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Friday, January 04, 2013

Some cabinet records still too sensitive for release 27 years on

The annual release by the National Archives Authority on 1 January of cabinet papers covered more than 700 records from 1984-85, the first two years of the Hawke government. 

You have to seriously question why some of these records are locked up tight for 27 years or so. Sure they were documents submitted to cabinet but many contain nothing of sensitivity. Most of the state freedom of information laws include an exemption for cabinet documents for 10 years. Beyond that other exemptions may apply depending on content and the effect of disclosure.The Commonwealth should follow this lead.


And we can only muse over what is still deemed too sensitive to release after all this time. Archives announced that "a small amount of material" was withheld from 30 of the papers released. One submission was wholly withheld, including its title. 


I haven't had a chance to look closely at what was withheld and the reasons except

information withheld from Cabinet Submission 3249 - Review of Australian honours system - Decision 6667, September 1985. 

The timing, just weeks after the decision by the Federal Court in the Kline case on FOI access to contemporary documents about the operation of the Honours system was exquisite.

The Archives summary was that disclosure of the redacted material would constitute a breach of confidence and the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person). (Archives Act s 33(1)(d) and (g)).

But the actual
notice of decision reveals that deleted material now more than 27 years old contained information from "personal and private correspondence between the Governor General  and Her Majesty The Queen." As such documents are not subject to the Archives Act, "the public disclosure of this information would constitute a breach of confidence."


The personal affairs exemption claim seems to be based entirely on the assertion that the Governor General and The Queen were engaged in "personal communication."
Really? It sounds official not personal to me. In any event the nature of the information seems almost certain to fail the personal affairs ("matter of private concern") test.


As Professor Anne Twomey has
pointed out Australia doesn't control records relating to Governor-General/ Monarch communication.  Under UK law, disclosure of communications with the Queen and other members of the Royal household are absolutely prohibited from release for a minimum of 20 years from the time they are made, and then for the continuing lifetime of the relevant member of the royal family, plus an extra five years after their death. 


It's controversial in the UK, and in this neck of the woods hardly in keeping with standards of transparency we might expect from our head of state or her representative.

The absence of a public interest test in
most exemption provisions of the Archives Act is a significant gap in the law regarding access to historical documents.

As to other records, most were withheld on the basis of an exemption claim under section 33(1)(a) of the Archives Act, "withheld to protect Australia's security, defence or international relations." Presumably its mainly spook material. But you have to wonder just how long is long enough before we can know all that cabinet knew at the time decisions were made about such matters as Long-term plans for Antarctic programs, Antarctic airfields, a proposed Aeroflot office in Australia, and International atmospheric experiments in Northern Australia, to name just a few.

Parts of three records, Review of Offshore Constitutional Settlement – petroleum and minerals, Review of Offshore Constitutional Settlement – titles legislation, and Briese allegation relating to the conduct of Mr Justice Murphy were withheld on grounds of legal privilege, something the ALRC recommended years ago should be removed as an exemption claim for archived documents.

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