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International Law

: Open and Shut

Senate Committee speeding through FOI Reform Bills

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I'm having one of those moments they say you experience when you see sausages or legislation in the making.

Things moved along so smartly at the Senate Finance and Public Administration Committee hearing on the Freedom of Information Reform Bills, this morning that proceedings adjourned for an hour at 10:30. They went way ahead of schedule when questioning of the first witness, Ombudsman Professor McMillan ran out of steam after 15 of the scheduled 45 minutes. Then the few members of the Committee who made it at 10:15 for a session with officers of the Department of Prime Minister and Cabinet only managed to keep things going for 8 minutes before questions dried up.

In between the point made by Michael McKinnon appearing for Australia's Right to Know about the reversal of the onus of proof in Administrative Appeals Tribunal processes (so the party seeking review would carry the onus, not always the agency that made the decision) dominated discussion in his 45 minutes, with Opposition Senator Brandis (not present otherwise) taking great delight in contrasting the Government's rhetoric about the magnitude of the proposed changes with what he described as a bizarre obstacle to disclosure that applicants who take a matter to the AAT might face.

This despite the fact that McKinnon had kicked off saying that after a meeting yesterday with Minister Ludwig the situation might not be as clear as he had argued in a submission,and in the light of the complexities explained, now needed to seek legal advice before making another submission on the subject. PM&C later explained the agency will continue to carry the onus in any Information Commissioner review, but based on precedent with other bodies such as the Human Rights and Equal Opportunity Commission it would not be appropriate for the Commissioner to defend the decision in the AAT, therefore if the matter went further the party who took it should carry the onus.

While there was some interest in the various sessions in the culture question and how change in that area was expected to come about, and in issues concerning overlap in functions of the Information Commissioner and the Ombudsman, there wasn't questioning at all on other points of weakness in the legislation mentioned in McKinnon's opening remarks- things like bringing the parliamentary departments and intelligence agencies within the scope of the act, applying a public interest test in all exemptions, proscribing frankness and candour as an argument to be used in arguing public interest considerations against disclosure. And certainly nothing to indicate that any of the many other points made in the 26 submissions had registered with Committee members, although Senator Ryan asked three witnesses what they thought about optional right of internal review.

There was some discussion with McKinnon about the Cabinet document exemption, with Senator Brandis seeking to label Kevin Rudd as the architect of the old Queensland practice of wheeling documents into the Cabinet room on a trolley, and the wondering about whether this is prohibited by the Commonwealth Bill. McKinnon thought there was nothing relevant to prevent it, although in fact, a document qualifies only if prepared for the dominant purpose of submission to Cabinet, so that sort of high jinks isn't on we hope and has never been suggested in Canberra under the current act. McKinnon said his scepticism about change in Queensland had been misplaced, as there had been a real turnaround ("I keep pinching myself wondering whether it will last), which he attributed primarily to the leadership of Premier Anna Bligh.

The Law Council of Australia is the next and last to appear. Early lunch anyone?

Full post as published by Open and Shut on February 04, 2010 (boomark / email).