Australia’s approach to FOI breaches spirit of federal law, says former information chief

The Australian government’s approach to Freedom of Information (FOI) is undermining transparency and breaching the spirit of federal law, according to the country’s former information officer, John McMillan.
McMillan was referring, in comments reported by the Sydney Morning Herald, to the government’s failure to appoint three statutory commissioners – an omission that, he says, contravenes the requirements of legislation.
Obligations set by Parliament require the government to appoint an information commissioner, a privacy commissioner and an FOI commissioner, but the government has decided to collapse the three roles into one position, fulfilled by information commissioner Angelene Falk.
McMillan, who was Commonwealth ombudsman from 2003 to 2010 and the Australian information commissioner from 2010 to 2015, says that there is a legal obligation on the government to fill all three roles. However, he says he understands that the requirement is “probably unenforceable by legal procedure.”
“The fact that there is only one commissioner undermines the whole sense of the model,” he said. “Under normal principles, one would expect the executive to implement the scheme that the Parliament has enacted. I think the spirit of the law is being broken.
“The failure of the government to appoint three commissioners can also be read by the public service as a message that transparency is not important.”
Failure to release documents within legal timeframe
McMillan’s comments come at a time when the Department of Home Affairs is dealing with a backlog of requests for information by citizens and the media, and is failing to release documents within the legal timeframe in one out of four cases.
There were 38,879 requests under FOI across the Australian government last year, with 83% of them seeking personal information and a majority of them lodged with the departments of Home Affairs, Human Services and Veterans’ Affairs.
Official figures show that over the last four years, there has been an 80% jump in appeals to the Office of the Australian Information Commission over federal departments’ decisions to withhold documents.
Applicants who disagree with a department’s decision can seek a review by the Office of the Australian Information Commissioner but Falk, the agency’s chief, told a Senate estimates hearing that she needs more funds to address delays.
“In order to meet the timeliness objective of the FOI Act and provide faster outcomes for the community, additional resources are required,” she said.
Transparent government = better government
McMillan said past evidence, including work by the Productivity Commission, showed that transparency improves government.
“An open data culture, which is part of an open government culture, undoubtedly leads to better government, better economic performance, better delivery of social services and more trust in representative democracy,” he said.
The warnings over the government’s approach to FOI requests coincide with a media industry campaign against government secrecy. One of the objectives is to change FOI laws to force government to release information more quickly and with fewer redactions.