Page 350 - Week 02 - Thursday, 8 March 2007
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Just in case anyone thinks my opinion on this bill is just me going off on a Green frolic, here is what yet another legal expert, Professor HP Lee, had to say about the review provisions that the Attorney-General assures us are “appropriate”:
In the wake of the Court’s decision the power of a tribunal to question the appropriateness or legitimacy of a certificate is effectively confined to deciding whether or not the decision to issue the certificate was irrational or absurd. In other words, it will in practice be impossible successfully to challenge a Minister’s decision to refuse to disclose information, even where such information should rightfully be in the public domain.
South Australian Senator Linda Kirk, another of the Attorney-General’s Labor colleagues, had this to say about conclusive certificates in a parliamentary speech:
As most of us are aware, the strength of our democracy rests on the ability of citizens to cast an informed vote at the ballot box and in order to do this information is the key. But there appears to be a predisposition within the higher levels of the Australian government to favour secrecy and nondisclosure—that is, a culture of suppression of information has become endemic. It is for this reason that we have freedom of information laws. Without accountability there cannot be confidence that the executive government and the public servants who serve the executive are doing the right thing.
However, the High Court decision last year in McKinnon v Secretary, Department of Treasury has resulted in the 24-year-old FOI Act being rendered virtually useless in gaining access to sensitive government material. The High Court found that ministers such as the Treasurer can issue conclusive certificates if they have reasonable grounds to argue that the disclosure would run counter to the public interest. All justices of the High Court found that there was no provision under the existing FOI Act for a review of the merits of a minister’s decision to issue a conclusive certificate. Indicating the unbalanced nature of the test, two justices of the High Court stated:
… so long as there is anything relevant to be said in support of the view that disclosure would be contrary to the public interest, an applicant … must fail.
In other words, any old excuse will do when it comes to denying access to these documents. It does not matter if it contains little weight just as long as it contains some weight, and it does not matter if there are countervailing arguments, even if they are of far greater weight in favour of giving access. So, instead of promoting access to government material, FOI has been left to the sole discretion of the relevant minister. This creates unlimited potential for the abuse of the conclusive certificate process. Trust us! The government says, “Trust us.” That is why we should not criticise what looks like an opportunistic grab for power justified on the grounds that the federal coalition gave itself the power.
Is that our new benchmark for best practice governance? The Howard government wants these powers because it wants to be able to continue to lie to the electorate about things such as children overboard, weapons of mass destruction and immigration department collusion with Indonesian and Sri Lankan officials. Conclusive certificates under the exact same provisions we are debating today could
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