minister to Parliament which has been recognised as the defining feature of responsible government."[38]. In addition, ministers can be held to account through questions and criticism by journalists and citizens. But in giving consideration to the public interest override (Section 50(4) of the Act) in the context of the Victorian Freedom of Information Act, to documents claimed exempt on legal privilege grounds, the Court had to operate within the legislative context [40]: "at the level of general policy, the Act itself has already struck a balance between the public interest in the maintenance of legal professional privilege, on the one hand, and the public interest in access to documents relevant to executive decision-making, on the other."

Therefore,[41] "(i)t is.. outside the scope of s50(4) for this Court to decide, as a matter of generality, whether there should be public scrutiny of legal advices received by a Minister in connection with the making of an executive decision. That is so whether the public interest is said to reside in greater transparency or in greater accountability… Whether ministerial accountability entails the production of legal advices relied on by ministers in making decisions, and if so in what circumstances, is a policy question which will fall to be considered, if and when it arises, by the executive or by the legislature."

The effect of this is that the Government can choose whether and in what detail it discloses information about legal advice received. And until the Parliament more explicitly legislates circumstances that require disclosure of legal advice, Section 50(4) won't provide the basis for forcing government to disclose relevant documents.This seems to involve significant reading down of 50(4):
" On the hearing of an application for review the Tribunal shall have, in addition to any other power, the same powers as an agency or a Minister in respect of a request, including power to decide that access should be granted to an exempt document (not being a document referred to in section 28, section 29A, section 31(3), or in section 33) where the Tribunal is of opinion that the public interest requires that access to the document should be granted under this Act."
In the Tribunal decision way back in 2005 the President Justice Morris [54] concluded that the arguments in this case for disclosure "are unique and powerful. Being unique, there is no reason why the provision of access should create any general precedent in relation to legal advice concerning petitions of mercy generally. Being powerful, they not only outweigh, but override, the factors that confer, and are relevant to the conferral of, exempt status on the documents.”

President Morris concluded the public interest required disclosure because citizens will be in a position assess the merits of the government’s decision to deny the petition of mercy.[34] He attached importance to “a public interest in information being freely available to enable members of the public to intelligently consider and discuss decisions of the executive branch of government. Democracy demands no less.”

He continued[49]:
”There is a particular public interest in relation to the operation of the criminal justice system. Public confidence in the system is likely to be enhanced if decisions, which affect legal rights, are made in a transparent manner. The exercise of the prerogative of mercy – or the grant of a pardon – in circumstances which are not transparent or beyond question have the potential to undermine public confidence in the justice system. In circumstances where a government decision is made in relation to a petition of mercy, relying upon particular advice which is specifically referred to, there will be a strong public interest in also making available any other advice that has been obtained in relation to the same question. If a decision maker obtains advice from two sources and receives different advice, the public might be misled if it is told that a decision has been made on the basis of advice (specifying the advice) without reference to the fact that there was also different advice. If only one advice is specified in such circumstances an impression may be created that the decision maker really had no choice; whereas if the two different advices are specified the public might think that there was a choice to be made by the decision maker and wish to know why a particular choice was made.”
The Court of Appeal concluded there had been no misleading in the Minister’s media release, that normal and proper processes of administration had been followed, that nothing in the content of the documents required disclosure of anything more than the Government had chosen to reveal, and that President Morris in considering the public interest in full disclosure of advice received was going beyond the scope of Section 50(4).

I’ll be interested to see what the Victorian FOI commentariat make of this.

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