Freedom of Information Essay

 Freedom of information rests on the premise that individuals have a right to know
about the information held by the government (Senate Standing Committee report
1979). The FOI reforms passed in 2009 and 2010 led Australia into an ‘open access
period’, where it is now recognised by the FOI Act that information held by
government is a national resource and is to be managed for public purposes (s 3 FOI
Act).

 As a result, the reforms substantially changed the way that the government
approaches FOI applications, particularly with the introduction of a presumption in
favour of the disclosure of government information unless there is an overriding
public interest against disclosure (s 5 FOI Act), the abolition of conclusive ministerial
certificates, as well as the introduction of the Office of the Australian Information
Commissioner (OAIC), who is entrusted with overseeing agency compliance as well
as providing a means of external merits review.

 However, it is apparent that whilst these reforms led to nearly a 50% increase in the
number of policy-related FOI applications, the nature of the ‘public interest test’ is
yet to be tested and Australia’s FOI Act has been rated only 39 th in the world.

The FOI Reforms

 Both the earlier cases of Howard and McKinnon demonstrated to the Australian
public that FOI reforms were long overdue, given the FOI legislation, which was
intended to provide the Australians with access to government information, instead
favoured the government, not the public.

 Both cases demonstrated the arbitrariness of the conclusive certificate, wherein a

minister could declare a document exempt if, in their opinion, they were satisfied
that it satisfied at least one of the exempt criteria. Further, Davies J’s judgment in
Howard illustrated this pro-government tendency, holding, amongst other points,
that disclosure should not occur where it would lead to ‘confusion and unnecessary
debate’.

 Thankfully in the early 1990s the judiciary recognised that there is a public interest in
having as much information as possible available in order to enable adequate public
debate on a matter of widespread public concern (Re Eccleston), subsequently
deeming the Howard criteria unsatisfactory. Ultimately, this judicial preference for
disclosure was prevented by the legislature by way of the conclusive certificates.

 On 7 October 2009, however, the Rudd government abolished the conclusive

certificate, which paved the way for the overhaul of the FOI system. This was
followed by the FOI Amendment (Reform) Act in 2010, which aimed to increase
public participation in government processes, increase scrutiny, encourage public
access to information promptly and at the lowest reasonable cost. The government
also abolished application fees, and introduced the period of open access, whereby
the periods for obtaining access to Cth documents were decreased by 10 to 20 years
(ss 22A, 31 Archives Act).
 The federal government proposed to achieve these aims by classifying some of the
previously ‘exempt’ documents as being ‘conditionally exempt’ (Part II FOI Act),
wherein they would be required to be disclosed unless such disclosure would be
contrary to the public interest.

 The amended FOI Act now requires government agencies, upon receipt of an FOI
application, to favour public disclosure by considering the objects of the Act,
allowing a person to access their own personal information, informing debate on
matters of public importance and promoting effective oversight of public
expenditure (s 11B FOI Act). Furthermore, the FOI Act explicitly prevents agencies
from considering any potential loss of confidence or embarrassment to government,
as well as the seniority of the document’s author.

 Although it should have been settled long ago that individuals, within reason, should
have access to information held by the government in respect of them, in Re George
Resch [1996], the applicant, a war veteran, was denied access to documents
concerning his personal affairs on the grounds that ‘personal information’ was
previously exempt, thus not having regard to whether the applicant was the person
referred to in such information. However, it subsequently appears that the FOI
reforms have provided for greater ease for applicants seeking information about
their own personal affairs, given s 11B explicitly lists this as a factor to be taken into
account when assessing the public interest.

 Ultimately, the introduction of the OAIC on 1 November 2010 was one of the biggest
reforms in that, aside from reporting to the government on FOI practices and
ensuring maximum efficiency in the information system, the OAIC now provides
applicants with an opportunity to seek external merits review by the Commissioner
as soon as an application has been denied, without first being required to seek
internal review by the relevant agency. The merits review provided by the
Commissioner is designed to be simple, practical and cost-efficient, and further, any
application who disagrees with the commissioner’s decision can appeal same to the
AAT.

 The benefit for applicants in terms of this new system for review, is that following the
abolition of conclusive certificates, the decision of the government agency is not
final, and the applicant can seek review by an independent body, whose role is to
promote awareness and understanding of the FOI Act as well as proactive
publication and to monitory agency compliance (s 8 FOI Act).

 Furthermore, the reforms provide that in any review by the commissioner, there is
favour for the applicant in that it is for the agency to establish that their decision is
justified, and in AAT proceedings, the agency must establish that a decision adverse
to the applicant should be given. In October 2011 the OAIC, Professor McMillan,
stated that the reforms have had a substantial impact on government. It is apparent
from the above that these reforms have gone a great deal towards favouring
disclosure.
Amalgamation of Tribunals

 However, merits review of freedom of information matters, which is currently the

responsibility of the Office of the Information Commissioner, will transfer to the
AAT. The Tribunals Amalgamation Bill 2015 was passed by the Parliament on 13 May
2015. The Bill will amalgamate the current AAT with the Migration Review Tribunal,
the Refugee Review Tribunal (MRT-RRT), and the Social Security Appeals Tribunal
(SSAT) to create a new AAT. The Bill provides that the work of the MRT-RRT and
SSAT will be dealt with by specialist Divisions within the new AAT. A new Freedom of
Information Division will also be created. Following royal assent, the amalgamation
will commence on 1 July 2015.

 The amalgamation will create a single pre-eminent Australian merits review body,
facilitating access to justice for applicants and building on the success and
reputations of the AAT, MRT-RRT and SSAT as professional and independent review
bodies. Amalgamation will promote the sharing of best practice in tribunal
operations and is expected to generate efficiencies and savings through shared
financial, human resources, information technology and governance arrangements.

 The idea of streamlining the merits review structure was first raised by the
Administrative Review Council (ARC) in its report Better Decisions: Review of
Commonwealth Merits Review Tribunals in 1995.

 The Council took the view that this would achieve greater perceived and actual
independence, improvements in agency decision making, and improved accessibility
and economic efficiencies. However, it held that this would gained at the expense
of:

• Lack of independence of the proposed ART from government agencies

• Loss of multi-member/multi skilled review panels
• Reduced quality of review
• Loss of two-tier external review
• Reduced procedural fairness, and
• Restriction on consumer representation despite increased participation of
government agencies.

Conclusion