the australian freedom of information act

Government Publications Review, Vol. 10, pp. 43-49, 1983 Printed in the USA. All rights reserved.

0177-9390/83/010043-07$3.00/O Copyright 0 1983 Pergamon Press Ltd

THE AUSTRALIAN FREEDOM OF INFORMATION ACT

HON. ALAN MISSEN* Senator for Victoria, Commonwealth Parliament Offices, 400 Flinders Street, Melbourne 3000, Australia

Abstract-The new Australian Freedom of Information Act is the product of a decade of debate regarding the right of citizens to inspect the records of government. The way of the F.O.I. reformers in Australia has not been easy. For many years, successive Commonwealth Governments have expressed support and given electoral undertakings to introduce freedom of information legislation, but progress has been slow. In March 1982, a bill was finally adopted and scheduled for implementation in December. The history and major provisions of the new law are discussed by one of its principal proponents and architects.

The Australian Freedom of Information Act became law on March 9, 1982. The Act, which the Government hopes to implement by December 1, 1982, represents the culmination of a decade of debate regarding the right of Australian citizens to inspect the records of Government. Although the final form of the legislation remains less than satisfactory, it does seek to enable limited public access to government information while, at the same time, protecting legitimate personal and business interests.

THE AUSTRALIAN BILL- A DIFFICULT BIRTH

The way of the F.O.I. reformers in Australia has not been easy. Throughout the last decade, successive Commonwealth Governments have expressed support and given electoral undertakings to introduce F.O.I. legislation, but progress has been slow [l]. A feature of the Australian debate has been the almost total absence of open hostility to F.O.I. and the grow- ing public acceptance of the need for broader access. The interest shown in F.O.I. during the Senate Committee hearings by librarians, business, professional, trade union, media, social service, environmental and civil liberties bodies, is indicative of its widespread support.

Opposition has been subterranean and largely confined to the upper strata of the Com- monwealth Public Service, which has played a powerful role in limiting the proposed legislation and in warning of its dangers.

WHITLAM AND OPEN GOVERNMENT

When the Whitlam Government came into office in Australia in 1972, part of its policy was a declared belief in “open government.” The Labor Party’s contention was that we must

*A national commissioner of the International Freedom of Information Institute, Senator Missen chaired the Senate Standing Committee on Constitutional and Legal Affairs during its consideration of Freedom of Informa- tion legislation in 1978-1979.

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stop this secretive system of government and open up government documents to public scrutiny. Part of this policy pledged the introduction of a Freedom of Information Act, somewhat along the lines of the United States statute.

When first in power, the Whitlam Government released a number of the reports which the previous Government, the Liberal Country Party Government, had kept secret. However, as the Labor Party fell into crises and Ministers caused embarrassment and were sacked, the Whitlam Government showed less and less keenness to disclose its own documents.

At the beginning of 1973, an Inter-Departmental Committee was appointed to study the whole subject of freedom of information. It took this Committee 18 months to produce a 30 page report [2]. The report indicated that there was not going to be very much disclosure at all, and was a great disappointment to F.O.I. supporters. During the remaining year that the Labor Party was in office, no bill was sighted in the Parliament. Thus the initiative, but no bill. came from the Whitlam Government.

F.O.I. AND THE FRASER GOVERNMENT

When the Fraser Government came into power in late 1975, it also pledged to take action in regard to freedom of information. In mid-1976, another Inter-Departmental Committee was established to review the 1974 Inter-Departmental Committee Report as well as consider the U.S. changes in this area and other developments. This Committee, like its predecessor, was composed mainly of senior public servants who were not enthusiastic about their task and produced a somewhat timid response [3].

In due course, a bill finally reached the Parliament in June 1978. The bill was a con- siderable improvement on previous ideas of freedom of information, and included most of the recent amendments to the United States law. It was still, however, very disappointing. Because of widespread concern and criticism about the bill, the legislation was referred to the Senate Standing Committee on Constitutional and Legal Affairs for inquiry and report as soon as possible.

During the next 15 months, the Committee conducted a very extensive inquiry throughout the country. Following much vigorous examination, including 169 submissions and 125 witnesses, the Committee reported in November 1979, with some 106 recommendations for strengthening the bill and the accompanying Archives bill [4].

The Government’s response, tabled on the eve of the 1980 elections, accepted some 39 of the Committee’s recommendations. While the Government did accept significant amendments to list exempt bodies in the legislation itself, accepted the “reverse F.O.I.” proposals for protection of business confidentiality, and accepted proposals for administrative and Parliamentary monitoring, it must be observed that the majority of amendments accepted related essentially to the less significant recommendations. The Government rejected the Senate Committee’s proposals in the following vital areas:

(a) access to prior or existing documents (this was denied, meaning that very little information would be available for access for some years);

(b) the removal of the system of “conclusive certificates” which would deny appeals against refusal of access to documents relating to security, defence, international relations, cabinet records and public interest decisions concerning “internal working documents”;

(c) the narrowing or elimination of a number of the many proposed exemptions; (d) reducing the wide exemption given to Commonwealth-State communications; (e) reducing the number and extent of government agencies and documents exempted

from the Act;

The Australian Freedom of Information Act 45

(f) the wide increase proposed in the Ombudsman’s roIe and powers to act as conciliator, counsel and monitor of the legislation;

(g) prescribing and reducing the existing secrecy provisions in other Commonwealth legislation (194 separate provisions).

A number of other proposals relating to privacy, the graduated reduction of access times and the phased-in access to prior documents were left in a state of limbo. Overall, the Australian Government’s response was viewed as a profound disappointment by those who sought a truly effective F.O.I. Act.

THE 1981 FREEDOM OF INFORMATION BILL

The Fraser Government introduced a new F.O.I. bill into the Parliament in April 1981. This bill was a reprint of the 1978 bill, with two minor variations: (a) it incorporated the Senate Committee recommendations that were acceptable to the Government, and (b) it included a number of new provisions that seemed to flow mainly from public service advisors.

Upon its re-introduction into the Senate on April 2, 1981, the bill unanimously passed its Second Reading, after strong criticism from all speakers (excluding the Attorney-General). The period April to June 1981 saw sustained public criticism of the revised bill, which critics on the Government side of the Parliament having some success in forcing the Government to modify several negative features of the revised bill.

In an effort to make the F.O.I. bill a more effective instrument of public access, Govern- ment and Opposition Senators proposed to move some 80 amendments during the ensuing debate in Committee. In Committee, the Government suffered defeats on divisions and then adjourned debate to enable negotiations to take place with Liberal Senators seeking amend- ment of the bill. Lengthy discussions then took place and, in a final compromise, the Government agreed to support some 35 further amendments, including other amendments of its own, in order to head off a backbench revolt and to secure the passage of the bill through the Senate before it lost its Senate majority on June 30, 1981. Finally, on the last day of sitting, the bill, as amended, was agreed to. The long gestation of the bill came to a very quick conclusion.

The following are among the more significant changes accepted by the Government:

(a) Existing Government Records. The Government relaxed the restriction on access to prior documents so that a person can gain access to a document relating to his or her personal affairs, if the document is no more than five years old at the date the Act commences operation; further regulations may later modify the Act to grant broader rights of access to prior documents.

(b) Conclusive Ministerial Certificates. The power of Ministers and Departmental Heads to issue certificates deciding conclusively that documents are exempt on the grounds of security, defence, international relations, Federal/State relations or Cabinet material, has been amended. Appeal can be made to a new Document Review Tribunal (composed of Fed- eral and State Judges or ex-Judges) and the Tribunal can examine and report publicly as to whether or not there are reasonable grounds on which the claim for exemption could be made. However, the Tribunal’s decision is advisory only, and can be disregarded by a Minis- ter or Permanent Head, and experience will tell whether the de facto situation is substantially altered.

(c) Personal Records. A scheme for the correction of information relating to the personal affairs of a person that is incomplete, incorrect, out of date or misleading, is included in the bill. Basically, a person may request that a record, to which he has gained access under the

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Act, be corrected. He may appeal to the Administrative Appeals Tribunal against a refusal to correct the record, and even when the appeal is unsuccessful, may request that a short statement explaining the alleged inaccuracy, be attached to the record and accompany it when the record is shown to any person.

(d) Role of Ombudsman. The Ombudsman may investigate matters arising under the F.O.I. Act, notwithstanding provisions in the Ombudsman Act that restrict his power to investigate where a person has other avenues available to seek a review of the decision.

(e) Information Access Offices. Information Access Offices will be established throughout Australia so that a person who is entitled to obtain access to a document may, without addi- tional charges, require that it be made available at the closest such office.

Despite these changes, the 1981 bill remained very unsatisfactory in a number of vital areas. Of particular disappointment to F.O.I. reformers was the Government’s refusal, despite expectations to the contrary, to accept amendments adding a public interest test to exemptions in the bill. However, with a commitment by the Government to review the Act after its first 12 months in operation to see if further “existing documents” may be added to the jurisdiction, this and other matters will be kept under continuing scrutiny.

THE FREEDOM OF INFORMATION ACT 1982

While it still contains many flaws, the Freedom of Information Act 1982 is certainly a distinct improvement on the widely criticized 1978 bill and on the terms of the revised bill, introduced by the Government in April 1981.

Section 3 of the Act identifies its object as follows:

“(i) The object of this Act is to extend as far as possible the right of the Australian com- munity to access to information in the possession of the Government of the Com- monwealth by- (a) making available to the public information about the operations of departments

and public authorities and, in particular, ensuring that rules and practices affecting members of the public in their dealings with departments and public authorities are readily available to persons affected by those rules and practices; and

(b) creating a general right of access to information in documentary form in the possession of Ministers, departments, and public authorities, limited only by excep- tions and exemptions necessary for the protection of essential public interests and the private business affairs of persons in respect of whom information is collected and held by departments and public authorities.”

Whether or not the object of the F.O.I. Act will be achieved is largely dependent upon the scheme and practical operation of the Act. Some of the main features of the legislation are as follows:

Right of access: The central provision of the Act is Section Il. It provides that:

“Subject to this Act, every person has a legally enforceable right to obtain access in accor- dance with this Act to-

(a) a document of an agency, other than an exempt document; or (b) an official document of a Minister, other than an exempt document.”

While, at first glance, the scope of the right of access appears very broad, it is, in fact,


rather limited. This is primarily due to the large number of agencies and documents which are the subjects of exemptions, Section 7(t) eliminates some 24 Commonwealth agencies from the Act’s ambit of operation. The type of agencies exempted range from the Australian Security Intelligence Organization to the Commonwealth Banking Corporation and the Health Insurance Commission. Certain specified documents of 19 other Commonwealth agencies are also partially exempted under Section 7(2) of the Act. Included in this category are documents of the Australian Broadcasting Commission (in relation to programme material) and the Department of Defence (in relation to documents in respect of activities of the Defence Signals Directorate and the Joint Intelligence Organization).

In addition, a wide range of documents can be classed as exempt under Part IV of the Act. They in&de documents affecting national security, defence, internationai relations, and relations with the States; Cabinet documents; Executive Council documents; internal wark- ing documents; documents affecting persona1 privacy; documents affecting the national economy; confidential documents; documents the disclosure of which would involve a eon- tempt of the Parliament or a contempt of court; documents subject to IegaI professional privilege: certain documents arising out of the companies and securities legislation; documents to which legislative secrecy provisions attach; documents affecting the enforcement of the law and protection of public safety; documents affecting financial or property interests of the Commonwealth; certain operational documents of agencies; and certain business documents.

The exemptions are very extensive and cover approximately 8% pages of the Act (they cover less than one page in the U.S. Act). The balancing of disclosures with the exemptions will therefore have to be watched very cfosely in the Australian Act, so as to ensure that the exemptions are not extensively misused.

Access ~~~~~~~e~y; Fart III of the Act regulates the framework created to give effect to the right of access. The Act will be available to anyone who requires to use its provisions. Re- quests for access to documents must be made in writing and provide such information as is reasonably necessary to enable the agency to identify the documents sought. Although there is an obligation upon agencies to deal with requests as soon as possible, with a maximum time limit of 60 days, narrow grounds for deferring a response to a request for access are also provided. A document may be supplied in response to a request with exempt matter deleted, provided that it is practicable and the document, as supplied, would not be misleading.

As mentioned previously, Information Access Offices wili be established throughout Australia to allow applicants ease of access in requesting and obtaining documents. Section 28 requires the Attorney-General to publish, as soon as possible (but no later than 12 months) after the Act’s commencements a statement specifying the addresses throughout Australia of Information Access Offices to facilitate exercise of the right of access given by the Act.

If, in fact, the freedom of information legislation is to be useful, it is essential that the records are available and made available in a reasonable period. It will also be important to keep government departments to the time limits set out in the Act and to ensure that places are established where people can examine documents without paying extra costs-simply because documents are not readily available.

Locafdopl of ~~~~o~~~~~io~: In order to be able to make effective use of access rights, it is important that applicants have the means of identifying the location of information in which they have an interest.

To address this concern, each department or government agency will be required to have

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an officer who can advise on the requirements of the Act. In addition, agencies will publish indexes and directories outlining the contents of their information systems, and all Australian government printing shops will have lists of each department’s manuals. Eventu- ally, it is hoped that an index to the manuals will be published annually in an upgraded government directory. Moreover, documents used by an agency in making decisions or recommendations with respect to the rights, privileges, or benefits of people under any scheme administered by an agency, must be periodically published and made available on

request. The importance of giving individuals a right of access to these basic documents in the ad-

ministration of Commonwealth benefits, cannot be underestimated.

Review of decisions: There are substantial rights of appeal if a request is rejected. In cases where maladministration has occurred, the most simple remedy is to refer the matter to the Ombudsman, who can assist the applicant to obtain information. The rights and powers of the Commonwealth Ombudsman, however, are restricted to the extent that he is empowered only to consider actions by public servants and cannot judge actions by a Minister.

The general right of appeal to the Administrative Appeals Tribunal is much more broad. In the case of all but four categories of exemptions, an individual denied access may apply for review of the denial to the Tribunal which may override the decision of the Minister or agency concerned. Regrettably, the four categories to which this right of review does not apply, are probably the most significant. They are: Cabinet documents; Executive Council documents; documents affecting national security, defence, international relations, and relations with the States; and internal working documents. If an applicant is not satisfied with the response he receives from the Administrative Appeals Tribunal, he has a further right of appeal to the Federal Court.

In the above four categories where a document is declared exempt by the issue of a “conclusive certificate” (which effectively blocks the avenue of appeal to the Administrative Ap- peals Tribunal), it is possible to take the matter further by appealing to the Document Review Tribunal. This Tribunal, which will normally sit in public, is to be constituted by one or three members of the status of a Supreme Court judge or equivalent, the number of members being determined according to the public importance of the question referred to it.

The findings of the Document Review Tribunal are merely advisory, and it is left to the responsible Minister to decide whether to accept the Tribunal’s opinion and revoke a certificate. Whilst the Tribunal has no power to force a Minister to review his decision, if a Minister regularly rejects its recommendations, it would become politically embarrassing if there is vigilant public support for the whole F.O.I. process.

Generally speaking, the review procedures are one of the Act’s strengths, and they are available to people making the simplest or the most complex request.

Personal records: Part V of the Act provides for access to personal records. Under this section, an Australian citizen and certain aliens are entitled to request an agency to amend its records of personal information, where that person claims that a document, to which he or she has been given access under the Act, contains information relating to his or her personal information which is “incomplete, incorrect, out of date or misleading” and it “has been used, is being used or is available for use by the agency or Minister for an administrative purpose.”

Under this section, the individual is also entitled to receive access to his personal files, created up to five years before the commencement of the Act. Many members of the com- munity are likely to utilize this right, particularly those who have been adversely treated in


areas such as health, social security, and taxation. In cases where files date back further, it is possible that some Departments may even waive the five year limit. In the early stages of F.O.I. operations, when there will be few government documents open to access, this access to personal records should be vigorously pursued.

The right of access to prior documents will also be extended in those cases where an applicant has a legally acquired document which cannot be understood without other background documents. This provision will be particularly useful for people such as journalists and businessmen, who frequently require background briefs.

THE FUTURE

While the Freedom of Information Act is undoubtedly a profound disappointment in its final form, it is nonetheless a major step in opening the decisionmaking process of the Com- monwealth Government. Altogether, I believe this Act will contribute towards redressing the balance of power, of which the public has very little at present compared to the Government, and of which the Parliament has very little compared to the Executive. Whilst its degree of effectiveness will not be known until some decisions under the Act are made or challenged, the legislation must inevitably open up the promise of a better informed and effective democracy.

In conclusion, the point should be emphasized that the new legislation applies only to the Commonwealth Government, and certain Territories within its responsibility. However, with two of our State Governments (Victoria and New South Wales) now preparing draft bills, modelled on the Federal legislation, and Opposition parties committed to legislation, there is every indication that a vigorous F.O.I. attitude will continue to develop throughout Australia.

NOTES

See, generally, Enid Campbell. “Public Access to Government Documents.” Australian Law Journal 41 (July 1967), 73-89; John McMillan. “Freedom of Information in Australia: Issue Closed.” Federal Law Review 8 (Se& tember 4, 1977). 379-434: Howard Coxon. “The Freedom of Information Debate in Australia.” Government Publications Review 8A (1981) 373-379. See Interdepartmental Committee. Proposed Freedom of Information Legislation. Canberra: Australian Gov- ernment Publishing Service, 1974. See Interdepartmental Committee. Policy Proposals for Freedom of Information Legislation. Canberra: Australian Government Publishing Service, 1976. See Senate Standing Committee on Constitutional and Legal Affairs. Freedom of Information. Canberra: Australian Government Publishing Service, 1979.