Page 646 - Week 02 - Wednesday, 11 February 2009
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Logically, the view of the majority in the Full Court appears to mean that, 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 for review under s. 58(5) must fail. We cannot accept that … How, then, could an applicant ever succeed?
I think this is the important question that the judges were referring to. They continued:
If it were enough for the Minister to point to one facet of the public interest that is served by non-disclosure, then it would be enough to say that non-disclosure preserves confidentiality. Of course it does. By definition, a facet is one side of something that has many sides. Looking only at a facet of an object is a necessarily incomplete way of looking at the object. Looking only at a facet of the public interest is a necessarily incomplete way of looking at the public interest.
I think those were very powerful words stated by those two judges of the High Court. Assessing applications under the Freedom of Information Act is always a balancing act between public interest reasons for and against releasing a document. The McKinnon case removed any semblance of proportionality to the balancing process.
If this government here in the ACT is in any doubt as to why the Liberals and the Greens are somewhat sceptical about the need for the total exclusion provisions suggested by the Attorney-General, it might pause to consider the fact that when it had a majority in the last Assembly it actually cited with approval the reasoning in McKinnon and used the federal government’s secretive practices as a justification for copying them in the ACT.
After this bill takes effect, a conclusive certificate provision will remain in place for documents that may affect national security or international relations. I have been told that the commonwealth intelligence and security organisations will refuse to share sensitive intelligence information if we do not have a conclusive certificate provision to ensure that such documents will never be made public.
I do not have a problem with measures designed to protect information which is honestly defined as national security information. Of course, that is in the national interest. But I do not accept that ministers should have the last word as to whether documents can accurately be described as falling into any particular class of exempt document. We have seen too many instances where even national security information has been misused and twisted to suit the interests of the government of the day. Subjects such as the Solicitor-General’s legal advice regarding the MV Tampa and Australia’s obligations under international maritime law, the truth about so-called “children overboard”, the fictitious case against Dr Haneef, the existence of weapons of mass destruction in Iraq and issues of al-Qaeda’s links with Saddam Hussein, and the rendition or illegal kidnapping and torture of Australian citizens by US proxies are all subjects that could be claimed to be exempt, because exposing the lies and incompetence of our allies may damage our international relations with them.
If these issues and the related information on which Western governments were basing both their policies and their propaganda were made publicly available, it is
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