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Thursday, March 26, 2009

FOI for Boffins

I mentioned recently that a journalist had asked me where to find FOI for Dummies but if such a publication exists it won't be much help in coming to grips with the fine print of the Government's proposed reforms contained in the Exposure Draft Freedom of Information Amendment (Reform) Bill 2009.The published Companion Guide helps on some of the main points but you wouldn't want to rely on that for the complete picture.

The Draft Bill runs to 130 pages- and that's just the proposed changes. These proposals are in addition to the changes in the Bill currently before the Parliament to abolish conclusive certificates and a few other things beside. To make sense of it all you need to refer back to the current version of the Act to get the gist of seemingly innocuous provisions such as "Repeal the section" or at the end of the paragraph add "and." By way of contrast the Queensland draft Right to Information Bill put on the table in December was 178 pages, but was a complete rewrite, so a lot easier to manage.

What I said at the time was the good news about the Queensland Bill also goes for the Commonwealth's draft:
"Heartening in particular that the drafting style is straightforward, relatively plain english; in the emphasis on proactive disclosure and agency publishing schemes; to find a great preamble that captures the democratic principles that underpin the legislation; the clear statement of objects to provide a right of access to information unless disclosure on balance is contrary to the public interest; and at least a slimmed down list of exemptions."
Except the last point- basically all the previous exemptions remain in one form or another.

By the way, the nature of the proposals have a lot more in common than this with David Solomon's Queensland recommendations, and in some areas-eg real embrace of access to government information in the digital age- fall short of what he put forward.

However what is on offer here is good, positive change- with some quibbles of varying significance- and when passed will make a big difference. Just one illlustration. The Shadow Attorney General Senator George Brandis said on Tuesday at the Free Speech Conference that the Minister's claims about the significance of changes to spell out relevant and irrelevant public interest considerations regarding disclosure and nondisclosure didn't amount to a row of beans. Now the Senator, like the rest of the panelists only had an hour to absorb the fruit of 16 months work by untold public servants, ministerial advisers and ministers, so could be forgiven for omissions, but he missed a major feature of the proposals.

Up to now the courts have been prepared to interpret the Act as not requiring a pro-disclosure bias because the objects in Section 3 include a reference to a right of access subject to the exemption provisions. Thus "no leaning" in favour of disclosure. However in the new objects there is no mention of exemptions, simply this:
"(2) The Parliament intends, by these objects, to promote Australia’s representative democracy by contributing towards the following:(a) increasing public participation in Government processes, with a view to promoting better-informed decision-making;
(b) increasing scrutiny, discussion, comment and review of the Government’s activities.
(3) The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.
(4) The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.
The reference to Parliament's intention in last sub-clause is not new but the rest is. Read in conjunction with the legislative demise of most of those silly "Howard" factors that favoured non disclosure since 1985, the duty to take into account the following when weighing the public interest (quibble- only relevant to some not all exemptions) will move things strongly in the direction we were trying to go in way back in 1982:
"(3) Factors favouring access to the document in the public interest include whether giving access to the document would do any of the following: (a) promote the objects of this Act (including all the matters set out in sections 3 and 3A); (b) inform debate on a matter of public importance; (c) promote effective oversight of public expenditure;"
More-including some quibbles later.

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