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Wednesday, October 31, 2012

Freedom of Information review announced

Dr Allan Hawke has had a distinguished career and long experience in and around government. He has been a go to man for all sorts of government commissioned inquiries since finishing up as High Commissioner to New Zealand in 2005. That followed stints as head of Defence, before that Transport and Regional Services and as chief of staff to Prime Minister Keating.

Attorney General Roxon appointed him yesterday "to review and report on the operation of the Freedom of Information Act 1982 (FOI Act) and the Australian Information Commissioner Act 2010 and the extent to which those Acts and related laws continue to provide an effective framework for access to government information." 

A review within two years was an agreed element of the reforms of 2009-2010. Those reforms did not evolve from a comprehensive review of the act. As Mark Robinson SC, for the Law Council of Australia said at the time a complete rewrite was required. His metaphor then was the government had kept the whole body and grafted half a transplant. Whether it is to be a different outcome this time around remains to be seen. As does what Dr Hawke brings with him on FOI from working in the government system since 1974.
The terms of reference require the review to include consultation with relevant stakeholders so it's time to dust off the FOI best/good practice in the information age file.  Even though those words don't rate a mention in the terms.

The Attorney-General in her statement did get in a reference to the fact that "$41 million of taxpayer money was spent across the Federal Government in 2011-12 processing FOI requests.The review will consider how the Government’s FOI costs could be reduced, including the Information Commissioner’s recent recommendations regarding the current charging regime."  Reduction of costs to government is not specifically mentioned in the terms of reference but I'm sure Dr Hawke gets the story.

(Update: We'll have a fair bit of by-play like this today on about costs and what's behind the increased cost of administration over time. As I've commented previously the $41 million is based on agency estimates of time spent. Efficiency issues including records management systems, the investment in and use of appropriate technology, best practice processing, and the cost arising from excessive caution and a preoccupation with overly cautious legal approaches to decision making cry out for some scrutiny. Over to you Dr Hawke! As to the comparative combined government spend on public affairs and media management, I'd like to see that.)

Also interesting that of all the things you could suggest the review consider regarding the operation of the act that didn't rate a specific mention, this did:
the reformulation of the exemptions in the FOI Act including the application of the new public interest test taking into account:
  1. the requirement to ensure the legitimate protection of sensitive government documents including Cabinet documents; and
  2. the necessity for the government to continue to obtain frank and fearless advice from agencies and from third parties who deal with government;
The review is to report by 30 April 2013. 


  1. Interesting to read the final paragraph. The UK government also specifically mentioned that a review of our FOI Act might consider the level of protection given to policy advice. Its memorandum to the parliamentary committee that carried out the review said:

    "There is an important balance to be struck in enhancing transparency while protecting the necessary space in which policy options need to be discussed and decisions taken. The difficulty in appropriately striking that balance remains a concern and is worthy of consideration."

    In evidence to the committee, the former Cabinet Secretary Lord O’Donnell and the former Home Secretary Jack Straw argued strongly for this type of information to be protected from disclosure regardless of the public interest in disclosure, for at least 20 years.

    The committee rejected this suggestion, finding that the evidence that FOI was responsible for a “chilling effect” was too uncertain to justify such restrictions.

    The committee's report is available here -

  2. Thanks Katherine, blow-back knows no bounds.We'll be watching. Peter.