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

By on 29/10/2019 | Updated on 24/09/2020
Australian media companies are campaigning against government secrecy - one of the objectives is to change FOI laws to force government to release information more quickly and with fewer redactions. (Image courtesy: IPWAI/Wikimedia Commons).

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.

About Mia Hunt

Mia is a journalist and editor with a background in covering commercial property, having been market reports and supplements editor at trade title Property Week and deputy editor of Shopping Centre magazine, now known as Retail Destination. She has also undertaken freelance work for several publications including the preview magazine of international trade show, MAPIC, and TES Global (formerly the Times Educational Supplement) and has produced a white paper on energy efficiency in business for E.ON. Between 2014 and 2016, she was a member of the Revo Customer Experience Committee and an ACE Awards judge. Mia graduated from Kingston University with a first-class degree in journalism and was part of the team that produced The River newspaper, which won Publication of the Year at the Guardian Student Media Awards in 2010.

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