FoI Unshackled? The Murray Bill

The United Kingdom was one of the last Western countries to implement freedom of information legislation.

See Terrill G. , Secrecy and Openness: The Federal Government from Menzies to Whitlam and Beyond, Melbourne University Press, 2000.

It is sobering to note that the platform of ‘open government’ was used only for the first time in Australia in the 1972 federal election campaign.

See De Maria W. , Submission to Queensland Legislative Assembly, Constitutional Law and Administrative Review Committee, Review of the Freedom of Information Act, 12 May 2000; De Maria W. , ‘Commercial-in-Confidence: Obituary to Transparency’, Keynote Address to CPA (Queensland Branch) Audit Intensive Day, 10 November 2000.

Commonwealth of Australia, Attorney-General's Department, Freedom of Information Act 1982, Annual Report 1999–2000, p.2.

Under ss.8 and 9 of the Commonwealth FoI Act.

See Commonwealth Ombudsman's evidence to Senate Legal and Constitutional Legislation Committee, Inquiry into the Freedom of Information Amendment (Open Government) Bill 2000, April 2001.

It is still impossible to distinguish between ‘personal’ and ‘policy’ access requests in the Commonwealth FoI statistics. We do know that 87% of all access requests in 1999/2000 were made to just three agencies: Department of Veterans Affairs, Department of Immigration and Multicultural Affairs, and Centrelink. On the whole these were non-contentious requests for personal information. See Commonwealth of Australia, Attorney-General's Department, Freedom of Information Act 1982, Annual Report 1999–2000, p.6.

The Commonwealth Ombudsman made this point in her own motion inquiry into the operation of the FoI Act. See Commonwealth Ombudsman, Need to Know, 3 June 1999. The Attorney-General has announced that the government will accept recommendation 11 from this report. In future, agencies will have to distinguish between personal and non-personal requests in their statistical accounting.

For example the Department of Veteran Affairs had a grant in full rate of 99.57% in 1999/2000. See Attorney-Generals Department, Freedom of Information Annual Report, 1999–2000, p.6.

Attorney-Generals Department, above, ref 10.

The Bill was introduced into the Senate on 5 September 2000 as a private members Bill. It was referred to the Legal and Constitutional Law Committee on 11 October 2000. That Committee was scheduled to report by 31 March 2001. The Committee reported in April 2001. Senator Andrew Murray is an Australian Democrats representative from Western Australia.

According to the ALRC, the government has not yet responded to the Commission's 1996 FoI report. See ALRC evidence to Senate Legal and Constitutional Legislation Committee, Inquiry into the Freedom of Information Amendment (Open Government) Bill 2000, April 2001, p.18, fn 16.

Senate Legal and Constitutional Legislation Committee, Inquiry into the Freedom of Information Amendment (Open Government) Bill 2000, April 2001, p.1.

The courts are in conflict regarding this point. Some decisions do not interpret the object sections of Acts as predisposing towards disclosure. See News Corporation Ltd v National Companies and Securities Commission (1984) 1 FCR 64 and Searle Australia v Public Interest Advocacy Centre (1992) 36 FCR 111 (which both rejected such a purposive approach). Cf Kirby J's approach in Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606. The author would like to thank the referee for drawing attention to these cases.

FoI case law has no enthusiasm for factoring embarrassment to government into the determination of the public interest. In its supplementary submission to the Senate Legal and Constitutional Legislation Committee, Inquiry into the Freedom of Information Amendment (Open Government) Bill 2000, the Attorney-General's Department mentioned a number of leading cases. See for example, Harris v ABC (1983) 50 ALR 551 and Marr v Telstra Corporation (1993) FoIR 70. However see Re Howard & Treasurer of the Commonwealth (1985) 7 ALD 626 where the Court held, inter alia, that in balancing factors favouring disclosure against those favouring non-disclosure it was relevant to take into account the fact that the ‘frankness and candour’ of public servants might be inhibited (by embarrassment or otherwise) if their internal deliberations were disclosed. The author wishes to thank the referee for drawing attention to this case.

Attorney-General's Department, Freedom of Information Annual Report, 1999–2000, p.9.

For example s.26A requires consultations with States on release of certain documents.

Attorney-Generals Department, Freedom of Information Annual Report, 1999–2000, p.9.

See Terrill G. , above. See also Finn P. , Official Information, Integrity in Government Project, Interim Report 1, 1991.

See McGinness J. , ‘Secrecy Provisions in Commonwealth Legislation’, (1990) 19 Federal Law Review 49.

Western Australian Commission on Government, Report 1, Chapter 2, point 2.3.1.1.

Queensland Law Reform Commission, The Freedom of Information Act 1992. Review of Secrecy Provision Exemption, Report No. 46, March 1994, Appendix C.

On 26 April 2000 the Welsh Cabinet minutes were published, and posted on the Internet for the first time, six weeks after the Cabinet meeting took place.

The same point was made recently by the UK-based public interest lobby group Campaign for Freedom of Information, with respect to the UK FoI Act.

There is evidence that the CIC problem has been in public administration for a long time, certainly since the 1970s. See Senate Finance and Public Administration References Committee, Inquiry into the Mechanism for Providing Accountability to the Senate in Relation to Government Contract, p.1. However the current outsourcing policy puts a new urgency on the matter.

De Maria W. , ‘Revealing State Secrets’, Courier-Mail, 12 April 1999, p.13; De Maria W. , ‘Democracy in Eclipse’, Courier-Mail, 5 January 2000, p.11. Statistics from Queensland Department of Justice, Freedom of Information Act, Annual Report, 1996–97, Appendix F.

For a review of the mounting pressure against CIC see De Maria W. , ‘Commercial-in-Confidence: Obituary to Transparency’?, Australian Journal of Public Administration, in press.