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Friday, November 23, 2012

Hawke review not limited to 2010 reforms

In discussion with some taking an interest in the Hawke FOI review, the point keeps coming up that the review is about the reforms of 2010-and that it is too early. On that score there is something in it-two years after commencement there is virtually no case law, some Information Commissioner decisions, two annual reports by the OAIC, plenty of moans and groans from agencies, some indications that things are better if patchy and far from perfect, and a mixed bag of anecdotes, but that's it.

 As to timing, the review had to commence within two years of November 2010, to be completed within six months as required by law- both the FOI act (s 93B) and the Australian Information Commissioner Act (s 33) include the same provision. No ifs and buts.

The scope in both cases is "a review of the operation of this Act."  None there either.

The review of the OAIC act will obviously look at how those reforms-the office, its role, its operations, its effectiveness etc- are going, after two years. 

With regard to the FOI act however the intention in 2010 was that the review should be a comprehensive review of the operation of the act, as s 93B indicates, not simply a review of the changes made in 2009-2010. 

You mightn't pick this up from the Terms of Reference [PDF 290KB]. Although the introductory paragraph states it is a review of the operation of the acts and "the extent to which those Acts and related laws continue to provide an effective framework for access to government information", the matters listed in the TOR that the review should consider all appear to be related to the reforms. And there is no "any other matter that the review considers relevant" provision.
Despite this, I'm sure Dr Hawke realises s 93B requires the broadest possible examination of the operation of the act. Submitters should as well. 

This is important because there was much that was not looked at in 2009-2010. To recap: the government came to office in 2007 with an FOI reform agenda, proceeded to spend 18 months or so talking to itself about what it would do, with a single round of one on one short, general discussions with a few interested parties (moi included); released draft amending legislation in March 2009 (over 130 pages from memory) without any apparent prior contact with outsiders about what was in it; and throughout the following "consultation" process, largely stuck to the line that anything that went beyond what it had put on the table was not on the table. 

Submissions that raised other issues attracted little or no interest. When the same issues were raised with a Senate committee after the bills were introduced, the committee threw up its hands saying submissions raised a lot of issues, views varied, it didn't have the resources to look into it all, and the government bills were essentially OK.

The review requirement came out of concerns during this process in 2010 by The Greens, particularly Senator Scott Ludlam that other issues notably the blanket exclusion of intelligence agencies from the act had not been considered during the 2009-2010 reform process. The government agreed to legislate for a general review after Senator Ludlam's amendments concerning intelligence agencies including an amendment that would have made it mandatory to spell out this issue in the review terms of reference were voted down.

This post in 2010 recounted some of the story-How the reform bills became non-controversial. 

Back to those submissions!

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