Dear Aussie legal brains,
A friend has just FOI'd correspondence within the government about his
case, which resulted in a conviction that is well and truly a
miscarriage of justice. As there are still people sitting in the
government with a significant interest in keeping this under wraps,
with two minor exceptions he was simply sent back copies of what his
lawyers had submitted in a pardon application. By what I regard as a
miracle, the FOI droid invoked 43(1) and 50 of the FOI act.
The minor exceptions to the general refusal to provide any documents
he didn't already have, were a couple of acknowledgments that revealed
that his case had been referred to the Constitutional Law branch of
the state government. In itself this is not surprising, there are
certainly constitutional issues that relate very directly to the heart
of his case in terms of political interference in judicial process,
and police misconduct that is still being covered up in a very, shall
we say, Fitzgerald sort of way...
In my mind, this hands him the keys to the High Court in Canberra,
which is where his case really should go, because the local State
systems are so thoroughly corrupt that there is no way in Hell that
his pardon application will be heard, much less taken seriously. This
is even though every single 'corroborating' witness can now be shown
to have perjured themselves, almost certainly at the behest of the
police, who seem not to have worked through their usual chain of
command, and who have been allowing the offending officers to
investigate their own conduct. The State courts need to be ordered to
hear the new evidence which absolves him and points telling fingers
back at an array of political figures, but they won't listen with the
present government in power, and with those elements who have played
along still on the bench.
By invoking legal privilege and the "interests of the government" as
grounds for denying access to to documents on what should be the
public record that almost certainly incriminate the government, it
seems to me that there is an issue around whether or not a government
can invoke legal privilege with respect to communications from an
agency that is itself a public service. Furthermore, I wonder if it
could be argued that the language of s.50 is so broad as to allow a
government to hide evidence of its own malfeasance, much in the same
way that Bush is retroactively allowing his government to escape
charges of torture by revoking Geneva convention rights retroactively
to 1997.
So to the point, is there something constitutional that can be picked
out of a law that allows the government to deny information (some of
which really should be public record, IMHO) people who have almost
certainly been framed on criminal charges by it? Inquiring minds are
dying to know... |