Secrecy provisions prevent proper working of FOI Act says Tribunal

The NSW Government has refused to act on recommendations from the Ombudsman over the last decade calling for a review of the Freedom of Information Act and opposed a bill in the Legislative Council last year that would have required an independent review. The Premier told Parliament that the Act was under "review" on an ongoing basis, in any event.

What then will the Government make of observations by the Administrative Decisions Tribunal Appeal Panel this week about the unsatisfactory state of NSW laws that include secrecy provisions, and how they limit the proper working of the FOI Act.

In Commissioner for Fair Trading, Office of Fair Trading v The Australian Wine Consumers Cooperative Society Limited (2007) NSWADTAP 14, the ADT Appeal Panel, chaired by the Tribunal President Judge O'Connor, had this to say:

"40 As noted above at [28] in the extract from the Appeal Panel’s reasons in the Law Society case, the Government of the day in 1988 promised the Parliament and the community of New South Wales that the secrecy provisions exemption would be reviewed. The Premier of the day committed the Government to ensuring that all legislation containing secrecy provisions would be assessed to ascertain whether it is appropriate to remove secrecy provisions from specific Acts. The Premier of that time failed to implement the promise, and no action has been taken since.

41 We repeat the concern previously expressed that active reliance by agencies on secrecy provisions in their statutes could mean that the FOI Act will cease to have any application to many parts of the New South Wales public service thus undermining the very purpose of that legislation. Secrecy provisions are a commonplace of agency statutes in New South Wales. The result is an unsatisfactory one".

As the Appeal Panel noted, there are lots of provisions in other acts that impose non disclosure obligations. The problem is that they come in all shapes and sizes. Many pre date the FOI Act. In this case the Appeal Panel found that a provision in an act that created an offence if information was disclosed, could be relied on to refuse access under FOI even though the provision said that no offence was committed if the public interest justified disclosure. It would have been a different matter if that provision permitted disclosure "with other lawful excuse".

The Appeal Panel commented that the exemption in the NSW Act concerning secrecy provisions in other acts, is wider than the similar exemption in the Federal and Victorian FOI Acts.

With only four days to go to the election, those words "how I will reform NSW laws to improve transparency and accountability" are still to pass the lips of the leaders of the major parties.

President O'Connor isn't the only one who thinks the present situation of our laws is unsatisfactory.