Freedom of Information: The Experience of the Australian States - An Epiphany?
| DOI | 10.22145/flr.29.3.1 |
| Date | 01 September 2001 |
| Published date | 01 September 2001 |
| Subject Matter | Article |
FREEDOM OF INFORMATION : THE EXPERIENCE OF THE
AUSTRALIAN STATES - AN EPIPHANY?
Rick Snell*
INTRODUCTION
A Freedom of Information (FOI) barometer would indicate a significant shift in the
prevailing attitudinal responses to access to government held information at the state
level in Australia in recent years. The responses would vary between jurisdictions but
only in terms of details not substance. Wha t began as a few recitations of concern about
delays, application of exemptions and fees has now metamorphosed into a strong
phalanx of information commissioners, parliamentary committees, ombudsman and
others seeking fundamental reforms. In 1994 Spencer Zifcak argued that the history of
FOI in Victoria could be seen as proceeding through three phases - optimism,
pessimism, revisionism.1 The Zifcak typology could be expanded Australia-wide with
a fourth stage being added; namely, a return to fundamentals.
In the period up to December 1998 a number of factors had placed state FOI
regimes under considerable stress. These factors included the advent of outsourcing
and
the persistence (or reflowering) of a culture of governmental secrecy, over use and abuse
of exemption provisions, modifications to exemptions (like those to the cabinet
exemption in Victoria and Queensland) and the failure to act on reports (the Australian
Law Reform Commission Report at the Commonwealth level, Commission for
Government in Western Australia and the reforms suggested by David Landa when he
retired as NSW Ombudsman) which suggested urgent remedial action.2
However today a number of indicators suggest a more optimistic assessment. In three
jurisdictions, Western Australia, South Australia and Queensland, there has been the
delivery or promise of conceptual blueprints which hold the promise of transforming
the practice, principles and framework of FOI in Australia. Each blueprint, in its own
way, bears the hallmarks of the epiphany in the title of this paper. The link between
each vision is that the designers have gone back to first principles and then evaluated
their own access to information regime in light of those preferred outcomes.
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* Senior Lecturer in Public Law at the University of Tasmania, editor FoI Review. For any
comments on this paper please contact Rick at r.snell@utas.edu.au
1 S Zifcak, 'Freedom of Information and Cabinet Government: Are They Compatible In
Every Dissimilar Respect?' (1994) 1 Australian Journal of Administrative Law, 208-221.
2 Rick Snell, 'Comment,' (1997) 67 FoI Review, 1.
344 Federal Law Review Volume 29
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On a legislative front most of the implemented amendments in the last two years
have either returned the system closer to its original state, as in Victoria, or removed a
major deficiency, as in Tasmania. In the area of external review the best performers, the
Information Commissioners, have kept their ranking whilst New South Wales by
transferring FOI jurisdiction to the Administrative Decisions Tribunal is starting to
reap the benefits of a receptive, informed and more accessible external review model.
The Ombudsman jurisdictions3 have started to apply some of the best administrative
practices developed in Western Australia. In most of the state jurisdictions there
appears to be a revival of a more active and committed FOI constituency. This revival
has been manifested by strong attendances at public forums and more specifically by
renewed activity by journalists and FOI coor dinator networks.
STATE FOI—DEFECTIVE FOUNDATIONS
The decade following the enactment of the Freedom of Information Act 1989 (NSW)
promised an exciting prospect of a fundamental transformation in the relationship
between citizens and state decisionmakers. Every jurisdiction (except the Northern
Territory) made available a statutory instrument which ideally would contribute to
'improving public understanding of the policy-making process and protecting citizens
against arbitrary decisions by public bodies.'4
Using software design terminology the Australian state FOI statutes can be
depicted as ranging from version 1.0, Victoria to version 1.3, Queensland and Western
Australia. The design template of the Commonwealth and Victorian legislation was
adopted by each state with a few key changes added to each succeeding version. Apart
from Queensland, most of the states adopted the legislation on the basis of its
perceived inherent capacity to combat official secrecy rather than a substantial
consideration about the design elements which would achieve that purpose in each
jurisdiction.
The Queensland process involved the circulation of an Issues Paper,5 publication of
public submissions, 6 a report by the Electoral and Administrative Review Committee7
and a final report by the Parliamentary Committee for Electoral and Administrative
Review.8 However the basic operating premises appeared to be the adoption of a
standard model of FOI legislation9 and the concession that many aspects of FOI
operation would need to be configured to preserve certain fixed and fundamental
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3 South Australia, New South Wales and, in particular, Tasmania.
4 A Roberts, 'Retrenchment and Freedom of Information: Recent Experience Under Federal,
Ontario and British Columbia Law,' 42 (4) Canadian Public Administration, 423.
5 Electoral and Administra tive Review Commission, Issues Paper No. 3: Freedom of Information,
Brisbane, May 1990.
6 Electoral and Administrative Review Commission, Review of Freedom of Information Issues:
Public Submissions Vols 1 and 2, Brisbane, July 1990.
7 Electoral and Administrative Review Commission, Report on Freedom of Information,
Brisbane, GoPrint, December 1990.
8 Parliamentary Committee for Electoral and Administrative Review, Report on Freedom of
Information, Brisbane, GoPrint, April 1991.
9 Electoral and Administrative Review Commission, above n 5, 9.
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