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Friday, February 05, 2010

Senate Committee does FOI Reform before lunch

Following right along the Senate Finance and Public Administration Committee wrapped things up at 12.25 pm, but the widely experienced administrative lawyer Sydney barrister Mark Robinson, appearing for the Law Council of Australia, managed to raise additional issues for Committee attention including reformulation of exemptions so that a modified public interest test would apply to trade secrets and commercially valuable information, and to information claimed to be received on a confidential basis. The point he made that generated most interest ( a series of questions from Senator Brandis who was back for this session) was that the Bill should provide the Administrative Appeals Tribunal with the same powers in respect of FOI as it enjoys in all other areas of jurisdiction- to have the same authority as the original decision-maker, and in the case of FOI, to decide to grant access to an otherwise exempt document.

Then, in response to questions, Robinson gave his views on the reversal of onus issue that had dominated the earlier session: that such a provision would place an applicant who takes a matter to the AAT in an impossible position, and would undermine the objects of the act.

While welcoming the legislative reforms, and in similar terms to Michael McKinnon in the previous session, urging prompt action on the bills, Robinson spoke for many of us when he said the amendments grafted slightly less turgid language on to an already turgid piece of legislation that was difficult even for lawyers to come to grips with, and a complete rewrite was required. His metaphor that we've kept the whole body and grafted half a transplant wasn't bad. He also made the point that the Government had not responded or explained why it had rejected points raised in the Council's submissions on the Exposure Draft last May. Welcome to the club on that one.

Committee Chair Senator Polley was sticking to time and started to finish the strictly 45 minutes reserved for the Law Council just as The Greens Senator Ludlam arrived with a batch of questions which might have been interesting. The only new issue he managed to raise during the 10 minute extension was the vexatious applicant provisions (the Information Commissioner can rule in limited circumstances) which Robinson thought necessary and reasonable.

So that's game set and match until we see the Committee's report due 16 March.(Update: not quite- another hearing apparently was always the intention although not mentioned to date on the Committee website and is now scheduled for Melbourne on 15 February.) With the exception of the onus issue the Government got off very lightly without having to explain, defend or justify anything much at all, and with issues that surfaced just the tip of those raised in submissions.

It shoudn't go unremarked that not one question was raised, or the slightest interest shown when Michael McKinnon mentioned it, about the recommendation made 15 years ago by the Australian Law Reform Commission that the parliamentary departments that administer the Parliament, and spend over $300 million of public funds, including some payments to and on behalf of members and senators, should be brought within the scope of the act.
Lunch-no sausages.

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