Roxon introduced a private member’s Bill to abolish conclusive certificates in the Freedom of Information Act 1982. This follows the 3-2 decision of the High Court in the case of McKinnon v Secretary, Department of Treasury, first reported by Lawyers Weekly on 15 September of this year. The case attracted criticism from the legal profession over the Government’s ability to issue conclusive certificates to protect working documents, in that instance associated with the issues of tax cuts and bracket creep.

“For too long, Howard Government ministers have hidden their incompetence behind conclusive certificates,” Roxon said. It is Labor’s proposed plan to remove “the ability for ministers themselves to judge what is in the public interest to be released and what is not”.

Roxon’s comments followed those of Victorian Attorney-General Rob Hulls, who referred to the FoI annual report tabled in Parliament earlier in the year. Hulls said that in 2005-06, 97.4 per cent of FoI access decisions resulted in the release of documents, stemming from 21,396 requests — the second highest on record.

“I’m pleased to see that significant numbers of Victorians are continuing to use the FoI process, and access is granted in almost all cases,” Hulls said.

According to Hulls, less than one per cent of FoI decisions were appealed to the Victorian Civil and Administrative Appeals Tribunal, most of which were upheld by the Tribunal.

However his federal counterpart, Roxon, claimed that too many documents were being withheld by Coalition ministers.

“The use of conclusive certificates has been an effective way for the Government to halt public access to this information and obstructed public debate on their record in these important areas,” she said.

“My [private member Bill] will remove the minister’s role in this process, whilst maintaining the exemption provisions which are more than adequate to protect genuinely sensitive documents,” she said. “These changes mean that a minister’s claim that releasing documents is contrary to the public interest will be able to be tested and reviewed in the same way as all other claims.”

Holding Redlich media lawyer Nicholas Pullen, from the firm’s Melbourne office, described the McKinnon decision as “another nail in the coffin in what you might say is such a rancid affair in relation to FoI, because it’s just becoming so bogged down in the bureaucratic nightmare and red tape, that you’re actually not getting any information at all”.

However, Pullen was suspicious of words of protest from the Opposition, which he said were designed chiefly to “get information about how the government of the day is working”.

Roxon remained adamant that her party’s proposed changes should go ahead. “Labor is ending this special treatment for ministers. It will reinstate a pro-disclosure culture and help to bring our FoI laws back to their original purpose: to extend the right of Australians to access information in the possession of the Commonwealth Government,” she said.