Page 798 - Week 02 - Thursday, 12 February 2009
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .
governance of the territory but also to ensure that these laws are properly implemented and that decisions made by the government and the executive in the application of our laws are properly scrutinised not only to ensure that they comply with the laws but also the will of the people.
In Egan v Willis the High Court said:
A power to order the production of State papers is reasonably necessary for the proper exercise by the Legislative Council of its functions.
With due respect, the Greens fully endorse the High Court’s opinion in this matter. We need this mechanism to ensure that a fair process is followed in the exercise of this power and the Greens are very proud to be responsible for bringing about the adoption of this process. Whilst it will not overcome the problems experienced under majority government we hope that it is part of a cultural shift towards disclosure and openness and away from government secrecy. If the people of the ACT are not aware of the basis upon which decisions are made they cannot fairly judge the competence of the government and therefore representative democracy suffers.
In Egan v Willis Justice McHugh found:
It is the function of the Houses of Parliament to obtain information as to the state of affairs in their jurisdiction so that they can criticise the ways in which public affairs are being administered and public money is being spent. Under the system of responsible government, because the ministers of the Crown are responsible to parliament, the Houses of Parliament are entitled to require those ministers to provide to them the necessary information concerning the administration of public affairs and finances.
Our system of democracy relies on the concept of judicial review. We rely on the independence of our courts to make determinations not only on the liberty of individuals but on the functioning of our democracy and system of government. The mechanism we have devised as a community is to refer disputes to suitably qualified independent bodies to resolve disputes according to an established body of law.
The Administrative Appeals Tribunal of Australia in considering an FOI request in the matter of J Waterford v Department of Treasury considered the concept of executive privilege and found that it is inevitably shrouded by some uncertainty. The High Court of Ireland in Duncan v Governor of Portlaoise Prison—the citation is (1997) IEHC 13—explicitly endorsed the notion that:
There cannot, accordingly, be a generally applicable class or category of documents exempted from production by reason of the rank in the public service of the person creating them, or of the position of the individual or body intended to use them.
Again, with respect, the Greens fully endorse the principle enunciated by the Irish High Court.
This uncertainty necessitates independent arbitration. It is fundamentally offensive to our system of government to have a person affected by a decision making the decision.
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .