Page 2045 - Week 06 - Thursday, 7 May 2009
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of public interest immunity, the government never actually undertakes that test of balancing the competing public interests in releasing or withholding the documents. They simply fail to recognise that there is any benefit in letting the public know the reasoning behind why their schools were closed, their services were cut or their taxes were raised. Nor were the government’s interpretations and selective quotations from authorities like Egan v Willis or Egan v Chadwick ever questioned. It would be regrettable if the government now think that they can make every embarrassing document immune solely on the basis that it has been wheeled into the cabinet room, discussed in cabinet or merely stapled to a cabinet submission.
The government correctly identifies that, in the absence of legislation made pursuant to section 24 of the Australian Capital Territory (Self-Government) Act, the ACT Assembly shares the powers and privileges of the British House of Commons. But even the minutes of cabinet proceedings in the UK have been found by the information commissioner to fail the public interest test, because the public interest in keeping them secret would be outweighed by the public interest in letting the public know what information was put before cabinet, when the decision was made to wage war on Iraq and what spin was put on information by particular cabinet members. Compared to those documents, the functional review is way down the scale of documents which prima facie attracted public interest immunity.
There is no dispute with the government’s submission that documents which record actual deliberations of cabinet prima facie attract the public interest immunity. Their submission then contains a quote from the High Court case of the Commonwealth v the Northern Land Council, where the court found that the release of documents prepared outside cabinet for submission to cabinet may or may not, depending on their content, be inconsistent with the doctrine of collective cabinet responsibility.
Unsurprisingly, the government’s submission does not dwell on the “may not” aspect of this quote. It goes on to boldly assert that the very distinction drawn by the High Court may be misconceived. No contemporary authority is given for this proposition, because none exists. The upshot of this argument is that any document which is merely considered by cabinet should attract executive immunity, because a comparison between its content and the final cabinet decision would indirectly reveal the workings of cabinet. This is a proposition that has been rejected, not only by the courts, but also by the Labor Party’s federal colleagues.
The proposed changes to the release of information contained in the federal Labor Party’s exposure draft bill specifically reject this notion, and it is entirely possible that the functional review would not even attract an exemption as a cabinet document under federal Labor’s proposed FOI laws. The obligation to release documents to the Assembly is far stricter than the administrative law obligations under FOI. Most exemption categories under FOI laws do not even apply to the production of documents called for by a legislature.
After asserting that the High Court and, by implication, their federal Labor colleagues have got it wrong by drawing a distinction between documents which directly reveal cabinet deliberations and documents which were considered by cabinet, the
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