Page 1639 - Week 05 - Thursday, 5 May 2016
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officials such as Sir Francis Walsingham. They were then strengthened by the enactment throughout the British Empire of official secrets legislation. A pervasive attitude developed “that government ‘owned’ official information”. This found reflection in a strong public service convention of secrecy.
Government secrecy did not evolve out of a desire to protect the public interest. Secrecy was compelled in order to protect the interests of the governing. However, we now know better. We know that mere assertions that certain government information should remain confidential should never be accepted. Governments elected or otherwise do not innately know best and there should always be a critical and independent assessment of what government information should be publicly released.
Governments are generally relaxed about giving access to information that they believe reflects well on themselves. The problem is that the current FOI act leaves the government in control of the most significant government information and ignores the obvious conflict of interest that exists in having the government itself decide what will and will not be available to the community.
In any other circumstance this basic conflict of interest would not be accepted. Access to government information should be based on an objective assessment of the best interests of the community and not the subjective interests of the individuals or party forming the government of the day.
If one looks across the different FOI laws in Australia, it is often the case that what is exempt in one jurisdiction is not exempt in another. For example, in relation to police and law enforcement information, both South Australia and New South Wales apply a public interest test to these documents and the Australian Law Reform Commission has recommended that a similar test should be applied in commonwealth law.
Yet in other jurisdictions, including the ACT, they continue to maintain an exemption for this information despite the fact that it is plainly detrimental to the public good to deny the public access to much of this information.
Sir Anthony Mason, former Chief Justice of the High Court, once said that:
It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticize government action.
Yet this is exactly the outcome permitted under the ACT’s current FOI act. Jack Waterford recently observed in the Canberra Times that “the ACT has the weakest FOI act in Australia, possibly the world”. Freedom of information is most often in the news for exposing misconduct or deception. However, FOI should also be about promoting engagement with the community and facilitating better public policy outcomes. When a government provides only selected information to the community, it inhibits, rather than enhances, government’s ability to govern in the community’s best interests.
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