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Australia

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Australia
History

Australia enacted the Commonwealth Freedom of Information Act in 1982 – the first country to do so in a Westminster-style democracy. Its origins can be found in a 1972 election policy commitment of the Australian Labor Party and in due course the first FOI Bill in Australia was introduced by the Fraser Government in 1978.

The Privacy Act was later introduced in 1988 with both laws developing separately over the following 20 years. Individual states within the Commonwealth have their own FOI Acts too.

There have been many criticisms of how the Commonwealth law has operated since it was passed by the Fraser government in 1982. [1] Many felt that there was minimum cultural change in government agencies and that a presumption in favour of disclosure was not practiced across government. [2] Prominent requesters such as the Sydney Morning Herald's Matthew Moore complained about the legalistic culture that had developed around the Act, and the long list of exemptions. [3]

These concerns were reflected by the formation in May 2007 by 12 major media organisations of the Right to Know Coalition, which took a stand against secretive government behaviour and the withholding of public documents.

Moreover, the exploiting of FOI restrictions and, according to some, excessive withholding of information by government agencies was highlighted by a number of high-profile cases in the press. In Victoria, documents outlining government failure to deal with bushfires - which claimed 200 lives- were withheld despite promises by the Victorian Premier that information was key to preventing further disasters.

In 2008 the Roads and Transport Authority came under investigation after the office repeatedly refused to release potentially embarrassing information which would have shown the deteriorating travel times and maintenance of road surfaces. In response to the case, the State Ombudsman took the unprecedented step of sending a damning report into the affair directly to New South Wales’ Premier Nathan Rees, calling on him to take urgent action and review the practice of FOI in state agencies. [4]

Current situation

Australian FOI has since undergone radical reforms. Individual state governments have updated their laws, and the new Commonwealth Labor government which came into office in September has pioneered a wholesale revision of federal FOI. [5]

The Freedom of Information Amendment (Reform) Act 2010 (Cth) and the Australian Information Commissioner Act 2010 (Cth) received Royal Assent on 31 May 2010, and contain what is argued to be the most significant changes to the Federal FOI regime since its establishment. The recent reforms seek to enact a permanent cultural shift within Australian government and intend to implement a robust pro-disclosure philosophy. Brendan O’Connor, Minister for Privacy and Freedom of Information, stated that “information is an asset for all to share in, wherever possible. It is not the possession of one agency or individual.” These changes are said to reflect a broader policy change, one in which the mantra is “government information is a national resource - just like our water, our minerals and our beaches.” [6]

Changes

The main changes enacted by the FOI revisions are as follows:

  • Establishment of the Office of the Australian Commissioner
  • Changes to fees and charges of FOI
  • Information available/Exemptions and the public interest test
  • Reforms to the FOI request and Review processes (a request can now be sent by email, as well as posted or hand delivered)
  • Culture/Promoting disclosure of information

Office of the Australian Information Commissioner

The centrepiece of the new FOI reforms is the creation of the Office of the Australian Information Commissioner (OAIC), an independent statutory agency. Previously, complaints and reviews were handled solely by a state Ombudsman.

The OAIC will be headed by three Commissioners - the Information Commissioner, the Freedom of Information Commissioner and the Privacy Commissioner – who are expected to act as “advocates and enforcers of the nation's approach to FOI and privacy."[7] Speaking at the launch of the new FOI regime, new Information Commissioner John McMillan stated that the office marked an "important stage in the growth of Australian democracy". [8]

The Office is responsible for investigating complaints, reviewing agency FOI decisions, education and awareness, and reporting on compliance.

Most importantly the OAIC brings together in one agency the functions of information management and independent oversight of privacy protection and FOI. The government hopes that the integration of both Acts under the one office will heighten the responsibility of government agencies to pay closer attention to information issues.

Cost and Fees

The reduction of fees and charges is intended to remove some of the financial impediments that might have previously prevented those seeking access to government data. The main changes to costs and fees are set out below.

  • $30 application fee for FOI requests has been abolished
  • Fees for applications for internal review (previously $40) are abolished
  • First five hours of decision-making time will be free for all FOI applicants with any subsequent decision-making time being charged at $20 per hour.
  • An individual seeking access to personal information will not be subject to any charges
  • Fees no longer apply if an applicant fails to receive a FOI decision within the statutory 30 day time limit.

There is no change to the current charges for time spent researching and retrieving documents in response to an FOI request ($15 per hour).

While these changes have been presented as a leap towards a more open and accessible government, they must be understood within the context of Australia’s financial approach to FOI compared to other countries. While it has abolished the initial application fees, making an FOI request remains a costly procedure for individuals as they are charged $15 per hour taken to complete a request. This bears particular relevance when viewed in light of figures from the 2008-2009 Annual Report which states that processing a FOI request takes on average 18 hours 43 minutes to process a request.

Nonetheless, the removal of initial application fees is anticipated to lead to an increased volume of FOI requests. [9]

Documents available, Exemptions and the Public Interest test

The legislation includes a new ‘public interest test’ which will demand greater accessibility to previously exempt documents. The public interest test said to be “actively weighted towards disclosure” [10]. For example, a FOI access request can now extend to documents held by a contracted service provider who is delivering services to the public on behalf of an agency. [11]

Furthermore, from 1 May 2011 agencies must publish disclosure logs on their websites within 10 days of the disclosure to the applicant. In addition, Australian government agencies must comply with a new publication scheme aimed at promoting disclosure of information.

This includes unprecedented accessibility of information from financial agencies such as the Tax Office. One of the most important announcements came from the Reserve Bank which stated it would publicly and freely release any documents made available to Freedom of Information applicants at the same time. Being a wealth of information on financial matters, the state of the economy, and the strength of the system, the active disclosure of such information is believed to be a radical step for the Association.

But while the publication of disclosure logs have been heartily welcomed by businessmen and tax lawyers alike [12], not everyone is pleased. Somewhat ironically, the introduction of disclosure logs has received a negative reception from journalists who have expressed worries that the publication of all FOI requests will eliminate any advantage over rival news organisations. [13]

The government has also introduced a Transparency 2.0 initiative which aims at changing the way documents are held and accessed. By improving online files and record-keeping, it is hoped that information will be more easily retrieved. [14]

Culture

Above all, the revisions to the FOI Act seek to compel a culture of openness and transparency within the Australian government and democratise access to information. Brendan O’Connor has stated that “with these reforms, the Gillard government is ushering in a new era of openness” by arguing that “far from being afraid of information, we should embrace the free flow of it as a feature of a democratic nation wherever possible”. [15]

Future

The Labor government state that the FOI amendments mark "a new era of accountability and transparency". In doing so, the government believes they will “further improve public participation in government processes and increase accountability in the government's activities." [16] Certainly, the reforms promise a great deal but only time will tell whether the intentions will be realised.

Of particular interest is the financial repercussions abolishing fees will impose on the government. The Australian 2008-2009 Annual FOI Report stated that the average cost of processing an FOI requests sat at a whopping $1,208 AUD – a 29 per cent increase from the previous annual figures. Indeed, since the new laws came into force many agencies have experienced a surge in FOI applications. [17] However, Professor McMillan has stated that while he expects some will struggle to meet their processing deadlines, the number of requests will eventually plateau due to the published information in disclosure logs. The actual outcomes of the new laws remain to be seen.

References

[1] Peter Timmins 'Open and Shut' blog

[2] John McMillan ‘Freedom of Information Reforms and Cultural’, presented to UNESCO, 2 May 2010

[3] Australian Broadcasting Corporation (ABC) Law report, Tuesday 20 October 2009 8.30am, listen via quicktime

[4] Simon Benson, ‘Freedom of Information scandal referred to ICAC’, January 14 2009, The Daily Telegraph

[5] Brendan O’Connor ‘Sweeping Away a Culture of Secrecy’, November 01 2010, The Sydney Morning Herald

[6] Ibid.

[7] Brendan O’Connor ‘Sweeping Away a Culture of Secrecy’, November 01 2010, The Sydney Morning Herald

[8] Information Commissioner John McMillian speech, 1 Nov 2010

[9] John McMillan and Brendan O’Connor Interview Transcript, 1 Nov 2010

[10] OAIC Fact Sheet

[11] OAIC Fact Sheet

[12] Adele Ferguson ‘FOI laws have changed, and the Tax Office will be the first under the spotlight’, November 1, 2010, Sydney Morning Herald

[13] Sean Parnell, ‘Public access for breached Reserve Bank info vaults’, November 08 2010, The Australian

[14] Australian Information Commissioner Designate 2010 National Administrative Law Forum, Sydney, July 2010

[15] Brendan O’Connor ‘Sweeping Away a Culture of Secrecy’, November 01 2010, The Sydney Morning Herald

[16] John McMillan and Brendan O’Connor Interview Transcript, 1 Nov 2010

[17] Sean Parnell, ‘Public access for breached Reserve Bank info vaults’, November 08 2010, The Australian

Page last modified on 30 sep 11 11:36

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