Home -> Law Blog Directory -> International Law Blogs -> Open and Shut

International Law

: Open and Shut

Don't blame me, I'm just the Treasurer

By Peter Timmins

The Treasurer Wayne Swan this morning on ABC TV's the Insiders responded to questions about Treasury's decision to refuse access to documents (see earlier post) by saying it was nothing to do with him, and was a decision by a public servant in accordance with the law.

The public servant in this case made a decision that the balance of public interest considerations favoured non disclosure, particularly because release might lead to confusion and unnecessary debate. The law is not black and white. There are precedents in court and tribunal decisions that go in all directions but the one cited hasn't had many ticks in recent years. In any event it's a judgment call made against the background of policy. In any event a decision maker may decide to release a document even if it clearly came within an exemption provision.

It would be a simple matter for the Treasurer to make it clear that policy is to err on the side of disclosure, that policy research should be published unless some real harm would result, and tell Treasury to stop relying on broad unsubstantiated claims like "confusion and unnecessary debate". The Treasurer could then leave it to the public servants to get on with the job of disclosing as much information as possible, consistent with the Government's promises to encourage debate and make government more open.

There is a strange quirk in the Federal Freedom of Information Act that has never been changed since 1982 - Section 23 says that a decision on a request for access made to an agency may be made by the minister responsible, or authorised public servants. No one has any idea how many decisions have been made by ministers, as this sort of detail has never been included in annual reports. It should be scrapped, but until such time it is in accordance with the law if the Treasurer at any time feels the need to make a decision on an FOI application for documents that go to important matters of public policy, such as in this case the inflationary impact of the government's industrial relations policy.

The Treasurer, as has become routine for ministers, of course also said the Government plans to be different, but his comments today suggest he has done nothing to move the Treasury from its traditional closed door habits.

Full post as published by Open and Shut on May 03, 2008 (boomark / email).