Posted 21/12/2015 by Philip Hamilton
It is important to note that the vast majority of the review’s 134 recommendations can be implemented administratively within the public service; relatively few actually require legislative amendments. Those that do are usually framed in terms of a lead agency (such as the Department of Finance or the Attorney-General’s Department) undertaking to develop proposals for consideration by government. In other words, the review’s recommendations focus on practical first steps that may, at a later stage, result in proposals for legislative amendments being tabled in Parliament.
Recommendation 6.7 is a case in point, proposing that Finance reviews the Lands Acquisition Act 1989 (and related administrative and delegated arrangements), with a view to simplifying arrangements and removing unnecessary processes relating to the process by which Commonwealth entities acquire or dispose of interests in land. Although not stated by the review, it is likely that substantive changes could only be effected by legislative amendments. However, the first step is for Finance to review the process established by the Lands Acquisition Act 1989.
Other legislative amendments relate to Administrative Law, particularly the Archives Act 1983, the Privacy Act 1988, and the Freedom of Information Act 1982 (FOI Act). The Red Tape report states unequivocally that ‘legislative reform is necessary to reduce the administrative burden of requirements in the FOI Act regime across government.’
The key recommendation here is 17.3, which proposes that the Attorney-General’s Department (AGD) seek the Government’s agreement to prioritise the implementation of recommendations made in a review of the FOI Act undertaken in 2013 by former departmental secretary Dr Allan Hawke. The Hawke review made 40 recommendations to streamline FOI procedures, reduce complexity and increase the effectiveness and efficiency of managing the FOI workload. The Red Tape review reported that entities identified provisions relating to FOI timeframes as an area that would greatly assist them to better meet statutory requirements under the FOI Act. On this point, proposals made by the Hawke review and highlighted by the Belcher review include: amending statutory timeframes in the FOI Act from calendar days to working days and excluding any period in which an entity is closed (for example during the ‘shutdown’ period over Christmas); and enabling an extension of time for consultation on Cabinet-related material by up to 30 additional days. In a complementary measure, recommendation 18.3 proposes providing greater flexibility for the National Archives of Australia to consult relevant entities on information requested under the Archives Act, and changing calendar days to business days.
Lastly in relation to Administrative Law, the review found that ‘there is duplication, inconsistency and a lack of coherence in the operation between information access schemes under the FOI Act, the Privacy Act and the Archives Act.’ Recommendation 18.4 proposes that ‘AGD begin work with relevant entities to scope and develop a simpler and more coherent legislative framework for managing and accessing government information during its life-cycle in a digital environment through staged reforms, commencing with legislation regulating archives.’ This represents a first step toward a root-and-branch revision of the governance of Commonwealth records, anticipating the eventual transition from the legacy of paper-based processes established in current legislation to ‘a simpler and more coherent framework for accessing and managing government information in a digital environment.’ The eventual achievement of this goal would be a major legislative milestone.
In addition to those discussed above, several other recommendations allude to possible legislative action. For example, the discussion leading into recommendation 22.15 suggests that reduction of the apparent overlap between the APS Code of Conduct and the Public Interest Disclosure Act 2013 may require ‘clearer guidance or legislative authority.’
Experienced commentators on the public service Verona Burgess and Paddy Gourley have produced useful summaries of the Red Tape report and its 134 recommendations, with Burgess noting that ‘if implemented properly [the recommendations] will not only reduce much of the internal red tape that is choking vast areas of the public service but should help constrain its future proliferation.’