Chapter 3
Committee's consideration of terms of reference
3.1
It is important to note that all witnesses were ultimately supportive of
the bills. Professor John McMillan, the Commonwealth Ombudsman and Information
Commissioner Designate commented that:
Along with all of the other submissions to this inquiry I
commend the reform initiative in the legislation that is under consideration by
this committee and, along with all other submissions to this inquiry, I urge
parliament to enact these reforms at the earliest opportunity.[1]
3.2
Mr Peter Timmins, an FOI consultant who appeared before the committee in
a private capacity agreed, stating that 'I think the legislation is a good and
positive move in the direction of more open and accountable government'.[2]
Similarly, Dr Johan Lidberg, the Academic Chair of Journalism at Murdoch
University commented:
It is great to see that FOI is on the agenda. Quite often it
is not, so it is great that it is up there. I would like to commend the whole
process. I think it has been quite terrific thus far.[3]
3.3
During its inquiry, witnesses and submitters raised a number of issues
with the bills, and made various recommendations as to how they might be
improved. Many of these were contradictory and, with the exception of one
issue—that of the alteration of the onus of proof in proposed section 61 of the
FOI Bill—there was little consensus amongst submitters and witnesses as to what
aspects of the bills ought to be amended. Accordingly, and particularly given
the significant support that all witnesses ultimately expressed for the bills, the
committee considers that, with respect to most aspects of the bills, the
government has done an outstanding job of taking competing interests into
account and has developed a new FOI framework which is focused on achieving
open and accountable government.
3.4
Furthermore, despite the various suggestions for improvement made by
many submitters and witnesses, each one ultimately emphasised the point that
the reforms proposed by the FOI and Information Commissioner Bills are
important reforms, which address the key issues with the current Act. As Mr Michael
McKinnon, from Australia's Right to Know summarised:
[W]hile this may not be the best reform of FOI, it is the
best reform since 1982. We think it is very important that this reform go
through before the end of the first term of government.[4]
3.5
The Australian Press Council commended the government on addressing its
main concerns—fees, delays and exemptions—in the bills.[5]
And the President of the Australian Law Reform Commission (ALRC), Professor
Rosalind Croucher, signalled that the ALRC is 'very supportive of many of the
reforms in both the bills and that we consider the proposed amendments will
improve the operation of the Freedom of Information Act and represent a very
positive step towards open and accountable government'.[6]
3.6
This chapter sets out the key issues raised in relation to the bills
during this inquiry and responds to each of reasons for referral of the bills.
Given the emphasis by witnesses and submitters when discussing the bills, on
the need for a fundamental shift in the way in which government perceives and
treats FOI, the term of reference relating to the creation of a pro‑disclosure
culture is discussed first. The remaining three terms of reference, relating
to: the right of access provided in the bills; the FOI application process; and
the Information Commissioner are then discussed in turn.
Will the measures assist in the creation of a pro-disclosure culture with
respect to government and what further measures may be appropriate?
3.7
One of the key positive aspects of the bills that witnesses emphasised
was their potential to bring about a change in the culture of executive
government towards information disclosure.
3.8
Witnesses agreed that there is a need for a shift in the way executive
government treats FOI, and the handling of information generally. The committee
received submissions from individuals and organisations representing
professional groups who use existing FOI laws, many of whom have found the laws
to be ineffective as a result of negative attitudes to disclosure within
government agencies.[7]
3.9
Mr Andrew Murray, former Australian Democrats Senator, argued that:
In the last 25 years the ability of individuals and
organisations to access information held by Government departments has been
slowly eroded. Many agencies are less than supportive of an open approach.[8]
3.10
Dr Lidberg, Academic Chair of Journalism at Murdoch University, was much
more critical, and referred to the current FOI Act as 'severely dysfunctional'.[9]
Dr Lidberg, explained the results of a study he conducted comparing the
attitudes of various governments to information disclosure:
I did a study in 2004-05 that surveyed a number of leading public
servants and then government ministers; it clearly showed that the base notion
within the Australian Commonwealth administration was that the government owns
the information. Compared with the four other countries in this survey, this
stood out clearly. The four other countries surveyed were Thailand, the United
States, Sweden and South Africa, and their replies to the survey were very
clearly that the government holds information on behalf of the people. So it is
changing that owning of the information that is at the absolute core of this.[10]
3.11
Professor McMillan, the Commonwealth Ombudsman, noted that the proposed
reforms 'address the three main deficiencies that have been made of freedom of
information law and administration in Australia'.[11]
Professor McMillan listed the deficiencies which the bills address as:
- the lack of a champion for FOI issues within government;
- the need to revise the terms of the FOI Act to encourage a
pro-disclosure culture more clearly, 'give greater recognition to the public interest
as a consideration weighing in favour of disclosure of most documents' and
reduce of fees; and
- 'the need for a cultural shift within government both at the
agency and at the political level'.[12]
3.12
One of the ways witnesses saw the bills as encouraging a pro-disclosure
culture is through the revised objects clause. Mr Herman, the Executive
Secretary of the Australian Press Council, expressed the view that:
One of the reasons [that Australian FOI laws has not worked
as well as New Zealand's laws] is that the Australian law has never contained
an objects clause that has made it clear that an object of the legislation is
to enable the release of information. If for no other reason than that this
[Bill] actually includes an objects clause—one that makes clear what its
objects are and makes clear to officials, to those administering the
legislation and to the courts that the aim of the exercise is to release
information—then it has improved the situation.[13]
3.13
The ALRC also commented on the objects clause favourably, stating that
the proposed new clause 'reflect[s] the democratic principles underpinning
freedom of information'.[14]
Similarly, Associate Professor Moira Paterson explained:
Obviously what you need is a pro-disclosure culture. There
are some elements—for example, the additional protection that is given to
people who release where the document is exempt. That kind of thing helps. The
rephrasing of the objects clause helps. Some of the other changes in terms of
procedures and so on help.[15]
3.14
However, Associate Professor Paterson went on to comment that '[i]deally,
what you would have in the Act would be a stronger statement of that
pro-disclosure'.[16]
Associate Professor Paterson argued that Queensland's FOI laws go 'much further'
than the Commonwealth's bills, and have been successful in changing the culture
of the executive with respect to FOI. [17]
3.15
Dr Lidberg warned that laws alone cannot bring about a cultural change:
The law gives the foundation for change, but it is not the
law that will change the culture; it is the people who are applying and
administering it who will. That is the key. And that is why the commissioner
has become so pivotal in this.[18]
3.16
Professor McMillan argued that one of the most important ways in which
the proposed laws address the problems with the current regime is by creating
an advocate for FOI. He explained to the committee that there have been four
major reviews of FOI laws over the last decade and that '[t]he common theme in
all those reports has been a lack of overt cultural support for FOI laws'.[19]
Professor McMillan argued that having a senior official to champion the FOI
cause would go a long way to addressing the cultural issues with FOI that
witnesses mentioned.
3.17
Ms Elizabeth Simpson from the Public Interest Advocacy Centre (PIAC)
described the problems with the existing FOI regime as 'endemic', however
agreed with Professor McMillan's assessment of the bills, and stated that
'having an information commissioner as an independent body to oversee these
kinds of things will make a huge difference'.[20]
Ms Simpson noted that the powers given to the Information Commissioner in the
bills will form a powerful basis on which to begin the necessary cultural
shift.[21]
Conclusion
3.18
The committee is satisfied that the proposed new objects clause and the
creation of the office of the Information Commissioner will be strong and
effective measures for changing the culture and attitudes towards FOI within
government.
3.19
However, the committee notes the substantial and challenging role that
will be expected of the Information Commissioner in changing the culture of
executive government towards FOI. This role will require significant support,
as well as high‑level policy input. The Information Commissioner will
need avenues through which to ensure that the message of that office is
received and implemented by government departments.
3.20
In order to facilitate this aspect of the Information Commissioner's
role, the committee recommends that the Information Commissioner be made an ex
officio member of the Administrative Review Council (ARC). The ARC is an
expert body which provides advice to the Attorney-General and Commonwealth
government on strategic the Commonwealth system of administrative law. As
freedom of information has long been recognised as an integral aspect of Australian
administrative law, adding the Information Commissioner as an ex officio
member will also ensure that the ARC has a complete picture of all aspects of
Australian administrative law.
Recommendation 1
3.21
The committee recommends that section 49 of the Administrative
Appeals Tribunal Act 1975 be amended to provide that the Information
Commissioner is an ex officio member of the Administrative Review
Council.
Do the Bills contain measures effective to ensure that the right of access
to documents is as comprehensive as it can be?
3.22
The committee has identified three key elements of the FOI Bill which
contain measures to ensure a comprehensive right of access to documents. These
are: the new publication requirements; changes to exemption provisions; and
fees and charges. The committee is satisfied that these changes proposed in the
FOI Bill will be effective in ensuring that the right of access under the FOI
Act is as comprehensive as it can be.
Publication requirements
3.23
Numerous witnesses emphasised to the committee the benefits of the
proposed new publication requirements under the FOI Bill. For example,
Associate Professor Paterson stated that 'I think they are really, really
important'.[22]
The ALRC also commended this aspect of the FOI Bill which it stated is
'consistent with the pro-disclosure culture'[23]
which the ALRC and Administrative Review Council (ARC) recommended in the Open
government report.[24]
3.24
However, Associate Professor Paterson, who appeared before the committee
in a private capacity, commented that publication requirements will only be
effective if there are suitable penalties for non‑compliance.[25]
She noted that disclosure requirements are an aspect of both state and
Commonwealth FOI laws that:
...really has not been very strongly complied with in the past
and I think it is important to send out that message and to fairly clearly
spell out what should happen if those requirements are not complied with. [26]
3.25
In this regard, Associate Professor Paterson argued that:
I think proactive disclosure, what could be termed push
rather than pull, is a very, very important element of modern FOI—that you try
and put out as much as possible rather than requiring people to put it in.
Therefore that is a very important aspect of the bill and it would be helpful
if those aspects could be further strengthened.[27]
3.26
Mr Timmins, who appeared before the committee in a private capacity,
argued that it should not be left up to agencies to decide what information
ought to be published. He explained:
The explanatory memorandum, however, states that agencies are
generally best placed to identify information they hold which should be
published, taking into account the object of the act. My response to that is,
with about 28 years of experience, I do not think they support the fact that
government agencies are best placed to do that.[28]
3.27
Professor McMillan agreed that he, too would be concerned if the regime
relied on agencies to 'gauge its own compliance with the disclosure
requirements of the legislation'.[29]
However, Professor McMillan, pointed out that he:
...would expect that the Information Commissioner and the
Freedom of Information Commissioner will play a very active role in ensuring
adequate compliance by all agencies with the publication requirements.[30]
Exemptions
3.28
The FOI Bill makes some significant changes to the exemption provisions
within the FOI Act, which attempt to clarify the extent of exemptions, and
simplify the exemption provisions. One of the key changes made by the FOI Bill
surrounds the new public interest test and its application. Witnesses also
raised concerns about the continued exemption of whole agencies from the
scheme.
Application of public interest test
3.29
Witnesses and submitters raised some concerns about the application of
the public interest test to various exemptions. However, the committee notes
that there was a distinct lack of consensus between witnesses and submitters as
to which exemptions should attract a public interest test.
3.30
The FOI Bill's proposed application of a public interest test to the
business affairs exemption, but not to the trade secrets exemption (clause 47G
at item 33 of Schedule 3 to the FOI Bill), was argued by a number of submitters
and witnesses to be inconsistent. Telstra noted the 'legal uncertainty' that would
result from the different types of commercial information being subject to
differing tests.[31]
3.31
With respect to the lack of public interest test for trade secrets,
Associate Professor Paterson argued that:
I think that is very unfortunate because more and more of the
information in government is commercial in nature in some way—government is
more commercialised and there are a lot more contracted service providers—so a
very large proportion of the documents that are held by government have some
sort of commercial flavour to them. To the extent that you allow this exemption
you are actually then allowing for a lot of those dealings to be claimed to be
trade secrets or commercial information and to be exempt.[32]
3.32
Telstra[33]
and the Law Council of Australia[34]
also raised this issue, however from a different perspective. The Law Council
argued that no public interest test should apply to the business affairs
exemption as 'there will rarely be any public interest in releasing documents
which record trade secrets or which divulge commercially valuable information'.[35]
3.33
In relation to the personal privacy exemption, the Victorian Privacy
Commissioner, Ms Helen Versey, argued that 'the changes to the protection of
personal information were really a step backwards'.[36]
The issue Ms Versey raised with the bills is that:
The model now being proposed includes not just an exemption
based on an unreasonable intrusion into someone's privacy but a threshold
decision by the organisation or the minister as to whether the person might
want to rely on the exemption.[37]
3.34
Ms Versey further explained that this is not a mandatory decision that
the agency or minister has to make, but involves discretion in deciding
whether the person might wish to rely on the exemption, in which case they
must, if it is reasonably practical, give notice to that person. Ms Versey
argued that if an agency had already decided that information met the condition
of being an unreasonable intrusion on a person's privacy, she did not see how
it would be in the public interest to intrude on that person's privacy by
releasing the information based on the discretionary question of whether the
person might object.[38]
3.35
On the other hand, the PIAC argued that a public interest test should
apply to all exemptions.[39]
Australia's Right to Know also supported this position, and argued for the
application of a public interest test to Cabinet documents.[40]
3.36
Mr McKinnon, from Australia's Right to Know, compared the situation in
Australia with that in New Zealand, where a public interest test applies to Cabinet
documents. He explained that in New Zealand Cabinet documents are subject to a
very high public interest test, which he described as 'entirely appropriate',
given the public interests in 'the solidarity and secrecy of the cabinet process'.[41]
Yet, Mr McKinnon stated, the fact that a public interest test applies to Cabinet
documents minimises the ability for that exemption to be overused by government
in order to avoid FOI.[42]
3.37
From the above discussion it is evident that there was little
consistency or consensus between witnesses as to whether, when and in what form
a public interest test should apply to various exemptions. It is the
committee's view that in the FOI Bill, the government has successfully dealt
with the various, competing views when formulating the proposed exemption
provisions.
Exemption of whole agencies
3.38
A number of witnesses and submitters questioned the continued exemption
of entire agencies from the FOI scheme. Under the current FOI Act, security
agencies, such as the Australian Security Intelligence Organisation and the
Defence Signals Directorate, are exempt, as are various other agencies listed
in Schedule 2 to the FOI Act, including the Australian National Audit Office,
parliamentary departments and the Australian Government Solicitor. Other
bodies have partial exemptions such as the ABC and SBS.[43]
3.39
Associate Professor Paterson submitted to the committee that as a matter
of principle, classes and types of documents should be exempted from disclosure
under FOI, not entire agencies.[44]
She explained that:
If you look at the [FOI] act you see it has a very good,
strong national security exemption provision or if you look at bodies that have
commercial information or other information you will see again that there are
business affairs and other exemption provisions that would seem to address the
issue of concern. What that means therefore is that these bodies are perceived
to be outside of transparency regimes, when that does not need to be the case.[45]
3.40
Associate Professor Paterson argued that removing an organisation in its
entirety from the FOI Act removes that method of public scrutiny. She argued
that this should not be necessary, even for security agencies, as:
...the harms that might result from the disclosure of their
[the exempt agency's] documents should logically be capable of being dealt with
by the exemption provisions.[46]
3.41
Furthermore, Associate Professor Paterson argued that the increasing
powers of security agencies heightens the need to ensure the accountability of
those agencies through FOI. [47]
3.42
Dr Lidberg, the Academic Chair of Journalism at Murdoch University,
noted that neither of the 'benchmark' FOI systems—those in the United States
and Sweden—exempt any agencies entirely from FOI:
The CIA is not exempt. You would be aware that there were
manuals handed out regarding certain interrogation methods, like waterboarding,
for instance. Those manuals came from the CIA. That sends a very clear message:
when you put any agency at all under general exemptions, it sends a message of
secrecy rather than transparency.[48]
3.43
In addition to security agencies, parliamentary departments are
currently exempt from the FOI scheme. A number of witnesses commented on this
including Dr Lidberg,[49]
Mr McKinnon from Australia's Right to Know[50]
and Ms Simpson from PIAC, who argued that:
[I]f you come back to first principles, that the houses of
parliament and parliamentary members are equally part of the government and
also produce information and should also equally be accountable to the public.
So to simply leave them outside the act leaves a part of government effectively
unknowable to the public.[51]
3.44
Mr Timmins, who appeared in a personal capacity, told the committee that
failure of the FOI Bills to:
...act on a law reform recommendation that the act extend to
parliamentary departments is a significant gap in the accountability and
transparency framework. This year the parliamentary departments had $320
million to spend. Some of that money goes on payments to members and senators
in the form of allowances and salaries. I think the lack of accountability in
this area, as I detailed in my submission, is one that we should address.[52]
3.45
As was pointed out in the submission of the Queensland Information
Commissioner,[53]
this issue was examined by the Senate Standing Committee on Legal and
Constitutional Affairs in 1979 when it examined the Freedom of Information Bill
1978. That committee found at the time that:
The total exemption for parliamentary departments conferred by
clause 3 of the Bill appears even less justified than in respect of the courts.
The only official justification is that the Freedom of Information Bill is
concerned with the granting of access to the documents of the Executive. Seen
as an exercise in ensuring accountability of governmental decision making,
there clearly is a difference between the executive and parliamentary
departments. But that is not to say that there is not a corresponding need to
open up for public inspection the activities of the parliamentary departments.
The public has a legitimate interest in ensuring, first, that its parliamentary
representatives are properly going about their tasks of representation and
executive scrutiny, and secondly, that its parliamentary representatives are
properly assisted to fulfil those functions.[54]
3.46
The ALRC and ARC's Open government report also recommended that
parliamentary departments be made subject to the FOI Act,[55]
and the Queensland Information Commissioner's submission points out that the
FOI laws in both New Zealand and the United Kingdom apply to parliamentary
departments.[56]
3.47
Various suggestions were made as to how the decision as to which, if
any, agencies should continue to be exempt from FOI should be made. For
example, PIAC recommended in its submission that all exempt agencies should be
required to demonstrate public interest grounds for their continued exemption
from the FOI Act.[57]
Conclusion
3.48
While the committee accepts the strength of the arguments regarding the
inappropriateness of exempting entire agencies or organisations from the FOI
regime, it also considers that the issues involved are more complex than can be
dealt with by this committee in the timeframe available for report.
Furthermore, the committee is of the view that the new Information Commissioner
will be best placed to make decisions about this issue, and recommends that
further consideration be given to the issue whether it is appropriate and
necessary for entire agencies and organisations to be exempt from the FOI
scheme.
Recommendation 2
3.49
The committee recommends that, if and when established, the Information
Commissioner give consideration to whether it is necessary and appropriate for
entire agencies and organisations to be exempt from the Commonwealth's freedom
of information scheme.
Fees and charges
3.50
The third aspect of the FOI Bill which the committee identified that effectively
improves access under the FOI scheme relates to the proposed removal of certain
fees and charges. As noted in chapter 2, the FOI Bill enables different charges
to be applied to different groups of people, with the intention that
journalists and public interest organisations will be exempt from fees for the
first five hours. Witnesses were generally in favour of this amendment,
although some argued that it did not go far enough.
3.51
For example, Dr Lidberg, the Academic Chair of Journalism at Murdoch
University, proposed that processing fees for journalists and public interest
groups ought to be waived for the first day of processing.
3.52
The issue of the fairness of treating journalists and public interest
groups as special, and exempting them from fees when making third party FOI
applications, while not exempting other individuals, such as bloggers, from
fees, was raised as an issue by the committee. Dr Lidberg commented that:
[T]hat is a good point...it makes sense to me that non-profit
organisations that have few resources and so on should not be slapped with big
processing request...Some journalists have a lot of money behind them in terms of
media organisations...Perhaps, as an individual making a third-party request, you
should be given some sort of provision as well. This all comes back to the
ownership again.[58]
3.53
The Australian Press Council raised similar concerns, with the Executive
Secretary, Mr Herman stating that:
The council is always wary about singling out groups, whether
journalists or others. When journalists are making applications under FOI for
public interest information, they should be in the same position as any other
individual or group who is making similar sorts of applications...So I think we
would rather see it being expressed in terms of the sorts of information rather
than the class of person making the application.[59]
3.54
Furthermore, Mr Timmins pointed out the difficulties in defining
'journalists' and suggested that 'individuals, community or similar groups who
individually or on behalf of others seek access to documents for the purpose of
participating in government processes' should all get some special concession
under the scheme.[60]
PIAC made similar comments on this issue.[61]
3.55
However, if free access to documents under FOI is not defined by the
class of person applying, then the only other obvious option is to define the
type of information that may be freely accessed, for example by distinguishing
between information that is in the public interest to be released and that
which is simply being requested to make a profit for a media organisation.
However, the Australian Press Council noted the difficulties with this
approach:
Yes, newspapers, the press and the media generally tend to be
profit-making organisations but they also happen to be organisations that are
acting on behalf of the public in disseminating information that is of interest
to the public, that is of public interest. To make the distinction between
those two things I think is very difficult.[62]
3.56
Another suggestion was that the government retain application fees but
eliminate processing charges.[63]
This is the approach taken in the new Tasmanian FOI laws,[64]
and was supported by Ms Simpson from PIAC, who argued that:
From an individual's point of view, it is really the charges
that are particularly prohibitive. We find that people have two issues with
them. One is that sometimes they pay the charges and then discover that all of
the material is exempt. So they pay up to several thousand dollars not to
receive very much information or any information at all...The other is that...if an
agency, for example, has bad record-keeping measures which mean they have to
spend a lot of time working out what information is subject to an FOI request
we do not believe that the individual should be required to pay for that.[65]
Conclusion
3.57
The committee notes that the issue of fees and charges is dealt with in
the Freedom of Information (Fees and Charges) Regulations, and not in the Act
itself. The committee urges the government, when drafting the relevant
regulations, to give full and serious consideration to the issues raised by
witnesses with respect to fees and charges, and particularly to the feasibility
of removing processing charges while retaining application fees, as has been
done in Tasmania. The committee also urges the government to consider what has
been done with respect to fees and charges in other jurisdictions.
Recommendation 3
3.58
The committee recommends that the government give consideration to the
issues raised with respect to fees and charges in this inquiry, and
particularly to the feasibility of removing processing charges, while retaining
application fees, in the context of drafting regulations.
Are the improvements to the request process efficient and could they be
further improved?
3.59
There are a number of aspects of the FOI Bill that, if enacted, will
significantly improve the cost and efficiency of the request process,
particularly those relating to the Information Commissioner's new oversight
role. The FOI and Information Commissioners will be charged with overseeing the
way government agencies are managing FOI, and will have the power to issue
directions, make recommendations, and assist in making agencies' processes more
efficient. The committee sees this new FOI advocacy role as pivotal to
improving the efficiency of the request process under the FOI Act.
3.60
Only one aspect of the proposed changes to the request process attracted
any substantial criticism from witnesses and submitters—the appeal process. As
noted in chapter 2 of this report, the bills make some significant changes to
the structure of internal and external merits review with respect to FOI
decisions.
3.61
Currently individuals who are dissatisfied with the decision of an
officer of an agency regarding their FOI claim must request review of the
decision internally by a senior officer within the same agency, before they may
request external review of the decision. If the applicant is dissatisfied with
the decision made by the senior officer, they may then request a review of that
decision by the Administrative Appeals Tribunal (AAT).
3.62
Decisions by a minister or principal officer of an agency may be
reviewed directly by the AAT.
3.63
The bills add a second level of external review before the AAT's review—by
the Information Commissioner. However, in acknowledgment of the time that this
change adds to the review process, the bills remove the requirement that
internal review be undertaken prior to external review. In addition, the FOI
Bill amends the format of review in the AAT, altering the onus of proof in AAT
reviews, such that the onus will be borne by the applicant. These two issues
attracted comment from a range of witnesses.
Onus of proof in the Administrative
Appeals Tribunal
3.64
It was strongly argued in evidence that the alteration of the onus of
proof in AAT proceedings would be a retrograde step.
3.65
As outlined briefly in chapter 2, proposed section 61 provides that
whichever party appeals a decision of the Information Commissioner—either the
applicant, or the agency—bears the onus of proof in the AAT. This means that if
the applicant is denied documents by the Information Commissioner and requests
a review of the decision to the AAT, they will bear the onus of proving that
the Commissioner's decision was not correct or preferable, and that they should
be allowed access to the documents on the facts.
3.66
This is a significant change from the status quo, where the concept of
an 'onus of proof' does not apply in AAT proceedings,[66]
and the role of a respondent agency is 'to assist the Tribunal to reach the
correct or preferable decision; but not simply to seek to uphold the existing
decision'.[67]
In practice this means that the respondent agency provides the AAT with
documents and evidence relevant to the making of the decision, but does not
take a partisan role.[68]
3.67
In a document comparing the main changes between the exposure draft and
the FOI and Information Commissioner Bills as introduced, the Department of
Prime Minister and Cabinet described the alteration of the onus of proof as a
'minor change to ensure the effective operation of the review process in the AAT'.[69]
3.68
Mr Mark Robinson, from the Law Council of Australia, responded that
'nothing could be further from the truth'.[70]
Mr Robinson also noted the Law Council's serious concerns about the fairness of
AAT appeals if section 61 is amended in the manner proposed in the FOI Bill.[71]
Mr Robinson gave evidence that the alteration of the onus of proof in the AAT:
It puts the applicant in an impossible position, both
practically and as a matter of fairness, and as a matter of law. On one view of
it, that onus could never be discharged, ever.[72]
3.69
Associate Professor Paterson further explained that:
[I]f a person has been knocked back by the commissioner and
then goes to the AAT, they do not know what they are looking for. The
government knows what it is looking for. The person then has to prove something
they do not have, and do not have a description of, is in the public interest.
This strikes me as an almost impossible burden of proof to bear.[73]
3.70
Mr McKinnon, the spokesperson from Australia's Right to Know coalition,
told the committee that his organisation was extremely concerned about this
aspect of the bills, and had raised the issue with the Minister.[74]
Mr McKinnon explained to the committee his personal experiences as a
journalist with FOI appeals, and outlined the difficulty that he, as an
applicant, would face if the onus of proof in the AAT were reversed:
I have done more than 50 appeals to the AAT because you have
a chance given the onus rests of the government to prove why documents should
be secret. That means that the government has to put up its evidence and its
witnesses and we are in a position to cross-examine and to develop our
arguments from the government. Equally, it is only logical that it is very
difficult to prove that documents should not be secret when you have no access
to those documents.[75]
3.71
Furthermore, Associate Professor Paterson commented that the ability of
the AAT to hear evidence from agencies and ministers without the applicant
present 'is a reasonable safety valve to protect confidential information',
arguing that the alteration of the onus of proof in the AAT is therefore
unnecessary for protecting confidential information held by agencies.[76]
Professor Zifcak, Vice President of Liberty Victoria reiterated Associate
Professor Paterson's position with regard to this aspect of the bills.[77]
3.72
The Department of Prime Minister and Cabinet explained the reasons for
the alteration of the onus of proof in the AAT to the committee:
The issue behind that is that at present, if you appeal from
a decision of an agency, you appeal straight to the AAT, and you are appealing
from the agency's decision, so the agency bears the onus of defending its
position. With the interposition of the Information Commissioner as a new
review opportunity for people, if an agency or applicant wishes to appeal from
the Information Commissioner's decision to the AAT, they are actually appealing
the Information Commissioner's decision, not the department's decision. So the
provision in relation to the onus of proof was included because it would not be
appropriate for the Information Commissioner to be a party in the AAT, having
to defend their position.[78]
3.73
In a response to a question on notice put by the committee, the
Department of Prime Minister and Cabinet reiterated this point arguments,
stating that:
The introduction of the IC review before AAT review means
that the AAT will be reviewing the decision of the Information Commissioner not
the decision of the agency or minister. The Information Commissioner will not
be a respondent to AAT review proceedings and will not be defending his or her
decision. It is for those reasons that the Bill placed the onus on whoever
applies for AAT review.[79]
3.74
Ms Lynch explained that the position is analogous to that of appeal from
a decision of the AAT to the Federal Court, in which the AAT does not defend
its position, but instead, the relevant department does.[80]
Conclusion
3.75
The department's explanation satisfies the committee with respect to
those aspects of item 42 of Schedule 4 to Part 1 of the FOI Bill which give the
responsibility for appearing before the AAT in FOI matters to the relevant
department or agency instead of the Information Commissioner (proposed section
61A). This is also consistent with the role of departments and agencies when
the AAT is reviewing the decision of an intermediate external merits review
body, such as the Social Security Appeals Tribunal.
3.76
However, when questioned on the issue of the applicant bearing the onus
of proof in the AAT, legal academic, Associate Professor Paterson, President of
the ALRC, Professor Croucher,[81]
and barrister, Mr Robinson[82],
were all unaware of examples of the onus of proof being altered in such a way
in similar situations.[83]
3.77
The committee notes that there are other situations where individuals
may request review of decisions of an external merits review body to the AAT,
such as social security decisions by the Social Security Appeals Tribunal, and
that in those situations government has not considered it necessary to require
an individual aggrieved by an administrative decision to bear the onus of proof
in the AAT. The committee is not satisfied that there are any reasons for the
onus of proof to be altered in this situation, when it is not in others.
3.78
The committee considers that the alteration of the onus of proof such
that whichever party applies for review by the AAT bears the onus of proof is
inappropriate, unnecessary and unfair to individuals. Accordingly, in order to
make the FOI Act consistent with the lack of onus in the rest of the AAT's
jurisdiction, the committee recommends that proposed section 61 be amended to
remove the concept of onus of proof from the FOI Act entirely. The committee
recommends that any other amendments required to give effect to the removal of
the notion of onus from the FOI Act also be made.
Recommendation 4
3.79
The committee recommends that proposed section 61, in item 42 of
Schedule 4 to Part 1 of the Freedom of Information Amendment (Reform) Bill
2009, which provides that whichever party that appeals a decision of the
Information Commissioner bears the onus of proof in the Administrative Appeals
Tribunal, as well as any other relevant sections of the Bill and Freedom of
Information Act 1982, be amended to remove the concept of an onus of proof
from the Act.
3.80
Mr Timmins noted that, while he also has concerns with this aspect of
the FOI Bill, he is more concerned with the fact that agencies could appeal
decisions from the Information Commissioner to the AAT, and that this may be
used as a delaying tactic by departments.[84]
He argued that there is no reason for agencies or ministers to have a right of
appeal to the AAT:
They should have the right to seek review where it is alleged
that there is an error of law in the Information Commissioner's decision. But
when it comes to simply asserting that it is wrong and therefore asking for
full merit review again, a process that has been undertaken by the Information
Commissioner previously, I think we should be looking closely at that because
of the prospect of delay.
3.81
Similar concerns regarding delay were raised by the Law Council of
Australia.[85]
3.82
However, while the committee acknowledges Mr Timmins' concerns with
respect to this issue, the committee notes that model litigant provisions apply
to the behaviour of agencies before the AAT and courts. Model litigant
provisions should limit any possibility of the Commonwealth's right of review
being used as a delaying tactic. Furthermore, the committee notes that it is
not unprecedented for Commonwealth departments and agencies to have a right of
review or appeal to a higher tribunal or court.
Removal of compulsory internal
review
3.83
The body charged with advising government with respect to administrative
law matters, the Administrative Review Council (ARC) has, in a number of its
reports, highlighted the importance of internal review.[86]
As noted in chapter 2, the FOI Bill proposes to make internal review an
optional step, rather than a mandatory step as it currently is under the FOI
Act.
3.84
Professor McMillan noted that:
Generally I have been in favour of internal review as a
mandatory stage in all administrative processes. Indeed, even in the
Ombudsman's office, we insist that a person first complain to and take up an
issue with an agency before coming to the Ombudsman.[87]
3.85
However, Professor McMillan also acknowledged that as the bills add
multiple appeal stages:
Multiple appeal stages run the risk of prolonging disputes
and exhaustion of complainants. So the balance that has been struck is to make
internal review optional. My view is that it is best to go with that balance
for the moment and to allow the Information Commissioner to review whether it
is receiving an undue number of small matters that could more suitably be
resolved within an agency.[88]
3.86
Similarly, Associate Professor Paterson expressed the view with respect
to internal review that:
On balance, I favour it being optional. I think an internal
review can certainly be of value in terms of changing processes within an
agency, providing a quick and easy form of review, but I think there are
circumstances where it is going to slow down the process. Where time is of the
essence and where you have to go through that first, that would be a
disadvantage to applicants. So I would favour, on balance, it being optional.[89]
3.87
Dr Lidberg expressed much stronger support for making internal review
optional rather than mandatory:
I find it very good that the change bypassing the internal
review was made. I am much harsher in my judgment on that than Professor
Paterson, because I think that with internal review, even though the stats say
that it does work, that decisions are changed, it does not quite show how those
decisions are changed. Very often, internal review does nothing, so it is
fantastic that it has been changed and that we can go straight to the
commissioner.[90]
3.88
Similarly, Mr McKinnon from Australia's Right to Know stated that:
It is rare in my view that important policy issues are
overturned on internal review...Right to Know argued for that optional internal
review even though agencies are bloody minded and you never win on internal
review, so what is the point. What an internal review process does do is remove
at least to some extent the timeliness of the information and in journalism
that is all.[91]
3.89
Therefore, despite the general advice of the ARC regarding the
advantages of internal review, it appears that in this instance, there are
sufficient review mechanisms and accountability safeguards so as to justify
making internal review an optional rather than mandatory step.
Assessment of the functions, powers and resources of the Information
Commissioner
3.90
As with other aspects of the bills, the establishment of the Information
and FOI Commissioners was overwhelmingly regarded as a positive step by
witnesses, although a number of suggestions were made regarding the specific
aspects of the commissioners' roles.
3.91
It has been contended that FOI and privacy interests often conflict, and
accordingly it may be inappropriate to combine both roles within one office.[92]
However, the Victorian Privacy Commissioner, Ms Helen Versey disagreed with
this argument, and stated:
...my submission is that there is a close interconnection
between the laws. Both laws in effect promote transparency of government.
Privacy laws promote transparency in that they promote the right of individuals
to know what information government collects about them, how it is used and who
it is disclosed to. Such rights are incorporated in the general right of access
to government information.[93]
3.92
However, Ms Versey also pointed out in both her submission and in
evidence to the committee, that there is a lack of detail in the legislation
regarding when the Privacy and FOI Commissioners are to exercise the privacy
and FOI functions of the Information Commissioner respectively.[94]
Ms Versey also expressed concern that the independence and autonomy of the
Privacy Commissioner may be undermined by placing them within the Information
Commissioner's office. However, Ms Versey emphasised that this would depend on
the practical operation of the bills, and could be fixed by greater clarity
within the Information Commissioner Bill specifically.[95]
3.93
Other witnesses also raised concerns with the lack of clarity in the
Information Commissioner Bill regarding the roles of the new commissioners. The
NSW Privacy Commissioner commented that the model proposed in the Information
Commissioner Bill 'appears open to confusion, as the Commissioner's functions
are interchangeable and no provision is made for the finality of decisions'.[96]
The Public Interest Advocacy Centre argued that 'having an FOI Commissioner
who can use or perform the functions of a Privacy Commissioner undermines the
value of having these different subordinate commissioners, who are each meant
to be an independent specialist advocate for their own regime'.[97]
The ALRC echoed these concerns, however, its President, Professor Croucher,
ultimately concluded that the ALRC does not object to the specifics of the
proposal in the Information Commissioner Bill as 'that could readily be dealt
with in practise'.[98]
3.94
A second issue that arose during the inquiry regarding the specifics of
the Information Commissioner model was the requisite qualifications of each of
the commissioners. The Information Commissioner Bill requires that the FOI
Commissioner have legal qualifications, but no similar requirement is placed on
either the Information Commissioner or the Privacy Commissioner.
3.95
Dr Lidberg argued that the requirement that the FOI Commissioner has
legal qualifications[99]
should be reconsidered.[100]
In this respect, Dr Lidberg argued that the requirement does not take into
account the wider components of the job of an FOI Commissioner. He stated:
It would be good if this person [the FOI Commissioner] had
done possibly, research into FOI, had a good knowledge of the international
systems, and was keen on benchmarking and explaining why it is important to
benchmark Australia towards other systems. It would be good if this person
understood that this is a long-term thing.[101]
3.96
The Victorian Privacy Commissioner, Ms Helen Versey, agreed with
Dr Lidberg's view on this issue, noting that 'I do not necessarily think
that regulators have to have legal qualifications'.[102]
3.97
On the other hand, Professor Zifcak from Liberty Victoria strongly
supported this aspect of the Bill, and argued that the Information Commissioner
should also be required to have a legal background.[103]
3.98
Dr Lidberg also argued that the FOI Commissioner should not be appointed
from within the public service, in order to foster the requisite change in
culture. He noted:
Unfortunately, because of the tradition of secrecy that comes
with the Westminster system and because of our Public Service to such a great
extent being modelled on the UK Civil Service, I do not think the FOI
Commissioner should be drawn from the Australian Public Service.[104]
3.99
Mr Timmins disagreed with Dr Lidberg on this point arguing that 'I do
not think anyone should be excluded—we want the best person for the job'.[105]
Conclusion
3.100
The committee notes that on 26 February 2010, Professor John McMillan
was appointed as the Information Commissioner Designate. Despite the varied
nature of the numerous suggestions made by witnesses as to what category of
person would make an appropriate Information Commissioner, Professor McMillan's
appointment manages to fulfil them all. Professor McMillan has a strong
background as an advocate for FOI, has done exceptional work as the Commonwealth
Ombudsman in improving government administration, and has an outstanding legal
credentials. The committee commends the government on this appointment.
3.101
The Commonwealth Ombudsman suggested in his submission that the name of
the Information Commissioner be changed to the Australian Information
Commissioner, in order to distinguish the position from that of information
commissioners in other states and internationally, as well as to identify that
the Information Commissioner's role relates to the Australian Government.[106]
This suggestion was supported by the Administrative Review Council[107]
and Dr Lidberg.[108]
3.102
The committee supports this suggestion, and recommends that the
government make the necessary amendments to the Information Commissioner and
FOI Bills.
Recommendation 5
3.103
The committee recommends that the Freedom of Information Amendment
(Reform) Bill 2009 and the Information Commissioner Bill 2009 be amended such
that all references to the 'Information Commissioner' are replaced by references
to the 'Australian Information Commissioner'.
Resources of the Information
Commissioner
3.104
As noted in chapter 2, the Office of the Information Commissioner will
be resourced with $19.5 million over four years, in addition to existing resources
of the Privacy Commissioner (approximately $6.4 million in 2008-09[109]).
3.105
The committee raised concerns regarding whether this level of resourcing
will be adequate to enable the commissioners to perform the significant role
required of them. In this respect, the Department of Prime Minister and Cabinet
stated:
The budget process itself requires a very robust process
internally and it would be based on the number of cases in the past, the
expected number of cases in the future, and current activity levels. It went
through our budget process.[110]
3.106
The Commonwealth Ombudsman pointed out that the amendments to the FOI
scheme may result in increased costs to government, as it would likely
encourage more requests.[111]
Specifically, the reduction in fees, and the removal of a requirement of an
Australian address remove significant practical barriers to the making of FOI
applications. The Ombudsman submitted that, in his experience, 'these are the
most common causes of a request being considered invalid by the receiving
agency' and the removal of these barriers will accordingly result in more valid
requests.
3.107
However, there was not unanimity amongst witnesses that an increase in
FOI applications would result from the proposed amendments. Dr Johan Lidberg
disagreed with the Ombudsman's analysis, explaining that:
In a study done by Greg Terrill...that drew from the
discussions leading up to the 1982 act, it was anticipated that each government
agency would deal with tens of thousands of requests per year. This did not
happen at all, and I do not think it will happen with this change either.[112]
Conclusion
3.108
The committee is concerned that the Financial Impact Statement for the
FOI Bill, and the basis on which resourcing has been determined do not take
into account the increase in FOI applications across government that is likely
to result from the proposed amendments. The committee urges the government to
monitor the funding of the Office of the Information Commissioner on an ongoing
basis, and ensure that the commissioners have sufficient resources to undertake
the significant and important role that has been designated to them by the
proposed legislation.
Conclusion
3.109
It is evident from the above discussion that FOI in Australia is in need
of significant legislative reforms, and particularly of a cultural shift in the
way in which FOI laws are administered. The reform package proposed by the
government in the FOI and Information Commissioner Bills has the ability to
address the key problems that have been identified with the 1982 FOI Act,
including, through its objects clause and the introduction of the FOI and
Information Commissioners, to bring about the requisite cultural change.
3.110
The committee commends the government for the consultative approach
taken to the development of this legislation, and strongly supports the FOI and
Information Commissioner Bills. The committee considers that, but for a few
minor suggestions for amendment, the bills effectively take into account the
various competing views on how FOI laws should operate. Accordingly, the
committee recommends that the bills be passed by the Senate without delay.
Recommendation 6
3.111
The committee recommends that, subject to the amendments outlined in Recommendations
4 and 5 being made, the Freedom of Information Amendment (Reform) Bill 2009 and
the Information Commissioner Bill 2009 be passed by the Senate as soon as
practicable.
Senator Helen Polley
Chair
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