The NSW Council for Civil Liberties welcomed the opportunity to make a submission to the Senate Legal and Constitutional Affairs Committee in regard to its inquiry into the operation of Commonwealth Freedom of Information (FOI) laws.
This inquiry came about after the Greens, Coalition and crossbench teamed up to force the issue. The FOI commissioner, Leo Hardiman, announced his resignation earlier in March citing his lack of powers to make changes necessary to improve the timeliness of reviews of FOI decisions.
The former senator Rex Patrick has brought a federal court case challenging lengthy delays in the FOI review process. He has warned that vast delays plague Australia’s “broken” freedom of information system and are shielding the activities of government from scrutiny.
In our submission we suggest that the following seven steps should be undertaken to improve the operation of Australia's FOI laws as a matter of urgency:
1. A permanent replacement for the outgoing FOI Commissioner, Leo Hardiman PSM KC, must be appointed as soon as possible and measures implemented to ensure that the FOI Commissioner can properly fulfil their role;
2. the Government must allocate additional resources to the Office of the Australian Information Commissioner (OAIC) specifically for the organisation to effectively fulfil its mandate under the Freedom of Information Act 1982 (Cth) (the FOI Act) including the prompt completion of Part VII Information Commissioner Reviews (IC Reviews);
3. IC Review applicants should be allowed to elect to bypass the OAIC and bring their review request directly to the Australian Administrative Tribunal (AAT) (or its replacement), either at the start of the review process or if the OAIC takes—or at any point expects to take—more than 90 days to complete its review. Further, any filing fee for a IC Review or appeal to be heard by the AAT should be nominal and refundable in the event that an application is wholly or partially successful;
4. the OAIC must be empowered under the FOI Act to:
(i) set a ratio of FOI officers to FOI applications and mandate minimum staff numbers within government departments;
(ii) conduct investigations into government departments that fail to meet their disclosure duties under the FOI Act; and
(iii) impose disciplinary sanctions on departmental officers who repeatedly make decisions subsequently determined to be contrary to the requirements of the FOI Act, as well as for persons who direct or influence them to make such decisions;
5. the definition of "official document of a Minister" in section 4(1) of the FOI Act should be amended so that it includes documents of former ministers while they were in office;
6. the public interest test must apply as an additional criterion to a greater number of exemptions under Part IV of the FOI Act; and
7. the definition of “Cabinet” under section 4 of the FOI Act should be refined to prevent an improperly broad class of documents being captured by the exemption under section 34 of the FOI Act (the Cabinet Documents Exemption).
Labor concedes that there needs to be a different approach starting with a direction to government to make information as widely available as possible. The former government trashed FOI, leaving the system in a dysfunctional mess.
We hope this inquiry will result in the changes we have recommended to support Australians' right to know.
For more information, read our full submission.