Page 658 - Week 02 - Wednesday, 11 February 2009
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However, we are about to embark upon a broad-scale inquiry into the administration of the Freedom of Information Act and it may be that there is a body of evidence that comes forward that says that this is an appropriate course of action. If there is a body of evidence that says that this is an appropriate course of action, then the Liberal opposition, the Canberra Liberals, will reconsider their position. But at the moment there is no evidence that we need to go down this path. This is not closing the door as far as we are concerned. This is looking at it the right way, considering the options, considering the experience of 20 years here and 25 years in the commonwealth and seeing whether this course of action is necessary. That is why we are opposing this amendment.
It is interesting, because I understand the Greens are taking a slightly different approach. I gather from the conversations that I have had that they are proposing to support this amendment and then, if the recommendations of the inquiry say that it is unnecessary, they are prepared to un-exempt it. It is a different way of skinning a cat, I suppose. I think that our approach is principled and is consistent with the approach that we have taken. We are going to listen to the community and the experienced practitioners and look at the law and the practice and see whether this is necessary.
Over the past 20 years, the sky has not fallen because the cabinet notebook is not an exempt class of document. I do not think the sky will fall in the next year or so during the course of this inquiry. This is why we are not prepared to support this amendment.
MR RATTENBURY (Molonglo) (4.00): I would like to speak briefly to this proposed amendment from the Attorney-General. It is a challenging amendment. Certainly my office and I have spent some time considering it. The analysis that we have taken has brought us to the conclusion that the government’s proposed amendment will create a new class of FOI documents. I do not know if the Attorney appreciates that he is creating a new FOI provision that I am not aware of existing anywhere else. It goes beyond the scope of a conclusive certificate and actually makes this class of document unable to be provided under the FOI act, if we are reading his provision correctly.
A minister will no longer have the discretion to argue or certify that the document falls within one of the exemption provisions. Under this amendment the documents are simply not even assessed under the act; they are simply not available. Whether the documents even belong in the category of cabinet notebooks is unable to be tested, and it is this aspect of the amendment that I have serious concerns with.
The existing exemption provision for cabinet documents is already extremely strict and there is ample case law to demonstrate that such documents would only be released under the most extreme of circumstances. However, there are circumstances where even cabinet documents should be made publicly available, and I think it is interesting to cite one particular one that has come to light in recent times.
The example is the British Information Tribunal, which recently ordered the British cabinet office to release details of ministerial discussions about the legality of the invasion of Iraq. It appears to be the case that members of cabinet were actively
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