Lies, damn lies and FOI reform

The Federal ALP’s Shadow Attorney-General Nicola Roxon publishes an opinion piece in today’s Australian boasting about her “commitment” to reforming the Commonwealth Freedom of Information Act. Opposition parties are always remarkably keen to profess enthusiasm for beefing up FOI laws, and equally remarkably quick to forget that enthusiasm as soon as they achieve government and have something to hide. And governments ALWAYS have something to hide.

Moreover, there’s plenty of room to doubt the sincerity of Ms Roxon’s “commitment”. All she’s so far committed the ALP to is “a period of consultation of all key stakeholders”, as well as this equally nebulous objective:

Our goal is to ensure the public interest is being put first, not last, in our assessment of what information should be provided. Governments rule for public benefit and they should not be able to withhold material as if their reason for being is a private one.

I wonder who Nicola thinks she’s fooling with this pious claptrap. If she was serious, she’d make specific reform commitments. It’s not as if the deficiencies of FOI legislation are difficult to discover.

It’s worth remembering that the highwater mark of cynical government abuse of FOI legislation was presided over by the Hawke Labor government and by Paul Keating in particular. In the landmark case Re John Howard and the Treasurer of the Commonwealth in 1985, Howard as Opposition Treasury spokesperson sought access to documents concerning consultations between Keating and the ACTU over proposed budgetary measures that eventually became the first of the Hawke government’s Prices and Incomes Accords with the unions. Keating successfully opposed release of the documents under FOI. The Administrative Appeals Tribunal accepted his arguments that exemption from disclosure was justified because of :

(1) the seniority of the person who created, annotated or considered the information (i.e. Keating);
(2) the possibility that the threat of later disclosure might inhibit the “frankness and candour” of public servants’ deliberations; and
(3) the possibility that the public may not readily understand any tentative or optional quality of the information.

The decision was roundly criticised by academic lawyers at the time, and some of its more outrageous propositions weren’t followed in subsequent cases. However, the Labor government exhibited no inclination whatever to reform FOI during its remaining 11 years of continuous government under Hawke and Keating. You’d have to believe in fairies at the bottom of the garden to think that Latham and Roxon will be any more vigorous about reforming FOI once they get their hands on the levers of power.

PS – Just to make sure I wasn’t being terribly unfair to Ms Roxon and the ALP, I thought I’d better check the Party’s website to make sure they really didn’t have any credible, well-researched policies or real commitments on FOI. Here’s the page listing Labor’s policy and discussion papers. Rather as I expected, there doesn’t seem to be anything at alll about FOI.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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2024 years ago

It’s also worth remembering that this current Government has been and is doing everything in its power to avoid having certain truths exposed, so labelling one party as more transparent than another is just a tad naive, wouldn’t you say, ken?

2024 years ago

Ken, I don’t think this is the right line to take, or entirely fair to the current Ms Roxon (as opposed to the FOI foe she will undoubtedly become within six months of taking office). Newly-elected governments have often made significant improvements in access, safe in the knowledge that there are as yet no skeletons in their own closet, and plenty rattling around to embarrass the new opposition.

We should cheer her on now, in the hope that she will be take some positive steps immediately after Labor gets in (if this happens, of course). Save up the vitriol for when either
(i) she does nothing at all; or
(ii) she starts out doing the right thing, but then turns bad.

We won’t miss out on the chance to use it

2024 years ago

My God! Politicians abusing the spirit of FOI!!?!!?!!

You’ll be discovering steam next.

Geoff Honnor
Geoff Honnor
2024 years ago

“Governments rule for public benefit and they should not be able to withhold material as if their reason for being is a private one.’

Interesting. So…what would Nicola consider withholding – in what one assumes would be the public rather that a private interest? I think we could all agree that a free information flow is crucial to a healthy functioning democracy. I suspect we’d also be able to own that, logically, not all government information can be in the public domain.

It’s where that line is drawn – and why – that represents the real challenge here. I recognise the political imperatives imposed by Opposition but Nicola’s contribution doesn’t take us anywhere near the crux of the matter.