The ALRC began its review of the FOI Act in July 1994. The Inquiry was conducted jointly with the Administrative Review Council. The principal purpose of the review was to determine whether the FOI Act had achieved the purposes and objectives it was designed to achieve and, if it had not, to recommend changes to improve its effectiveness. The review also considered whether the FOI Act should extend to the private sector.
The Freedom of Information Act 1982 (Cth) came into force on 1 December 1982. The FOI Act was intended to increase accountability of government and improve administration and decision-making by exposing these processes to public scrutiny. The FOI Act provides individuals with rights of access to government documents, including documents containing information about themselves.
- The creation of a statutory FOI Commissioner to monitor and improve the administration of the FOI Act and to provide assistance, advice and education to applicants and agencies about how to use, interpret and administer the Act.
- Other recommendations include:
- the revision of the Act’s objects clause to promote a pro-disclosure interpretation of the Act;
- the rationalisation of exemption provisions to apply only to information that there is a public interest in withholding; and
- measures to ensure FOI charges are not inconsistent with the objects of the Act, with the scale of charges to be determined by FOI Commission with access to an applicant’s personal information being free of charge.
- The FOI Act should not apply to private sector or government businesses that are engaged predominantly in commercial activities in a competitive market, instead a national legislative scheme should be introduced to provide information privacy protection in all sectors, including the private sector.
In June 1999 the Commonwealth Ombudsman completed a self-initiated report, Needsto Know, reviewing the operation of the FOI Act. In this report, the Ombudsman called for several of the recommendations in ALRC Report 77 to be implemented.
Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009 (Cth)
The Freedom of Information (Removal of Conclusive Certificates and Other Measures Act 2009 (Cth) repeals the power to issue conclusive certificates in the FOI Act for all exemption provisions where certificates may be issued. While the ALRC did not recommend the removal of all powers to issue conclusive certificates in the FOI Act, it did recommend that provisions for a conclusive certificate in ss 33A (Documents affecting relations with States) and 36 (Internal working documents) of the FOI Act should be removed.
Australian Information Commissioner Act 2010 (Cth) and Freedom of Information (Reform) Act 2010 (Cth)
The Australian Information Commissioner Act 2010 (Cth) and Freedom of Information (Reform) Act 2010 (Cth) received assent on 31 May 2010. These Acts mainly commenced on 1 November 2010, with some provisions commencing on 1 May 2011.
Enactment of this legislation substantially implemented many ALRC Report 77 recommendations, in particular:
- the insertion of a new objects clause that explains clearly the underlying rationale for the FOI Act and its significance for the proper working of representative democracy (implementing Recommendations 1–5 of ALRC Report 77);
- the establishment of a dedicated Freedom of Information Commissioner — the Australian Government appointed Professor John McMillan AO as the first Information Commissioner.
- the extension of the FOI Act to require agencies to take contractual measures to ensure that they have access to information relevant to the performance of Commonwealth contracts, where the information is created or held by contracted service providers or subcontractors delivering services for or on behalf of the Commonwealth (consistent with Recommendation 99 of ALRC Report 77);
- the abolition of application fees for access requests under Part III of the FOI Act, which is consistent with Recommendations 82, 88, 92 and 93 of ALRC Report 77;
- the reformulation of a public interest test weighted in favour of disclosure of documents—although the ALRC did not specifically recommend the formulation proposed by s 11A, many features of the reformulation are consistent with ALRC Report 77 recommendations, including Recommendations 6, 38 and 39;
- the amendment of the Cabinet documents exemption to ensure that it only covers documents at the core of the Cabinet process (Recommendations 46–48);
- the amendment of the internal working documents exemption to relate to deliberative processes (Recommendations 51–52);
- the repeal of exemptions for Executive Council documents, documents arising out of companies and securities legislation and documents relating to the conduct of an agency of industrial relations (Recommendations 50, 57, 72); and
- the amendment of the exemption provision for documents subject to legal professional privilege so that the exemption cannot be claimed in circumstances where the privilege has been waived (Recommendation 67).
A number of ALRC Report 77 recommendations had not been incorporated into the Bills. These were highlighted in the ALRC’s Submission to the Senate Finance and Public Administration Committee inquiry into the Bills.
In ALRC Report 77, the ALRC recommended a thorough review of all federal legislative provisions that prohibit disclosure by public servants of government held information to ensure that they do not prevent the disclosure of information. That would not be exempt under the FOI Act.
On 5 August 2008, the ALRC received Terms of Reference from the Attorney-General of Australia to consider options for ensuring a consistent approach across government to secrecy provisions.