Mary Anne Neilsen, Law and Bills Digest Section

The agreements between the minority Labor Government with the various independents have a common theme of pursuing principles of transparent and accountable government. Aligned with these promises is a new and important phase of information disclosure in Australian government administration set to commence later this year.

Freedom of information reform

Freedom of information (FOI), or the statutory right of access to government documents, is justified on the grounds that it encourages transparency and political accountability and promotes public participation in government and representative democracy.

In the 1970s Australia was a leading nation in introducing FOI laws into a Westminster-style democracy. However over time there was a general view that those 1970s reforms were not successful—that there was minimum cultural change and that a presumption in favor of disclosure was not practised across government. It was felt that government agencies could exploit restrictions and gaps in FOI laws to make it harder for the public to gain access to government information, especially information that might be embarrassing to the government or agency.

The Rudd Labor Government introduced major FOI changes with the principal objects of promoting a pro-disclosure culture across the Government and building a stronger foundation for more openness in government. These reforms, the bulk of which commence on 1 November 2010, are comprehensive with all aspects of the FOI laws being reformed—access procedures, FOI charges, exemption criteria, FOI objectives, the procedure for review of disputed decisions, publication of information by agencies, and FOI reporting by agencies.

A major part of the FOI reforms is the creation of an Information Commissioner position. It is an independent statutory position, with a range of functions that include investigation of complaints about FOI administration, merit review of access denial decisions, publication of FOI guidelines, and providing advice to government on information policy. The Information Commissioner Designate, John McMillan, is enthusiastic about the new position noting that the range of functions conferred is extensive and go beyond the traditional review role of settling individual disputes about document access. He foresees that agency heads and Ministers will need to heed the work of the Information Commissioner and take a greater involvement in FOI administration. He also notes that the budget allocated to the new office of $12.2 million over four years is more generous that perhaps was expected.

Another change that is likely to enhance the right to access is that agencies are being encouraged as part of a new scheme to make documents public independently of an FOI request. This information publication scheme is due to commence in May 2011 and again, the Information Commissioner will play a large role in providing guidance and a stimulus to agencies.

The new FOI scheme has been welcomed. It has been described as the biggest shake-up in the FOI Act’s history which hopefully will be effective in causing a permanent cultural shift of openness within public administration. Parliament, however, may see calls for further, more radical reform, particularly in the area relating to those exemptions that continue to apply to certain types of documents and certain agencies. For example, the Greens and some independents are on the record as wanting to ensure that all government agencies, including intelligence agencies, are fully open to scrutiny and are accessible under FOI laws, whilst safeguarding national security.

Whistleblower protections—proposals for reform

Whistleblower protection is ultimately about disclosure of information. The thrust of a whistleblower protection scheme is to protect workers who draw attention to problems they see in the workplace, ranging from corruption and threats to public health and safety, to mismanagement and public wastage. A worker who follows a designated procedure in disclosing information about workplace wrongdoing will receive protection against criminal and disciplinary sanctions and receive assistance aimed at safeguarding their employment and career.

Australia’s federal laws currently offer very few protections for public interest disclosures. The Rudd Labor Government had plans to address this gap. It had accepted most of the recommendations for legislative reform made in a 2009 House of Representatives Legal and Constitutional Affairs Committee report on whistleblower protection and was planning to introduce legislation later this year. The proposed scheme would facilitate public interest disclosures in the Australian public sector being made by public officials where there had been an honest and reasonable belief that the public interest disclosure should be reported. The range of matters that could be protected include amongst others: illegal activity, maladministration, wastage of public funds, dangers to public health or safety, dangers to the environment; and official misconduct. Responsibility would be assigned to the Commonwealth Ombudsman and the Inspector-General of Intelligence and Security for receiving whistleblower complaints, monitoring the investigation and handling of those complaints by government agencies, and ensuring that whistleblowers are properly protected. On one matter, the Government’s response went further than the Standing Committee report, in expanding the circumstances in which a person can make a public interest disclosure to a third party, such as the media.

With the Greens and some independents also making strong calls for the introduction of whistleblower protection laws and for more protection of journalists’ sources, the promised reforms of the previous Labor Government are likely again to be on the political agenda during this Parliament.

Library publications and key documents

J McMillan, FOI and privacy reform: presentation to a joint seminar of the Commonwealth FOI Practitioners’ Forum Privacy Contact Officer Network, Canberra, 26 June 2009.

M A Neilsen, Freedom of Information Amendment (Reform) Bill 2009, Bills Digest, no. 115, 2009-10, Parliamentary Library, Canberra, 2009.

M A Neilsen, Information Commissioner Bill 2009, Bills Digest, no. 114, 2009-10, Parliamentary Library, Canberra, 2010.

House of Representatives Standing Committee on Legal and Constitutional Affairs, Whistleblower protection: a comprehensive scheme for the Commonwealth public sector; report of the inquiry into whistleblowing protection within the Australian government public sector, House of Representatives, Canberra, 2009.

Australian Government, Government response to the House of Representatives Standing Committee on Legal and Constitutional Affairs, Whistleblower protection: a comprehensive scheme for the Commonwealth public sector, 2010.