2004 freedominfo.org Global Survey Results - Australia
Text from the freedominfo.org Global Survey: Freedom of Information and Access to Government Records Around the World, by David Banisar (updated 12 May 2004)

The federal Freedom of Information Act 1982 (1) provides for access to documents held by Commonwealth agencies. (2) The Act requires that agencies respond within 30 days to information requests.

There are exemptions for documents relating to national security, defense and relations between states; documents submitted to, generated by, or reveal deliberations of, the Cabinet or Executive Council; Internal working documents; law enforcement and public safety; personal privacy; the national economy; privilege; and confidentiality. There are, however, a variety of "public interest" provisions depending on the type of information.

Under the Act, applicants can first appeal internally. In 2001-02, there were 226 decisions made on internal review. 56 percent upheld the agency decision and 42 percent resulted in the agency conceding additional materials. The Administrative Appeals Tribunal handles merits review (appeals) of adverse decisions while appeals on points of law are referred to the Federal Court. The Commonwealth Ombudsman handles complaints about procedural failures. The Ombudsman received 266 complaints and the Tribunal decided 140 appeals in 2001-2002. 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.

According to the Attorney General's 2001-2002 report, there were 37,169 information requests between July 2001 and June 2002. (3) Almost ninety percent of those requests were for personal information, mostly to the Department of Veterans' Affairs, the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA), and Centrelink. Ten percent of the requests were for policy-related documents. Overall, 76 percent of all requests were granted in full, 18 percent were granted in part and five percent were refused. The AG estimated the total cost of FOI at $17 million. Between December 1, 1982 and June 30, 2002, Commonwealth agencies have received a total of 601,277 access requests.

There are many criticisms of the effectiveness of the Act. (4) 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. (5) 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. (6) 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. (7) However, an amendment to exempt information on Internet sites banned by the Australian Broadcasting Authority was approved in 2003. (8) In July 2003, the Labour Justice Spokesman Robert McClelland asked the Ombudsman to investigate why fees had more than doubled from 1996 to 2001.

Under the Archives Act, most documents are available after 30 years. Cabinet notebooks are closed for 50 years. (9) The Crimes Act provides for punishment for the release of information without authorization. (10)

The Privacy Amendment (Private Sector) Act 2000 gives individuals the right to access records about themselves held by private parties. (11)

The self-governing Northern Territory enacted the Information Act 2002, a combined privacy and FOI law, in November 2002 and it took effect in July 2003. All six states and two territories now have freedom of information laws. (12) There are also privacy acts in most states and territories.

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.foi.law.utas.edu.au/.

3. Attorney-General's Department, Freedom of Information Act 1982 Annual Report 2001-02. Available at http://www.ag.gov.au/foi

4. See Matthew Ricketson, Keeping the lid on information, The Age, November 28 2002.

5. 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.

6. 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.

7. 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

8. See Electronic Frontiers Australia, Amendments to FOI Act: Communications Legislation Amendment Bill 2002. Available at http://www.efa.org.au/FOI/clabill2002/

9. See National Archives, The Cabinet Notebooks. http://www.naa.gov.au/The_Collection/cabinet.html
The Crimes Act [PDF - 756 KB]

10. Privacy Act 1988. Amended by Privacy Amendment (Private Sector) Act 2000. http://www.privacy.gov.au/act/

11. See Australian Privacy Foundation, Privacy Laws - States and Territories of Australia. http://www.privacy.org.au/Resources/PLawsClth.html

12. Ibid.