The end of conclusive certificates in Australia?

Channel Seven's Michael McKinnon, who has been fighting freedom of information battles for years, lost his case in the Administrative Appeals Tribunal, ending a two-year effort to get the advice the Government had when it was drafting the Work Choices law.

Although McKinnon lost, there were some important victories in the fine print. The Government won because the tribunal upheld one argument against release. But most of the other arguments were demolished by the deputy president, Stephanie Forgie.

McKinnon first applied for the documents in 2005. Then, last August, the secretary of the Department of Prime Minister and Cabinet, Peter Shergold, issued conclusive certificates to prevent release. These are the certificates neatly allowing governments to state documents cannot be released because it would be contrary to the public interest.

In its reasons in support of those certificates, the Government used arguments known as the Howard factors, which have been around for more than 20 years, and which take their name from the case John Howard lost in Opposition when he fought a freedom-of-information case against the then treasurer, Paul Keating.

Briefly, those factors say that if senior public servants knew their advice or discussion papers might be released they might not write things down, and they might not give frank, honest, comprehensive, accurate and timely advice to their ministers. Departmental advisers could be left out of the policy loop altogether. And the higher up the echelons you go, the more sensitive the advice. What Ms Forgie has said is: prove it.

It is no longer enough for public servants to state this is their belief about how others would behave if documents were released. This precedent-setting decision says that if governments want to make these claims, then they will have to get senior bureaucrats and ministers to give sworn evidence, and be cross-examined on claims bureaucrats would refuse to abide by the rules governing public servants if they thought their records could be released under freedom of information.

This decision rejects arguments used for decades to hide options papers prepared for all big policy decisions. McKinnon lost his case because his documents were the subject of the restrictive conclusive certificates that stop the tribunal considering the merits of release. That might now change. Kevin Rudd has promised to abolish conclusive certificates.

Government's arguments denied (Sydney Morning Herald, 22 November 2007)