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Monday, May 17, 2010

How Federal FOI Reform bills became noncontroversial

The easy passage for the Federal Freedom of Information Amendment (Reform) Bill and the Australian Information Commissioner Bill through the Senate last Thursday - all done in 30 minutes flat, without a division -came from agreement behind the scenes that the legislation would go through as noncontroversial.

This resulted when the Government backed down on the onus of proof  issue in AAT review processes that had become the main issue of contention. The Opposition despite some earlier huffing and puffing and talk of amendments then didn't pursue other concerns raised in the dissenting report of the Senate Finance and Public Administration Committee by Coalition Senators Brandis and Ryan. With Opposition support, and The Greens also happy with this result, the bills as introduced ( with a new section 61 and some minor other Government amendments to the FOI bill  and IC bill agreed in the House on Wednesday) passed the Senate on the voices.

There was no support from the major parties for the only other amendment moved in the Senate -  by The Greens Senator Ludlam - to repeal the blanket exclusions from the FOI act for documents concerning intelligence agencies. Senator Ludlam the only senator to do so, at least gave voice to continuing interest in a couple of other aspects of the law that should be looked at closely - fees and charges, and the application of freedom of information to parliamentary departments- but can count, and didn't take these issues further.

Given the fuss in the lead up, a feature of debate was that Government speakers managed a "don't mention the war" moment avoiding any mention of capitulation on the onus issue. The original proposal  would have required an FOI applicant to carry the onus in the AAT in seeking review of an Information Commissioner decision that a document was exempt. The Government's first compromise in March would have removed the concept of onus in line with a recommendation from the Senate Committee. The final version -urged by Australia's Right to Know, the Law Council, the Opposition and others - in effect retains the status quo.

Neither Parliamentary Secretary Byrne in introducing the new section and other minor amendments, or other speakers for that matter, referred to it during House debate on Tuesday or Wednesday.

Senator Sherry in introducing the legislation in the Senate on Thursday tabled three revised explanatory memoranda and incorporated the second reading speeches in Hansard. The speeches contain no reference to the change to Section 61. (Update and Correction: see this later post for the explanation about how the speech did refer to this but Hansard initially got it wrong.) The Minister responsible for the legislation Senator Ludwig spoke three times for a total of six minutes during the Second reading debate and the committee stage and managed to avoid any mention of section 61 or the change.

The only indication of what had happened (other than in the fine print in the tabled documents) came in remarks by Senator Brandis who relished recounting the history and took the long handle to the Government when observing that the original proposal- an
"extremely significant and deleterious change to section 61 of the act—was in fact included in a schedule presented to the Senate committee as a miscellaneous technical amendment. Just think about that. Dwell and reflect for a moment on the supreme irony that, in a bill which falsely claimed to be expanding and reforming the freedom of information regime, an amendment which would have set back the regime to make it practically unworkable was itself concealed from the Senate committee by being treated as a technical minor amendment. That is hardly freedom of information; a conspiracy to conceal highly material information from the Senate committee would be a better description."
So that was it. There had been plenty of suggestions over the last 14 months about how these bills, welcome as they are, could have been further improved but the onus issue dominated all else during parliament's consideration of the bills.  I thought the original proposal was a backward step but other issues also warranted consideration. Unfortunately it ended up dominating to the extent other aspects of the bills didn't get noticed at all.

The focus now shifts to when the new era is to commence, and how it all will work in practice.

Thanks to Open Australia for the Hansard links.

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