WA tidies up FOI Act and scraps conclusive certificates

It was a busy day in Perth on Wednesday.

Not only did the Government move on information privacy legislation (see item below), it also introduced legislation involving some significant and some minor technical changes to the Freedom of Information Act.
Freedom of Information Amendment Bill 2007 and Explanatory Memoranda

Significant changes include the abolition of conclusive certificates. The power to issue a certificate has never been used in WA, but this step will put the state ahead of other jurisdictions where ministers (or in the Federal Government, agency heads) retain powers to certify documents exempt, with limited review available.

There is a major change to the review mechanisms, with WA moving away from the model that gave the Information Commissioner powers to determine whether a document was exempt from disclosure. In the new scheme, the Commissioner (now with a role in both FOI and privacy) will only have authority to seek to resolve FOI complaints by conciliation. The State Administrative Tribunal will have jurisdiction to determine the status of documents.

This shift comes at a time when some (including me) have been advocating the existing WA (and Queensland and Northern Territory) model of an Information Commissioner with determinative powers, as likely to provide more speedy recourse to independent review by aggrieved applicants than that provided by some tribunals.

The Bill creates a new exemption (and one new to Australian FOI legislation) that would protect matter, the disclosure of which is prohibited by the body of traditions, observances, and customs of Aboriginal people generally, or of an Aboriginal community or group.

An agency may refuse to deal with an access application that is substantially the same as one previously lodged by the same applicant, or "which is frivilous in nature" - that should leave plenty of room for difference of opinion.

Many of the minor and technical amendments seem useful improvements and should be picked up by other jurisdictions interested in improving the law.

From here on, one of the changes will require statutory review of the legislation and whether it is achieving its objectives every 5 years.

I'm not sure all of the above warrants the observation by the WA Attorney General (as reported in The Australian "State Bill to give more access") that the changes would make the scheme one of the most independent and accessible in the nation, and will lead to more public policy information being made available, but after all, he would say that wouldn't he?

Thanks to Rick Snell for the lead on this development.