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Friday, June 06, 2008

Slowly, slowly for FOI reform

Three Freedom of Information issues were raised in the Senate Estimates Finance and Public Administration hearings on 27 May(transcript pages 93-96). All in all, government responses were disappointingly laid back and indicate that even basic questions on whether there will be public consultation on the detail of reform proposals are yet to be addressed.

Welcome to FOI land:
Former Howard Government minister, Senator Abetz said he was "horrified " he received an FOI determination refusing access to some documents (in relation to the Bracks review of the car industry) from the Department of Prime Minister and Cabinet that had been made by the officer who had responsibility for the matters covered in the documents:"I would have thought in anybody’s language it would be a huge conflict of interest that you can sit on judgement on your own documentation as to whether it should be revealed under a freedom of information request."However according to the Department, this is routine:" the officer who is familiar with the documents is the one to examine the files and generally be the decision maker. But all exemptions are discussed more centrally in the department so that no decision maker would feel free to claim an exemption that did not have in the department’s view a sound base."Senator Abetz pointed out the decision maker "was the author, the personal author and personal recipient of documents. We are not talking about some knowledge of the documents, some contact with the documents. He was the author and recipient of documents and then deleted something in relation to those documents. That is a lot different and, I would have thought anybody would say on the face of it, a clear conflict of interest, but Prime Minister and Cabinet does not think so.
Ms Belcher—I will have a look at the case. I am not familiar with it personally."

FOI reform-still thinking, exposure draft "an option", 2009 not out of the question
Senator MURRAY asked Cabinet Secretary Faulkner where "we are with the development of the new FOI legislation?
Senator Faulkner—At the moment, as the minister responsible, I am working as assiduously as I can on these issues within government. Government, as you know, has a clear policy position on these matters, and I am working as hard as I can in terms of ensuring that those commitments are implemented.
Senator MURRAY—I want to compliment you on putting out an exposure draft of the lobbying code and then later on the final code. Is it your intention with the FOI legislation to do the same, to release an exposure draft—because it is an area of great interest and concern, and I am sure it will attract a Senate committee process? It might be best with an exposure bill rather than a final bill.
Senator Faulkner—That is certainly an option. These are obviously matters for cabinet’s consideration in the final analysis, as you would appreciate, but that is a serious option. I have to say to you, in relation to the Lobbying Code of Conduct, I think the process did work well. It is not something that we have seen much of at the Commonwealth level, but in this case I think what was a strong draft code was actually improved by that exercise. So I do understand the reasons that you suggest that that is one approach for the government to adopt. Obviously, current FOI decisions are being made under the existing legislative framework, as you
would appreciate.
Senator MURRAY— I had the impression... that you will try and complete your draft freedom of information bill this calendar year. There are some elements within the existing law on which your government already have settled policy, and I want to go specifically to the conclusive certificate issue. As I understand it, the amendment of the present provision allowing for conclusive certificates is a very easy one. It is effectively a deletion of that provision, but you may have other advice. Is it your intention or are you prepared to consider
moving an earlier bill to rid us of that pernicious mechanism, bearing in mind that, if you complete your draft bill for the overall legislation later this year, it might not pass into law until well into 2009, given the heavy legislative program you have got ahead of you.
Senator Faulkner—That is certainly an option. I appreciate the point that you make about conclusive certificates. I can say to you that the government had a clear policy on this issue, as you know, when it came to office. I think there is probably a lack of understanding in relation to the issue of conclusive certificates. Without a conclusive certificate, of course, there is still a full merits review by the AAT of exemption claims, as I know you are aware. The argument is that if conclusive certificates do not exist that is a significant step towards ensuring better accountability in government decision making on FOI requests. But, again, I appreciate the point that you make. But, in advance of a decision by cabinet, there is not a great deal more
about the process that I can really share with the committee....
Senator MURRAY— I am just concerned we make some progress rather than—
Senator Faulkner—I appreciate that. The point that you make is well taken.

Does the need for secrecy pass with time?
Senator MURRAY—I see FOI in kind of two sections. The first is what the law and the practice will be in future, because it is both a cultural and a legislative issue, and that will unfold when you produce your bill. The other is how to deal with the past and whether a line is drawn or whether previously refused FOI requests are capable of being revisited. I am not going to discuss that in general. I want to deal with a specific issue: the waterfront dispute. On 13 May
1998, the minister made a statement in response to the order of the Senate of 13 May 1998, partly on the basis of the sub judice convention. It was Senator Alston at the time. He seemed to indicate that disclosure of the documents was likely to contaminate the discovery process and prejudice all parties’ legal rights. The documents would be subject to confidentiality and the production of documents would be contrary to the sub judice convention. I am not certain as to what the statute of limitations is and so on, but it seems to me that the legal grounds that might have been there in 1998—10 years ago—and might have applied might no longer
apply. I am aware that there has been media debate and debate by leading members of the community about this issue. Has the government got any settled view on revisiting these areas which were refused—perhaps for reasons which are now time expired, such as being potentially sub judice or potentially subject to legal action?
Senator Faulkner—You asked me if the government has a settled view. To answer your question very directly, the government is yet to make a decision on existing certificates. You identify one certificate in particular in relation to the waterfront dispute. I understand the significance of that issue, but, because the government is yet to make a decision in relation to existing certificates, I am really not in a position to say how that more specific issue would be approached.
Senator MURRAY—I wonder whether you would consider taking this question on notice: is the
government of the view that the grounds that I outlined in general still apply in that the release of the documents at that time were likely to contaminate any discovery process and prejudice parties’ legal rights or be subject to the sub judice convention?
Senator Faulkner—I am happy to take it on notice....
Senator MURRAY— My view is that, if the legal grounds for withholding no longer apply because of the effluxion of time, the question is a policy one. Is it proper for them to be released? Do you simply draw a line under these events and leave it alone or not? It
was specifically withheld from the parliament chiefly on legal grounds. I think the effluxion of time might have done away with that."

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