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Friday, October 21, 2011

Information Commissioner at the Estimates table

Australian Information Commissioner Professor John McMillan also appeared before a Senate Estimates committee this week. In answer to questions from Senator Rhiannon he was positive about the first 12 months of the reformed scheme, with the news that applications for policy related type material are up 48.6 per cent-as noted recently there were only 2730 requests other than personal information requests in 2009-2010. (Not that everyone is happy about an upsurge in engagement)

Professor McMillan repeated his reservations about the recent 39 of 89 ranking for the Commonwealth FOI act in an international survey :
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—
Probably so. But the FOI act does apply to the courts in respect of administrative matters, a fact not acknowleged in the survey, so any constitutional problem has been avoided. The ALRC in 1995 thought that extending the act to the parliamentary departments was possible and recommended so:
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.

Questioned about exclusions from the act, Professor McMillan referred to the comprehensive review of the FOI Act to commence by this time next year:
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."


  1. Andrew5:51 pm

    The UK FOI Act does not apply to MI5 (or MI6 or GCHQ or the 'Special Forces' or material generated by them but held by other agencies). However the NZ OI Act applies to the SIS and GCSB.

    The issue to do with application of an FOI law to Parliament and the Courts stems from the starting point that the 'right to information' is a human right. If it is a human right, then - the logic flows - it should apply equally to all branches of the state, not just the executive.

    While I have some sympathy with this argument, it does tend to encourage too simplistic analysis of more developed countries' FOI laws and the broader framework of laws and practices that have organically developed around the legislature and courts.

    NZ got marked down in the survey for not requiring requesters to jump through the hoop of agency internal review before being able to approach the Ombudsman. I thought FOI laws were about enabling requesters, not giving agencies a second bite at the cherry before external review...

    The Constitution Unit in the UK has published a study on the impact of the FOI law on Parliament (since it applies to the functioning of Parliament but not the proceedings of the two Houses). I do think there's more to be done in terms of the Courts too; at present some FOI laws provide access to administrative issues to do with running the court system, but perhaps too much to do with the business of the courts is left in the discretion of the judges themselves. This has certainly been a hot topic in India.

  2. Thanks Andrew-appreciate the input.