HISTORICAL BACKGROUND
The Australian Constitution contains no right to information. The federal
Freedom of Information Act 1982(1) provides for access to documents held by Commonwealth (national government) agencies created after 1 December 1977. The Act requires that applications are made in writing and that agencies respond within 30 days to information requests.
(2)
The Act contains a considerable number of exemptions, namely, for Cabinet documents, Executive Council documents, internal working documents, electoral rolls and related documents and documents affecting national security, defence or international relations, affecting relations with States, affecting enforcement of law and protection of public safety, to which secrecy provisions of enactments apply, affecting financial or property interests of the Commonwealth, concerning certain operations of agencies, affecting personal privacy, subject to legal professional privilege, relating to business affairs, relating to research, affecting the national economy, containing material obtained in confidence, disclosure of which would be contempt of Parliament or contempt of court and certain documents arising out of companies and securities legislation.
Ministers can issue "conclusive certificates" stating that information is exempt under the provisions protecting deliberative process documents, national security and defence, Cabinet documents, and Commonwealth/State relations. These conclusive certificates cannot be reviewed during any appeal; an appeal body is only allowed to consider whether it was reasonable for the Minister to claim that the provisions of the exemption were satisfied.
The Act also contains a variety of "public interest" provisions depending on the type of information to which the exemption relates. For example, the exemptions relating to disclosures which would affect relations with States, the financial or property interests of the Commonwealth or the national economy, documents concerning certain operations of agencies and internal working documents are all subject to public interest tests. The High Court of Australia is soon to consider a landmark case regarding how the public interest test is to be considered where a Minister has issued a conclusive certificate that the relevant documents are exempt "in the public interest".
(3) The Administrative Appeals Tribunal and the Full Federal Court have already ruled that a Minister need only show that the specific public interest ground raised is reasonable, where the appellant (Michael McKinnon of The Australian newspaper) continues to argue that the Minister show that issuing a certificate was reasonable after balancing competing public interest considerations.
Under the Act, applicants have a number of different appeal avenues. They can appeal internally unless the original decision was made by the Minister or the head of the public authority, and then request a merits review
(4) by the
Administrative Appeals Tribunal (which can issue binding decisions), followed by appeals on possible errors of law to the Federal Court or High Court. The AAT can also make recommendations on certificates which can be ignored by the Minister who must then advise the Parliament of the decision.
In addition, an applicant can make a complaint at any time on matters of administration to the
Commonwealth Ombudsman.
(5) The Ombudsman's decisions are not binding.
There were 39,265 information requests between July 2004 and June 2005, a decrease of 3,362 (7.9 percent) compared with 2003-04.
(6) As with previous years, over 90 percent of those requests were for personal information, mostly to the Department of Veterans' Affairs, the Department of Immigration and Multicultural and Indigenous Affairs, and Centrelink. Between 1 December 1982 and 30 June 2005, Commonwealth agencies received a total of 724,650 access requests.
In 2004-2005, there were 508 requests made for internal review, of which 339 related to decisions regarding documents containing 'personal' information. 421 decisions were made on internal review - 56 percent upheld the agency decision and 44 percent resulted in the agency conceding additional materials. The Administrative Appeals Tribunal received 142 appeals and decided 130 appeals. The Commonwealth Ombudsman received 275 complaints and finalised 289 complaints about the way that Australian Government agencies handled requests under the FOI Act.
There are many criticisms of the effectiveness of the Act.
(7) The Australian Law Reform Commission and the Administrative Review Council released a joint report in January 1995 calling for substantial changes to improve the law. The review called for the creation of an office of the FOI Commissioner, making the Act more pro-disclosure, limiting exemptions, reviewing secrecy provisions and limiting charges.
(8) In June 1999, the Commonwealth Ombudsman found "widespread problems in the recording of FOI decisions and probable misuse of exemptions to the disclosure of information under the legislation" and recommended changes to the Act and the creation of an oversight agency.
(9) The Senate held an inquiry in April 2001 on a private members amendment bill to adopt the recommendations of the ALRC and ARC report but to date there have been no substantive changes in the Act.
(10) However, an amendment to exempt information on Internet sites banned by the Australian Broadcasting Authority was approved in 2003.
(11)
More recently, in February 2006 the Ombudsman released a report on the Act which strongly recommended that the Government establish an FOI Commissioner, possibly as a specialized and separately funded unit in the office of the Commonwealth Ombudsman.
(12) The key was to ensure that an independent body would be tasked with monitoring and promoting the law. The Ombudsman's report more generally found that requests were often not acknowledged and delayed and that there is still an uneven culture of support for FOI among government agencies, even 20 years after its enactment. It has been previously noted that budget cuts have severely restricted the capacity of the
Attorney General's Department and the Ombudsman to support the Act and there is now little central direction, guidance or monitoring.
Under the
Archives Act, most documents are available after 30 years. Cabinet notebooks are closed for 50 years.
(13) There is still a small access gap for records for the years between 1976 and 1977.
The Crimes Act provides for punishment for the release of information without authorization.
(14) The
National Security Information (Criminal Proceedings) Act 2004 was approved by Parliament in December 2004. It regulates the use of national security information in trials. The adoption followed the Australian Law Reform Commission report
Keeping Secrets: The Protection of Classified and Security Sensitive Information in June 2004.
(15) In 2005, the Intelligence Services Legislation Amendment Act, 2005 Defence Signals Directorate and the Defence Intelligence Organisation was passed, Schedule 7 of which exempts the Defence Signals Directorate and the Defence Intelligence Organisation from the Act. Notably, the Australian Secret Intelligence Service (ASIO) and the Office of National Assessments (ONA) were already exempt.
As noted above, Privacy Act requests for access to personal information are funneled through the FOI. The
Privacy Amendment (Private Sector) Act 2000 gives individuals the right to access records about themselves held by private parties.
(16)
All six states and two territories now have freedom of information laws.
(17) There are also privacy acts in most states and territories.
(18)
2004 freedominfo.org Global Survey Results - Australia
NOTES
1. Freedom of Information Act 1982, http://www.austlii.edu.au/au/legis/cth/consol_act/foia1982222/, Freedom of Information (Fees and Charges) Regulations 1982, http://www.austlii.edu.au/au/legis/cth/consol_reg/foiacr432/index.html, Freedom of Information (Miscellaneous Provisions) regulations 1982 http://www.austlii.edu.au/au/legis/cth/consol_reg/foipr612/index.html.
2.For an overview of FOI laws in Australia and links to relevant government sites, see the University of Tasmania's FOI Review web pages at http://www.comlaw.utas.edu.au/law/foi/.
High Court test case on Costello FOI, The Australian, 4 February 2006.
Merits review is characterised by the capacity for substitution of the decision of the reviewing person or body for that of the original decision maker. This means that the AAT considers the facts, law and policy aspects of the original decision afresh, and can make a new decision affirming, varying or setting aside the original decision.
Homepage: http://www.comb.gov.au/
Attorney-General's Department, Freedom of Information Act 1982 Annual Report 2004-05. Available at http://www.ag.gov.au/foi
See Matthew Ricketson, Keeping the lid on information, The Age, November 28 2002.
The Australian Law Reform Commission, Open government: a review of the federal Freedom of Information Act 1982, ALRC 77, January 1995. http://www.austlii.edu.au/au/other/alrc/publications/reports/77/ALRC77.html.
Commonwealth Ombudsman, 'Needs to Know' Own motion investigation into the administration of the Freedom of Information Act 1982 in Commonwealth agencies, June 1999. http://www.comb.gov.au/publications_information/Special_Reports/NeedstoKnow.pdf.
Senate Legal and Constitutional Legislation Committee, "Inquiry into the Freedom of Information Amendment (Open Government) Bill 2000, April 2001. http://www.aph.gov.au/Senate/committee/legcon_ctte/freedom/report/report.pdf
See Electronic Frontiers Australia, Amendments to FOI Act: Communications Legislation Amendment Bill 2002. Available at http://www.efa.org.au/FOI/clabill2002/
There are Information Commissions in the States of Queensland and Western Australia and in the Northern Territory. See Commonwealth Ombudsman, Scrutinising government - Administration of the Freedom of Information Act 1982 in Australian government agencies, March 2006. http://www.comb.gov.au/publications_information/Special_Reports/2006/FOI_report_March2006.pdf
See National Archives, The Cabinet Notebooks. http://www.naa.gov.au/the_collection/cabinet.html
The Crimes Act. http://scaletext.law.gov.au/html/pasteact/0/28/top.htm
http://www.austlii.edu.au/au/other/alrc/publications/reports/98/
Privacy Act 1988. Amended by Privacy Amendment (Private Sector) Act 2000. http://www.privacy.gov.au/publications/privacy88_240103.doc
See Australian Privacy Foundation, Privacy Laws - States and Territories of Australia. http://www.privacy.org.au/Resources/PLawsST.html
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