Some of Prince Charles letters under FOI scrutiny-at last

The Prince Charles letters Freedom of Information saga now in its 10th year is back in the news in the UK and here with the Supreme Court decision that some now ancient letters to ministers in so far as they contain 'advocacy correspondence' should be released, 


It's about powers to issue a conclusive ministerial certificate so not all that relevant in FOI jurisprudence here as certificates were abolished by Labor in 2009.

As to the battle by The Guardian, deep breath, here's my short summary:
The Supreme Court upheld the Court of Appeal decision to quash a certificate issued by the Attorney-General that vetoed an Upper Tribunal finding that reversed the decision of the Information Commissioner who had upheld the departments' decisions to refuse to disclose the letters. 

Truly. 

(Update - Kevin Dunion in a comment says my summary left one decision out-I defer to him.)

Further puzzling over NSW conclusive certificates

More today in the Sydney Morning Herald about those NSW conclusive certificates and what they stand for.  

As Sean Nicholls reports the Premier now says the Deloitte report will be released eventually. Nicholls continues:

The power to block the public release of documents using a conclusive certificate had been used only once in the 20 years before the O'Farrell government came to power, but has been applied eight times in the two years since. The power was included in an overhaul of NSW freedom of information legislation by the former Labor government in 2009. The new Government Information (Public Access) Act, which replaced the Freedom of Information Act, removed the power for ministers to issue certificates to block release of documents. But it gave agencies the right to issue certificates over what they deem to be cabinet documents, preventing their release. No certificates were issued under the former Labor government after the GIPA Act came into force in July 2010. But eight have been issued by departments since the O'Farrell government came to power in March 2011.

The following is a bit legal and finicky I'm afraid. But bear with me....

As I commented yesterday there is no provision in the GIPA act for a certificate that blocks access to information sought by an applicant. The issue under that act is whether in a particular instance there is an overriding public interest against disclosure of information. It is to be conclusively presumed that there is an overriding public interest against disclosure of cabinet information, defined by reference to various facts set out in Schedule 1(2).

The relevant provision relied on in the media reports about conclusive certificates is Section 30 of the Government Information (Information Commissioner) Act which appears in Part 3 Division 4, headed Powers of Commissioner.

S 30 includes this reference to a certificate:

(2) "A certificate of the Director-General or Deputy Director-General (General Counsel) of the Department of Premier and Cabinet that any information, record or thing or the answer to any question comprises, contains or would reveal Cabinet information is conclusive of that fact for the purposes of this section."

The certificate can only be issued by specified officers in the premier's department, not by others.

And as s 30 (2) states, a certificate issued by one of those officers is conclusive "for the purposes of this section."

The purpose of the section is to impose a limit on the commissioner's powers as set out in the GIIC act. Specifically the powers do not enable the commissioner to require any person to do certain things if this would involve disclosing cabinet information. The commissioner for example can't demand to see a document to satisfy herself that it is a cabinet document. Section 30(1) states:

This Act does not enable the Commissioner:
(a)  to require any person:
(i)  to give any statement of information, or
(ii)  to produce any record or other thing, or
(iii) to give a copy of any record, or
(iv) to answer any question,
 if compliance with the requirement would disclose information that is Cabinet information, or
(b)  to inspect any such record or thing.

But the certificate would not establish conclusively that the document is a cabinet document for the purposes of refusal of access, or for the purposes of a decision by the commissioner in reviewing such a decision. Both decisions are decisions under the GIPA act.

A  s 30 (2) certificate establishes conclusively that documents are cabinet information for the purpose of limiting the exercise of power by the Information Commission to inquire about or sight disputed information.

Section 30(1) would seem to allow any government agency to refuse to provide information to the commissioner even in the absence of  a certificate from Premier's, simply by asserting that compliance would require a person to disclose cabinet information.  In the event of such a claim, it would be open to the commissioner to argue the toss with the agency about whether doing an act or thing would involve disclosure of cabinet information. The commissioner would no doubt find it difficult to look behind such a claim.  But it would be just a claim in the absence of conclusive evidence. Conclusive evidence that the information in question is cabinet information exists if a certificate has been issued by Premier's under s 30.

Although it's a close run thing, there is no bad old day powers in the NSW legislation to block public access through an official's certificate.

NSW conclusive certificate limits Information Commissioner's powers

The front page report by Sean Nicholls in the Sydney Morning Herald and followed up by the Opposition on the airwaves this morning, had me thinking the bad old days of conclusive certificates, those virtually insurmountable road blocks to access, had returned when I wasn't watching. Not quite, just  a reminder of a power to limit the Information Commissioner's conduct of a review application that is not unique to access applications under the Government Information (Public Access) Act.

Nicholls reported on a decision by the Department of Premier and Cabinet to apply "extraordinary secrecy provisions" to suppress a report by Deloitte to assess the potential economic benefits of the Crown proposal for a six star hotel at Barangaroo in Sydney, claiming it is a cabinet document. 

The senior review officer at the IPC Natasha Case was possibly misquoted saying "the Information Commissioner must accept it as ''conclusive evidence that the documents … are cabinet information for the purposes of the GIPA Act and therefore must not be disclosed.''

There are no conclusive certificate provisions in the Government Information (Public Access) Act that prevent disclosure to an applicant.

Here, the commissioner is in receipt of an application for review of a decision by the department to refuse access to the report. In undertaking the review it would obviously be helpful to sight the report and ask questions about the circumstances of its creation in order to test whether it qualifies as a cabinet document as defined in Schedule 1 of the GIPA act.

The effect of the certificate is that the commissioner cannot access the report or other relevant information in carrying out the review. The Government Information (Information Commissioner) Act  (s 30) limits the commissioner's powers in these circumstances, preventing inspection of any record or requiring a person to provide information, answer questions or provide the commissioner with a copy of any document specified. The report is conclusively a cabinet document for the purpose of this limitation.
 
The commissioner will have to soldier on to reach a decision on whether the report is or isn't a cabinet document without that assistance, relying entirely on whatever information the department has provided to explain the reasons for its decision.

Technically the commissioner could decide that the report is not a cabinet document. You wouldn't want to bet on it. Even then the commissioner's powers don't extend to requiring the report be released, merely that the department may choose to make a new decision in the light of her findings.

The limitation on access to a document the subject of such a certificate is not unique to the GIPA act and the commissioner. The Administrative Decisions Tribunal Act (s 124(4), and the Ombudsman Act (s22) contain similar provisions.

So 'extraordinary' maybe, but not entirely new or novel. 

I've no idea how many such certificates are issued. No mention that I can see in the DPC Annual Report.

Any connection between this development and the Information Commissioner's decision announced on Monday to stand down presumably is entirely coincidental.

 

Open Australia, great to see you're back

After six months terrific to have the fantastic hansard service back to assist in keeping up with federal parliament. In the interim, having to rely on parliament's own newish and expensive website without similar search capabilities was painful and inadequate, so hats off to the volunteers at Open Australia, particularly John Wells and Henare Degan for righting things once again.

SMH

One little gem uncovered in a "freedom of information" search was a question on notice in March from the shadow minister Senator David Johnston to the Minister representing the Minister for Defence that included:

"For the period 1 July to 31 December 2011... How many conclusive certificates were issued in relation to FOI requests."

I'm sure the public servants and the minister were tempted, but they dead-panned, simply answering in May:

"Conclusive certificates no longer exist. They were abolished under the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009."

Passed by the Senate on 13 August 2009 to be precise.

McKinnon High Court challenge documents released; still trouble elsewhere

Special Minister of State Senator Ludwig made sure the public were informed that Treasury documents the subject of the ministerial certificate that prompted an unsuccessful High Court challenge in 2006 had now been released by that department, in the first instance that has come to light of a new application for documents previously covered by a certificate, following legislative removal of the power to issue them.(I know these things happen but as of today the link to the Minister's Media statement 52/2009, says the page, ahem, can't be found.  is now working just fine.)

You can read this report by Andrew Fraser in The Weekend Australian. As to what Michael McKinnon now with the Seven Network can make of the documents close to 7 years old on which a couple of million was spent to keep them from public view...

But no such public statement from the Minister about an Ombudsman finding that the practice of Federal agencies only starting the clock after they had decided whether to remit the application fee, in effect giving them double the 30 day processing time limit. Or any response to the Ombudsman's call to clarify guidelines without waiting for the legislative changes before the Parliament.

Conclusive certificates... gone

The Freedom of Information (Abolition of Conclusive Certificates and Other Measures) Bill passed the final stages in the House of Representatives yesterday, so congratulations to the Federal Government on delivery of Stage One of the promised reforms. The final wrap-up of debate included contributions by Daryl Melham, adding a few real world comments, and Mark Dreyfus, providing a little history and a taste of what is still to come.

The sun will rise in the morning.

Conclusive certificates-still going..

Edging closer-still not quite there. Debate on the Federal Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008 got underway for half an hour in the House of Representatives last night, but was interrupted before the Bill passed. 13 speakers, but fairly predictable themes along party lines. The Bill was introduced in the Senate in November 2008 and passed there in August.

No sign yet of the broader FOI Reform bills. Special Minister of State Senator Ludwig said on 6 August "the bills will now be introduced into parliament."

Thanks to Open Australia for the Hansard link.

Conclusive certificates going, going almost gone

The Senate passed the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill yesterday, without amendment, so only the House of Representatives to go and that will be routine business.

Senator Ludlam (Australian Greens-WA) moved several amendments but only the Greens and Senator Xenophon supported them, the Opposition siding with the Government. The amendments proposed related to the provision to give a blanket exemption to documents held by a minister received from an intelligence agency, which the Government justified as correcting an anomaly by bringing such documents in line with a long-standing exemption for documents of this kind held by an agency. Intelligence agencies have been outside the scope of the Act since inception, which also troubled Senator Ludlam.

Blanket exemptions and exclusions of agencies from the operation of the Act are in principle hard to justify, something Senator Ludwig acknowledged:

"The government does recognise, though, if we go to the nub of the issue, that strong justification is needed to support wholly excluding agencies or classes of documents from the operation of the FOI Act. A total exclusion will be justified where the functions of the agency would be compromised by right of public access to information they hold. That is clearly the case for intelligence agencies."

Perhaps when the entire act gets revisited (within two years after the broader reform bill, yet to be introduced, makes it through Parliament, the Minister told Senator Ludlam) we might have a closer look at how the New Zealand Security Intelligence Service and the CIA manage to cope without functions being compromised even though they are covered by their access to government information legislation.

Shadow Attorney General Brandis wins the chutzpah award for his claim that "The coalition’s commitment to open, responsible government is well known" but he did have a point that the Howard Government had issued few (around 14 from memory) conclusive certificates compared to earlier ALP governments where, anecdotally they stopped counting after three figures.

None of the other points made in submissions on the Bill rated a mention in debate.

"Stick to FOI reform, Rudd urged"

Missed this in The Australian on Monday- but yes, it's what I and others have been saying for a l....o...o...n..g time now. We will be all ears at the Australia's Right to Know Conference in Sydney next Tuesday when Minister Faulkner unveils the Government's second phase Freedom of Information reforms.

Unhappily he won't have much good news to tell us about phase one- Federal Parliament adjourns today or tomorrow with the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill still to get back on the action list, having been tabled last November. No-one on any side of politics seems to be opposed (although all the submissions from outside government suggested changes and enhancements to the Senate Finance and Public Administration Committee, to no avail) and the Committee recommended on 10 March that the Senate pass the Bill. Parliament won't be back now until Budget week in mid-May, and of course there will be many competing priorities, as no doubt the Government would tell us is the explanation for slow progress to date.

This reform should have been low hanging fruit for a government committed to change and elected 16 months ago. Here is how the Parliamentary Library put phase one in perspective in the Bills Digest on 27 February (PDF 441KB):

"The removal of certificates is however a relatively minor and straightforward part of the bigger picture of FOI reform. A much greater challenge is to address the concerns that have been evident since the 1996 ALRC Open Government report which point to the legalistic interpretation of some of the exemption provisions, the time delays and the expense of FOI requests."

Yes, and of course, there is then that even tougher one- the culture change issue.

Senate Committee says yes to no conclusive certificates.

The Senate Finance and Public Administration Committee reported yesterday on the Federal Government's legislation to abolish conclusive certificates from the Freedom of Information Act and recommended....

"that the Senate pass the bill."

That's it, apart from some additional comments from the three Opposition Senators (who supported the Bill in any event) that in reality conclusive certificates had rarely been used during the Howard era, and that of greater interest and concern should be the Rudd Government's record on disclosure under the Act as revealed in the Annual Report tabled last month.

The Committee Report includes good and stirring words about the importance of Freedom of Information as part of the fabric of democratic society, and summarises the points made in most of the few (eight) submissions received, and by witnesses in the one Committee hearing that lasted a little over an hour.

As all the submissions and witnesses favoured abolition it's not surprising the Committee concluded as it did. The only matters that had elicited comment from those of us who did participate were on the couple of consequential changes regarding review and several add-on provisions that the Government slipped in and had nothing to do with certificates. The Committee without any attempt at reasoning just wasn't interested in any of the points raised- things like a suggestion to give the AAT an override discretion to order release of exempt documents on public interest grounds, or several who challenged the necessity to give a blanket exemption for documents received by a minister from security and intelligence agencies.

So another three months has passed since the bill to achieve this first phase FOI change was introduced, and the way has now been cleared to pass an important and almost universally supported reform. But 16 months on from the election of a government committed to fundamental change ( particularly a change in culture) we are still to hear about the Government's big picture Freedom of Information proposals or see any serious effort to send a message to the public service that things should be done differently under the Rudd Government.

All eyes on Minister Faulkner at the Freedom of Speech Conference in Sydney on 24 March.

Straw the man when it comes to a veto.

Jack Straw UK Minister for Justice

Matthew Moore in the Sydney Morning Herald on Saturday joined a chorus of UK commentary about the Minister for Justice Jack Straw using a veto power in the Freedom of Information Act for the first time to overrule a decision by the Information Tribunal requiring release of cabinet documents that would reveal consideration of the Government's legal advice prior to the decision to join the war in Iraq in 2003.The Tribunal had upheld the Information Commissioner's decision that the public interest justified disclosure in these special circumstances.

With the Federal Government's Bill before Parliament here to remove ministerial powers like this, Moore suggests the UK controversy will alert policy makers to the dangers of a public interest test in the cabinet documents exemption in the rewrite of the Federal and NSW Freedom of Information acts now or soon to be underway.The Queensland draft Right to Information Bill- now in pre-election limbo- has an absolute exemption for cabinet documents, at least more tightly drafted than the current provision which is broad enough to exempt documents simply because they where wheeled into the room while cabinet was meeting.

Straw said he acted to protect 'aspects of our structure of democratic government' and ensure the exchange of free and frank ministerial discussions of controversial issues in the future' even though the minutes reveal no individual views or details of contributions to discussion. Straw was Foreign Minister at the time. The Economist suggests the minutes mightn't reveal much at all and that was the real reason for acting to prevent disclosure:

"It is unlikely in any event that the minutes would reveal much that is not already in the public domain. Since 2003 no fewer than four of the ministers who sat in cabinet then have spoken or written of the meetings. This, said the tribunal, was evidence of a dwindling respect for the doctrine of collective cabinet responsibility, to which confidentiality is said by the government to be so crucial. It also suggests that, in refusing to publish the minutes, a more serious concern for the government than the possible inhibition of free and frank debate in cabinet was the probable confirmation that on this occasion, at any rate, there wasn’t any."

ACT FOI changes.

Thanks to Ray Polglaze of the ACT who did some checking on what happened last week in the ACT Assembly and confirmed as follows.

The legislation as passed abolishes conclusive certificates in relation to documents affecting relations between the Commonwealth and States, executive (cabinet) documents and internal working documents but retains certificates for documents claimed exempt on national security grounds.(The last point wasn’t picked up in the Canberra Times which reported all certificates had gone.You have to wonder why the ACT retains this power when the Commonwealth Government’s own bill before the Parliament would abolish all conclusive certificates.)

There is a new provision that excludes cabinet notebooks from access under the FOI Act. (The Government’s other proposals that would have added some new exemptions for example for question time briefs, to ensure “frank and candid advice” appear to have all been rejected.)

On the wider FOI review agreed between The Greens and the ALP as part of the deal that enabled the ALP to form government after the last election, this seems likely to now be undertaken by the Standing Committee on Justice and Community Safety. The Assembly also voted unanimously to change the standing orders to create a new position of independent arbiter to determine whether claims of executive privilege on Government documents ordered to be tabled were legitimate, similar to the role played for some years now in the NSW Legislative Council by former chief justice Sir Laurence Street.

Senate Committee short hearing for FOI Bill.

The Senate Finance and Public Administration Committee took just over an hour last Thursday for the hearing on the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008. Nothing much new or startling in the transcript of testimony as Michael McKinnon, Rick Snell, the Public Interest Advocacy Centre, and the Australian Press Council spoke to their submissions.The Department of Prime Minister and Cabinet (PM&C) provided some comments about the approach taken in the Bill.The latter when asked, weren't able to add anything to the "as soon as possible" and "this year" commitments to cabinet consideration of second stage reform issues such as the establishment of an information or FOI commissioner.

Senator Moore raised a good question [transcript below at 14] with PM&C witnesses about whether, given all the talk, there is anything in the Government's own FOI training programs that goes to the issue of culture change.PM&C ducked- training is not their baby despite the transfer of FOI responsibilities from Attorney General's in December 2007. Courses are conducted by the Australian Government Solicitor's Office. A senior officer volunteered that "we think it likely" the information commissioner will be putting out the culture change message. That should be a relief, probably to have some effect in 2010 or later!!!

PM&C also wasn't able to help with information on whether records have been kept about the level and extent of training across all government agencies, but intends to find out.

The transcript of the hearing is here-Senate Committee-12/02/2009.

Just on the training front any course for public servants that promises excellence in decision making has to sound like a good thing. That's what the Australian Government Solicitor's Office and the Faculty of Law at the University of Sydney are offering in " Excellence in Decision Making", a five day administrative law program in Canberra, 30 March- 2 April 2009, for "all those who work in government" particularly decision-makers and those with any involvement in decision-making processes, administrative law practitioners, new agency staff, policy officers and lawyers. Sessions will cover the gambit including Freedom of Information, privacy law and other important topics.

The brochure provides the details- the fee,$3450, being the most important. You would like to think any new policy settings on the interpretation and application of the Act, if there are any, would be up there in lights even in a heavily lawyer-oriented program such as this, but it's perhaps telling there is no sign of Minister Faulkner or anyone from the policy department, PM&C, on the speakers list.But the audience may get a bit more than the Senate Committee did on thinking about the information or FOI commissioner when the position is established.One of the speakers is the long-time former Acting WA Information Commissioner Darryl Wookey now Senior Executive Lawyer, AGS Canberra, speaking on models for FOI review.

External review should encompass full merits review and discretion to disclose.

Whether an external Freedom of Information review body should have power to require release of an otherwise exempt document- either on public interest or other grounds- is one of those important policy matters that can spark plenty of debate.

It's an issue several submitters are running up to the Senate Public Administration and Finance Committee in Canberra this afternoon.The Federal Act since enactment has stipulated that a finding by the AAT that a document is exempt is the end of the matter. Elsewhere the Victorian Civil and Administrative Appeals Tribunal has legislative power to exercise an override discretion where it decides the public interest "requires" disclosure of an otherwise exempt document. The courts have narrowly defined requires to mean necessitates or compels.

In NSW there is no specific legislative power in the relevant legislation but the Supreme Court (Nicholas J) in University of New South Wales v McGuirk [2006] NSWSC 1362 at [102] ended years of uncertainty and differing decisions by tribunal members when it decided that the Tribunal had the same discretion as the original decision-maker in every case where a document has been found to be exempt: that is to consider whether disclosure or non disclosure was the correct and proper decision, consistent with the objects of the Act.

In IPART v Services Sydney [2008] NSWADTAP 79 the Tribunal Appeal Panel has qualified the effect of the McGuirk decision. Although not the central point in the case, the Appeal Panel decided [46] that the discretion did not extend to documents found to be exempt under clauses 1, 2 and 4- "restricted documents" in the language of the NSW Act.

The main issue before the Appeal Panel was the interpretation of the NSW FOI Act concerning Tribunal review powers when an agency has decided that a document is exempt under clauses 1,2 or 4 .The Act (Section 57) states that the Tribunal is to consider and decide whether there are "reasonable grounds for the claim." The issue was whether Section 57 was a specific contrary provision that ousted the more general Tribunal powers on review set out in Section 53 of the Administrative Decisions Tribunal Act:to make the "correct and preferable " decision on the status of the document, that is undertake full merits review of the original decision.

The Appeal Panel [33-45] accepted a submission that the High Court in the McKinnon case had established a relevant precedent for what constitutes a ‘reasonable grounds’ inquiry. That case involved consideration of what the law required when review was sought of a decision to issue a conclusive certificate - whether there were reasonable grounds for the claim.There was enough said in the judgments of the majority to satisfy the Appeal Panel that the High Court had accepted that when an act set out two different procedures for review Parliament meant the more particular to limit the more general. That is where the NSW FOI Act stipulated a "reasonable grounds" review for a decision that a document was exempt, this served to limit the Tribunal's general powers to undertake full merits review of the decision.

In my opinion full external merits review of decisions to refuse access should be available for all exemption claims. The Federal Government appears to have accepted this and has a bill before Parliament which will achieve this result. What an irony that the significance of the High Court's decision in McKinnon will wane in the Federal arena as a result, but in line with this Tribunal decision will continue to limit full review in NSW of any decision to claim documents as exempt as cabinet documents or, of even more concern, of documents claimed exempt under Clause 4 (law enforcement and public safety), an exemption used very frequently by NSW Police. All this in a state where the Premier has announced the end of secrecy and plans to turn the Freedom of Information Act on its head.

The NSW Ombudsman's review report didn't include any commentary or specific recommendations on these matters. The Premier should commit, in the new Open Government Information era, to full merits review for all exemption claims and to an override discretion for the external review body.

Freedom of Information Conclusive Certificates for Senate Committee hearing this week.

The Senate Finance and Public Administration Committee has a half day scheduled this Thursday for a hearing on the abolition of conclusive certificates bill. The line-up of witnesses is here (PDF 7KB). The hearing was bumped from last Thursday as a result of the Senate's close interest in the Government's plans to spend $42 billion. A week is a long time, as they say- last week then Deputy Secretary (Governance) of the Department of Prime Minister and Cabinet Mike Mrdak was down to appear.He's now off on other things having since been appointed Co-ordinator General in charge of herding cats for the management of expenditures associated with the economic stimulus package(s).

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...

Senate Committee not deluged by submissions on FOI.

Only four submissions have been received to date (the deadline was 7 January) by the Senate Committee on Public Finance and Administration in connection with its examination of the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008. Holidays and all that, and the general feeling that abolishing conclusive certificates is so self-evidently sensible there isn't much to be said probably explain this low level of interest or concern.

Unsurprisingly, Australia's Right to Know (PDF 111KB) and the Australian Press Council (PDF 249KB) want more reform than the Government is proposing. ARTK suggests a public interest override power for the Administrative Appeals Tribunal. The APC is critical of the blanket exemption for documents received by a minister from specified security agencies and wants more wholesale changes to the exemption provisions generally, and changes to fees.

The Public Interest Advocacy Centre (PDF 202KB) also questions the lack of any harm test for the exemption of documents received by a minister from security agencies (Haneef a case in point) and why the Inspector General of Intelligence and Security should be required to give evidence in the AAT before any finding that disclosure of a document would not harm international relations:

"While the Inspector-General.. may be qualified to provide expert and
independent evidence in respect of national security or defence documents, PIAC is not convinced that the Inspector-General .. is qualified to give evidence in answer to
questions of whether disclosure would affect international relations, nor with general questions of confidentiality."

The Federal Privacy Commissioner (PDF 43KB) sees a small privacy issue but is prepared to overlook it.

(If you have trouble opening the pdf files-as I did initially- try accessing them through the Senate Committee link referred to above.)

I doubt if the Government will be much interested in going any further at the moment than what is proposed in the bill (more's the pity). The points made in the submissions are mostly reasonable, but roll on the bigger reform picture- at least the discussion paper "as soon as practicable in 2009", promised by Minister Faulkner.

ACT FOI reform two-step.

The new ACT Legislative Assembly sat for three days last week, the first substantive sittings since the election that resulted in the return of the ALP Stanhope Government, formed only through the support of The Greens who hold the balance of power.Three days produced two Freedom of Information Amendment bills-one from the Liberals Vicki Dunne, the other on behalf of the Government from Attorney General Simon Corbell. Both managed a second reading speech from the proponent but no further debate and the Assembly has now adjourned until February. The bills themselves are not up on the Assembly website. Dunne's speech contained little detail (Hansard 10 December 161-162) except it is largely a re-run of an earlier unsuccessful attempt at reform.

The Government's Bill (Hansard 11 December 285-287) would abolish conclusive certificates for cabinet documents and internal working documents (but not for documents that could attract the national security exemption). The reference in an Attorney General media release at the time that "the Freedom of Information Amendment Bill 2008 also proposes additional amendments to protect certain documents that ensure Ministers can fully exercise their responsibilities to the Assembly and its committees" turns out to be new proposed exclusions from the Act for question time briefings, incoming government briefings, annual estimates briefs and cabinet notebooks. The Attorney General used the Queensland Solomon Report and that government's plans to do the same thing as justification, arguing

"that to preserve and promote individual ministerial responsibility, to ensure free, fearless and frank advice, certain communications between government and its public service advisers must be protected. This reinforces the personal, individual responsibility of ministers and their ability to govern effectively and to account to parliament and its committees appropriately. It is in the public interest to preserve the confidentiality of this kind of advice. We all know when in government that the effectiveness of these documents is compromised by the knowledge that such documents may be disclosed under the legislation as it currently stands."

Do we? Are blanket exceptions of this kind vital to enable ministers "to govern effectively and to account to parliament and its committees appropriately."Don't current exemptions work satisfactorily to ensure sensitive information (of the cabinet-notebook variety, for example) is protected from disclosure? And no explanation for acting on these issues in advance of the comprehensive review planned for next year.

The Greens who get to call the shots might have some interesting issues to weigh when the Assembly resumes.

ACT to abolish most conclusive certificates.

The ACT Government will introduce legislation in the Assembly on Thursday to amend the Freedom of Information Act to abolish conclusive certificates except in respect of documents claimed exempt on national security grounds.This stops short of the total abolition proposed by the Federal and Queensland governments, although in both those cases the national security exemption will remain tight.

All will be revealed on Thursday about this additional point in the ACT announcement :"The Freedom of Information Amendment Bill 2008 also proposes additional amendments to protect certain documents that ensure Ministers can fully exercise their responsibilities to the Assembly and its committees."

Just say it isn't so, Malcolm

Malcolm Turnbull www.smh.com.au
In The Spycatcher Trial (Heinemann Australia 1988) a young Sydney barrister, Malcolm Turnbull, fresh from a notable court victory to allow publication of the memoirs of the late Peter Wright formerly of MI5, says " this book chronicles the greatest adventure of my life." The dust jacket says at the time Turnbull took on the case, the UK Government, and the Official Secrets Act, "he had a one percent chance of winning", and that his "brilliant cross-examination of British Cabinet Secretary Sir Robert Armstrong.. turned the trial in favour of Wright and made Spycatcher an international bestseller." Turnbull successfully argued the case on several grounds including that no injunction should restrain disclosure of information that the public interest required to be revealed, such as the illegal activities of British intelligence agencies.In the final chapter Turnbull says "Britain's absolute doctrine of official secrecy and its cynically inconsistent application has much more in common with the practices of the Soviet Union (RIP) than with those of its intelligence partners among Western democracies."

Turnbull, now Leader of the Opposition, could be expected to have strong views about excessive secrecy closer to home (how comfortable was he as a minister in the Howard Government?) and to support Senator Faulkner's bill to abolish conclusive certificates. But according to Matthew Moore in the Sydney Morning Herald on Saturday, the Opposition played a key role in ensuring the bill was wheeled off to a Senate Committee for four months, and remains uncertain about its position on abolition:

"So does the Opposition support scrapping conclusive certificates? Apparently, it doesn't yet know. George Brandis is the Opposition member with responsibility for FoI. His adviser, James Lambie, says the Opposition policy position on the proposal is "to await the Senate committee's report". He said while the Opposition doesn't have any "in principle objections to removal of conclusive certificates", it can't say it supports the move. Given that state governments have by and large got rid of conclusive certificates from their FoI laws, it's hard to imagine which stakeholders want them retained in the federal law and why the Opposition wants an inquiry - unless some members are concerned about the immediate impact the change might have.

One effect of the bill is that certificates issued previously will be revoked if and when a new FoI request for documents covered by a certificate is received. That retrospective revocation of certificates could see the release of bundles of sensitive documents, including Treasury documents, that members of the Howard Government assumed would be secret forever. If there is any such sensitivity, expect to see it in the face of Mitch Fifield, deputy chair of the committee investigating the bill and the former senior political adviser to Peter Costello until 2003 at just the time the former Treasurer was busy issuing conclusive certificates."

Can someone make sure The Spycatcher Trial is in the stocking for those opposition senators looking for a little reading over the christmas break?