Page 348 - Week 02 - Thursday, 8 March 2007
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Where he is on shaky ground is in his championing of conclusive certificates which cannot be effectively reviewed by an independent non-partisan, non-political arbiter. I do not have time to examine every detail of this bill, so I will focus largely on conclusive certificates, as this is the least defensible aspect of these amendments.
In his reply to the report of the scrutiny committee the minister states that the limitations on the right to freedom of expression are justified because the aims are necessary to ensure the security of ACT citizens and others. Well, yes, the aims are commendable; it is the means which leave a lot to be desired. They are not necessary and they are not the least restrictive mechanism available. While an oversight mechanism is available it applies only on the narrowest possible grounds.
The minister, or perhaps his advisers, tell us that “this is an appropriate threshold for oversight and that it reflects the analysis of the High Court in McKinnon”. This is a particularly disturbing statement, given that the oversight mechanism contained in this legislation would be best described as the most restrictive mechanism available.
The High Court’s decision in McKinnon has reduced AAT review of the issue of a conclusive certificate to the level of farce. If the minister does not know this I suggest he seek an urgent briefing on McKinnon either from his department or from an independent public law expert. If he does know the effect of McKinnon he is being deceptive in pretending that this amendment represents an effective avenue of review. Writing in the Press Council News this is what Professor HP Lee said about conclusive certificates and McKinnon:
Through the lens of a public lawyer, the narrow decision in McKinnon may be viewed as a calamity ...
The majority Justices, in practical effect, have given the government of the day carte blanche to deny information to the people according to its whims and fancies. The servant of the people has, by a narrow judicial philosophy, become the people’s master.
Michael McKinnon is the freedom of information editor for the Australian newspaper. He began his seemingly innocuous quest for information on bracket creep and apparent fraud back in 2002. Because it would cause political embarrassment, Treasurer Peter Costello spared no public expense in defending the public’s right not to be told the extent to which it was paying more tax through bracket creep and the extent of fraud in the first home owners grant scheme.
Late last year the High Court finally handed down its decision in McKinnon, and the Howard-appointed majority agreed that the Treasurer had a right to decide what was and what was not in the public interest, and that his view did not have to be persuasive, logical, or even vaguely credible.
The analysis in McKinnon means that if there are predominantly and overwhelmingly probative reasons why the release would be in the public interest, a minister has the right to sign a conclusive certificate if they can dream up one credible reason why it would not be in the public interest—one vaguely credible reason. Anyone who has anything to do with the FOI Act knows that determining the overall public interest is
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