Commissioner Professor McMillan can take you back to his pre-FOI activist days, Dr David Solomon found FOI in his in-tray while working for Prime Minister Whitlam, AGS CEO Ian Govey's first job in AGD was with the task force developing legislation, and Alan Rose was a member of that group while at PM&C, and later president of the ALRC at the time of the Open Government report in the mid nineties.
(While on memory lane I was at the Australian Embassy in Washington from 1973 to 1976 when US experience with FOI, pre and post Watergate, was something Canberra wanted to know more about as it wrestled with the unknown beast.)
Alan Rose said the culture change recognised as necessary since 1982 is still to arrive.
He evidenced this with a number of examples of personal experience and drew attention to the refusal of access to plans claimed to justify a grant to a car manufacturer, and what was put to the government by lobbyists. Rose emphasised that the object advanced in the 1995 ALRC report that government information is a national resource must be taken seriously. Census material for example. More creative minds could do more with it. Real time access was essential. The closed period for government information should be reduced to something like five years to let our Bill Gates and Steve Jobs see what they could do to fully utilise government information for the benefit of all.
FOI Commissioner Dr Popple gave a generally positive account of how things are working-access was easier and cheaper, most agencies were doing reasonably well and "people are generally aware of their rights." (It turns out this is a "feeling" not based on anything more that frequent references in the media-I don't think government has done anything on the demand side for yonks.) However issues concerning delay and the OAIC model both require attention. The OAIC has received 4194 applications from agencies for extension of time, and 285 complaints and 872 review applications, all far in excess of what was anticipated.
Former Queensland Information Commissioner Julie Kinross provided a global perspective, noting in particular the rights focus clearly driving developments elsewhere, but barely heard here, and other forces at work promoting transparency including anti-corruption, environmental concerns, accountability and development assistance, and technology. Kinross highlighted the absence of any regional Asia Pacific right to information activity of the kind obvious in Europe, Latin America and other regions. Australia was well placed to play a role in this. (Why was I thinking about the OGP at this stage?)Professor McMillan spoke of the broadening information agenda and the need for a new open government policy framework. Roxanne Missingham, the former Parliamentary Librarian now in a similar position at ANU provided reasons for some urgency in this citing the dramatic decline in government publications listed in the National Bibliographic Database, and the limited retention of history (including government policy documents over time) on the National Library's Pandora system. She gave a spirited account of why leaving agencies to their own devices in this area was a grave error. And gave short shrift to copyright laws created in another era that are holding us back.
As to me, I had 10 minutes for Leading Cases?
Stephanie Forgie and Michael McKinnon should know I was only joking.
My notes, should you be interested-and it's not a list of leading cases.
Leading cases ?
Peter Timmins FOI 30 year Anniversary, Canberra 27 November 2012
You know it’s not possible.
Ten minutes, thousands of cases, 30 years,
looking for the standouts and noting some lemons on the way.
Of course the best way to come to grips
with the cases isn’t in a learned 10 minute paper.
Or a search on Austlii.
It is best done by gathering together FOI
decisions by Deputy President Forgie since her appointment to the AAT in 1988.
You will find in each a reference to every
case ever decided on the issues before her, all neatly distinguished on this
point and that.
And highly detailed analysis of every term
used in the act..
Including the, in and on.
But friends I want to draw attention today,
in the presence of people with heads crammed with case law, to how much useful
knowledge and wisdom created often at great public expense has had to be jettisoned
as a result of legislative change.
What a shocking waste of public money!
All that “ no leaning” from News
Corporation and the National Companies and Securities Commission, Searle and
PIAC, Cleary and Treasury rendered useless apparently- after all it’s still
early days- by a reformulated objects section that makes no reference to the
exemptions and whose words form part of the public interest test .
The
Parliament intends, by these objects, to promote Australia’s representative
democracy by contributing towards the following:
(a) increasing public participation in Government processes, with a view
to promoting better-informed decision-making;
(b) increasing scrutiny, discussion, comment and review of the
Government's activities.
(3) The Parliament also intends, by these objects, to increase
recognition that information held by the Government is to be managed for public
purposes, and is a national resource.
(4) The Parliament also intends that functions and powers given by this
Act are to be performed and exercised, as far as possible, to facilitate and
promote public access to information, promptly and at the lowest reasonable
cost.
Then there are those among you steeped in
the intricacies of the scope and meaning of personal affairs.
Replaced these days by the simpler but more
expansive personal information.
No place now for detail plucked from
Young and Wicks, Dyrenfurth and Williams and the AAT
But Chandra and Colakovski can still come
in handy. “Unreasonable” disclosure survived the cut.
The ins and outs of conclusive
certificates went straight out the door in 2009. Much of Burchill, Searle, Bracken
and of course the High Court in McKinnon
v Secretary Treasury was rendered useless by repeal of the certificate
provisions.
Reflecting on the law, where
would we be without McKinnon?
Michael, the indomitable, that is.
Stephanie Forgie has sat through quite a
few Mckinnons as they affectionately are known.
She would tell you the dictionary meaning of that word:
"Incapable of being overcome,
subdued, or vanquished; unconquerable."
The Deputy President of the AAT and FOI
officers who deal with Michael or end up in the witness box when he
self-represents can attest to the aptness of the term.
When I asked him for
suggestions about leading cases, who would be surprised that he reeled off
McKinnon and
Finance and Deregulation
(numerous)
Treasury (numerous)
Families, Housing, Community
services and Indigenous Affairs
Prime Minister and Cabinet (numerous)
Foreign Affairs and Trade
Health and Ageing
Great Barrier Reef Marine Park
Australian Taxation Office
Civil Aviation Safety
Authority
Australian Postal Authority
And Comcare.
That’s before
he paused for breath.
But I have to move on.
Jack Waterford has his own
personal FOI casebook, mostly from
earlier times featuring many battles involving the same arguments and same agency
adversaries.
And of course, looking
through the names, where would we be without Howard?
John that is.
I didn’t check favourite
cases with him.
But the eponymous case he
lost in 1985, ironically when challenging a Paul Keating as Treasurer
conclusive certificate might have been his best case choice.
The written decision in
those days didn’t record counsel representing.
Some here may know but references
by Justice Davies to “Mr Howard submitted” suggest he may have self
represented.
He may have been quietly
pleased at losing because when elected in March 1996 his government had on the
table the ALRC Open Government Report completed in December 1995.
And it didn’t act in the next
11 years on any of over 100 recommendations including selective abolition of
conclusive certificates, his bête noir in the 1985 case.
Re Howard and Treasurer of the Commonwealth
was not the first case to feature language and terms lifted straight from the script
of Yes minister.
Re Peters and Department of the Prime
Minister and Cabinet (1983) 5 ALN No.218, Re Waterford and Department of
Treasury, , Re Murtagh and Commissioner of Taxation, , Re Chandra and Minister
for Immigration and Ethnic Affairs (1984) 6 ALN 257, Re Burns and Australian
National University and Re Lianos and Secretary to the Department of Social
Security were all warm-ups for the main event.
The Howard factors- public interest
considerations against disclosure:
The higher the office-holder
involved
Related to policy making
Need for frank and candid advice
Disclosure could mislead, cause
confusion and unnecessary debate resulting from
disclosure of possibilities considered”
Dsclosure would be unfair to the decision
maker.
These came to be favourites within government for 15 long
years. Almost statutory in their application.
Remarkably given the
many qualifications Justice Davies made about the tentative
nature of his views, their significance for FOI drawn as they were from executive privilege cases, and that it
was early thinking on the subject.
Most were taken up
enthusiastically by decision makers and many repeatedly affirmed in AAT and
court decisions.
Victorian jurisprudence paid
them even more respect.
Sir Humphrey if he had been with us on
extended leave through the period would have smiled particularly at the public
interests claimed in avoiding confusion and unnecessary debate and people might
misunderstand the information.
As Sir Humphrey put it:
'There is a well-established government
procedure for suppressing -- that is, not publishing -- unwanted reports.' 'You
discredit them,... Stage one: The public interest 1) You hint at security
considerations. 2) You point out that the report could be used to put unwelcome
pressure on government because it might be misinterpreted. Of course, anything
might be misinterpreted. The Sermon on the Mount might be misinterpreted. If
the Sermon on the Mount been a government report, it should certainly not have
been published on the grounds that it was a thoroughly irresponsible document:
the sub-paragraph suggesting that the meek will inherit the earth could, for
instance, do irreparable damage to the defence budget.”
Of course most of the Howard
factors including these were put in the not relevant basket as a result of the 2010
amendment legislation.
The
following factors must not be taken into account in deciding whether access to
the document would, on balance, be contrary to the public interest:could result
in embarrassment to the Commonwealth Government, or cause a loss of confidence
in the Commonwealth Government; access to the document could result in any
person misinterpreting or misunderstanding the document; the author of the document
was (or is) of high seniority in the agency to which the request for access to
the document was made; access to
the document could result in confusion or unnecessary debate.
On that last point I’ll let pass-as I’m
sure decision makers are- the lack of any specific mention of “premature”
debate as an irrelevant consideration.
However those old FOI friends Frank and
Candid from the Howard era survived the reform period.
And who knows they may be about to
prosper.
Some tribunal members were impressed by
Frank and Candid.
Two
High Court judges in McKinnon v Treasury gave them
a tick as a reasonable consideration to take into account in issuing a
conclusive certificate
Applicants might cite Justice Mason in
Sankey v Whitlam to the effect that the argument that disclosure will result in
want of candor in advice given by public servants “is so slight it may be
ignored.” And that the possibility of future publicity might “act as a
deterrent against advice which is specious or expedient.”
And point to the 1979 Senate committee observation
that “one must seriously question after Sankey and Whitlam whether candor in
internal communications can hereafter be relied upon as a public interest
consideration.”
Deputy President Forgie with a
withering gaze maintained the line “show me the evidence” and showed agencies
the door on this one when nothing much could be shown.
in McKinnon v Prime Minister and
Cabinet she devoted hundreds-thousands of words –pointing to the Public Service
Act, Public Service Values, and Guidance from the Public Service Commission and
National Archives espousing how public servants should/must undertake their
work by providing frank, honest and impartial advice. And that oral advice
should be recorded.
Frank and candid had great extra-curial
support from Peter Shergold, Ken Henry and Terry Moran who told everyone who
would listen that advice had to be kept confidential presumably for close to 30
years or thereabouts and that the very Westminster system depended on it.
Despite the fact that confidentiality
hasn’t been assured since 1982, and that parliament decided all those years ago
that it should remain confidential where this would serve the public interest.
As if by magic-but we know its nothing
of the sort- Frank and Candid are back in business. And maybe, about to resume
center stage.
Of all the things the
Attorney General could have suggested the Hawke review of the FOI act should consider
that didn't rate a specific mention, this did:
“the reformulation of
the exemptions in the FOI Act including the application of the new public interest
test taking into account… the necessity for the government to continue to obtain
frank and fearless advice from agencies and from third parties who deal with
government.”
So in conclusion, history suggests ‘leading cases” can be an ephemeral
concept.
My advice is don’t discard those old papers, notes and names of cases
and the Yes Minister scripts collected over the years.
You never know what may come in handy in the years ahead.
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