The Rudd Government on Tuesday released draft legislation proposing extensive reforms to federal freedom of information (FOI) legislation.
Reform in this area, particularly at the federal level, has been a long time coming. Though Australia was one of the first movers among Commonwealth nations when it introduced the Freedom of Information Act 1982, this legislation has remained virtually unchanged in the 27 years that have followed.
Discussing the draft legislation at Australia's Right to Know Conference held in Sydney Tuesday morning, Special Minister of State and Cabinet Secretary Senator John Faulkner said the main goal of the Government was to engender a pro-disclosure culture within government agencies which, to date, has been lacking.
"Our democracy has inherited a tendency to weigh the protective features of confidentiality more heavily than the positive aspects of disclosure," he said. "The introduction of the FOI Act was an important first step, but 27 years later it is clear that, at the federal Level, it has operated around the assumption of a closed and secretive Government."
A key reform includes the establishment of an independent statutory office - the Office of the Information Commission - which will bring together the role of the Privacy Commissioner and the role of two newly created positions, the Information Commission and the Freedom of Information Officer.
Faulkner explained that the office will be charged with overseeing agencies' compliance "with the letter and spirit of the FOI legislation". The FOI Commissioner will also have the power to conduct full merit reviews - at no cost to the applicant - of decisions of agencies regarding FOI requests.
The draft legislation also streamlines and simplifies the regime relating to documents that are exempted from disclosure. It cuts down the number of exemptions from 18 to 16, and increases the number of exemptions subject to a public interest test from 4 to 8.
Significantly, the legislation involves only one public interest test (as opposed to the multiple tests in the current legislation), and the bias of that test is towards disclosure - that is, access to a document should be allowed, unless access to that document would at that time, on balance, be contrary to the public interest.
Other important reforms include a narrowing of the controversial cabinet exemption rule so that only documents created for the dominant purpose of being submitted to cabinet will be protected.
Amendments to the Archives Act 1983 are also proposed, reducing the closed access period for cabinet documents from 30 years to 20 years, and for Government notebooks from 50 years to 30 years.
In addition, there will no longer be an application fee for making an FOI request, and no charge at all for applications by individuals seeking personal information. For other requests, there will be no charge for the first hour of time spent by the government agency actioning the request and there will be an extended fee-free period of five hours for requests by journalists and non-profit organisations.
The legislation will also introduce a publication scheme which will mandate that agencies proactively publish - predominantly by way of the internet - any information they can legally publish.
"It changes the emphasis from disclosing only what is required to assuming disclosure of everything unless it is in the public interest not to do so," Faulkner explained.
The proposed start date for the legislation is January 2009.
- By Zoe Lyon