As to the design of the law, there are aspects of it in which Australia scored very low which I would not have thought were weaknesses in our law, for example, the fact that the FOI Act does not apply to the parliament or the judiciary. We have a clear, constitutional separation of functions in Australia which I think makes this inappropriate. Some other nations do not have that clear separation and so they do go down that path. We have a stable, constitutional democracy in which we can essentially rely on the public service to uphold the law, so we do not have penalties in our FOI Act. Some other countries, against a backdrop of corruption and maladministration, do have penalties in the FOI Act, and they have scored higher on this analysis. My comment, and I have commented at international fora, is that I think these analyses are valuable and useful—we get some advantage from them—but there is some bias by reason of the fact that it is essentially designed by civil society organisations working primarily with developing countries in designing a new integrity framework. I do not think Australia's ranking really reflects where we are—
there is no justification for the parliamentary departments to be excluded from the Act.. being subject to the Act will not cause any greater inconvenience for them than is caused to other agencies subject to the Act.No one in authority has ventured there since. Tasmania has done it. If there is a constitutional problem, parliament could act to bind its departments to comply and give the Information Commissioner appropriate powers. Explaining away the lack of penalties in the act because "we have stable, constitutional democracy in which we can essentially rely on the public service to uphold the law" begs the question why we bother with penalties for public servants for all sorts of other things including disclosure of information without authorisation. And why the Commonwealth chose not to follow the lead of Queensland, NSW and Tasmania where offence provisions for improper conduct by officials were included in reform legislation.
It is certain that one of the issues in that review will be whether the act should apply to security intelligence agencies. It does, for example, in the United States with the CIA and in the United Kingdom with MI5, but it does not apply in Australia. Clearly it is an important policy issue. I expect it will be one of the issues that we will examine and on which we will get many submissions, and I have an open mind.In answer to a question about Australia's non-participation to date in the Open Government Partnership, Professor McMillan who attended an initial meeting in Washington in July prior to the launch in September, said it was a matter for government decision and suggested timing was the problem, although he came back in July with "a lot of questions in my mind about the way the partnership would be conducted."