Address by Senator the Hon Joe Ludwig
Cabinet Secretary
Special Minister of State
Canberra
Thursday 6 August 2009
Good afternoon. Ladies and gentlemen, first let me acknowledge the traditional owners of this land, and pay my respects to their elders past and present.
Transparency and accountability are cornerstones of good governance and government integrity. They are principles with great importance to administrative law. And they are the principles that underlie the purpose of FOI legislation: to give members of the public a right of access to information held by governments.
Openness in government, like openness in administrative decision making, enhances trust in executive action. And that trust is fundamental to the health of the democratic contract between state and citizen, between elected officials and electors.
At its most basic level, FOI provides individuals with a legal right of access to Commonwealth documents to supplement their understanding about decisions personally affecting them. But FOI legislation provides much more than that. FOI legislation stands as a paradigm for good governance.
The Commonwealth FOI Act 1982 is a landmark law in its recognition that a democratic system of government is better served by a principle of openness than one of secrecy. The Act stands as a reaffirmation that information held by government is held for public purposes and not for private purposes. Twenty-seven years later, it is past time for the FOI Act to be substantially refreshed.
In my role as Shadow Attorney-General, I was honoured to develop the policies for FOI reform that formed part of our 2007 election policy document. Earlier this year, my predecessor, Senator Faulkner, announced the release of exposure drafts of the Government’s FOI reform legislation to deliver the first substantial overhaul of the federal Freedom of Information regime since the Act’s inception in 1982.
These reforms will recognise the importance to Australia’s democracy of, as the proposed new objects of the Act state, “increasing public participation in Government processes, with a view to promoting better informed decision making; increasing scrutiny, discussion, comment and review of the Government’s activities” and increasing “recognition that information held by the Government is to be managed for public purposes, and is a national resource”.
These reforms will change the law, but they will also demonstrate the Government’s commitment to culture change, a shift from the culture of secrecy we saw under the last Government to one of openness and transparency.
The structural reforms in the draft legislation represent a major change in FOI administration. As part of the structural reforms, the Government proposes to bring together the policy streams of privacy and FOI into a new Office of the Information Commissioner. The Information Commissioner will be the head of the Office for all purposes and will be supported in carrying out FOI responsibilities by the FOI Commissioner and in carrying out privacy responsibilities by the Privacy Commissioner. The existing Office of the Privacy Commissioner will form part of the new office.
In addition to responsibilities under the FOI and privacy legislation, the Information Commissioner will also have a function of advising the Government on broader information management policy across government, extending beyond FOI and privacy.
To further improve the effectiveness of FOI, the Information Commissioner and FOI Commissioner will have a review function for FOI access related decisions made by agencies and ministers.
We have also retained the possibility of subsequent merits review by the AAT to provide a safeguard for difficult or complex cases, a merits review body with experience in contested hearings, and a developed jurisprudence in this area.
We believe the new review structure will make Freedom of Information more accessible by making it less legalistic without removing any of the legal protections applicants currently enjoy. And an application for a merits review to the Freedom of Information Commissioner will be free of charge, removing a real and practical barrier to applicants wishing to challenge the decisions of agencies.
Consistent with powers traditionally associated with tribunals, the Information Commissioner will, in undertaking the review function, have full powers to reconsider the merit of all FOI decisions of agencies and ministers and to make new decisions. Those powers will be unfettered by the limiting effects of conclusive certificates.
We anticipate that an Information Commissioner review will be able to deliver resolution, and finality, on most challenges to FOI decisions. Instrumental to meeting that objective is the appointment of the Information and FOI Commissioners as independent officeholders who are subordinate neither to principal officers of agencies nor to Ministers.
Review by the Information Commissioner needs to be simple, expedient and cost efficient.
It will be characterised by reduced formality and reduced contestability, which in large part will be achieved through the intention to limit hearings, with most applications determined on the papers.
Much of the evidence needed to make a decision will already exist and be available, such as the documents in dispute and the written reasons refusing access.
A regularly expressed frustration for FOI applicants is that documents are disclosed only when pressure is applied through institution of AAT proceedings. The Information and FOI Commissioners will have powers to make any inquiries and to use any technique appropriate for determining an application. This will ideally serve to expose weak decisions. Early inquiry and preliminary opinion may well translate into an agency reversing its decision and thereby limiting the need for applicants to take further steps.
The Commissioners will be able to dispose of an application where an agreement is reached between the parties, or, by determination if agreement can’t be reached.
The Information Commissioner will have a power to refer a question of law to the Federal Court at any time during a review. This is intended to ensure that the Information Commissioner makes decisions which are correct in law and can make a decision to finally resolve a matter.
An agency or applicant may also appeal directly to the Federal Court on a question of law from an Information Commissioner decision. In such a case, a finding of error may lead the Federal Court to return the matter to the Information Commissioner to remake the decision.
Should a party instead consider a further application for merits review to the AAT, they will bear the onus of establishing that the Information Commissioner made the wrong decision. Agencies will need to fully consider the merits of making an application to the AAT. They are obliged under the Commonwealth’s model litigant obligation1 to act honestly and fairly in handling litigation including by not undertaking appeals unless the agency believes it has reasonable prospects of success or the appeal is otherwise justified in the public interest.
The Information Commissioner will also take over the bulk of the role of the Ombudsman in investigating complaints about handling of FOI requests. This is not an examination of the merit of an FOI decision, for which the appropriate remedy is a review application. The Ombudsman will still have capacity to investigate FOI complaints where it would be more appropriate or effective for the Ombudsman to do so.
Examples may be where an FOI complaint forms part of a wider grievance relating to agency action or where the complaint concerns actions by the Office of the Information Commissioner.
The insights gleaned from the review process, as well as the complaints function, will mean that the Information Commissioner is well placed to respond to poor FOI practices and advise on and promote practical changes.
A range of possible responses will be open to the Commissioner, including:
The Information Commissioner will also have responsibility to oversee and ensure compliance with a new Commonwealth Government publication scheme.
Part 2 of the FOI Act has long included a requirement for agencies to publish certain information about their operations and on the rules and guidelines that are used in decisions affecting members of the public.
And agencies will continue to be required to publish information about their operations, the material they use to inform decisions affecting members of the public and some other new classes of information.
This publication scheme will also require agencies to actively consider the types of information they have which can and should be made available to the public. It will not only encourage but mandate agencies to publish what they can lawfully publish.
But it is not a purpose of the scheme that agencies publish all their records. Vast amounts of new information are generated daily across agencies and some of this information should not be made public, for privacy or other public interest considerations. Agencies will not be required to publish information prohibited from disclosure under other laws or information that would be exempt under the FOI Act.
Agencies will also be obliged to consider guidelines issued by the Information Commissioner. These guidelines could be expected to identify classes of information appropriate for publication, how long information should remain published, and the manner of publication – an issue also being investigated by the Government’s 2.0 Taskforce.
This is charged with finding ways to help government consult, and collaborate with the community; and to develop innovative ways to make available and use public information. In part it will do this through a consideration of Web 2.0 techniques.
The agenda for change envisaged by the taskforce has at its core the cultural transformation required by a pro-disclosure regime.
Building on this cultural shift the taskforce is also seeking to explore new and innovative ways to distribute material and solicit responses from the community.
The Taskforce has released an Issues Paper for public comment. Submissions on the Issues Paper can be made though the taskforce website at gov2.net.au until 24 August 2009.
Under the FOI reforms the publication scheme envisages that information will primarily be available from websites. It is true that many agencies already publish substantial material on their websites.
However, a general publication framework that has legal effect will introduce a new discipline and will require agencies:
The Information and FOI Commissioners are charged with assisting agencies to achieve these ends. The Commissioners also have responsibility for ensuring compliance.
The legal right of access to information under Part 3 of the FOI Act is not absolute, and the reform proposals do not change that. The public interest is simply not served by the disclosure of some information, including sensitive National security information.
There is a strong, in my view an undeniable, public interest argument why this information ought to be protected. National security is a fundamental responsibility of Government, and must be protected by the government in the national interest.
But it is a purpose of these reforms to ensure that the public interest in disclosure remains at the forefront of decision making, and that the right of access to documents is not unduly or unreasonably restricted by liberal application of exemption criteria.
In cases where decisions may be finely balanced, decision makers should be disposed towards disclosure of information.
In April this year, Senator Faulkner, wrote to Commonwealth department and agency heads requesting that they instruct decision makers that the starting approach to all FOI requests should be a presumption of giving access to documents. The Government expects agency heads to take a lead role in promoting a disclosure culture. To support that administrative direction, in addition to the publication scheme, the draft bill contains several measures to ensure optimal disclosure when dealing with FOI access requests.
A significant change to the exemption provisions is the proposal to introduce a new, single form of public interest test which is weighted towards disclosure. Even where a document meets an initial threshold for withholding access, the test provides that access must still be given unless disclosure would be contrary to the public interest. Decision makers will be required to give reasons explaining the public interest factors taken into account in refusing access under all public interest conditional exemptions.
Importantly, the legislation includes the following non-exhaustive public interest factors to be weighed in favour of disclosure, if that disclosure would:
And the draft legislation removes inappropriate reasons to refuse disclosure, stating that decision-makers may not take into account factors such as:
These reasons are ordinarily associated with the deliberative or internal working documents exemption.
I know that some in the Australian Public Service feel that FOI reforms may inhibit their ability to provide frank and fearless advice. But I believe that the tradition of frank and fearless advice is more robust than that. I believe that our public servants will work professionally within the new FOI framework as they do within other accountability mechanisms.
It is beyond dispute that it is in the public interest for ministers to receive written advice on matters relating to their administrative and policy responsibilities. In any given case, whether or not the exemption may be sustained will depend on the subject matter of the document and the circumstances around the Government’s consideration of the document, including whether a Government position has been announced. Political sensitivity will not be an argument against disclosure.
It was never intended that the FOI Act be a code on access to government documents. New emphasis is given to the discretion in the current FOI Act to disclose exempt documents, through express incorporation of that discretion in the objects provision. To complement that measure, the provisions in the Act which protect officials and ministers from certain civil and criminal proceedings are to be extended so that they cover disclosures of documents made in good faith in circumstances where the documents may be technically exempt or where disclosure is made outside the FOI Act.
The approach in the Government’s FOI reform proposals to achieving the object of increased disclosure across government is multifaceted. I have touched on some important features today. I was pleased that 46 submissions were received from the public on the exposure draft Bills. Non-confidential submissions are available on the website of the Department of the Prime Minister and Cabinet. The submissions expressed broad support for many measures. However, as might be expected, there are many submissions seeking further amendments.
Having considered the submissions, the Government intends to introduce into Parliament and seek passage of the Bills.
These Freedom of Information reforms have substantial implications, for administrative law, but more broadly for the way the government conducts the business of governing, and the relationship between the Australian government and the Australian people.
They set out the Government’s conviction that government is accountable, not just at the ballot box every three years, but each and every day – and that for such accountability to have meaning, Australians must have the information available to them to assess, and engage with, the processes of government.
These are basic preconditions for responsible government. They are basic preconditions for integrity in government. And they are fundamental to a healthy democracy.
Thank you.
1 The model litigant obligation is applied to Commonwealth agencies by the Legal Services Directions issued under the Judiciary Act 1903. It applies to proceedings before tribunals as well as before courts or inquiries and in arbitration and other alternative dispute resolution processes.
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