Page 3919 - Week 13 - Wednesday, 5 December 2007
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Far from reviewing the freedom of information system to promote transparency, it has raised to the level of an art form the abuse of the system to hide from accountability, to quash potentially embarrassing information. In particular, it has cynically used loopholes to sabotage the extensive review provisions built into the existing legislation.
The worst example of this has been the abuse of conclusive certificates. These certificates were intended to be used in exceptional circumstances for documents that are so sensitive that not even the reviewer can see them—things such as national security matters. But emboldened by the decision in the McKinnon case last year, the Stanhope government have used them for documents that they did not want the reviewer to see because if the reviewer saw them it would be obvious that there was no basis for their suppression.
Towards 2020 is a prime example of how the government has become an abuser of the FOI system. Literally thousands of pages of school closure documents were suppressed out of pure political cynicism. I have come to the conclusion that the only way to make FOI work in the ACT is to remove the mechanisms for conclusive certificates as they relate to territory documents. Frankly, I do not believe that there is any legitimate use for them in a place like the ACT in relation to cabinet or internal working documents, and it is not something that this government can be trusted with.
This bill puts the process under closer public scrutiny by taking away a minister’s power to issue conclusive certificates. In doing so, the Canberra Liberals are seeking to create a fairer and more transparent government, while the Stanhope government is running in the opposite direction.
Part 1.4 of the schedule amends the Law Officer Act 1992. It gives recognition to the ACT model litigant guidelines. Clause 1.24 gives new powers and responsibilities to the Attorney-General to ensure that legal work that he oversees is done in a proper fashion. Clause 1.25 requires the Attorney-General to produce and publish model litigant guidelines and requires that all people performing territory legal work comply with the guidelines. These published guidelines would be a notifiable instrument. This is not an onerous task for the attorney, because model litigant guidelines already exist and they mirror the commonwealth model litigant guidelines. But this raises those guidelines to a new status where they have more effect.
The new part 5AC of the principal act, the Law Officer Act, requires the chief executive of the attorney-general’s department to report on compliance with the model litigant guidelines and report any breaches that have been brought to the public’s attention. Again, this is a simple change that makes sure that the people serving the public are doing just that, whether they are public lawyers or people employed by the public on behalf of the ACT government, so that they are actually serving the people who are paying for them.
As I have said, the model litigant guidelines already exist. This legislation raises their status in a way that ensures that people will have a better regard for the operation of the model litigant guidelines. In a sense, it does not create much new work for the attorney, but the passage of this bill will create an opportunity for a review of the model litigant guidelines, to have them published and to give them status. It would be
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