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.