International Law

The official Summary of the main changes between the draft and Introducted FOI reform Bills RTF 1.17MB includes 25 items but there are few of significance and little take-up of suggestions for improvements made in the published submissions. In fact there is little to show for the last seven months of consultation and whatever was going on behind the scenes. The only changes worth mentioning in this preliminary assessment are that internal review will now be optional; the business affairs exemption has been split making an absolute exemption for trade secrets and information of commercial value that would be destroyed or diminished by disclosure, and subjecting information about business or professional affairs to a public interest test ( in essence the status quo and a step back from March when all business related information was to be linked to public interest considerations); and the Minister is to ensure a full review of the Act within two years, to be completed within six months and presented to Parliament. The rest is very minor detail.

So the Reform Bill is essentially what Minister Faulkner outlined in March. My comments at the time were that it is good and welcome, so congratulations to that extent. The reforms are designed to deliver Labor's pre-election commitment to implement key recommendations of the 1995 Australian Law Reform Commission Open Government Report, rationalise exemptions, review charges, and establish an Information Commissioner- the other leg of the commitment to abolish conclusive certificates has already been accomplished. Positives about the Reform Bill include the creation of the Commissioner to lead, guide and monitor as well as undertake review functions; proactive publication of information ( but the legislation doesn't go far in specifying the detail which will be in the hands of the Information Commissioner); a tilt in the direction of disclosure as a result of clear statement of the objects and more forceful expression of relevant and irrelevant public interest considerations; and the abolition of application fees (subject to a regulation yet to appear).

However the Government has been selective about the ALRC's 106 recommendations, with no explanation for example for failing to bring the parliamentary departments within the scope of the Act; to reduce the time limit for dealing with an application from 30 days to 14 days; for charges to apply only in respect of documents released; and to act on various other recommendations that vary in significance but include that chief executives of government agencies should have a duty under records legislation to create "such records as are necessary to document adequately government functions, policies, decisions, procedures and transactions."

The "rationalisation of exemptions" is a bit of a damp squib with the abolition of two rarely used exemptions (Executive Council documents and documents prepared in accordance with companies and securities legislation) and a sub-section relating to documents concerning the conduct of industrial relations, all as recommended by the ALRC. All other exemptions (including many internal combinations and permutations) remain, with a couple of welcome changes but some ALRC recommendations not acted upon. Exemptions at least will now be arranged in two neat boxes - absolute exemptions, and conditional exempt documents where a public interest test applies.

The Reform Bill however still involves the crafting of new, mostly better plain English provisions onto the old bones of a 1982 Act that shows its age. Its a pity the Government didn't look for best of breed ideas from Queensland, NSW and Tasmania which have all acted more expeditiously and comprehensively on reform. Issues raised in my submission on the Exposure Draft attracted little interest (I think I managed one change) including suggestions for a shift from "documents" to a right to access information, more fitting in the digital age; to require an agency to use the most efficient means to retrieve information from electronic or other systems; to remove a hopefully never used provision (Section 23) that allows a minister to make a decision on access to agency documents, one of the provisions that hardly encourages confidence; to re-examine blanket exclusions of documents relating to functions of some agencies; and to include offence provisions for destruction of information to avoid disclosure, or interference or improper direction in the making of determinations.

With parliament to rise, exhausted by climate change wrangling, and the country starting to think about summer holidays it's over for the moment. It will be interesting to see what it all looks like when debate resumes in February, particularly in the Senate. And in two years time when a full review is promised.

We won't be starting 2010 with the new regime in place, more's the pity, and bets are open on when we will see performance match promise.

Full post as published by Open and Shut on November 26, 2009 (boomark / email).