7 SEPTEMBER
2006 Australia:
High Court Sides with Bureaucrats, Rolling Back Right to
Information The
Australian High Court yesterday dealt a crushing blow to
the country's 24-year-old Freedom of Information Law, setting
a precedent that permits government bureaucrats to deny
public requests for information on the basis of broad claims
of potential harm.More
>>
The
Freedom from Information Act The
Fifth Estate, Media Analysis, 14 October 2005
A recent Federal Court decision has further weakened Australia's
FOI regime, leading some to question the viability of the
entire system, argues Chris Vedelago.
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)
•
Undernourished people (% of total population),
2000/03: N/A
•
Population with sustainable access to an improved
water source (%), 2002: 100
Source:
UN Development Program, Human Development Reports
Data
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)
14
September 2005
'Thinkers in Residence' Paid A$1375 a day by Australian
Premier
According to documents released to The Australian under
freedom of information laws, Premier Mike Rann hired so-called
"Thinkers in Residence," including one New York-based
homelessness scholar, to visit Australia for weeks at a
time and research and write a paper on homelessness in Australia.
Payment of approximately A$1375 (US$1050) per day included
a stipend for daily work as well as a travel allowance,
and was paid at least in part by Australian taxpayer money.
In an effort to attract more world-class thinkers to Adelaide,
Mr. Rann has already engaged seven consultants from around
the world for various projects.
Michelle Wiese Bockmann, "$1375 a day
for thinking," The Australian, 14 Sept. 2005, at 7.
18
July 2005
In Australia, Lax Shipping Permit Investigations Heighten
Risk of Maritime Terrorist Attack
A review of the Australian Transport Department's ship permitting
process in October of 2004, recently obtained by The Australian
using the country's Freedom of Information law, show poor
and ineffective administration whereby the "department
risks granting a permit based on a bogus or unauthorised
application." Few if any checks is made of the authenticity
of documents or other information provided by applicants,
and in a significant number of cases, permits were issues
although the application form was missing the required signatures.
Australia issues about 1000 coastal permits each year, and
ships carry various cargo including fuel, chemicals, and
fertilizer.
Michael
McKinnon, "Lax ship checks expose ports to terror threat,"
The Australian, 18 July 2005, at 4.
10
February 2004 Australia: Labor Party to Review Freedom of Information
Act The
Australian Labor Party website reports that Federal
Labor will review the operation of the Freedom of Information
(FOI) Act. The Shadow Attorney-General, Nicola Roxon said
that the Howard Government had ignored the spirit and purpose
of the current law, and that Labor would look at strengthening
and expanding the operation of the current Act. "Public
scrutiny of government is essential to any vibrant and dynamic
democracy," Ms. Roxon said.
The
Howard Government has become addicted to cover-ups, and
has repeatedly rejected requests from information about
core areas of government service provision including the
first-home buyers scheme, bracket creep and government contracts.
Labor intends to reform the FOI laws so the public has all
the information it is entitled to, and can judge their government's
performance with all the facts.
28
December 2003 Australia: Freedom of Information Stifled by State
Secrecy News.com.au
(Australia) reports that citizens from the Australian
state of Victoria are finding it increasingly difficult
to gain access to State Government information. Only
one in every five requests to government departments for
documents under the Freedom of Information Act was successful
in 2002-03. Complaints to the Victorian Ombudsman about
delays in processing requests, documents being lost and
information being refused, have almost doubled. The Ombudsman's
annual report on FoI reveals: Only
516 of the 2404 requests (21 per cent) for information from
government departments resulted in full disclosures between
July 2002 and June this year, down from 25 per cent in 2001-02,
and 28 per cent in 2000-01. Full access to documents was
given for only 10 of 249 (4 per cent) requests to the Department
of Justice.
16
November 2003 Australian Treasurer Thwarts Bid for Key Files The
Australian reports that Peter
Costello has invoked a rarely used suppression power in
order to suppress the release of key records reflecting
directly on his performance as Treasurer. The
office of the Australian Government Solicitor, acting for
Mr Costello, advised that he wanted to personally vet documents
sought by this newspaper under federal Freedom of Information
legislation with a view to issuing a "conclusive certificate"
blocking their release. The Weekend Australian has spent
more than 10 months attempting to obtain, under FOI, publicly
unavailable Treasury documents concerning the operation
of the first home buyers scheme, income tax bracket creep
and baseline information used in the preparation of the
intergenerational report on population ageing. One of Australia's
leading FOI experts, Rick Snell, of the University of Tasmania,
yesterday described Mr Costello's action as outrageous.
12
November 2003 Australia/New Zealand: Alarm over Food Labeling
Secrecy
According
to a Press
Release by New Zealand's Green Party, decisions about
what goes into Australians' and New Zealanders' food and
even what goes onto the label will continue to be made in
secret, as a result of an Ombudsman's ruling. The Ombudsman
has upheld a refusal by the Minister of Food Safety to release
information under the Official Information Act regarding
any decisions made by the Australia New Zealand Food Regulation
Ministerial Council, on the grounds that the council is
an international organization. The ministerial council makes
decisions on what is in our food: what ingredients are legal
and illegal; the level of pesticide residues allowable;
how food is produced and how food is labeled. It
is outrageous that food policy decisions are exempt from
the Official Information Act, and that the government is
colluding with the Australian Federal and State governments
in keeping this information secret from New Zealanders and
Australians," said Sue Kedgley, the Green Food Safety
spokesperson.
16
October 2003 Australia: FOIA Under Attack?
The
West Australian Information Commissioner of 10 years will
retire amid fears that the tool used by the public to keep
government accountable - freedom of information - is under
threat. Bronwyn Keighley-Gerardy, WA's inaugural Information
Commissioner, is the second government watchdog in as many
months to attack the Gallop Government for putting its budget
bottom line ahead of accountability. Last month, Auditor-General
Des Pearson warned that fraud, waste and mismanagement in
the State's public sector could go undetected because of
budget cuts to his agency.Ms Keighley-Gerardy used her department's
annual report to attack the Government over its decision
to amalgamate her office with that of the State Ombudsman
and co-locating her office with two other government agencies.
She
said she was concerned that the credibility, independence
and impartiality of the office of Information Commissioner
would suffer a serious blow.
To
listen to a (Real Audio) clip of Ms Keighley-Gerard speaking
on this topic to ABC.net (Australia) click here.
15
September 2003 Australia: Victorian Government Considers Extending
Timeframe for FOI requests ABCnews
online (Australia) reports that the Victorian government
is considering doubling the amount of time allotted to respond
to Freedom of Information requests from 45 days to 90 days.
It
follows the release of an ombudsman's report examining how
government departments handle FOI requests following a number
of complaints by the Opposition on the Government's handling
of Freedom of Information (FOI). The ombudsman found the
number of FOI requests has increased dramatically and several
departments are not meeting their statutory requirements
to respond within 45 days. At
the end of last month there were 294 FOI requests with the
Department of Human Services which exceeded the 45 day limit,
12 dating back to October 2002.
10
September 2003 Offensive Sites Banned Under FOI News
Interactive Australia
reports that child pornography, bestiality and violent websites
banned by the Australian Broadcasting Authority cannot be
accessed under freedom of information laws passed by the
Senate. Amendments
to the Communications Legislation Bill ensure highly offensive
online content and website addresses containing illegal
material can no longer be reached through the use of the
Freedom of Information (FOI) Act. But Labor claimed the
laws gave some government agencies the power to censor material
without challenge. Opposition
information technology spokeswoman Kate Lundy said Labor's
key concern was that the bill exempted four agencies from
freedom of information requests in relation to documents
containing offensive internet content. The four agencies
were Australian Broadcasting Authority (ABA), the Office
of Film and Literature Classification, the Classification
Board and the Classification Review Board.
Senator Lundy said the bill was an attempt by the government
to remove freedom of information scrutiny from government
agencies involved in regulating offensive websites. "If
this schedule were enacted there would be no way to access
the material on which an agency based a censorship decision
in order to challenge the lawfulness or reasonableness of
that decision," she said.
10
July 2003 Australia: Fees Blocking Access to Information Ausnews.com
reports that charges for FOI requests have exploded under
the Howard Government, in direct defiance of a warning by
the Ombudsman to rein them in. New
analysis released today by Labor reveals that charges notified
by the Howard Government in response to FOI requests leapt
from $308,689 in 1998-99, to $552,038 in 1999-2000, $1,099,380
in 2000-01 and $825,779 in 2001-02.
In
June 1999, the Ombudsman investigated the Howard Government's
administration of the FOI Act, noting in his report that
"there is concern that charges are being unreasonably
determined and applied by agencies as a means of deterring
FOI requests." The Ombudsman concluded that the evidence
"lends weight to the concern that some agencies may
be setting unreasonably high charges to process FOI requests"
and recommended the Government introduce appropriate controls.
In
direct defiance of the Ombudsman's warning, charges notified
in response to FOI requests practically doubled in each
of the following two years, as the Howard Government began
to suffer poor polling the lead-up to an election. Few of
these extra charges were actually collected, raising serious
concerns that they were only ever notified to deter requests
for information.
24
June 2003 Australia: Democrats Block Controversial FOIA Amendments The
Australian IT online reports
that Australian Democrats are blocking controversial amendments
to the Freedom of Information Act, declaring they will not
support moves to tighten FOI rules to exempt information
on Internet censorship.The
Communications Legislation Amendment Bill is designed to
stop FOI applications on Internet content from the Australian
Broadcasting Authority, the Office of Film and Literature
Classification and the Classification Review Board. The
legislation aims to block applications from the likes of
civil liberties group Electronic Frontiers Australia, which
has been using the Act to track the operation of the internet
censorship regime.
Democrat
communications spokesman John Cherry said the party would
move to have the FOI provisions deleted from the Bill. "We
wouldn't support any diminution of Freedom of Information
Act access," he said. "I can see the arguments
for and against this, but our principle is you don't want
to encourage any government authority to shield its activities
from the public."
15
April 2003 Australia: Failure Likely for Net Anti-FOIA Bill News
Interactive Australia
reports that legislation aimed at blocking freedom of information
applications on the government's internet censorship regime
appears to be heading for defeat in the Senate.
The
Communications Legislation Amendment Bill aims to stop FOI
applications for internet content material from the Australian
Broadcasting Authority, the Office of Film and Literature
Classification and the Classification Review Board.
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/.
3.
High Court test case on Costello FOI, The Australian,
4 February 2006.
4.
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.
6.
Attorney-General's Department, Freedom of Information
Act 1982 Annual Report 2004-05. Available at http://www.ag.gov.au/foi
7.
See Matthew Ricketson, Keeping the lid on information, The
Age, November 28 2002.
8.
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.
9.
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.
10.
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
11.
See Electronic Frontiers Australia, Amendments to FOI
Act: Communications Legislation Amendment Bill 2002. Available
at http://www.efa.org.au/FOI/clabill2002/
12.
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
13.
See National Archives, The Cabinet Notebooks. http://www.naa.gov.au/the_collection/cabinet.html
14.
The Crimes Act. http://scaletext.law.gov.au/html/pasteact/0/28/top.htm
"Press
freedom operates by convention rather than by
constitutional guarantees. Journalists' freedom
to report and access information is tightly guarded
by the Australian Press Council and the Media,
Entertainment, and Arts Alliance, which represents
more than 10,000 journalists. Nevertheless, the
Australian Security Intelligence Organisation
Act, amended in 2003, provides for a five-year
prison sentence for journalists who fail to present
themselves to the domestic security agency in
response to a summons or fail to produce their
sources or to pass on information they receive
about a potential terrorist act. Defamation laws
differ across state boundaries. However, in July
the federal government proposed a national defamation
law to eliminate problems publications face in
complying with different defamation standards.
Access to information remains costly, with government
departments indirectly imposing procedural difficulties
for journalists requesting access to government
documents through freedom of information legislation.
Journalists are subject to gag orders, leading
to conflicts between a journalist's right to report
in the public interest and a source's right of
confidentiality. In March, a freelance journalist
was subjected to an 18-week gag order by the Queensland
Supreme Court against publishing details about
Elan Vital, a religious group based in Queensland,
of which he was a former member."
"The
federal, state, and territorial governments have
freedom of information (FOI) laws, which provide
the public with access to government information.
FOI requests generally are subject to both an
application and a processing fee. Federal law
enables a person to access and correct inaccurate
personal information held by government ministries
and agencies, and to access other government information
that has not been exempted to protect essential
public interests or the private or business affairs
of others. An applicant, including foreign media,
may appeal a government decision to deny a request
for information to the quasi-legal Administrative
Appeals Tribunal (AAT); an adverse AAT decision
may be appealed to the Federal Court of Australia."
1)
Voice and Accountability: 1.40
2) Political Instability and Violence: 1.03
3) Government Effectiveness: 1.95
4) Regulatory Burden: 1.62
5) Rule of Law: 1.82
6) Control of Corruption: 2.02
