The Australian Government (government) announced as part of its 2007 election policies that it would reform the Commonwealth Freedom of Information Act 1982 (FOI Act). The Cabinet Secretary and Special Minister of State, Senator the Hon John Faulkner, released the draft Information Commissioner Bill 2009 and the draft Freedom of Information Amendment (Reform) Bill 2009 for public consultation on 24 March 2009.
The principal objective of these reforms is to promote a pro-disclosure culture, focusing on increased scrutiny, discussion, comment and review of the government’s activities. It is thought this increased public participation in government processes will lead to better informed decision making, and build a strong foundation for more openness in government.
The government has invited written submissions regarding the Bills. The closing date for submissions is 15 May 2009.
Following consideration of comments the government proposes to introduce the Bills1 into the Parliament in 2009.
Some major changes which may be of interest
Changes to the business affairs exemption
Under the existing FOI Act (section 43), a document is exempt from disclosure if it contains information concerning a company’s business, commercial or financial affairs and FOI release would unreasonably and adversely affect the company.
Public interest test
Under the new section 43, this existing business affairs exemption is subject to a further public interest test. Access to a business affairs document must be given unless it would, on balance, be contrary to the public interest. This is likely to lead to an increase in the release of documents. The new twin barrelled test is also likely to involve more time and expense for affected parties. A company has a statutory right to be consulted if documents containing commercial information are the subject of an FOI request. An affected company will need to consider responding by addressing public interest issues in addition to the issue of the effect of release on their business.
Greater disclosure of government information
The obligation on agencies to publish general information about their guidelines, practices and precedents will increase. Much of this information is likely to be published on the agencies’ websites. In addition, documents which are released under the FOI Act will also generally be made available online. This is a welcome development. Over time a large repository of information is likely to be available in easily accessible form.
New process for review of FOI decisions
The reforms will establish the Office of the Information Commissioner, expected to be in operation by January 2010. The reforms create a two-level merits review system for FOI matters, by allowing the Information Commissioner to undertake merits review of decisions by agencies and Ministers to refuse access to documents.
New process for review of ministerial or agency decisions regarding FOI requests
These reforms are intended to introduce a level of efficient independent review of primary FOI decisions. However, by maintaining the requirement of internal review they also add a layer of review and may slow down what can already be a time consuming process.
Extension of FOI to the private sector?
The government is to provide the Australian Law Reform Commission with a reference to consider whether FOI, or some other form of disclosure regime, should apply to the private sector. Such a proposal, if adopted, could have far reaching ramifications for business in Australia.
The question was considered and rejected by the ALRC and the Administrative Review Council in 19952.
The government’s position
The government has stated that it considers it timely to re-examine the issue in the context of the general reforms to FOI and developments of disclosure regimes in both the public and private sectors. Terms of reference for this review are to be finalised later in 2009.
Arguments against extension of FOI to the private sector
The objectives of FOI legislation are rooted firmly in the democratic process and the notion that information held by the government is to be used for public purposes. The objectives of FOI are to throw light on government decision-making processes and to make ministers and agencies more directly accountable to the public. It is not clear why private enterprises who use information for a distinctly private purpose should be made subject to FOI. Nor can the government claim an electoral mandate for this particular change.
If the government is using the current economic climate to push for enhanced corporate accountability, an additional FOI or similar disclosure scheme hardly seems an appropriate response. Such a regime will also necessarily entail an additional compliance burden as well as creating the potential to undermine commercial confidentiality.
This article was written by Graeme Johnson, Partner, Sydney.
Endnotes
1. The Bills and Companion Guide
2. ALRC Report : ALRC Report No 77 (1995) - Private Sector
More information
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