Current trends in open government

FOI reforms

2.21       At the time of writing, the FOI Act is the subject of a proposed reform package based on a commitment by the Australian Government to ‘undertake the most significant overhaul of the FOI Act since its inception in 1982’.[30] The package includes the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009 (Cth), which commenced on 7 October 2009 and two exposure draft bills: the Information Commissioner Bill 2009 and the Freedom of Information Amendment (Reform) Bill 2009 (FOI Exposure Draft Bill).

2.22       The Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act represents an important step towards government accountability by removing the barriers to the administrative review of exemption claims that previously arose through the use of ‘conclusive certificates’. These permitted a minister or principal officer of an agency to conclusively certify that a document under the FOI Act or the Archives Act 1983 (Cth) satisfied certain exemptions. Review by the Administrative Appeals Tribunal of the grant of a conclusive certificate was limited to whether there were reasonable grounds for its being issued.

2.23       More extensive reforms are anticipated in the FOI Exposure Draft Bill: for example, clarifying that the objects of the FOI Act are intended

to promote Australia’s representative democracy by contributing towards the following:

(a)  increasing public participation in Government processes, with a view to promoting better-informed decision-making;

(b)  increasing scrutiny, discussion, comment and review of the Government’s activities.[31]

2.24       As discussed in Chapter 16, the FOI Exposure Draft Bill proposes the repeal or amendment of a number of class-based exemptions—that is, documents that are exempt by virtue of their nature: for example, Cabinet documents[32] and electoral rolls.[33] The Exposure Draft would also amend many existing exemptions to make them ‘conditional exemptions’ subject to a public interest test. Described as being ‘weighted in favour of the disclosure of documents’, it requires an agency to give access to documents falling within a conditional exemption unless access would, on balance, be contrary to the public interest.[34] Under the new test, factors favouring disclosure in assessing the public interest include: promoting the objects of the Act; informing debate on a matter of public importance; and promoting effective oversight of public expenditure.[35]

2.25       Another important aspect of the FOI Exposure Draft Bill is the information publication scheme set out in sch 2. Under this scheme, agencies are required to publish a range of information on a website, including, for example, information about the agency’s structure and functions, and information in documents to which the agency routinely provides to Parliament or in response to FOI requests.[36]

2.26       The Information Commissioner Exposure Draft Bill proposes the establishment of the Office of the Information Commissioner that will bring together the functions for independent oversight of the FOI Act and the Privacy Act. The Bill proposes the establishment of the Information Commissioner as head of the office, overseeing the existing role of the Privacy Commissioner, which will be amalgamated into the office, together with the new FOI Commissioner.

2.27       The Information Commissioner will have a role in reviewing the compliance of agencies with their publication requirements and in promoting the objects of the FOI Act. This extends beyond information access and disclosure to include the management of Commonwealth information for public purposes and as a national resource.[37]

Whole of government information sharing

2.28       The Terms of Reference for this Inquiry acknowledge both the public interest in open and accountable government and the increased need to share Commonwealth information within and between governments and with the private sector. A seamless flow of information within and between governments is referred to as a ‘whole of government’ approach—‘the public administration of the future’.[38] This flow of information, however, may pose particular problems in relation to certain sensitive information, for example, personal information. In the context of such information, the concern is not about ‘open government’, but rather about the appropriate protection of the information itself in the hands of government officers.

2.29       In its 2004 report, Connecting Government: Whole of Government Responses to Australia’s Priority Challenges, the Australian Government Management Advisory Committee described the ‘whole of government’ approach as:

public service agencies working across portfolio boundaries to achieve a shared goal and an integrated government response to particular issues. Approaches can be formal and informal. They can focus on policy development, program management and service delivery.[39]

2.30       A ‘whole of government’ approach will normally involve the communication of information between Australian Government agencies. In a submission in response to the Discussion Paper, Review of Secrecy Laws (DP 74), the Department of Human Services (DHS) commented on the importance of information sharing to service delivery reform:

The old model of particular agencies delivering particular programs in particular locations in a fixed way without reference to other Australian Government agencies and programs is changing. Customers are increasingly expecting a different type of service from governments. They expect governments to be proactive and reach out to them with services they are likely to require. They expect not to have to provide the same information to governments time and time again. Customers with special or challenging needs often require intensive case management that brings together information from a range of government programs to provide a holistic response.[40]

2.31       Wherever information-sharing objectives arise, a parallel concern is the role of secrecy provisions, or other mechanisms, to protect that information in appropriate circumstances. Ensuring that channels for the communication of protected information are built into, or complement, secrecy provisions may be crucial to achieving an appropriate balance between protecting information and providing effective service delivery. As noted by the DHS in relation to the wide range of personal information collected and managed by their agencies:

While the appropriate protection of personal information about customers must, of course, remain paramount, it is essential that secrecy provisions complement and assist, rather than frustrate, improvements to service delivery.[41]

2.32       New technologies can be used to facilitate a ‘whole of government’ approach to sharing information. An example is ‘Government 2.0’, which is discussed in the next section.

Government 2.0

2.33       ‘Government 2.0’ refers to the application of Web 2.0[42] to facilitate access to public sector information, as well as encouraging online engagement with government initiatives. Reflecting these goals, the Australian Government has established the Government 2.0 Taskforce to provide advice and assistance on:

  • making government information more accessible and usable;

  • making government more consultative, participatory and transparent, including maximising the extent to which government utilises the views, knowledge and resources of the general community;

  • building a culture of online innovation within government; and

  • promoting collaboration across agencies with respect to online and information initiatives.[43]

2.34       Also included in the Taskforce’s terms of reference is the identification and trial of initiatives that may achieve or demonstrate how the above objectives may be accomplished. For example, the ALRC is receiving funding through the Taskforce for the purpose of trialling a closed online focus group as a consultation strategy for its inquiry into family violence.[44]

2.35       On 23 July 2009, the Taskforce released Towards Government 2.0: an Issues Paper.[45] Many of the questions asked by the Taskforce have relevance to the ALRC’s Inquiry into secrecy laws, including, for example:

  • what are the ways in which we build a culture within government which favours the disclosure of public sector information, and what barriers restrict or complicate this;[46]

  • what government information should be more freely available;[47] and

  • what are the possible privacy, security, confidentiality or other implications that might arise in making public sector information available?[48]

2.36       Since the potential to share knowledge and information initiatives across government relies on ‘the interoperability of information and business architectures’, the Taskforce has also asked what approaches the Australian Government should use to allow information to be shared easily between government agencies and between such agencies and their users.[49] The Taskforce is due to deliver its final report to the Australian Government on 31 December 2009.

[3]           Freedom of Information Review Panel, The Right to Information: The Report of the FOI Independent Review Panel (2008), 158.

[4]           Parliament of Australia—Senate Standing Committee on Constitutional and Legal Affairs, Freedom of Information: Report by the Senate Standing Committee on Constitutional and Legal Affairs on the Freedom of Information Bill 1978, and Aspects of the Archives Bill 1978 (1979), Ch 4.

[30]         J Faulkner (Cabinet Secretary and Special Minister of State), Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008, Second Reading Speech, 26 November 2008; Australian Labor Party, National Platform and Constitution 2009 <> at 7 December 2009, Ch 11.

[31]         Exposure Draft, Freedom of Information Amendment (Reform) Bill 2009 (Cth) sch 1 cl 3.

[32]         Freedom of Information Act 1982 (Cth) s 34.

[33]         Ibid s 47A.

[34]         J Faulkner (Cabinet Secretary and Special Minister of State), Open and Transparent Government—the Way Forward (2009) <> at 26 November 2009.

[35]         J Faulkner (Cabinet Secretary and Special Minister of State), Freedom of Information (FOI) Reform: Companion Guide (2009).

[36]         The publication requirement does not include exempt matter or information the publication of which is prohibited by another enactment.

[37]         Exposure Draft, Freedom of Information Amendment (Reform) Bill 2009 (Cth) sch 1 cl 3(3). See also Australian Law Reform Commission and Administrative Review Council, Open Government: A Review of the Federal Freedom of Information Act 1982, ALRC 77 (1995).

[38]        Australian Government Management Advisory Committee, Connecting Government: Whole of Government Responses to Australia’s Priority Challenges (2004), vi.

[39]         Ibid, 4. The Management Advisory Committee is a forum of agency heads established under the Public Service Act 1999 (Cth) to advise the Australian Government on matters relating to the management of the Australian Public Service (APS): see <> at 23 November 2009.

[40]         Department of Human Services, Submission SR 83, 8 September 2009.

[41]         Ibid.

[42]         Web 2.0 can be seen as principles or practices that facilitate interactive online information sharing and collaboration.

[43]         Government 2.0 Taskforce, Towards Government 2.0: An Issues Paper (2009).

[44]         Terms of Reference, 17 July 2009. See <> at 23 November 2009.

[45]         Government 2.0 Taskforce, Towards Government 2.0: An Issues Paper (2009).

[46]         Ibid, Question 2.

[47]         Ibid, Question 3.

[48]         Ibid, Question 4.

[49]         Ibid, Question 8.