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Old 18th Dec 2013, 05:27
  #1659 (permalink)  
Join Date: Apr 2007
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Hon Justice Kirby, Sir Humphrey and the FOI seven deadly sins!

From a thread drift of bureaucratic (in particular Fort Fumble..) obfuscation of the FOI to Executive government's deliberate promotion of bureaucratic obfuscation generally??? Hmm...personally it is a bit out of the league....of a simple knuckle-dragger but I'm up for it so let's bring it on!

Let's start by referring to a certain former HC Judge speech back in '97 (the Hon Justice Michael Kirby), to the Poms section of the International Commission of Jurists. Although long winded in parts and given over 16 years past, IMO this speech should be read and analysed in context of the now long history of the RRP & the many (as Leadie refers in his post) subsequent inquiries into the administration of aviation safety in this country. All this for very little gain in improving aviation safety while decimating GA in the process..

Ok to Kirby's speech and a quote of relevance perhaps..

.."It is true that in many things, in government, the law, in literature and sport, England has taught the nations of the world. But it also taught them the business of bureaucracy. It was a stern lesson. Its officials throughout the Empire were almost wholly uncorrupted. After the 1850s they were chosen by open, competitive examinations. They followed steady routine. They observed the rule of law, not the whim of rulers. But they also followed a regime of high secrecy. However suitable that regime of the 'Official Secrets Act' was for imperial and colonial times, it became seriously unsuitable for times in which political theory, egged on by information technology, preached that the century of the common man had arrived..."

Kirby's speech was primarily focused on the Poms, who were about to enact the FOI in Parliament. Kirby was pointing out the pitfalls, lessons learnt (so far) from the Australian experience. Hence the title of his speech..'FREEDOM OF INFORMATION: THE SEVEN DEADLY SINS'

So to the sins, with some quotes..

Sin 1 Strangled at birth:
The first sin is the danger that this brave but novel idea could be strangled at birth. One of the most popular of British television exports has been Yes Prime Minister! In Australia it was said that Prime Minister Hawke and the Head of his Department, Sir Geoffrey Yeend, used to watch it together each Monday night. They were observed to laugh; but at distinctly different times. All of us have seen the way the unforgettable Paul Eddington portrayed the intermittently idealistic politician, Jim Hacker, as an occasional proponent of FOI legislation. How frequently, and comparatively easily, Sir Humphrey led him on. Only to win the last battle on grounds of supposed principle, urgent economy or the dangers of political embarrassment.
Sin 2 Retaining secrets:
The second deadly sin is to pretend to FOI but to provide so many exceptions and derogations from the principle as to endanger the achievement of a real cultural change in public administration.
Sin 3 Exemptions {relevant to the PAIN inquiry}:
The third deadly sin consists of surrendering to too many requests for exemption from the application of FOI legislation.
Sin 4 Costs and fees:
The fourth deadly sin is to render access to FOI so expensive that it is effectively put beyond the reach of ordinary citizens. This is a development that is becoming of concern in Australia. The critics of the administrative reforms in Australia (of which FOI was one) tend to find ready allies in the government of the day.
Sin 5 Decision-makers:
A fifth deadly sin to watch is the threat of undermining the essential access to an independent decision-makers who can stand up to government and require that sensitive information be provided
Sin 6 Interpretation
The sixth deadly sin is one for which the judiciary, and not the politicians, may be accountable. Judges also grew up in the world of official secrets and bureaucratic elitism. Sometimes they may share the sympathies and the outlook of the Sir Humphreys of this world. In the way in which the common law often follows a course harmonious with statutory law, it is desirable that judges, in their decisions, should also embrace the culture of FOI. It is a culture which asks not why should the individual have the information sought, but rather why the individual should not - at least where the information concerns the government of that individual's country or documents in some way relating to the individual personally.
Sin 7 Changing administrative culture:
This brings me to the to the seventh deadly sin. This is the notion that the passage of FOI legislation is enough of itself to work the necessary revolution in the culture and attitudes of public administration. Going on Australian experience, it is not. In a series of lectures in 1994 and 1995, Sir Anthony Mason, the past Chief Justice of Australia, confessed to a doubt that a "significant change in the administrative culture" and "an improvement in the quality of administrative decision-making" had actually been achieved as a result of the administrative reforms in Australia, including FOI. Apart from anything else, if little is done to promote knowledge of the FOI facility and to enhance the citizen's view that this is a right (and not an exceptional petition), an FOI Act is unlikely to be put to general use.
Hmm..multi-guess question: So was Kirby a ; (a) great sage or; (b) a prophet or maybe; (c) he carried a crystal ball in his robes..?? If in doubt my pick would be; (d) none of the above!

Comment: Kirby is a very astute learned gentleman, who had the wisdom, experience and knowledge of many years of the vagaries of various, numerous new Acts/ Amended Acts & laws going from theory, to draft, to legislated, to becoming live laws of the land. Therefore his summary of the pitfalls of the FOI (the seven sins) still stands the test of time...well sixteen years at least..

Question: I wonder if the AG Senator Brandis has considered the potential 'can of worms' he may open by initiating last week's inquiry referred to the ALRC (reference: post #283 from RR thread)??

Last edited by Sarcs; 18th Dec 2013 at 05:40.
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