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Section 36, Section 44, The RED, The BLUE, and The Catch 22

27/09/2010

The RED and the BLUE books are out and about. And if you have not read them or gotten a hold of them yet then you can find them in the links of the sources below. Thanks again to Peter Martin.

This is a particularly complex issue so bear with me to the end. Please.

As I have said before, I am no political egghead or genius. But I am not blind either.

I could talk to you about many of the things in the RED and the BLUE books, but that’s requires expertise beyond me and already many journalists are attempting to come to grips with what is in them.

What I want to talk about is what has NOT been released.

The FOI act is what allowed the RED and BLUE books to be released. But the same act has allowed both parties to black out large chunks of the material.

Using two sections of the act, they have been allowed to have swathes of information excluded for release. These sections are Section 36 and Section 44.

So it is only fair we should take a close look at these acts; something that has been avoided by the journalists who have been trying to assess the contents of both books while trying to guess what the sections that are blacked out may or may not have said.

Without further ado, I present these two acts. Please try not to fall asleep:

FREEDOM OF INFORMATION ACT 1982 – SECT 36

Internal working documents

(1)  Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act:

(a)  would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth; and

(b) would be contrary to the public interest.

(2)  In the case of a document of the kind referred to in subsection 9(1), the matter referred to in paragraph (1)(a) of this section does not include matter that is used or to be used for the purpose of the making of decisions or recommendations referred to in subsection 9(1).

(5)  This section does not apply to a document by reason only of purely factual material contained in the document.

(6)  This section does not apply to:

(a)  reports (including reports concerning the results of studies, surveys or tests) of scientific or technical experts, whether employed within an agency or not, including reports expressing the opinions of such experts on scientific or technical matters;

(b)  reports of a prescribed body or organization established within an agency; or

(c)  the record of, or a formal statement of the reasons for, a final decision given in the exercise of a power or of an adjudicative function.

(7)  Where a decision is made under Part III that an applicant is not entitled to access to a document by reason of the application of this section, the notice under section 26 shall state the ground of public interest on which the decision is based.

NOTE: I have copied this document ASIS. The links are below. I am not sure if there are missing information from the actual law or it is a typo re the jump from (2) to (5)


FREEDOM OF INFORMATION ACT 1982 – SECT 44

Documents affecting national economy

(1) A document is an exempt document if its disclosure under this Act would be contrary to the public interest by reason that it:

(a) would, or could reasonably be expected to, have a substantial adverse effect on the ability of the Government of the Commonwealth to manage the economy of Australia; or

(b) could reasonably be expected to result in an undue disturbance of the ordinary course of business in the community, or an undue benefit or detriment to any person or class of persons, by reason of giving premature knowledge of or concerning proposed or possible action or inaction of the Government or Parliament of the Commonwealth.

(2) The kinds of documents to which subsection (1) may apply include, but are not limited to, documents containing matter relating to:

(a) currency or exchange rates;

(b) interest rates;

(c) taxes, including duties of customs or of excise;

(d) the regulation or supervision of banking, insurance and other financial institutions;

(e) proposals for expenditure;

(f) foreign investment in Australia; or

(g) borrowings by the Commonwealth, a State or an authority of the Commonwealth or of a State.

———————————————————————————————————————————–

So lets do a little examination of what these pieces of legal speak actually say. Lets start with Section 36 as that is used a lot!

So you can whack out the black pen if (a) doing so would let us know where they are getting their information from and unearth how the Minister of the Government does their job

AND

(b) it would be contrary to the public interest.

Let that settle in a little bit people.

Apparently we have a Freedom Of Information Act that limits our ability to obtain information! And the excuses here are it shows the inner workings of the parliament or it is not in our best interest to know.

Now lets look at the exemptions to these little exceptions as they will give us a clear idea what is at question here. Basically the exemptions to the exceptions (don’t you just love lawyers) are you cant use the black pen where the information is a facts or from a reports or from formal statements using Section 36.

Section 44 pertains mostly to financial stuff. I especially love the line undue disturbance of the ordinary course of business in the community”. Sounds awfully like a disturbance in the force to me, but hey, I like movies.

The second part of that clause is too stupid to be true. I call it the Catch 22 clause.

or an undue benefit or detriment to any person or class of persons, by reason of giving premature knowledge of or concerning proposed or possible action or inaction of the Government or Parliament of the Commonwealth.

Slow that down and process it. In other words, they cant release this information in case someone is going to use it to make a profit, or it signals a loss, or having the information gives you information that you can use or not use depending on the action or the non actions taken.

WTF???

Okay maybe a lawyer will be able to help me out here, but this is more beyond me than relativity and that’s pretty out there!

By the way if you have never read Catch 22, then for god’s sake, stop what you doing RIGHT NOW and go grab a copy. It is one of the most important books of the 20th Century in my humble opinion. From that beautiful book by Joseph Heller:

There was only one catch and that was Catch-22, which specified that a concern for one’s safety in the face of dangers that were real and immediate was the process of a rational mind. Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn’t, but if he was sane he had to fly them. If he flew them he was crazy and didn’t have to; but if he didn’t want to he was sane and had to. Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle.

So I will concentrate on things that pertain to Section 36. It wont hurt my brain as much.



I have tried to be fair here and shown two pages from both books in regards to Climate Change as its the latest hot topic. Although I found it interesting that the Coalition pen strikes out even the section that is the introduction of ‘The emissions reduction challenge’ sub chapter where as the ALP let a little bit show but then hid the rest.

So what is hiding under those black lines. We know it cant be fact, or from a report, or from a record of formal statement. So that leaves it will somehow shine a light on the inner workings of how parliament works AND it is not in the public interest.

That’s right folks! It is against the public interest to know the real truth about Climate Change. Why do both talk about a Carbon price mechanism when both ALP and the Coalition denied they are doing so? And why does the Coalition continues to say they are against it when quite clearly they are not!!!

Sometimes I dont think they have our public interest at heart at all.

Of course the CATCH-22 here is, they can’t disprove my last statement despite knowing the information behind the black marks because they are not allowed to . Similarly I am not allowed to be given the information so I  can’t prove and or disprove my statement either.

To quote another line from Catch-22

“‘I’m afraid.’
‘That’s nothing to be ashamed of,’ Major Major counseled him kindly. ‘We’re all afraid.’
‘I’m not ashamed,’ Yossarian said. ‘I’m just afraid.'”

A. Ghebranious           2010                            All Rights Reserved

Sources:

The Law: Section 36 and 44

http://www.austlii.edu.au/au/legis/cth/consol_act/foia1982222/s36.html

http://www.austlii.edu.au/au/legis/cth/consol_act/foia1982222/s44.html

From the Australian:

An attempt to examine the Red and the Blue bits that are not blacked out. A little bias expected.

http://www.theaustralian.com.au/news/features/red-books-hard-reading-for-labor/story-e6frg6z6-1225929697035

The Books: The Red and the Blue

http://www.petermartin.com.au/2010/09/what-treasury-told-gillard-red-books.html

http://www.petermartin.com.au/2010/09/its-not-just-red-book-now-coalitions.html

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