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Wednesday, February 03, 2010

Senate Committee given food for thought on FOI Reform

There was a late rush to meet the deadline - the Senate Finance and Public Administration Committee has published 26 submissions received on the Freedom of Information Reform Bills. All welcome the reforms, with plenty of "buts", and many again reiterate points made but dismissed with no explanation during the Exposure Draft consultation phase last year. Not that they aren't still worthy of close consideration. However the odds are against it now as the Committee has scheduled a morning hearing on Friday in Canberra, with only two outsiders to make it to the table, the Right to Know Coalition and the Australian Law Council. The Ombudsman and the Department of Prime Minister and Cabinet are also scheduled to appear.

The thought strikes me that there was a great opportunity missed in all this to have some dialogue, rather than set pieces, between those in government and those outside to thrash out many of the  views and ideas in these submissions - the couple of hours in Canberra last May where virtually no-one turned up hardly counts. I don't think there was a serious attempt to go for gold on this one.

 My submission (19 on the list) expressed support for the framework proposed and welcomed many aspects of the legislation, but drew attention to
  •  the two year process to get to this point has been slow compared to other Australian reform initiatives, with limited public discussion and debate other than about amendment legislative drafting;
  • the selective and unexplained nature of the Government's approach to acting on "key" recommendations of  the 1995 Australian Law Reform Commission Report, choosing not to act on a number of important recommendations for example to extend the Act to the parliamentary departments, reduce the time limit on processing applications progressively to 14 days, requiring chief executives to ensure full and accurate records are kept. These issues feature in a number of other submissions, including that of the President of the ALRC, so hopefully at least some questions will be asked on Friday;
  •  the proposed abolition of application fees and retention of charges for processing may not be a efficient answer to removing the cost barriers touse of the Act at the least administrative cost, (again picked up by a couple of others);
  •  scope to improve the bills in a number of areas including by specifying additional types of information to be published on the web by agencies, or giving the Information Commissioner  powers to mandate what should be published; reframing the legislation as a right to information not right to documents act; extending the law to cover the administration of parliament; modifying several of the exemption provisions, including removing doubt about "frankness and candour" as a public interest consideration favouring non-disclosure of policy and related documents;  proscribing ministerial involvement in decision making on applications for agency documents and including offence provisions for improper interference with decisions along the lines of new Queensland, NSW and Tasmanian legislation; limiting agency rights to seek AAT review of an Information Commissioner decision on the basis it was wrong, and requiring the Commissioner to defend the decision when an agency takes that step; and widening the criteria for a cost order in favour of an applicant who is substantially successful in the Tribunal.  Again I'm not Robinson Crusoe on a number of these points.
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    1. Reform Now3:21 pm

      There are some excellent submissions and it is a shame that more time has not been allocated for the hearing.

      Are you able to inform readers what are the offence provisions for un-cooperative agencies who regularly practice "deemed refusals"?

    2. One positive is no processing charges can be imposed where an agency does not deal with the application within the time limit in the Act, or as agreed with the applicant, or extended by the Information Commissioner. Apart from that general powers of the IC and the Ombudsman to investigate complaints or systemic failures to perform-and to name names in a report. That's about it.

    3. Peter, did you see my story in Crikey on this today? Nasty amendment has been slid in between exposure draft and the bill now before parliament.

    4. Margaret, Yes, thanks. I left a comment there agreeing it was important- but so are many of the other issues raised in submissions. I'm afraid a couple of hours with only two non-government witnesses to appear doesn't give rise to hope they will get an airing.