Unconstitutional “evil”. Albo’s plan for more government secrecy

Prime Minister Albanese’s plan to change FOI laws and increase government secrecy may be unconstitutional and is opposed by the LNP, Greens and Independents. Rex Patrick reports.

Sussan Ley’s opinion piece in the Canberra Times this week, coupled with strong statements of disapproval from Greens justice spokesman Senator David Shoebridge, appears to be the final nail in the coffin of Prime Minister Anthony Albanese’s hypocritical and evil attempt to restrict citizens’ ability to participate in democracy and review the performance of their government.

Every document produced by the government is produced for public purposes and on taxpayers’ money. The Freedom of Information Act itself states:

Information held by the government will be managed for public purposes and is a national resource.

Of course, there is also information that we should not see; defense secrets, law enforcement tactics, commercially sensitive information shared with the government, and government-held personal information of citizens.

Judge Mason put this very well in his Supreme Court decision. Commonwealth of Australia v John Fairfax & Sons:

“In our democratic society, it is unacceptable to have a restriction on the publication of government information when the only defect of government information is that it allows the public to discuss, review and criticize government actions.

“Accordingly, the court will determine the government’s request for confidentiality based on the public interest. Unless the disclosure is likely to harm the public interest, it will not be protected.”

This judicial declaration was made in 1980, two years before the Freedom of Information Act became law. The principles laid down by Judge Mason were later incorporated into the Code; the default position here is that the requested information be provided to applicants “unless access to the document at that time would not be contrary to the public interest generally”; but this is the default location,

is being effectively defeated by a thriving culture of government secrecy.

Horse trading risk

Could the coalition opposition waver in its resolve in exchange for less stringent environmental regulations on industry? Can the Greens reach a deal in exchange for tighter emissions controls?

The problem is, when you trade horses you sometimes end up with a donkey.

But anything is possible in politics. The bill is not planned to be debated this year. A week is a long time in politics; a few months and eternity.

Is it unconstitutional?

If the bill is approved, the step back would be to pose a constitutional challenge to potential crackdowns on public access to government information. There is power in proposition

The bill interferes with the freedom of political communication implied in the Australian Constitution.

Implied freedom of political communication exists to ensure that Australians can make a free and informed choice as voters.

In the 1992 Supreme Court case of Australian Capital Television Pty Ltd & New South Wales v Commonwealth the court held that implied freedom was a necessary event of the representative democracy provided by the Australian Constitution. Communication is protected because it is a means by which voters inform themselves about government and political issues and allow them to make an informed choice in elections.

Anthony Mason, then Chief Justice of the Supreme Court, said in this case:

“… The point is that representatives, who are members of Parliament and Ministers of State, are not only elected by the people, but they also exercise legislative and executive powers as representatives of the people. And in exercising these powers, representatives are necessarily accountable to the people for their actions and have the responsibility to take into account the views of the people on whose behalf they act. Freedom of communication is an indispensable element of representative government.

“Indispensable to this accountability and responsibility is the freedom of communication, at least in relation to public affairs and political debates. Only by using this freedom can the citizen convey his views on a wide range of matters that may require or relate to political action or decision. Only by using this freedom can the citizen criticize the decisions and actions of the government, seek to bring about change, call for action when no action has been taken, and thereby influence elected representatives. In these ways, elected representatives are able to influence the public’s He is equipped to carry out his duties in a way that can take into account and respond to his will.

“Communication in the exercise of freedom is by no means a one-way traffic, for elected representatives have the responsibility not only to learn the views of the electorate, but also to explain and explain their decisions and actions in government, and to inform the public so that they can make informed decisions on relevant matters. (Author’s emphasis.)

“In the absence of such freedom of communication, representative government will not achieve its purpose, namely, the government of the people through their elected representatives; the government will cease to be responsive to the needs and wishes of the people and in this sense will cease to be truly representative.”

No arguments, please. We are the Australian Government!

The FOI Act recognizes this Constitutional basis, and Parliament declares that one of the aims of the act is to “promote Australia’s representative democracy”. In the 1988 Supreme Court case of Egan v Willis, Justices Gaudron, Gummow and Hayne said:

In Australia, judicial review of administrative actions under Article 75(v) of the Constitution and federal and state law, together with freedom of information legislation (author’s emphasis) complements the functioning of responsible government in this respect.

Beyond reasonable confidentiality

Although the Supreme Court only declared freedom of political communication in the 1990s, this freedom has existed in Australia since 1901.

Although the FOI Act only came into force in 1982, it effectively codified a mechanism and a reasonable limit on what government information could be available to satisfy the Constitutional freedom of political observation.

The Cabinet provisions in Prime Minister Albanese’s FOI Amendment Bill depart from the necessary confidentiality regarding Cabinet solidarity and collective responsibility, and are a radical departure from established understanding and practice.

Wrap a blanket of secrecy over everything conducted at the upper levels of government.

Albo’s dangerous expansion of Cabinet secrecy

Secrecy for the sake of secrecy is wrong. Exaggerated secrecy, that is, secrecy beyond the public interest, would distort the foundations of our democracy and would likely be unconstitutional.

Articles 7 and 24 of the Constitution, which state that the Senate and the House of Representatives, respectively, shall consist of senators and members directly elected by the people of the Commonwealth, imply that citizens have the right to information so that they can properly consider their votes.

Therefore, the passage of the bill will likely lead to an issue regarding its validity.

Laws intended to conceal what the public owns and should reasonably be able to see.

Indifference

So, although it seems that the passage of the bill in the Parliament will fail, the Government will work on a negotiation scenario; maybe he could suggest something the Coalition hates but the Greens really like, or something the Greens hate but the Coalition really likes.

However, no benefit was obtained from the negotiations on this bill. A poison pill for democracy.

What water is to life, information is to democratic participation. We took it for granted until the water stopped flowing. One should not be complacent and no agreements should be made. Albanese’s bill to suppress toxic FOI should be voted down.

The Senate’s Legal and Constitutional Committee will hold its first hearing on the bill this Friday.

Albo’s hundred-day diary – plus a set of steak knives