Page 1340 - Week 04 - Tuesday, 27 March 2012
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John Fairfax and Sons Ltd. In that case, the court concluded that information should be withheld only if disclosure was inimical to the public interest.
Again the Solomon review stressed the importance of a single public interest test and whilst it did maintain a significant number of exemptions, many of which the Greens do not support, it also emphasised how problematic extensive exemption clauses were to FOI schemes. One submitter to that inquiry made the point well with the observation that the sentiments expressed in the objects clauses of the freedom of information acts were very much at odds with the pages and pages of exemptions later provided for.
The Greens agree with this and very much believe there should be clear statements of principle set out in the objects clause and elsewhere and that the act should be true to these principles. The interest that it serves should be the broader public interest and this can best be done by applying a public interest test to the particular documents in question rather than making the decision that extensive categories of documents should be excluded from the operation of the act simply because of the class they happen to fall in.
To illustrate the point, it is worth while looking to the New Zealand laws which, in many ways, are already more progressive than the model being proposed here in the ACT and which the New Zealand Law Reform Commission have said should provide an even greater level of transparency. The commission also made the observation that “class exemption contradicts open government”.
The Commonwealth Human Rights Initiative, in their submission to the Senate inquiry into the commonwealth reforms, strongly recommended against class-based exemption, noting that “such class exemptions are anathema to the third generation of access to information laws”. I mentioned earlier the importance of these reforms in the context of protecting human rights, and I would very much recommend that members take the time to look at the Commonwealth Human Rights Initiative submission.
Without labouring the point and noting that these issues will be extensively debated in the detail stage in the next sitting, I would like to highlight some additional examples that demonstrate the point. Firstly, in relation to police and law enforcement, the bill we are debating proposes that these documents be subject to a blanket exemption and not a public interest test. It is worth noting that both South Australia and New South Wales apply a public interest test to these documents and that the Australian Law Reform Commission recommended that a similar test should be applied in commonwealth law.
This is a significant body of law about the application of this test, and I would particularly draw members’ attention to decisions of the South Australian District Court, which is responsible for hearing applications for review of FOI decisions, as well as recent decisions of the New South Wales Administrative Decisions Tribunal, which has quite extensively considered the application of a public interest test to police and law enforcement documents.
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