The draft guidelines on commercial-in-confidence issued by the ACT Government last week are welcome. It is more welcome that they are draft guidelines and that the public has six weeks to comment on them. Development of the guidelines was requested by Chief Minister Kate Carnell in December last year.
The best part of the guidelines is that they reverse the onus on the question of commercial confidentiality. It is now up to the business to show it will be adversely affected before confidentiality will be granted. There is to be no automatic commercial in confidence just because a matter is a commercial dealing; the commercial entity must show that disclosure will give rise to inappropriate commercial loss or gain. The Government is not to enter confidentiality agreements where non-disclosure is against the public interest.
Under the guidelines the Government will have to abide by a commitment to as full disclosure as possible. The Government will be obliged to disclose information wherever possible, including information relating to its commercial dealings, to the people on whose behalf it is acting.
These are good ideals. The trouble is that they must be applied by humans, in particular humans in government whose natural tendency is towards secrecy rather than openness.
The real test for the guidelines will come in the enforcement and reporting procedures, which have not yet been laid out. One of the troubles with secrecy arrangements, is that of their nature no-one can know what has been allowed to remain secret.
The guidelines say the Minister may report some commercial-in-confidence matters to the Assembly. Perhaps they should require that a list of commercial in confidence arrangements and the parties they were made with be tabled every month.
The guidelines point to the possibility of limiting the time period for which information might be commercial in confidence. Perhaps all should become automatically public after a set time unless the secret holder demonstrates good cause for continuing secrecy.