Page 645 - Week 02 - Wednesday, 11 February 2009
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I do not dispute that there are occasions when public servants should be able to give frank and fearless advice—on paper, as opposed to over the phone or in face-to-face briefings—with a reasonable assurance that their exact words will be kept confidential. But I do not accept the government’s proposition that we should create new classes of documents that cannot ever be provided under the FOI Act. The ground has shifted and the government must catch up.
If the laudable reforms promised by Senator Faulkner and Prime Minister Rudd ever see the light of day, the ACT will stand out as having not only one of the most secretive and restrictive release of public information regimes in this country or in the rest of the Western democratic world, but also we would compare poorly with many countries that we are not used to comparing ourselves with. In numerous reports, the regression towards state secrecy and the increased surveillance and coercive powers brought in under the pretext of the so-called “war on terror” by President George Bush and Prime Minister John Howard has ranked us amongst non-democratic and highly autocratic countries in terms of openness of government decision-making processes. This is a trend we should be working against as diligently as we can.
Public servants are encouraged to be more professional and objective in undertaking their roles if they know that affected parties, independent experts or journalists may one day subject their work to scrutiny. Transparency in decision making removes the temptation to cut corners or advance cynical or fallacious arguments rather than a well-reasoned case for particular policy positions. If a government decision has been made well, there is no reason to fear the public seeing those documents.
I am not saying that these practices exist in the ACT public service. We are fortunate that most public servants, and most FOI officers, perform their duties with diligence, competence and care. But it would be folly to deny that undesirable practices thrive under the cloak of secrecy.
As we take these first steps to consigning conclusive certificates to the dustbin of history in this jurisdiction, I would like to take a moment to reflect on how low this jurisdiction was dragged under their influence. The 2006 High Court decision in McKinnon effectively destroyed all grounds of review or oversight over the issuance of conclusive certificates. After McKinnon, a minister could withhold documents, safe in the knowledge that their grounds for doing so would never be subjected to an independent objective assessment.
Such powers strike at the heart of representative democracy, where the judiciary has the constitutional responsibility to oversee the probity of the executive. Accordingly, when this Assembly reviews FOI legislation, it should include in its upcoming inquiry into freedom of information whether the ACT should pass specific legislation overturning the effects of McKinnon in the ACT to the fullest possible extent.
Chief Justice Gleeson and Justice Kirby were on the bench in McKinnon, and they were both outraged by the reasoning of the majority. In a combined dissenting judgement they said:
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