Page 1547 - Week 04 - Thursday, 7 April 2011
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happened in the discussions about administrative law and access to information and privacy in the time since the Freedom of Information Act came into operation in the commonwealth and eventually in the ACT.
There are a few areas that I want to dwell on in relation to the recommendations in the report. The committee makes 19 recommendations in all. These have been summarised essentially as creating a new FOI body of law which mirrors the commonwealth laws. But there are some issues about openness that I think that we need to address. Recommendations 14, 15 and 16, I think, are of importance to the Assembly because they touch on the whole range of openness.
The committee recommends that, in framing the new freedom of information legislation, all exemptions be recast so that they are subject to a single, consistent public interest test, subject to merits review. The problem is that the current FOI legislation has some conflicting public interest tests and that makes it difficult for administrators to make decisions in favour of publication, because in one section the public interest test has a particular bent and then you go to the next section and it has a different bent. I think that it is very difficult for the people who administer the act to actually know in what way they should be approaching public interest, when the test is different from section to section.
The committee also recommended that, in framing the new legislation, the ACT government remove all provisions for conclusive certificates—there are still currently conclusive certificates—and create a legislative mechanism such that conclusive certificates issued in the past be removed as documents to which they have been applied, as requested under the process. What would happen if this recommendation were introduced is that, if there was a fresh request for documents under the new proposed Freedom of Information Act, those documents that were subject to conclusive certificates, like the thousands of pages of documents that related to school closures, would have to be looked at afresh, with a fresh merits review. That is not to say that this was the only set of documents that I had in mind when we were looking at these issues and these recommendations, but what the committee is actually saying is that, seeing the Assembly has already removed most conclusive certificates, we would effectively like to contemplate and recommend the contemplation of the retrospective removal of conclusive certificates.
The committee also recommended that, in framing the new legislation, the ACT government create a charges regime that reinforces a citizen’s right to information, rather than discouraging requests. I think that this is very important, because there has been quite a change in attitude to charging that practitioners and users of the Freedom of Information Act have seen since the attorney appeared before the inquiry last year. The attorney used his appearance before the inquiry to send a message to government officials that he expected to see a much more rigorous charging regime.
I have had quite a number of complaints and concerns raised by members of the public that suddenly they are being charged for things that they had not hitherto been charged for. And I have noticed that there have been attempts to charge members of this place, including me, for access to information. I have not yet had to pay a charge but it certainly seems to be at least another hurdle that members are being confronted
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