Dissenting report by Labor Senators
Freedom of information laws are essential to Australia's democracy
because they give the Australian public and media access to information about
what the government elected by the Australian people is doing in their name.
Labor has long championed strong and effective freedom of information in
Australia. In 2009-10 the Labor government made the most substantial reforms to
Australia's FOI regime since its establishment in 1982, following extensive
public consultation and with widespread support.
This reform, with the introduction of the Office of the Australian
Information Commissioner (OAIC) at its heart, is now being dismantled by the
Abbott government with no mandate, no consultation and no justification. The
government's claim that the Bill does not affect the substantive rights of
citizens, civil society and the press under FOI is simply not true. Its
argument that it reduces the burden on applicants is, as Professor Richard
Mulgan of the Australian National University described it, 'deceitful
The Bill is an attack on Australia's FOI regime, and on the work the
former Labor Government did to revitalise that regime and bring it into line
with international best-practice. It is an attack on transparent and
accountable government. Labor Senators cannot support it.
The Bill is not, as the Committee’s majority report claims, a savings
measure. As has been noted, even the small cuts achieved by this Bill may be
illusory. The costs to agencies of mandatory internal review have not been
Moreover, as almost every submission to this inquiry pointed out, a
portion of the proposed 'savings' are in fact nothing but cost-shifting to
applicants, who will now have to pursue an expensive formal appeal process
instead of a free and accessible one.
This Bill would abolish all independent merits review of FOI decisions
short of a full adversarial FOI challenge in the Administrative Appeals
Tribunal (AAT). As has been noted by numerous submissions to the Committee, AAT
review is inaccessible to most ordinary FOI applicants. While review by the
OAIC is free-of-charge, applicants face a filing fee of over $800 simply to
commence an appeal in the AAT. While the OAIC conducts its own investigation,
an appeal to the AAT involves an adversarial process and many applicants would
require legal assistance or representation. As a bespoke FOI watchdog, the OAIC
has developed a specialist knowledge and institutional memory that a generalist
administrative tribunal will find difficult to match.
The AAT and the OAIC are in no sense interchangeable means of review. As
Associate Professor Moira Paterson of Monash University argued, 'the genuine
availability of an independent review mechanism is fundamental both to the
effective operation of the legislation and public confidence in it'. Limiting
review to those with the resources and legal knowledge or advice to go to the
AAT will not only limit the accessibility of the FOI scheme to applicants, but
may also affect the behaviour of government agencies, which 'need to know that
their decisions are subject to independent oversight if they are to continue to
take their FOI obligations seriously'.
Even Australia's Right to Know, the only submitter which overtly
supported the move to direct review by the AAT, acknowledged that the situation
of the media organisations which it represents was different to that of private
individuals, and encouraged the consideration of a model which would retain the
role of an information commissioner for those applicants who would benefit from
Labor engaged in extensive consultation on its proposed changes to FOI
laws in 2009-10, resulting in a new FOI infrastructure that was well-considered
and enjoyed broad support. In stark contrast, the government did not conduct
any review or consultation prior to announcing the Budget measure this Bill
As noted in the committee's report, the recent review of FOI led by Dr Allan
Hawke AC found that the establishment of the OAIC had been 'a very valuable and
positive development'. Hawke concluded that the new FOI system was largely
working as intended, and that any further reform should only proceed after more
The Government has ignored the good work done by the Hawke review, and has not
undertaken any serious analysis of its own on the operation of the FOI scheme
or of the OAIC. It is simply unacceptable for the Government to proceed with
the complete overhaul of the FOI system without a thorough review and proper
The management of FOI and related information policy through an
independent national body is best practice, and follows a global trend in
comparable jurisdictions. The creation of such a body at federal level was
advocated as long ago as 1995, in the Open Government Report of the Australian
Law Reform Commission and Administrative Review Council.
The OAIC was the centrepiece of the revitalisation and reform of FOI successfully
brought about under the former Labor government. The continued existence of the
OAIC received overwhelming support in submissions to this inquiry.
Labor senators accept that there have been complaints about long
timelines for IC processing of FOI reviews, but notes the observation of FOI
experts that these have been caused largely by the inadequacy of resources
provided to the OAIC. Any delays in the OAIC review process should be dealt
with by reviewing and if necessary increasing the resourcing of that office,
not abolishing it. The OAIC and other FOI experts also noted that various
suggestions had been made to improve the efficiency of OAIC processes.
The OAIC has worked on its own volition to dramatically reduce its review
timelines, as demonstrated in its most recent annual reporting.
The Government has made no attempt to grapple with real solutions to perceived
problems with the operation of the OAIC. Rather, its approach has been, as one
submitter put it, to throw the baby out with the bathwater.
Under the arrangements proposed in the Bill, oversight of FOI – a system
designed to hold executive government to account – will now be led by a core
government department. This is a clear conflict of interest. Liberty Victoria
observed that open government 'is now to be sacrificed to the very entities in
whose interests the limitation of access to governmental information will, from
time to time, be prevalent.'
In evidence to the committee, Information Commissioner Professor John
McMillan observed that:
open government is ultimately more a matter of culture than
precise legal rules, and that culture requires constant pressure. Even when one
achieves a far more open and transparent system, the default system within any
organisation is for greater confidentiality, greater information control, which
some regard as greater secrecy. So, whatever system is in place for information
oversight with a view to greater transparency, it requires constant pressure
across government to ensure that the messages for transparency are heard and properly
implemented...any achievement in the area of transparent government will be a
temporary achievement unless there is constant pressure for greater
Labor senators believe that the OAIC must be retained. The agency has a
key role to play in ensuring the transparency of our governance, and the
government's proposed rearrangement is an opportunistic attack on an
institution which enjoys broad support and has achieved demonstrated success.
It is telling that the Abbott government, a government already known for
secrecy and opaqueness, is the only voice calling for the abolition of the
OAIC. If the government were truly committed to a credible FOI regime and
accountable government, it would investigate measures to strengthen, not
destroy, the best-practice body at its heart.
Labor senators recommend that the Bill not be passed.
Labor senators recommend that the government immediately restore necessary
funding to the Office of the Australian Information Commissioner to allow it to
continue its work.
Labor senators recommend that the government commission a review of the
operation of the OAIC, including its resourcing.
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