Bills Digest no. 105 2008–09
Freedom of Information (Removal of Conclusive
Certificates and Other Measures) Bill 2008
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Date
introduced: 26
November 2008
House:
Senate
Portfolio:
Cabinet
Secretary
Commencement:
The day after
Royal Assent
Links: The relevant
links to the Bill, Explanatory Memorandum and second reading
speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
To repeal the power to issue conclusive certificates in the
Freedom of Information Act 1982 and the Archives Act
1983 for all exemption provisions where certificates may be
issued. The effect would be that the Administrative Appeals
Tribunal may undertake full merits review of all exemption
claims.
Background
Freedom of information (FOI), or the statutory right of access
to government documents, is justified on the grounds that it
encourages transparency and political accountability and
discourages corruption and other forms of wrongdoing. At the
federal level, the Freedom of Information Act 1982 (the
FOI Act) formed part of a broader package of administrative law
reforms in the 1970s and early 1980s, and was the first national
legislation of its kind to be introduced into a country with a
Westminster-style system of government. Similar legislation has
been enacted in all Australian states, the Australian Capital
Territory and the Northern Territory.
Each FOI Act has four major features:
- government is obliged to publish information about its
activities in general, and about whether it holds certain kinds of
documents
- every person has a legal right to obtain access to information
in documentary form, which is in the possession of ministers or
government agencies, subject to the operation of specific
exemptions and exclusions. Exemptions can apply to specified
agencies (for example, ASIO), or to categories of documents (such
as documents dealing with international relations and
security)
- there is a personal privacy dimension, which enables a person
who has gained access to a document held by government that relates
to his or her personal affairs to:
- request that the document be amended in some respect;
- appeal against a refusal to amend the document; and,
- even if the appeal is unsuccessful, request that an annotation
be attached to accompany the record when it is shown to any
person
- there is a right of review in relation to most decisions made
under the Acts, both internal review within the agency and further
review by a body external to the decision maker.
While there have been only minor changes to the federal FOI Act
since 1982, there have been a plethora of reviews. The major review
was the
Open Government report by the Australian Law Reform
Commission (ALRC) and the Administrative Review Council (ARC) in
1996.[1] That report
made 106 recommendations, some of the more important being:
- creation of a statutory FOI Commissioner to monitor and improve
the administration of the FOI Act and to provide assistance, advice
and education to applicants and agencies about how to use,
interpret and administer the Act
- revision of the Act s objects clause to promote a
pro-disclosure interpretation of the Act
- rationalisation of the exemption provisions, and publications
of guidelines, so that information is only withheld where this is
in the public interest, and
- FOI charges should be compatible with the objects of the Act a
scale of charges should be determined by the FOI Commissioner, and
access to an applicant s personal information should be provided
free of charge.
The Howard Government did not formally respond to the Open
Government report. However, two private members Bills
introduced by Australian Democrats Senator Andrew Murray in
2000[2] and 2003
took up several of its key recommendations. These Bills
subsequently lapsed.
On 24 September 2007, the then Attorney-General, Philip Ruddock,
announced that the ALRC would again conduct a review of FOI laws
and practice, although with more limited terms of reference than
the 1996 Open Government report. The ALRC was asked to
consider the possible harmonisation of state and federal FOI laws,
and ways of removing the FOI administrative burden on
agencies.[3] That
review has been suspended by the current Government. The rationale
for suspension is that a more appropriate course of action is to
review the FOI Act after the Government s reforms come into
operation. [4]
The Australian Labor Party s 2007 election
policy document, Government information: restoring trust
and integrity in government information, foreshadowed
significant changes to FOI legislation. It stated that a Labor
Government would abolish conclusive certificates and implement the
recommendations of the 1996 ALRC Report, Open Government.
It would appoint a Freedom of Information Commissioner, designed to
make review processes more efficient and cheaper. It would also
create an independent statutory Information Commissioner to act as
a whole-of-government clearinghouse for complaints, oversight,
advice and reporting for freedom of information and privacy
matters.[5]
The Bill would implement only that part of the election
commitment related to the abolition of conclusive certificates. The
Minister s second reading speech for the Bill states that the
Government proposes to release a draft Bill for public comment as
early as practicable in 2009 addressing its remaining FOI election
commitments.[6]
The FOI Act creates a legally enforceable right of every
person[7] to obtain
access to documents of agencies subject to the Act, provided that
any applicable charge is paid, that the request does not involve
unreasonable diversion of the agency s resources, and that the
documents are not exempt.
Access to documents in the possession of a Government agency may
be refused because it is claimed that a document is exempt by
reason of Part IV of the FOI Act. Broadly speaking, exemptions in
the FOI Act are of two basic kinds:
- exemptions which depend on demonstrating the expected harm of
disclosure of the contents of the specific documents. These are
found in sections 33 (national security, defence or international
relations), 33A (Commonwealth-State relations), 36 (deliberative
documents), 37 (law enforcement), 39 (financial or property
interests of the Commonwealth), 40 (operations of agencies), 41
(personal information), 43(1)(b), (c)(i) & (ii) (business and
professional affairs), 43A (research), 44 (national economy), 45
(material obtained in confidence); and
- exemptions which protect documents of a particular class or
kind without a need to refer to the effects of disclosure: sections
34 (Cabinet documents), 35 (Executive Council), 38 (secrecy
provisions), 42 (legal professional privilege), 47 (companies and
securities legislation), 47A (electoral rolls).[8]
In addition to exempt documents, there are also some agencies
that are exempt from the FOI Act entirely (e.g. ASIO and ASIS) and
other agencies that are exempt in relation to some material (e.g.
Telstra is exempt in respect of documents relating to commercial
activities).[9]
Under the FOI Act a Minister may issue a certificate that
establishes conclusively that a document is exempt. Ministerial
certificates may only be issued in relation to certain categories
of exempt documents. These are:
- National security, defence and international relations (section
33)
- Commonwealth/State relations (section 33A)
- Cabinet documents (section 34)
- Executive Council documents (section 35)
- Deliberative process documents (section 36)
For example, in relation to documents dealing with Commonwealth
State relations subsection 33A(1) provides that a document is an
exempt document if disclosure could reasonably be expected to cause
damage to relations between the Commonwealth and a State, or if it
would divulge information or matter communicated in confidence by
or on behalf of a state government or one of its authorities.
Subsection 33A(2) states that where the appropriate Minister (or
delegate) is satisfied that a document:
- is an exempt document for a reason referred to in subsection
33A(1); and
- is not a document containing matter the disclosure of which
under this Act would be, on balance, in the public interest;
the Minister may sign a certificate to that effect, specifying
that reason.
Where a conclusive certificate has been issued, the power of the
Administrative Appeals Tribunal (AAT) to review is limited. The AAT
s role in reviewing such a certificate is limited to asking whether
or not reasonable grounds exist at the time of the hearing for the
claims made in the certificate. When a certificate has been issued
this prevents the AAT from weighing public interest factors in
favour of disclosure against public interest factors favouring
non-disclosure. It can only consider the reasonableness of the
non-dislosure reasons. Furthermore, even if the AAT decided on
appeal that reasonable grounds for a certificate do not exist the
relevant Minister is not obliged to remove the certificate
(subsection 58A(2)). Instead the Minister must only provide reasons
to Parliament for the decision (subsections 58A(3) and (4)).
The number of conclusive certificates issued since 1996 is
relatively small[10] although their symbolism and potential have been the
subject of critical debate.[11] Conclusive certificates are seen as being at odds
with the fundamental precepts that underpin the FOI Act,
particularly transparency and government openness.
Most recently, the High Court considered certificates issued
under subsection 36(3) of the FOI Act in Re McKinnon v the
Department of the Treasury[12]. In that case, section 36
exemption claims were made over advice given to the Treasurer and
Assistant Treasurer by way of executive minutes and question time
briefs and projections and forecasts used in preparation of advice
to the Treasurer.
The Treasurer issued two conclusive certificates. The Court
upheld the decision of the AAT President, Justice Downes, that he
did not have to weigh up the public interest factors for and
against releasing each document, as would have happened in the
absence of conclusive certificates. The decision generated much
critical media commentary, which highlighted the potential for
mechanisms such as conclusive certificates to be abused by
Ministers seeking to withhold information for political
purposes.[13]
The Bill has been referred to the Finance and Public
Administration Committee for inquiry and report by 10 March 2009
(Senate inquiry). Details of the inquiry are at:
http://www.aph.gov.au/senate/committee/fapa_ctte/foi/index.htm
The Digest draws on submissions to the Senate inquiry.
In general, the media commentary and the submissions to the
Senate inquiry recognise the significance of abolishing conclusive
certificates and support the amendments in the Bill that would
remove those provisions. However some of the Senate submissions
were critical of other parts of the Bill that would introduce new
exclusions in relation to security related information and arguably
would further restrict rather than open up access to government
information.[14]
Some submissions and commentary also expressed frustration and
impatience at the limited terms of the Bill and with the Rudd
Government s slow and opaque approach toward implementing more
fully its election promises in relation to FOI.[15]
Item 2 inserts proposed subsection
7(2B) and deals with exemptions for documents produced by
exempt agencies. As noted above,[16] subsection 7(1) and Part II of Schedule 2 provide
that certain agencies (i.e. ASIS, ASIO, the Auditor-General, the
Aboriginal Land Councils and Land Trusts etc) are exempt from the
operation of the FOI Act. A further exclusion is provided in
subsection 7(2A) which provides that agencies in possession of
documents originating with or received from ASIS, ASIO, the Office
of National Assessments, the Defence Intelligence Organisation, the
Defence Signals Directorate or the Inspector-General of
Intelligence and Security are exempt in respect of those documents.
Item 2 would broaden this exemption so that
proposed subsection 7(2B) would provide that a
document in the possession of a Minister would be automatically
exempt from the operation of the Act where it has originated with
or been received from those same defence and security agencies.
The Explanatory Memorandum notes that this amendment is to
address an existing anomaly whereby a document in possession of an
agency would be exempt but the same document, when held by a
Minister is not so exempt.[17] On the other hand it could be argued that the
exemptions in section 7 have the effect of establishing
conclusively that all documents originating from certain agencies
are exempt documents and therefore this amendment further
reinforces these restrictions.
Several submissions to the Senate inquiry expressed
disappointment with this amendment. Moira Patterson, Associate
Professor of Law, Monash University, points out that to the extent
that documents require protection for reasons of national security,
defence of international relations, they will arguably fall within
the exemptions in subsection 33(1) of the FOI Act. In that case the
new procedures in relation to AAT review would be available[18] and arguably provide
sufficient protection.[19]
The Australian Press Council notes that this amendment begs the
question: should the mere fact that a document has originated with
a security agency, by itself, justify its exemption from FOI. The
Press Council s view is that while many documents that are held by
security agencies ought to remain confidential, there will be some
documents which it would be in the public interest to disclose. The
fact that a document has been received from a security agency
should not be enough by itself, to warrant exemption unless there
is also a sound reason for maintaining the document s
confidentiality. Such a reason might include a threat to national
security or defence. Not all documents that originate with security
agencies pose a threat to national security. Some such documents
may be considered matters of legitimate public interest.[20]
Moira Patterson also made a similar case noting that it is
important at a time when national security bodies are provided with
large budgets that there should be appropriate scrutiny of the
financial processes and expenditure.[21]
The Public Interest Advocacy Centre (PIAC) considers that
entirely excluding a new category of documents, not presently
excluded from the operation of the FOI Act, is contrary to the
principle of open and transparent government and winds back, in
relation to defence and security documents, the advances of this
principle made by the abolition of conclusive certificates. PIAC
argues the proposed amendments fail to leave open any avenue to
distinguish between documents the disclosure of which might pose a
genuine threat to security or to the national interest, and those
that merely have the potential to embarrass an agency, or the
government of the day. The submission continues:
The Haneef case and subsequent visa revocation
turning as they did on inconsistencies between reports and threat
assessments issued by the Australian Security and Intelligence
Organisation (ASIO) and the Australian Federal Police respectively,
and the extent of awareness at Ministerial level of those
inconsistencies, demonstrate the importance of retaining a
potential avenue for disclosure of such documents under the FOI
Act.[22]
Items 5 10 are the key amendments. They would
repeal those provisions that relate to the power to issue
conclusive certificates.
For example subsection 33(1) provides that a document is exempt
if its disclosure could reasonably be expected to damage the
security, defence or international relations of the Commonwealth or
would divulge information communicated in confidence to the
Commonwealth by or on behalf of a foreign government or
international organisation. Subsections 33(2) (7) provides that a
claim for exemption under section 33(1) may be supported by a
conclusive certificate which relates to all or part of a document
and may, if necessary, be couched in terms which neither confirm
nor deny its existence. Item 5 would repeal
subsections 33(2) to 33(7) with
the effect of repealing this power to issue conclusive
certificates.
Items 6 and 7 would similarly
repeal the power to issue conclusive certificates in respect of
documents that would or could be expected to cause damage in
Commonwealth State relations or in respect of documents that would
divulge information about confidential Commonwealth State relations
(subsections 33A(2) to (4A) and 33A(6) to (8)).
Item 8 would repeal the power to issue
conclusive certificates in respect of Cabinet documents (section
34(2) to (5)).
Item 9 would repeal the power to issue
conclusive certificates in respect of Executive Council documents
(section 35(2) to 5)).
Item 10 would repeal the power to issue
conclusive certificates in respect of internal working documents
that would be contrary to the public interest (subsections 36(3),
(4), (8), (9) and (10)).
Item 11 is a consequential amendment and would
repeal section 36A that deals with time frames for
conclusive certificates.
Items 12 to 33 propose
amendments to Part VI of the FOI Act. Part
VI deals with review procedures in relation to decisions
regarding the release of documents under the FOI Act. Some
amendments are purely consequential flowing from the removal of the
power to issue conclusive certificates (for example items
12 14 and 16). Other amendments are unrelated to the
conclusive certificate provisions and include new arrangements
concerning AAT review procedures for national security-related
information exemptions or Cabinet exemptions (i.e. section 33 and
34 exemptions).
Section 58B deals with the constitution of the AAT for
proceedings dealing with conclusive certificates. Item
15 would repeal subsection 58B(1) to
abolish these arrangements. Item 15 would also
insert a new subsection 58B(1) to set up new
special constitution requirements of the AAT for a review of
decisions to refuse access to a document on grounds of a Cabinet
exemption (section 34) or a national security/foreign government
exemption (section 33). The effect of the amendment would be that
presidential members[23] of the AAT must hear these review applications, the
rationale being that in light of the special sensitivity of Cabinet
and national security-related information it is appropriate that
the most senior members of the AAT preside at these
hearings.[24]
Item 17 repeals and replaces section 58E.
Existing section 58E allows the AAT to ask for the production of
relevant documents in relation to hearings concerning conclusive
certificates. The new section 58E would grant the
AAT power to require the production of a document the subject of a
national security, defence or international relations exemption or
a confidential foreign government communication exemption
(subsection 33(1)) or the Cabinet exemption (section 34). The power
would only be used where the AAT is not satisfied by evidence on
affidavit or otherwise that the document is exempt
(proposed subsection 58E(2)).
Items 18 to 21 are unrelated
to the conclusive certificate provisions. They deal with the
provisions setting out the rights of third parties where a request
is made for access to a document containing personal information or
business information about that third party.
Items 18 and 20 make
amendments that would allow the AAT the discretion to order that an
agency or Minister does not need to give notice to the third party
of an AAT review application if it would not be appropriate to do
so in the circumstances. Item 19 and
21 set out the matters that the AAT must have
regard when using this discretion. The matters that would affect
the decision not to inform are where the notification could
reasonably be expected to:
- prejudice the conduct of an investigation or breach of the
law
- disclose confidential information in relation to enforcement or
administration of the law
- endanger the life or safety of any person, or
- cause damage to the security, defence or international
relations of the Commonwealth.
The Federal Privacy Commissioner in her submission to the Senate
inquiry noted the potential privacy implications of this amendment
but concluded that the proposed criteria and safeguards would
continue to give third parties an adequate level of control over
their personal information under the FOI Act.[25]
Item 25 inserts proposed section
60A. It is a significant amendment relating to AAT
proceedings involving review of a national security, defence or
international relations exemption or a confidential foreign
government communication exemption (subsection 33(1)). Before
making a determination that a document is not exempt the
AAT would be required to request the Inspector-General of
Intelligence and Security (IGIS) to appear personally and give
evidence on the possible damage that would or could reasonably be
expected to be caused should such an exempt document be released.
The IGIS must comply with such requests unless of the opinion that
he/she is not appropriately qualified to give such evidence. The
AAT is not bound by any opinion of the IGIS (proposed
subsection 60A(8)).
Item 26 repeals and replaces subsection
63(1). Subsection 63(1) currently directs the AAT to
ensure non disclosure of certain matters by making confidentiality
orders where necessary. The new subsection 63(1)
includes the same direction but in addition new paragraph
63(1)(b) specifically refers to proceedings relating to a
document that is claimed to be exempt under section 33 (i.e.
national security, defence, international relations etc). In these
matters the AAT must give particular weight to submissions from the
relevant agencies and Ministers regarding the required
confidentiality of such material.
Sections 64 and 65 of the FOI Act deal with AAT procedural
matters relating to inspection of exempt documents and production
of conclusive certificates. Items 28 32 make
consequential amendments to take account of the new role of the
IGIS in defence/security/international relations exemption hearings
and remove the subsections that refer to conclusive
certificates.
Item 33 inserts proposed section
67 and provides for the automatic stay of an AAT decision
to give access to a document where an agency or Minister institutes
an appeal in the Federal Court against that decision. The rationale
for this amendment is that giving access to the document when an
appeal has been instituted would render any appeal
redundant.[26] The
Australian Press Council, while noting that this rationale seems
reasonable, also argues that this provision could be exploited by
politicians wishing to delay the release of potentially
embarrassing material.[27] Their submission suggests that this problem could be
addressed by requiring that when exercising its power to stay the
operation of an AAT decision, a court should be required to apply a
test similar to that which is applied to applications for
injunctive relief, i.e. there must be a reasonable prospect of the
appeal succeeding in order for the stay to be imposed.[28]
Items 34 and 35 are
application provisions. Subitem 34(2) is the most
notable in that it deals with the treatment of conclusive
certificates in force at the commencement of the Bill. Existing
certificates will remain in force and will only be revoked if and
when a new application for access to the document is made. A
decision would then be made on whether or not an exemption should
be claimed for any document formerly covered by a certificate.
The Archives Act 1983 has been drafted to dovetail with
the FOI Act. Like the FOI Act, it contains detailed exemption
provisions, provision for the issuing of conclusive certificates,
and rights to seek review by the AAT.[29]
Under the Archives Act, the National Archives of Australia is
responsible for providing that all Commonwealth records other than
exempt records, are to be made available to the public when they
are in the open access period. Records other than Cabinet notebooks
are in the open access period when a period of 30 years has elapsed
since they came into existence.[30] The types of records that can be exempt are
numerous and are set out in section 33. They include for example
records containing:
- information the disclosure of which would cause damage to
security, defence, or international relations of the Commonwealth
Government (paragraph 33(1)(a))
- information or matters communicated in confidence by a foreign
government to the Commonwealth Government (paragraph 33(1)(b))
- information, the disclosure of which would cause a breach of
confidence (paragraph 33(1)(d)).
Under section 34 of the Archives Act, a Minister or delegate may
issue a certificate that establishes conclusively that a record is
exempt. Where a conclusive certificate has been issued, the power
of the AAT to review that decision is limited.[31] Under section 34 conclusive
certificates can only be issued in support of defence/national
security/international relations related exemptions or in support
of foreign government confidential communication exemptions.
Item 2 is the most significant amendment in
Schedule 2. It repeals section 34 thus removing
the power to issue conclusive certificates with respect to these
national security/ foreign government communication exemption
claims.
Most of the remaining amendments in Schedule 2 propose
amendments to those provisions of the Archives Act dealing with the
review of decisions concerning applications to access Commonwealth
records. Many of the amendments are consequential and remove
references to the AAT review process regarding conclusive
certificates.
Other amendments include new arrangements concerning AAT review
procedures for the national security or foreign government
communications exemptions. They generally replicate similar
amendments to the FOI Act proposed in Schedule 1 of the Bill and
include the following:
Subsection 46(1) deals with the constitution of the AAT for
proceedings dealing with conclusive certificates. Item
6 would repeal subsection 46(1) to
abolish these arrangements. Item 6 would also
insert a new subsection 46(1) to set up new
special constitution requirements of the AAT for a review of
decisions to refuse access to a record on grounds of the national
security/defence/international relations or foreign government
communication exemptions(paragraph 33(1)(a) and (b)). The effect of
the amendment would be that presidential members[32] of the AAT must hear these
review applications. Once again the rationale being that in light
of the special sensitivity of this type of information it is
appropriate that the most senior members of the AAT preside at
these hearings.[33]
Item 10 inserts proposed section
50A and is the equivalent of item 25 in Schedule 1. It is
a significant amendment relating to AAT proceedings involving
review of a national security, defence or international relations
exemption or a confidential foreign government communication
exemption (paragraphs 33(1)(a) and (b)). Before making a
determination that a record is not exempt the AAT would be
required to request the IGIS to appear personally and give evidence
on the possible damage that would or could reasonably be expected
to be caused should such a record be released. The IGIS must comply
with such requests unless of the opinion that he/she is not
appropriately qualified to give such evidence. The AAT is not bound
by any opinion of the IGIS (proposed subsection
50A(8)).
Item 11 repeals and replaces subsection
52(1). Subsection 52(1) currently directs the AAT to
ensure non disclosure of certain matters by making confidentiality
orders where necessary. The new subsection 52(1)
includes the same direction but in addition new paragraph
52(1)(b) specifically refers to proceedings relating to a
record that is claimed to be exempt under paragraphs 33(1)(a) and
(b) (i.e. national security etc.). In these matters the AAT must
give particular weight to submissions from the relevant agencies
and Ministers regarding the required confidentiality of such
material.
Item 17 inserts proposed section
55A and provides for the automatic stay of an AAT decision
to give access to a record where an agency or Minister institutes
an appeal in the Federal Court against that decision. Again, the
rationale for this amendment is that giving access to the record
when an appeal has been instituted would render any appeal
redundant.[34]
Items 19 to 22 are application
provisions. Of note is subitem 20(2). It provides
that existing conclusive certificates will be revoked on and from
the time the first request for access to a record covered by the
certificate is made. Where a certificate covers more than one
record, it will remain in force in relation to those records not
subject to the access request.
The amendment to the Administrative Appeals Tribunal Act relates
to the composition of the Security Appeals Division of the AAT when
reviewing decisions by the National Archives in respect of access
to a record of ASIO. The effect of the amendment in item
2 would be that presidential members[35] of the AAT must hear these
review applications.
Schedule 4 of the Bill proposes consequential
amendments to the Inspector-General of Intelligence and Security
Act (IGIS Act). These flow from the amendments to the FOI Act and
the Archives Act in Schedules 1 and 2 that require the AAT to
request the IGIS to give evidence in certain proceedings relating
to exempt documents.
Section 34 of the IGIS Act places secrecy obligations on the
IGIS and staff in relation to their work under the Act.
Item 2 would amend section 34 to extend these
secrecy obligations to cover information that an IGIS or staff
member would acquire in performing functions under the FOI Act or
Archives Act.
Item 8 would amend section 34 so as to extend
the existing restriction that applies to the production of
documents to a court by the IGIS or staff member in respect of
documents that are in their custody by virtue of performing the
functions or duties under the FOI Act and the Archives Act.
Concluding comments
The submissions to the Senate inquiry are unanimous in
recognising the significance of abolishing conclusive certificates
and supporting the amendments in the Bill that would remove those
provisions.
The removal of certificates is however a relatively minor and
straightforward part of the bigger picture of FOI reform. A much
greater challenge is to address the concerns that have been evident
since the 1996 ALRC Open Government report which point to
the legalistic interpretation of some of the exemption provisions,
the time delays and the expense of FOI requests. One commentator
suggests that the recently released FOI annual report for 2007 2008
confirms that these criticisms are still valid. Peter Mares says
that the figures suggest the number of FOI requests granted in full
has dropped down to 71 per cent of requests, down from 81 per cent
the previous year and that the proportion of requests taking longer
than three months has doubled.[36]
The Government has promised that an exposure draft Bill will be
released for public comment as early as practicable in 2009 to
implement its remaining election commitments regarding FOI. FOI
practitioners and experts await with some anticipation this more
substantive Bill.
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277
2438.
[10]. Information on the number of
conclusive certificates is not required to be recorded in the
Annual FOI Reports. Consequently there is no simple quick way of
ascertaining the frequency and use of such certificates. However a
2007 report commissioned by the
Australia s Right To Know (RTK) campaign states that the
Commonwealth had at that time issued 14 conclusive certificates
since 1996.
[13]. For an account of the case, see
John McMillan, the FOI landscape after McKinnon, Public
Administration Today, April-June 2007; or Michael McKinnon,
Submission No. 5, Senate Standing Committee on Finance and Public
Administration, Inquiry into the Freedom of Information
(Removal of Conclusive Certificates and Other Measures) Bill
2008 . The inquiry is subsequently referred to as the SCFPA
inquiry.
[19]. Moira Patterson, Submission No. 8, SCFPA inquiry, p.
2.
http://www.psnews.com.au/Page_psn1552.html
Mary Anne Neilsen
27 February 2009
Bills Digest Service
Parliamentary Library
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