The Commonwealth Freedom of Information regime faces its biggest shake-up since its inception under draft legislation unveiled by John Faulkner today.

Last July, Faulkner announced the abolition of conclusive certificates and the preparation of draft legislation to reform FOI by the end of the year. The bill to abolish conclusive certificates was mired in a Senate committee until a fortnight ago, when the committee — including Coalition senators, who have opposed all of the Government’s transparency and accountability reforms — reached the obvious conclusion that the bill should be passed. Faulkner is hoping the bill will be passed in the winter sitting.

The end-of-year timetable for an FOI reform bill was disappointingly not met, but the extent of Faulkner’s proposals more than makes up for the delay. The two new bills will:

  • Establish a new pro-disclosure public interest test under the Act that will prevent the blocking of release on the grounds that information might embarrass the government or “cause confusion”. This will complement a stronger Objects clause in the Act, emphasising accessibility to information.
  • Establishing an Office of the Information Commissioner, featuring an Information Commissioner, a Privacy Commissioner and an FOI Commissioner, that will oversee all privacy and FOI issues. The Information Commissioner will be able to conduct merits based reviews of FOI decisions.
  • Forcing government agencies to publish more information outside FOI, with monitoring of compliance by the OIC; and
  • Big changes to the fee regime including the abolition of FOI application fees and all charges for a person seeking access to their own information.

The bills will significantly extend FOI to cover documents held by service providers contracted to the Government, taking the reach of FOI into service provision and consultancies by the private sector. Access to personal information will also be moved out of the FOI Act and into the Privacy Act.

Faulkner also announced two other big changes. The Archives Act will be amended to reduce the 30-year rule to 20 years, and Cabinet notebooks — the minutiae of Government decision-making — will be available after 30 years instead of 50. The catch-up will be done over a decade from 2011, with the National Archives releasing two years’ worth of material each year.

In potentially the biggest ever change in Australia’s information and privacy regulation, Faulkner will ask the Australian Law Reform Commission to consider whether FOI or a similar disclosure regime should be applied to the private sector.

That is likely to unleash ferocious opposition from corporations who will object to competitors, journalists and interested citizens from obtaining information currently kept under wraps outside of court proceedings. It will, however, make for interesting submissions from large media companies such as those participating in the Right To Know campaign, who have already attacked ALRC recommendations to provide for a statutory right to privacy.

Faulkner’s proposals at least partly acknowledge that the biggest task will be to instill a pro-disclosure culture within the Australian Public Service which, taking its lead from Ministers of both sides, has traditionally fought FOI tooth and nail. The Office of the Information Commissioner will be specifically tasked with both encouraging and monitoring information disclosure practices, as well as being able to overturn FOI decisions.

The new regime will almost certainly make life more difficult for governments, by removing or reducing the hurdles currently in place for the media and opposition to obtain information. However cynical this Government may be in other areas, this represents a major step forward in transparency, even if it does not go as far as FOI purists would like.

But the possible advance into the private sector opens up even greater possibilities for accountability and transparency in Australia. Faulkner has again demonstrated he is this Government’s most aggressively reformist minister.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey