Page 1346 - Week 04 - Tuesday, 27 March 2012
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This bill takes a major step towards bringing the ACT’s legislation into line with the commonwealth’s. The amendments in the bill follow the longstanding policy to align the territory’s FOI Act with the commonwealth’s.
Finally, in relation to the exemptions provisions, the existing exemptions for documents exempt under the commonwealth act and documents arising out of companies and securities legislation will be removed. These are effectively redundant, as the matters covered by each of these exemptions are covered by other existing provisions. Consequently, the removal of these provisions will have no noticeable effect on the operation of the act.
With regard to the removal of conclusive certificates, the removal of the effect of certain conclusive certificates is a continuation of the important reforms made in 2009 to withdraw the capacity to issue certificates for internal working documents, executive documents or documents affecting commonwealth-state relations. That earlier reform recognised that it is not appropriate to be able to issue certificates that prevent access to documents, in some cases even without acknowledging their existence, except in the most serious of circumstances.
For now, the government remains satisfied that there is one limited class of documents for which close protection is still appropriate—namely, those that affect national security, defence and international relations. This is reflected in new section 35 of the bill. As was discussed in the government’s response to the committee’s inquiry into the operation of the act, it is entirely possible that the territory government could come into the possession of such documents. When this is the case, it may be inappropriate for the territory to disclose or even to acknowledge the existence of such documents. The reality is that the facility of conclusive certificates in this area, while likely to be rarely called upon, is nevertheless appropriate to protect the interests of the Australian community, not just those of the territory.
Otherwise, as discussed in the bill’s introduction, these amendments seek to remove all remnants of conclusive certificates issued for internal working documents, executive documents and documents affecting commonwealth-state relations. The Freedom of Information Amendment Act 2009 amended the act to remove the capacity to issue conclusive certificates prospectively for executive documents and documents affecting commonwealth-state relations.
Subsequently, my directorate has been advised by the Government Solicitor’s Office that any certificates issued under these powers prior to the abolition of the capacity to do so would remain in force. In view of that advice, this bill will revoke any such certificates with the effect that the document they previously covered will be treated like any other document requested under the act at any point in the future. This amendment demonstrates that the government, in good faith, now takes the position that it is not appropriate to hide behind conclusive certificates to withhold information about the administration and governance of the territory. It is integral to democratic processes that the community has sufficient access to, and knowledge of, the workings of government. The revocation of these conclusive certificates completes
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