Written by: Phil Sealy – The Pro Forum Community of Practice

Legislation is designed to keep governments honest and can serve both as a valuable tool for transparency and accountability and, in some cases, as a smoke screen. It largely depends on the intentions and implementations of such legislation.

Legislation has been implemented with the aim to keep governments honest and support the requirement of being transparent and accountable to the public in the day-to-day functions they undertake.

Some examples of this at the commonwealth level is the Judicial Review Act (JRA) and Freedom of Information Act (FOI).

The judicial review is a legal process that allows courts to review the legality of administrative decisions made by government bodies, public officials, or other decision-makers. The grounds for judicial review typically includes issues related to legality, procedural fairness, bias, jurisdictional error, and other legal principles.

Federal administrative decisions in Australia are primarily subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977. This Act outlines the grounds on which a person can seek judicial review of federal administrative decisions.

The Freedom of Information Act (FOI Act) grants individuals the right to access government documents and information retained by federal government agencies and certain state and territory government bodies (known by different names, such as the Right to Information Act 2009 in Queensland). The FOI Act strives to promote governmental transparency and accountability by permitting the public to request access to a broad spectrum of government records.

However, there are instances where governments may give the appearance of transparency and accountability by allowing scrutiny of their processes and decisions through relevant legislation. Nevertheless, when the same entity responsible for making decisions also wields the power to invoke exemptions and limitations within the legislation to block the disclosure of decision-making information, it can be viewed as a smoke screen.

This leaves individuals and organisations with the arduous and costly option of resorting to legal action against the government on grounds related to legality, procedural fairness, bias, jurisdictional errors, and other legal principles. The process, accompanied by stress and expenses, often acts as a deterrent for most individuals and organisations from pursuing legal action after initially engaging with the government directly.

The question arises: Is the government erecting this barrier as a smoke screen to project an image of openness while concealing less-than-honest practices behind the scenes, or is it a procedural safeguard that demonstrates the government’s commitment to transparency and accountability?

 

I have my view on this, however would be keen to hear what you have to say on this topic.

 

NOTE: The content of this article is intended to provide a general guide to the subject matter, and specialist advice should be sought about your specific circumstances. The content must not be relied upon as legal, technical, financial or other professional advice.