Freedom of information

16.4 The FOI Act is founded on the principle of open government. It provides a right of access to information held by government agencies and ministers. The FOI Act governs two aspects of this right. First, by requiring agencies and ministers to publish certain information,[3] and secondly, by providing persons with a right to apply for the production of documents.[4] The FOI Act also gives a person a right to access, annotate or correct records that a government agency holds about him or her.[5]

16.5 A general right of access is set out in s 11 of the FOI Act, which provides that:

(1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:

(a) a document of an agency, other than an exempt document; or

(b) an official document of a Minister, other than an exempt document.

16.6 Balanced against these access rights is the need to protect some documents from disclosure. This is expressed in the FOI Act by the exemption provisions. As stated in the current objects clause, the exemptions are those

necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities.[6]

16.7 Notwithstanding that a document may fall within an exemption category, an agency or minister may nevertheless be required to provide an applicant with access to an edited copy from which any exempt matter has been deleted.[7] Moreover, s 14 provides that:

Nothing in this Act is intended to prevent or discourage Ministers and agencies from publishing or giving access to documents (including exempt documents), otherwise than as required by this Act, where they can properly do so or are required by law to do so.

16.8 The following discussion focuses on the interaction between the FOI Act and secrecy provisions. First, this section sets out a general overview of the exemption provisions under the FOI Act, including proposed government reforms. This chapter then discusses the specific secrecy exemption set out in s 38 of the FOI Act, as well as the interaction between FOI and those secrecy provisions outside the s 38 exemption, and assesses the need for an override provision. Finally, the ALRC makes recommendations for reform.

Exemptions under the FOI Act

16.9 As noted above, the FOI Act provides members of the public with a general right of access to government documents, limited by specific exemptions. Exemptions fall within three broad categories: agency-based exemptions; class-based exemptions; and harm-based exemptions.

Agency-based exemptions

16.10 Section 7 of the FOI Act operates to exempt certain agencies from the Act altogether. Most of these agencies have functions relating to national security, including the Inspector-General of Intelligence and Security (IGIS) and the six agencies comprising the Australian Intelligence Community (AIC).[8] Section 7(2A) also provides an exemption for all agencies in relation to documents that originate with, or have been received from, the AIC or the IGIS. A number of other agencies are exempt from the operation of the FOI Act in relation to particular documents—often those relating to an agency’s commercial functions.[9]

Class-based exemptions

16.11 Class-based exemptions apply to documents of a certain nature, such as Cabinet documents.[10] Other class-based exemptions are for Executive Council documents;[11] where secrecy provisions[12] or legal professional privilege apply;[13] where disclosure would be in contempt of parliament or contempt of court;[14] electoral rolls;[15] and certain documents arising under companies and securities legislation.[16]

16.12 A class-based exemption will be satisfied wherever a document falls within a particular category. There is no additional assessment of the merits of disclosure, or the potential harm that disclosure may cause. To the extent that there is a notion of public interest, it is implicit—in that the Parliament has decided that the release of any of the documents in one of the specified categories under the FOI Act would not be in the public interest.

Harm-based exemptions

16.13 This category of exemptions depends on demonstrating the harm that would or could reasonably be expected to be caused by disclosure. For example, documents ‘affecting national security, defence or international relations’ are exempt under s 33(1) if disclosure:

(a) would, or could reasonably be expected to, cause damage to:

(i) the security of the Commonwealth;

(ii) the defence of the Commonwealth; or

(iii) the international relations of the Commonwealth; or

(b) would divulge any information or matter communicated in confidence by or on behalf of a foreign government, an authority of a foreign government or an international organization to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth.

16.14 Other exemptions in this category include harms to: Commonwealth-State relations;[17] law enforcement and public safety;[18] the financial or property interests of the Commonwealth;[19] operations of agencies;[20] business and professional affairs;[21] research;[22] the national economy;[23] and material obtained in confidence.[24]

Proposed Government reforms

16.15 The FOI Act is currently the subject of proposed reforms[25] set out in the Exposure Draft of the Freedom of Information Amendment (Reform) Bill 2009 (FOI Exposure Draft Bill).

16.16 The FOI Exposure Draft Bill proposes to repeal a number of class-based exemptions, including for Executive Council documents; documents arising out of companies and securities legislation; and documents relating to the conduct by an agency of industrial relations.[26] The proposed amendments would also narrow the Cabinet exemption to documents ‘at the core of the Cabinet process’.[27]

16.17 Further, the Exposure Draft proposes to amend many existing exemptions to make them subject to a public interest test. As explained by the then Cabinet Secretary and Special Minister of State, Senator the Hon John Faulkner:

The draft legislation divides exemptions into those which are subject to a public interest test (called conditional exemptions) and those that are not, and then applies a single simple, strong and clear test to all conditional exemptions, which requires an agency to give access to a document unless giving that access would at the time, ‘on balance, be contrary to the public interest’.[28]

16.18 Exemptions concerning personal privacy,[29] business affairs,[30] the national economy[31] and research[32] would all become conditional exemptions.[33]

The secrecy exemption

16.19 Section 38 of the FOI Act contains an exemption from the requirement to disclose for those documents that are, or information contained in documents that is, subject to certain secrecy provisions (the secrecy exemption).

16.20 The secrecy exemption, as it was originally enacted in 1982, applied to any document if there was in force

an enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind, whether the prohibition is absolute or is subject to exceptions or qualifications.[34]

16.21 In 1991, however, the exemption was significantly narrowed to apply where:

(a) disclosure of the document, or information contained in the document, is prohibited under a provision of an enactment; and

(b) either:

(i) that provision is specified in Schedule 3; or

(ii) this section is expressly applied to the document, or information, by that provision, or by another provision of that or any other enactment.[35]

16.22 Section 38(1A) makes it clear that an individual’s right to access information applies in circumstances in which the secrecy provision does not prohibit disclosure—for example, where disclosure is permitted under an exception to the secrecy provision.

16.23 The FOI Guidelines—Exemption Sections in the FOI Act (FOI Exemption Guidelines), prepared by the Australian Government Solicitor, express the policy position that the secrecy exemption ‘should be used only where truly necessary’ and that information may be more appropriately considered under other exemptions in the FOI Act.[36]

Which secrecy provisions are covered?

16.24 Currently, sch 3 specifies more than 65 secrecy provisions from over 28 Acts and one sub-regulation as subject to the secrecy exemption in s 38. In addition, the ALRC has identified four provisions that expressly apply s 38 but which are not listed in sch 3.[37]

16.25 Provisions listed in the secrecy exemption include:

    • health and welfare secrecy provisions, directed towards the protection of personal information;[38]

    • secrecy provisions that protect various types of information obtained by regulatory agencies;[39]

    • national security and defence secrecy provisions;[40] and

    • taxation and superannuation secrecy provisions.[41]

Scope of the secrecy exemption

16.26 There are limits to the application of the secrecy exemption. As explained by Paterson, a document is exempt under the secrecy exemption ‘only to the extent that a complying secrecy provision prohibits its disclosure’.[42] For example, in Duncan and Department of Health and Ageing, the Administrative Appeals Tribunal (AAT) held that parts of information protected under the Aged Care Act 1997 (Cth) could be released to the applicant on the basis of the exception in s 86-3, which permitted the Secretary of the Department to disclose information if he or she certified, in writing, that such disclosure was necessary in the public interest.[43]

16.27 In addition, the secrecy exemption does not apply if the relevant document or information contains personal information that relates only to the person making the request,[44] and s 503A of the Migration Act 1958 (Cth) does not apply.[45]

Overlap with other FOI exemptions

16.28 Much of the information protected through the secrecy exemption may also fall within other FOI exemptions—in particular, exemptions relating to business affairs, personal privacy and the operations of agencies.

16.29 For example, one of the secrecy provisions listed in the exemption is s 187 of the Gene Technology Act 2000 (Cth), which protects ‘confidential commercial information’ obtained by officers in the course of performing functions or duties under gene technology regulatory laws. In comparison, s 43 of the FOI Act provides an exemption for documents relating to business affairs, defined to include:

(a) trade secrets;

(b) any other information having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed; or

(c) information (other than trade secrets or information to which paragraph (b) applies) concerning a person in respect of his or her business or professional affairs or concerning the business, commercial or financial affairs of an organization or undertaking, being information:

(i) the disclosure of which would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her lawful business or professional affairs or that organization or undertaking in respect of its lawful business, commercial or financial affairs; or

(ii) the disclosure of which under this Act could reasonably be expected to prejudice the future supply of information to the Commonwealth or an agency for the purpose of the administration of a law of the Commonwealth or of a Territory or the administration of matters administered by an agency.

16.30 ‘Confidential commercial information’ communicated under the Gene Technology Act would almost always fall within one of the above categories. Typically, the information would have some commercial value, which would be diminished by disclosure. Even where there was no such commercial value, release of the information might ‘unreasonably affect’ the organisation in undertaking its business, commercial or financial affairs.

16.31 Similarly, many of the provisions listed in the secrecy exemption apply to sensitive categories of personal information, including health,[46] taxation[47] and welfare[48] information. In comparison, under s 41 of the FOI Act, an exemption applies if disclosure of a document ‘would involve the unreasonable disclosure of personal information about any person (including a deceased person)’.

16.32 Finally, s 40(1)(d) of the FOI Act provides an exemption for documents which may ‘have a substantial adverse effect on the proper and efficient conduct of the operations of an agency’. This exemption has successfully been used, for example, by the Australian Competition and Consumer Commission (ACCC) to protect from disclosure certain documents provided to it by telecommunications companies. The Deputy President of the AAT upheld the use of the exemption on the basis of the ACCC’s need to obtain industry information voluntarily in the future.[49]

16.33 The ALRC has identified two provisions listed in the secrecy exemption in the area of national security.[50] Section 41 of the Intelligence Services Act 2001 (Cth) and s 92 of the Australian Security Intelligence Organisation Act 1979 (Cth) prohibit any person from disclosing information that identifies, or could reasonably lead to the identification of, a person who is or has been an agent or staff member of the Australian Secret Intelligence Service (ASIS) or the Australian Security Intelligence Organisation (ASIO), respectively.

16.34 As noted above, pursuant to s 7 of the FOI Act, the AIC agencies are completely exempt from the operation of the Act. In addition, any other agency is exempt from the operation of the Act in relation to a document that originated with, or was received from, an AIC agency.[51] Further, s 33(1)(a) of the FOI Act provides an exemption for documents that ‘would or could reasonably be expected to, cause damage to the security of the Commonwealth’. An equivalent exemption in the Archives Act has been interpreted to include documents that reveal, or would assist in revealing, the identity of an ASIO informant.[52]

Inter-jurisdictional comparisons

16.35 FOI legislation in many other jurisdictions includes exemptions based on secrecy provisions. One of the broadest is s 44 of the Freedom of Information Act 2000 (UK), which provides that information is exempt if its disclosure is ‘prohibited by or under any enactment’. Pursuant to this exemption, there are ‘hundreds of statutory provisions that prevent the release of information’.[53] Similarly, in New Zealand, a request for the release of official information under the Official Information Act 1982 (NZ) may be refused where making the information available would ‘be contrary to the provisions of a specified enactment’.[54]

16.36 Section 24 of the Access to Information Act 1985 (Canada) includes a similar secrecy exemption to s 38 of the FOI Act, which applies to those secrecy provisions set out in a schedule to the Act. The Canadian exemption goes further than its Australian counterpart, however, by requiring the nondisclosure of such information.[55] It also establishes a committee to review the provisions in the schedule and to report ‘on whether and to what extent the provisions are necessary’.[56] The Canadian Office of the Information Commissioner has strongly criticised s 24. In its Response to the Report on Access to Information Review Task Force, the Office admonished the ‘whittling away of the right of access’ under the section and recommended that the section be abolished.[57]

16.37 Secrecy provisions also form a common basis for exemption from FOI legislation at the Australian state and territory level. Older secrecy exemptions, such as those in the FOI legislation in Victoria and the ACT, mirror the broad wording of the original federal secrecy exemption.[58] In comparison, more recently enacted secrecy exemptions follow the approach of the current federal FOI Act, by only applying the exemption to a specific list of secrecy offences. Most notably, this approach has been followed in the Right to Information Act 2009 (Qld) and the Government Information (Public Access) Act 2009 (NSW).

16.38 The Right to Information Act 2009 (Qld), which commenced on 1 July 2009, gives legislative effect to most of the recommendations of the independent review of the state’s FOI legislation chaired by Dr David Solomon (the Solomon Review).[59] One of the few areas in which the Act diverges from the Solomon Review’s recommendations is with respect to the secrecy exemption. The review recommended that the secrecy exemption—set out in sch 1 of the former Queensland FOI legislation—should be removed and, instead, the existence of a secrecy provision should be a relevant factor in assessing whether disclosure is warranted under a general public interest test.[60] The Queensland Government did not accept this recommendation:

Schedule 1 provides a very limited list of secrecy provisions in other legislation relating to the protection of the rights or safety of citizens. These matters require an absolute guarantee of confidentiality to ensure upfront public confidence and participation in certain processes of government. For example, Schedule 1 protects the confidentiality of the witness protection program, adoption information, child protection notifications and personal taxation information. The government considers there is a compelling public interest in protecting this information from public disclosure in all circumstances. In addition, the exemption for audit information … is considered necessary to protect the confidentiality of information obtained during the course of audits and to maintain the integrity of the Queensland Audit Office’s audit process, which is comparable to exemptions provided in other jurisdictions.[61]

16.39 A similar approach is also being adopted by the Government Information (Public Access) Act 2009 (NSW), which received assent on 26 June 2009.[62] Instead of retaining an automatic exemption for documents covered by a secrecy provision—as is the case under the former Freedom of Information Act 1989 (NSW)—the Act lists approximately 20 secrecy provisions, which conclusively establish an ‘overriding public interest against disclosure’.[63] The fact that information is subject to any other secrecy provision will be a relevant consideration in applying the public interest test on a case-by-case basis.[64]

16.40 In contrast, however, the secrecy exemption in the Tasmanian FOI Act ceased to have effect three years after commencement of the Act.[65] There is no exemption from disclosure for information protected by secrecy provisions in the Right to Information Bill 2009 (Tas).

Previous inquiries and the secrecy exemption

16.41 The secrecy exemption in the FOI Act has been considered in a number of previous inquiries. In the 1995 report, Open Government: A Review of the Federal Freedom of Information Act (ALRC 77), the ALRC and Administrative Review Council (ARC) recommended that the secrecy exemption should be repealed on the basis that the other FOI exemptions—such as those dealing with personal information, national security and defence—provided sufficient protection for the information covered by secrecy provisions.[66] The Report noted the submission by the then Department of Social Security that removal of the secrecy exemption for FOI applications to the Department had not adversely affected the Department’s operations.[67]

16.42 The ALRC and ARC suggested that, if the secrecy exemption were not repealed, it should be amended so that sch 3 provides a definitive list of all secrecy provisions that affect the operation of the FOI Act.[68]

16.43 In 2001, several recommendations made in ALRC 77 were considered as part of the Senate Legal and Constitutional Affairs Committee Inquiry into the Freedom of Information Amendment (Open Government) Bill 2000 (the Senate Committee Inquiry).[69] In its submission to the Senate Committee Inquiry, the Australian Government Attorney-General’s Department (AGD) opposed the repeal of the secrecy exemption:

In the Department’s view, the exemptions in the FOI Act are, of necessity, in general terms whereas the secrecy provisions in other legislation are tailored to the specific requirements of that legislation and may cover situations, not covered by the FOI Act, which nevertheless warrant exemption from disclosure.[70]

16.44 The Senate Committee Inquiry concluded that the repeal of FOI exemptions, including the secrecy exemption, would be ‘premature’ and should be considered as part of a ‘longer-term revision of the FOI Act’.[71]

16.45 The FOI Exposure Draft Bill and Companion Guide do not expressly address the secrecy exemption.

Interaction between the FOI Act and other secrecy provisions

16.46 The relationship between secrecy laws and the FOI Act goes beyond the specific secrecy exemption. A particular issue that arises is whether there is a need for a provision in the FOI Act to expressly override secrecy provisions.

16.47 In accordance with the general right of access set out in s 11 of the FOI Act, in the absence of the secrecy exemption or another applicable FOI exemption, access will be available to a document to which a secrecy provision applies.

16.48 However, some ambiguity in the relationship between other secrecy provisions and the FOI Act has arisen as a result of the finding of the Federal Court in Kwok v Minister for Immigration and Multicultural Affairs (Kwok).[72] In this case, Tamberlin J considered whether the secrecy exemption applied to information protected by the secrecy provision in s 503A of the Migration Act (restricting the disclosure by Commonwealth officers of information supplied by law enforcement agencies or intelligence agencies). Notwithstanding that the provision was not listed in sch 3 of the FOI Act, nor expressly applied the secrecy exemption, Tamberlin J considered that the ‘comprehensive language’ of the Migration Act provision was sufficient to exclude the operation of the FOI Act.[73]

16.49 The decision in Kwok has been subject to criticism.[74] Although the decision was overturned by a Full Court of the Federal Court, the secrecy exemption was not considered on appeal. In 2003, s 38 of the FOI Act was amended to make express reference to s 503A, to make clear that a document is exempt to the extent that disclosure is prevented by s 503A of the Migration Act and the document contains personal information about a person who has requested access to that document.[75] While this amendment dealt with the immediate problem created by Kwok, it remains uncertain whether information subject to a secrecy provision may be exempt although the secrecy provision does not meet the criteria set out in s 38.

16.50 The FOI Acts in some other jurisdictions make the relationship between FOI and secrecy provisions clear by explicitly overriding prohibitions on nondisclosure in other legislation. For example, s 11 of the Government Information (Public Access) Act 2009 (NSW) provides that:

This Act overrides a provision of any other Act or statutory rule that prohibits the disclosure of information (whether or not the prohibition is subject to specified qualifications or exceptions), other than a provision of a law listed in Schedule 1 as an overriding secrecy law.

16.51 An equivalent provision in the Right to Information Act 2009 (Qld) makes clear that ‘[t]his Act overrides the provisions of other Acts prohibiting the disclosure of information (however described)’.[76]

Impact on individual officers

16.52 What is the situation where an officer discloses information in accordance with the FOI Act but this action is potentially in breach of a secrecy provision?

16.53 Many secrecy provisions permit disclosure in the course of a Commonwealth officer’s duties. This has been interpreted as encompassing FOI and other routine disclosures.[77] There is the potential for conflict, however, where a secrecy provision does not have any such exception, or where the exception is more narrowly framed—including, for example, permitting disclosures in the ‘performance of duties under this Act’. In the secrecy provision at issue in Kwok,[78] discussed above, the only permissible disclosures of the information were to a minister or an ‘authorised migration officer’ for the purpose of allowing them to exercise certain statutory powers.[79]

16.54 Some protection for individual officers is provided by s 92(1)(b) of the FOI Act. Pursuant to this section, an authorised officer[80] who gives access to a document in ‘the bona fide belief that access was required’ by the FOI Act cannot be liable for criminal prosecution under a secrecy offence.[81] An equivalent provision in s 91(1) protects an officer who discloses information in these circumstances from any civil action in defamation, breach of confidence or infringement of copyright.

16.55 In ALRC 77, the ALRC and ARC criticised the lack of protection that s 91 provided to officers who release non-exempt documents outside of a formal FOI Act application process, and ‘non-sensitive exempt information’.[82] The ALRC and ARC recommended that s 91 should be extended to apply to the release of a non-exempt document other than under the FOI Act and to an exempt document under or outside the FOI Act pursuant to a bona fide exercise of discretion not to claim the exemption.[83] This is similar to the approach taken in the FOI Exposure Draft Bill, which would amend ss 91 and 92 to provide protection to an officer who:

(a) publishes a document in good faith, in the belief that the publication is required or permitted under Part II (information publication scheme) or section 11C (publication of information in accessed documents); or

(b) gives access to a document in good faith, in the belief that the access is required or permitted to be given in response to a request; or

(c) publishes, or gives access to, a document in good faith, in the belief that the publication or access is required or permitted otherwise than under this Act (whether or not under an express legislative power).[84]

16.56 The Australian Public Service (APS) Commissioner’s Annual Report 2007–08 highlighted several cases that had come before the Merit Protection Commissioner (MPC) during the reporting period. One of these involved an APS employee who had been subject to administrative sanctions for mistakenly releasing a document under the FOI Act which contained confidential personal information. In part, the finding of misconduct was based on the duty of non-disclosure in reg 2.1 of the Public Service Regulations 1999 (Cth). The MPC found that ‘the practical intent of this regulation was not to cover the situation where an FOI officer makes a mistake and releases information that should have been withheld’ and therefore recommended that the finding of misconduct be set aside on this issue.[85]

Submissions on Issues Paper

16.57 In the Issues Paper, Review of Secrecy Laws (IP 34), the ALRC asked several questions about the relationship between the FOI Act and secrecy provisions.[86] In particular, the ALRC sought views on whether the secrecy exemption should be repealed or amended.[87]

16.58 Some government agencies strongly supported retaining the secrecy exemption.[88] For example, the Australian Taxation Office (ATO) raised concerns that repealing the exemption could generate uncertainty for taxpayers and tax officers about the applicable level of protection.[89] The Australian Prudential Regulation Authority (APRA) commented that:

In the absence of s 38 there would be scope for protected documents to be obtained under FOI, substantially weakening the effectiveness of the secrecy provision, with adverse consequences for APRA’s relationship with regulated entities and foreign regulators (and therefore the overall effectiveness of APRA’s prudential regulation). In particular, APRA does not consider that s 43 of the FOI Act (business information) would be a practical alternative in all circumstances as there could be differences of opinion as to whether the conditions in that section are satisfied in relation to individual items of information.[90]

16.59 Other stakeholders supported the repeal of the secrecy exemption, generally noting that the other exemption categories were sufficient to provide protection even where secrecy provisions existed. For example, the Australia’s Right to Know (ARTK) coalition submitted that:

it is difficult to conceive of circumstances where information protected by secrecy provisions would not also fall within other exemptions in the Act, such as documents containing information the disclosure of which would prejudice national security, defence or international relations, or constitute a breach of Cabinet confidence, and so forth. This approach would then be consistent with the similar exemption regime for access to documents under the Archives Act 1983 (Cth).[91]

16.60 Some stakeholders submitted that if a secrecy exemption like s 38 were retained, it should be subject to a public interest test.[92] For example, the Public Interest Advocacy Centre (PIAC) suggested that, in some contexts there should be a prima facie exemption—such as for documents prepared by or received from a security agency—but ‘the exemption itself should be tested having regard to the content of the document itself, the possible consequences of release, and any positive public interest factors in favour of disclosure’. In PIAC’s view, disclosure in accordance with the FOI Act should override secrecy provisions in other Acts. PIAC also identified a ‘lack of coherence in the range and seriousness of matters excluded from FOI law by the operation of section 38’.[93]

16.61 Ron Fraser suggested that while other exemption provisions in the FOI Act may not provide the full scope of protection,

at the very least a very large number of secrecy provisions currently subject to s 38 do not warrant that protection.

The other exemption provisions of the FOI Act are well designed to protect much of the information protected by secrecy provisions. ... Consideration of access rights under [other] exemptions, where applicable, is strongly preferable to absolute protection of the same information under secrecy provisions protected by s 38.[94]

16.62 In Fraser’s view, the only secrecy provisions that should be included in a secrecy exemption are ‘those that protect information, access to which cannot be determined under other FOI exemptions’.[95] Accordingly, he proposed that the criteria for retaining any secrecy provisions as exemptions to the FOI Act should be on the basis that:

there are no exemptions in the FOI Act which would apply to the information with which they are concerned, and that disclosure could be expected to cause substantial damage to a public interest.[96]

16.63 Fraser further suggested the repeal of s 38(1)(b)(ii)—which extends the exemption to secrecy provisions that ‘expressly apply’ s 38. In his view, this would ensure maximum transparency of the secrecy provision’s application.[97]

16.64 The AGD raised concerns about a potential conflict between the requirement to disclose under the FOI Act and secrecy provisions that do not contain an exception for disclosures required by or authorised by law and are not listed in the secrecy exemption. For these documents, the AGD submitted that ‘it might be helpful to clarify that a disclosure … authorised under the FOI Act does not constitute an offence under secrecy laws.[98]

Discussion Paper proposals

16.65 In the Discussion Paper, Review of Secrecy Laws (DP 74), the ALRC noted the ongoing concern expressed by some agencies that the removal of the secrecy exemption would undermine the confidence of individuals and others providing information to government. However, the ALRC expressed the preliminary view that the FOI exemptions provide sufficient protection for information that is the subject of secrecy provisions, without the need for the additional protection provided by the secrecy exemption. The ALRC proposed that the existence of a secrecy provision should constitute a relevant factor when a decision maker considers whether disclosure under another exemption provision would be contrary to the public interest.[99]

16.66 On the above policy rationale, the ALRC proposed that the secrecy exemption should be repealed.[100] The ALRC made two further consequential proposals directed towards clarifying the relationship between secrecy provisions and the FOI Act:

    • the Office of Parliamentary Counsel should issue a drafting direction requiring secrecy provisions to indicate expressly whether they override the FOI Act;[101] and

    • the FOI Exemption Guidelines should provide guidance to FOI officers on the need to consider relevant secrecy provisions when evaluating whether information should be disclosed under exemption provisions.[102]

16.67 The ALRC recognised, however, that its proposal to repeal the secrecy exemption was likely to be contentious. It therefore considered other possible reforms, should the provision be retained. The ALRC emphasised the need for clarity in the manner in which the provision operated—in particular, the need for any new secrecy provision to address explicitly its interaction with the FOI Act. The ALRC further proposed that sch 3 should be reviewed in accordance with the pro-disclosure policy expressed in the objects of the FOI Exposure Draft Bill, and updated regularly.[103]

Submissions on Discussion Paper

Repeal of the secrecy exemption

16.68 A number of Australian Government agencies expressed the view that the proposed repeal of the secrecy exemption would adversely affect their functions,[104] several reiterating concerns raised in response to IP 34. For example, APRA commented that the repeal would lead to uncertainty about whether non-publicly available information provided by regulated entities could be released under FOI. This would ‘fundamentally alter how regulated entities approach their dealings with APRA’, including the potential for less candid communication.[105]

16.69 The ATO also expressed strong concerns about the potential uncertainty that could result from repeal of the secrecy exemption. In the ATO’s view, the possibility that information might be released under FOI could prejudice the conduct of investigations or the willingness of foreign governments to provide information to the ATO. It suggested that:

a distinction [should] be drawn between information relating to the workings of government departments and information which is collected by regulatory agencies, such as the ATO, Centrelink and [the Australian Securities and Investments Commission] which is inherently confidential in that it relates to individuals and businesses and not to the workings of government.[106]

16.70 The ATO also commented that—because of the exception in tax secrecy laws for disclosures in accordance with an officer’s duties—repeal of s 38 could lead to ‘the anomalous outcome’ of a tax officer being compelled to disclose information under the FOI Act where that disclosure would not otherwise be permitted under the tax secrecy provision.[107]

16.71 Similar issues were raised by the Treasury, including that the public interest test under some FOI exemptions meant that the repeal of the secrecy exemption ‘would in effect render some types of secret material more secret than others’.[108] The Treasury proposed that a more effective way of addressing concerns about the breadth of secrecy provisions included in the FOI exemption might be

through ensuring that the initial judgment of when material is ‘secret’ is appropriately limited by ensuring, for instance, as is the case with secrecy provisions relating to agencies such as APRA and the ATO, that these provisions are designed to give effect to the public expectation that the confidentiality of information provided to Government is respected.[109]

16.72 IP Australia noted that repeal of the secrecy exemption could raise challenges for Australia’s patents and designs system, including the potential for the release of information outside the open access period to infringe Australia’s international obligations under art 21 of the Patent Cooperation Treaty.[110] It further suggested that removal of the section could also create conflict between provisions of the FOI Act and prohibitions on disclosure in patents and designs legislation.[111]

16.73 On the other hand, civil liberties groups and media organisations supported the proposed repeal of the secrecy exemption, agreeing that it would ‘promote a culture of openness’[112] and that the other exemption provisions in the FOI Act provided sufficient protection for government information.[113] The ARTK coalition also commented that:

public officials would still retain the protection of s 92(1) whereby an officer authorises access to a document in the bona fide belief that access was required by the FOI Act, then the authorising officer, and any other person involved in granting access, is protected from criminal prosecution under any applicable secrecy law.[114]

16.74 Indigenous Business Australia (IBA)—whose secrecy provisions are not currently listed in sch 3 of the FOI Act—also expressed support for the proposed repeal of the secrecy exemption.[115] Further, IBA noted that the decision in Kwok has created uncertainty about the provision’s application, which could result in the inconsistent application of legal obligations.[116] IBA also noted that:

In practice, many documents subject to s 191 [of the Aboriginal and Torres Strait Islander Act 2005 (Cth)] are exempt from disclosure on the basis of specific grounds of exemption under Part IV of the FOI Act, particularly those that concern personal privacy and business affairs. In addition, documents pertaining to IBA’s commercial activities are also exempt from disclosure pursuant to s 11 and Sch 2, Part II, Div 1 of the FOI Act.[117]

16.75 The Department of Health and Ageing (DoHA) agreed with the ALRC’s view that the other exemptions in the FOI Act, such as the privacy exemption, would adequately cover secrecy provisions ‘in many circumstances’. However, DoHA suggested that there were particular features of the information collected under the Aged Care Act that make it preferable to protect it through specific secrecy provisions rather than the FOI Act’s privacy exemption—in particular, the difficulty of consulting with the individuals to whom the information relates (as required under s 41 of the FOI Act).[118] The Social Security Appeals Tribunal (SSAT) commented that, should the secrecy exemption be repealed, it would require some other protection for its adjudicative functions.[119]

16.76 The Department of Immigration and Citizenship advised of a potential conflict of laws should the secrecy exemption be repealed. Section 503A of the Migration Act prohibits an officer from examining documents, other than for the review of visa decisions and, if the secrecy exemption were repealed,

it would cause an unacceptable legal conflict in which an FOI officer would on the one hand be required to consider a section 503A document for disclosure and on the other hand be forbidden from examining the document for the purposes of an FOI request. This conflict would need to be addressed in any legislation change proposed.[120]

Drafting directions

16.77 Several stakeholders supported the issuing of drafting directions, which would require secrecy provisions to indicate expressly whether they override the FOI Act.[121] Fraser, however, argued that such a direction could be counterproductive and ‘serve as an invitation to some agencies to seek to avoid the FOI Act’. He suggested that, in the alternative, a government policy should be adopted that a secrecy provision can only override the FOI Act in ‘exceptional circumstances’, such as:

where information protected by a secrecy provision could not be subject to claims under existing FOI exemptions, and the disclosure of such information would cause substantial adverse harm to a significant public interest.[122]

16.78 Fraser further noted that:

The proposed Drafting Direction does not directly address the situation where a later secrecy provision could be held to be inconsistent with the general provisions for disclosure in the FOI Act. … It might be advisable for the FOI Act itself additionally to provide that later legislative provisions do not override the FOI Act unless they specifically provide for that, and, if appropriate, to include a note as to the Drafting Direction.[123]

Secrecy provisions as a relevant factor in balancing the public interest

16.79 There was some support for the use of secrecy provisions as a relevant consideration in balancing the public interest in disclosure of documents under FOI.[124] Fraser, however, expressed ‘strong doubts’ about the proposal:

In the current state of specific secrecy provisions, it would not be safe to assume that the application to information of a secrecy provision, most of which are acknowledged to be extremely broad in formulation, indicates that the harm factor in an exemption is more likely to be met.[125]

Schedule 3 should be regularly reviewed and updated

16.80 The ATO advised that regular review and updating of secrecy provisions in sch 3 was its ‘preferred option’, and would overcome many of the practical difficulties that it currently experiences with the secrecy exemption.[126] The Treasury agreed that the provisions contained in the secrecy exemption should ‘of course’ be regularly reviewed and updated.[127]

16.81 The SSAT supported the regular review and updating of secrecy provisions in the secrecy exemption and recommended that agencies should have to justify their inclusion in sch 3—for example, on ‘public interest’ grounds.[128] Fraser also focused on the potential for ongoing justification for including a secrecy provision in the secrecy exemption. Factors that may indicate a need to remove a provision from the exemption include the omission of an express harm requirement, or substantial replication of the general secrecy offence.[129]

ALRC’s views

The secrecy exemption

16.82 Two competing views were evident in submissions. On the one hand, there was support for the proposal to repeal the secrecy exemption on the basis that this would promote open government, and that other exemptions in the FOI Act provided sufficient protection. On the other hand, a number of agencies were concerned that the repeal of the secrecy exemption would leave insufficient protection for their information holdings. Particular concerns were raised by regulatory agencies that handle large amounts of personal and commercial information.

16.83 The ALRC has considered the secrecy provisions that currently invoke the exemption, and is persuaded that the exemption has an ongoing role to play. Particularly compelling in this regard are secrecy provisions which apply to a confined class of highly sensitive Commonwealth information—such as those included in the Civil Aviation Act 1988 (Cth) and Telecommunications (Interception and Access) Act 1979 (Cth). As set out in the Queensland Government’s response to the Solomon Committee report, these matters ‘require an absolute guarantee of confidentiality to ensure upfront public confidence and participation in certain processes of government’.[130]

16.84 The recommendation that the exemption should be retained also recognises the fact that numerous other recommendations in this Report seek to narrow the scope of secrecy provisions, including, in most circumstances, linking them to an express harm requirement. Implementation of these recommendations will help to minimise the potential incursion of the secrecy provision exemption on the principle of open government. However, the ALRC considers that additional reforms are needed to ensure that the exemption does not operate to reinforce a ‘culture of secrecy’.

16.85 First, the secrecy exemption should be amended to include a definitive list of secrecy provisions that operate to conclusively override the FOI Act. This ensures that the minister responsible for administering the FOI Act is involved in the decision to include any secrecy provisions on the list.

16.86 Further, ministers who wish to add a secrecy provision to the list of exemptions should be required to assess, and put on the public record, the potential impact of the proposed amendment on the scrutiny of government action. Such an assessment could be included in the explanatory memorandum to ensure parliamentary scrutiny and debate. Among other considerations, relevant factors would include the breadth of the class of information to which the secrecy provision applies, and the likely relevance of the information for public scrutiny of government action.

16.87 For example, s 68 of the Inspector of Transport Security Act 2006 (Cth), which is included in sch 3, applies to information that the Inspector has disclosed to an agency because he or she believes on reasonable grounds that:

(a) the commission of an offence is imminent; and

(b) the offence is an offence against a law of the Commonwealth, or of a State or Territory, punishable by a maximum penalty of imprisonment for more than 2 years; and

(c) the information may be relevant to the prevention of the offence.

16.88 This is a far more limited class of information than that which is protected, for example, under taxation secrecy laws—which generally apply to any information about the affairs of a person collected under taxation legislation. In the ALRC’s view, this is an example of a provision that would be appropriate to list in the secrecy exemption.

16.89 Another factor to be considered when including a secrecy provision in the exemption is the relevance of particular information to the scrutiny of government policies or programs. As explained in Re Actors Equity Association of Australia and Australian Broadcasting Tribunal (No 2):

To convert … commercial information into ‘governmental’ information and then to subject it to concepts that are in truth not appropriate to ‘private’ information in the commercial field would not in our view be proper, and the FOI Act makes specific provision to avoid that consequence.[131]

Interaction between the FOI Act and other secrecy provisions

16.90 There is ongoing ambiguity in relation to the interaction between exemptions in the FOI Act and secrecy provisions outside the s 38 exemption, as evident in Kwok. To mitigate this uncertainty, the FOI Act should be amended to expressly override a prohibition on disclosure set out in any other Act. This could be modelled, for example, on s 11 of the Government Information (Public Access) Act 2009 (NSW). This is consistent with the ALRC’s policy position that a secrecy provision should only operate as an exemption under FOI following parliamentary scrutiny, including an assessment of the implications of such an exemption for open government.

16.91 The ALRC is not recommending that the existence of a secrecy provision should be a relevant factor in assessing the public interest in making a document available under the FOI Act as proposed in DP 74. The ALRC’s regulatory framework centres on the recommended general secrecy offence. This offence is based on a number of the harms identified in the FOI Act.[132] As such, it would be circular for it to be used as a relevant factor in assessing the public interest in FOI disclosure. That is, the same elements will go towards the availability of any relevant FOI exemptions categories and application of the recommended general secrecy offence.

16.92 Where a specific secrecy offence is directed at a public interest other than those recognised in the FOI Act, or protects a category of information that does not receive protection under the FOI Act, this may signal a need for reconsideration of the FOI exemptions (for example, to include information that is culturally sacred to Indigenous peoples).[133]

Impact on individual officers

16.93 Individual Commonwealth officers should not be dissuaded from giving access to or publishing information in appropriate circumstances for fear of prosecution under a secrecy provision, including where disclosure is in response to an informal request or where disclosure is of ‘non-sensitive exempt information’.

16.94 The ALRC affirms the recommendations in ALRC 77 that the protections against civil actions afforded by s 91 of the FOI Act should be extended to apply to authorised officers who disclose a non-exempt document other than under the FOI Act; or who disclose an exempt document pursuant to a bona fide exercise of discretion not to claim the exemption. Equivalent extensions should also apply in the context of protection from criminal prosecution. This approach has been taken in the FOI Exposure Draft Bill.

16.95 The exceptions set out in secrecy provisions indicate the circumstances in which it is appropriate for an officer to disclose information. Normally, disclosure by an authorised FOI officer will be covered by an exception for disclosure ‘in the course of duties’. Disclosure in the course of an officer’s duties is an exception to the recommended general secrecy offence. In Chapter 10, the ALRC considers the interaction between specific secrecy offences that do not include an exception for disclosures in the course of an officer’s duties and disclosure for the purpose of other laws, such as the FOI Act.

Recommendation 16–1 Section 38 of the Freedom of Information Act 1982 (Cth) should be amended to include a definitive list of secrecy provisions that provide an exemption from the requirement to disclose documents under the Act.

Recommendation 16–2 When it is proposed to add a secrecy provision to the revised s 38 of the Freedom of Information Act 1982 (Cth), the explanatory memorandum for the amending legislation should provide an assessment of the potential implications for open government, including:

(a) the breadth of the class of information to which the secrecy provision applies; and

(b) the likely significance for public scrutiny of government action.

Recommendation 16–3 Sections 91 and 92 of the Freedom of Information Act 1982 (Cth) (FOI Act) should be amended to extend the indemnities from civil and criminal actions to authorised FOI officers who:

(a) disclose an exempt document under the FOI Act pursuant to a bona fide exercise of discretion not to claim the exemption; or

(b) disclose a document other than under the FOI Act provided that:

(i) the document would not have been exempt had it been requested under the FOI Act; or

(ii) the disclosure would have been a bona fide exercise of discretion not to claim an exemption had it been requested under the FOI Act.

Recommendation 16–4 The Freedom of Information Act 1982 (Cth) should be amended to expressly override obligations of non-disclosure in other legislation.

[3]Freedom of Information Act 1982 (Cth) pt II.

[4] Ibid pt III.

[5] Ibid pt V.

[6] Ibid s 3(1)(b).

[7] Ibid s 22.

[8] Ibid s 7(1), (1A). The AIC agencies are: the Australian Secret Intelligence Service, the Australian Security Intelligence Organisation, the Office of National Assessments, the Defence Imagery and Geospatial Organisation; the Defence Signals Directorate; and the Defence Intelligence Organisation. Other exempt agencies include, eg, the Auditor-General, Australian Government Solicitor (AGS) and the National Workplace Relations Consultative Council.

[9] Ibid s 7(2). These include, eg, the Australian Broadcasting Corporation and the Special Broadcasting Service, in relation to their program material and datacasting content; and the Commonwealth Scientific and Industrial Research Organisation, in relation to documents in respect of its commercial activities.

[10] If it meets the definition of Cabinet document in s 34(1).

[11]Freedom of Information Act 1982 (Cth) s 35.

[12] Ibid s 38. The exemption for documents containing information that is the subject of certain secrecy provisions is considered in detail below.

[13] Ibid s 42.

[14] Ibid s 46.

[15] Ibid s 47A.

[16] Ibid s 47.

[17] Ibid s 33A.

[18] Ibid s 37.

[19] Ibid s 39.

[20] Ibid s 40.

[21] Ibid s 43.

[22] Ibid s 43A.

[23] Ibid s 44.

[24] Ibid s 45.

[25] Many of these reforms were recommended in Australian Law Reform Commission and Administrative Review Council, Open Government: A Review of the Federal Freedom of Information Act 1982, ALRC 77 (1995).

[26] Exposure Draft, Freedom of Information Amendment (Reform) Bill 2009 (Cth) sch 3 pt 2.

[27] J Faulkner (Cabinet Secretary and Special Minister of State), Freedom of Information (FOI) Reform: Companion Guide (2009). See Exposure Draft, Freedom of Information Amendment (Reform) Bill 2009 (Cth) cl 34.

[28] J Faulkner (Cabinet Secretary and Special Minister of State), Open and Transparent Government—the Way Forward (2009) <www.smos.gov.au/speeches/2009/sp_20090324.html> at 26 November 2009.

[29]Freedom of Information Act 1982 (Cth) s 41.

[30] Ibid s 43.

[31] Ibid s 44.

[32] Ibid s 43A.

[33] Exposure Draft, Freedom of Information Amendment (Reform) Bill 2009 (Cth) sch 2 pt 2 div 3.

[34]Freedom of Information Act 1982 (Cth) s 38(1) (as originally enacted).

[35] Ibid s 38(1).

[36] Australian Government Solicitor, FOI Guidelines—Exemption Sections in the FOI Act (2009) <www.dpmc.gov.au> at 9 September 2009, [9.1.4]. See also Australian Government Attorney-General’s Department, Freedom of Information Act 1982—Fundamental Principles and Procedures (2005) <www.pmc.gov.au/> at 26 November 2009.

[37]National Health Security Act 2007 (Cth) s 90; Australian Prudential Regulation Authority Act 1998 (Cth) s 56; Superannuation Industry (Supervision) Act 1993 (Cth) s 252C; Reserve Bank Act 1959 (Cth) s 79A.

[38] For example, Aged Care Act 1997 (Cth) ss 86-2, 86-5, 86-6, 86-7; Child Support (Assessment) Act 1989 (Cth) s 150; Australian Institute of Health and Welfare Act 1987 (Cth) s 29.

[39] For example, Designs Act 2003 (Cth) ss 61, 108; Civil Aviation Act 1988 (Cth) s 32AP.

[40] For example, Intelligence Services Act 2001 (Cth) s 41; Defence (Inquiry) Regulations 1985 (Cth) reg 63; Australian Security Intelligence Organisation Act 1979 (Cth) s 92.

[41] For example, Superannuation Industry (Supervision) Act 1993 (Cth) s 252C; Fringe Benefits Tax Assessment Act 1986 (Cth) s 5; Income Tax Assessment Act 1936 (Cth) s 16.

[42] M Paterson, Freedom of Information and Privacy in Australia: Government and Information Access in the Modern State (2005), [8.97].

[43]Duncan and Department of Health and Ageing [2004] AATA 747.

[44]Re Richardson and Federal Commissioner of Taxation (2004) 81 ALD 486, 503; Petroulias v Commissioner of Taxation [2006] AATA 333, [65]–[66].

[45]Freedom of Information Act 1982 (Cth) s 38(2), (3). The Migration Act 1958 (Cth) s 503A is discussed below.

[46] For example, Aged Care Act 1997 (Cth) ss 86-5, 86-6; Australian Institute of Health and Welfare Act 1987 (Cth) s 29; Disability Services Act 1986 (Cth) s 28; National Health Act 1953 (Cth) s 135A.

[47] For example, Taxation Administration Act 1953 (Cth) ss 3C, 3G, 8XB, 8WB, sch 1 s 355-5; Income Tax Assessment Act 1936 (Cth) s 16.

[48] For example, Child Support (Assessment) Act 1989 (Cth) s 150; Child Support (Registration and Collection) Act 1988 (Cth) s 16.

[49]Re Telstra Australia Limited and Australian Competition and Consumer Commission [2000] AATA 71.

[50]Intelligence Services Act 2001 (Cth) s 41; Australian Security Intelligence Organisation Act 1979 (Cth) s 92.

[51]Freedom of Information Act 1982 (Cth) s 7(2A).

[52]Re Throssell and Australian Archives (1987) 14 ALD 292.

[53] Information Commissioner’s Office (UK), Freedom of Information Act Awareness Guidance No 27: Prohibitions on Disclosure (January 2006), 2.

[54]Official Information Act 1982 (New Zealand) s 18(c)(i).

[55] As noted above, exempt documents under the Freedom of Information Act 1982 (Cth) are not subject to the Act’s general disclosure requirement, however, an Australian Government agency or minister may choose to release them.

[56]Access to Information Act 1985 (Canada) s 24(2).

[57] Office of the Information Commissioner (Canada), Annual Report (1999–2000), Appendix A, pt A.

[58]Freedom of Information Act 1982 (Vic) s 38; Freedom of Information Act 1989 (ACT) s 38. The federal secrecy provision exemption, as originally enacted, is set out above.

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

[60] Ibid, 156–157, Rec 45.

[61] Queensland Government, The Right to Information: A Response to the Review of Queensland’s Freedom of Information Act (2008).

[62] At the time of writing, the commencement date had not been proclaimed.

[63]Government Information (Public Access) Act 2009 (NSW) sch 1.

[64] Ibid s 14.

[65]Freedom of Information Act 1991 (Tas) s 36.

[66] Australian Law Reform Commission and Administrative Review Council, Open Government: A Review of the Federal Freedom of Information Act 1982, ALRC 77 (1995), Rec 70.

[67] Ibid, [11.3].

[68] Ibid.

[69] Senate Legal and Constitutional Legislation Committee, Inquiry into the Freedom of Information Amendment (Open Government) Bill 2000 (2001). This Bill was introduced by Democrats Senator Andrew Murray in 2000, and would have implemented several of the recommendations made in Australian Law Reform Commission and Administrative Review Council, Open Government: A Review of the Federal Freedom of Information Act 1982, ALRC 77 (1995).

[70] Senate Legal and Constitutional Legislation Committee, Inquiry into the Freedom of Information Amendment (Open Government) Bill 2000 (2001), [3.35].

[71] Ibid, [3.34]–[3.36].

[72]Kwok v Minister for Immigration and Multicultural Affairs (2001) 112 FCR 94.

[73] Ibid, 99.

[74] See, eg, M Paterson, Freedom of Information and Privacy in Australia: Government and Information Access in the Modern State (2005), [8.99].

[75]Migration Legislation Amendment (Protected Information) Act 2003 (Cth) sch 2.

[76]Right to Information Act 2009 (Qld) s 6.

[77] Australian Government Solicitor, FOI Guidelines—Exemption Sections in the FOI Act (2009) <www.dpmc.gov.au> at 9 September 2009, [9.1.4], citing Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1. See also M Paterson, Freedom of Information and Privacy in Australia: Government and Information Access in the Modern State (2005), [8.98].

[78]Kwok v Minister for Immigration and Multicultural Affairs (2001) 112 FCR 94.

[79]Migration Act 1958 (Cth) s 503A.

[80] That is, an officer to whom the responsible Minister or principal officer of the agency has given authority to make decisions about FOI access: Freedom of Information Act 1982 (Cth) s 23.

[81] See also Actors’ Equity v Australian Broadcasting Tribunal (1984) 6 ALD 68, 80–81.

[82] Australian Law Reform Commission and Administrative Review Council, Open Government: A Review of the Federal Freedom of Information Act 1982, ALRC 77 (1995), [4.20]–[4.21].

[83] Ibid, Recs 10, 11. The ALRC and ARC did not address whether there was a need for equivalent recommendations in the context of s 92, which protects against criminal prosecution.

[84] Exposure Draft, Freedom of Information Amendment (Reform) Bill 2009 (Cth) sch 4 pt 1 cll 50, 57.

[85] Australian Public Service Commissioner, Annual Report 2007–08 (2008), ‘Review of actions case studies’.

[86] Australian Law Reform Commission, Review of Secrecy Laws, Issues Paper 34 (2008), Questions 7–1 to 7–3.

[87] Ibid, Question 7–2(b).

[88] See, eg, The Treasury, Submission SR 22, 19 February 2009; Australian Taxation Office, Submission SR 13, 16 February 2009; Australian Prudential Regulation Authority, Submission SR 12, 13 February 2009.

[89] Australian Taxation Office, Submission SR 13, 16 February 2009.

[90] Australian Prudential Regulation Authority, Submission SR 12, 13 February 2009.

[91] Australia’s Right to Know, Submission SR 35, 6 March 2009.

[92] See, eg, Media Entertainment & Arts Alliance, Submission SR 39, 10 March 2009.

[93] Public Interest Advocacy Centre Ltd, Submission SR 38, 9 March 2009.

[94] R Fraser, Submission SR 42, 23 March 2009.

[95] Ibid. So, eg, he suggested that the exemptions concerning personal information and business affairs, which already include a number of safeguards for disclosure, are ‘well-adapted to consideration of the kinds of information covered by secrecy provisions that apply to “information relating to the affairs of a person”’.

[96] Ibid.

[97] Ibid.

[98] Attorney-General’s Department, Submission SR 36, 6 March 2009. The Australian Securities and Investments Commission also pointed to the need for clarification within s 38 ‘to make the circumstances of its application more clear’, Australian Securities & Investments Commission, Submission SR 41, 17 March 2009.

[99] Australian Law Reform Commission, Review of Secrecy Laws, Discussion Paper 74 (2009), Proposal
4–3.

[100] Ibid, Proposal 4–1.

[101] Ibid, Proposal 4–2.

[102] Ibid, Proposal 4–3.

[103] Ibid, Proposal 4–4.

[104] See, eg, IP Australia, Submission SR 76, 19 August 2009; The Treasury, Submission SR 60, 10 August 2009; Australian Taxation Office, Submission SR 55, 7 August 2009; Australian Prudential Regulation Authority, Submission SR 52, 6 August 2009. The Australian Intelligence Community did not support the proposal to the extent that it will decrease the protections afforded by s 41 of the Intelligence Services Act 2001 (Cth) and s 92 of the Australian Security Intelligence Organisation Act 1979 (Cth): Australian Intelligence Community, Submission SR 77, 20 August 2009.

[105] Australian Prudential Regulation Authority, Submission SR 52, 6 August 2009. See also IP Australia, which raised concerns about business competitors seeking access to documents: IP Australia, Submission SR 76, 19 August 2009.

[106] Australian Taxation Office, Submission SR 55, 7 August 2009.

[107] Ibid.

[108] The Treasury, Submission SR 60, 10 August 2009.

[109] Ibid.

[110]World Intellectual Property Organisation: Patent Cooperation Treaty, 19 June 1970, (entered into force generally on 1 April 2002).

[111] IP Australia, Submission SR 76, 19 August 2009. Compare submission from Ron Fraser, that s 40(1)(d) of the FOI Act (substantial adverse effect on conduct of operations of an agency) would provide an appropriate exemption in cases that do not fall within other exemptions, such as s 61 of the Designs Act 2003 (Cth) and s 56 of the Patents Act 1990 (Cth): R Fraser, Submission SR 78, 21 August 2009.

[112] Civil Liberties Australia, Submission SR 47, 27 July 2009. See also Liberty Victoria, Submission SR 50, 5 August 2009.

[113] Australia’s Right to Know, Submission SR 72, 17 August 2009. See also R Fraser, Submission SR 78, 21 August 2009; Indigenous Business Australia, Submission SR 64, 13 August 2009. The Non-Custodial Parents Party submitted that FOI provisions should always prevail over secrecy provisions: Non-Custodial Parents Party (Equal Parenting), Submission SR 82, 3 September 2009.

[114] Australia’s Right to Know, Submission SR 72, 17 August 2009.

[115] Indigenous Business Australia, Submission SR 64, 13 August 2009. The Department of Human Services agreed that it was desirable that the relationship between secrecy provisions and the FOI Act be clarified but did not express a view on the appropriate solution: Department of Human Services, Submission SR 83, 8 September 2009.

[116] The ARTK coalition also raised this issue: Australia’s Right to Know, Submission SR 72, 17 August 2009.

[117] Indigenous Business Australia, Submission SR 64, 13 August 2009.

[118] Department of Health and Ageing, Submission SR 81, 28 August 2009.

[119] Social Security Appeals Tribunal, Submission SR 79, 24 August 2009.

[120] Department of Immigration and Citizenship, Submission SR 59, 7 August 2009.

[121] Department of Health and Ageing, Submission SR 81, 28 August 2009; Indigenous Business Australia, Submission SR 64, 13 August 2009; Australian Taxation Office, Submission SR 55, 7 August 2009; Civil Liberties Australia, Submission SR 47, 27 July 2009.

[122] R Fraser, Submission SR 78, 21 August 2009.

[123] Ibid.

[124] Department of Health and Ageing, Submission SR 81, 28 August 2009; Indigenous Business Australia, Submission SR 64, 13 August 2009; Australian Taxation Office, Submission SR 55, 7 August 2009.

[125] R Fraser, Submission SR 78, 21 August 2009.

[126] Australian Taxation Office, Submission SR 55, 7 August 2009.

[127] The Treasury, Submission SR 60, 10 August 2009. DoHA and the IBA also supported this proposal: Department of Health and Ageing, Submission SR 81, 28 August 2009; Indigenous Business Australia, Submission SR 64, 13 August 2009.

[128] Social Security Appeals Tribunal, Submission SR 79, 24 August 2009.

[129] R Fraser, Submission SR 78, 21 August 2009.

[130] Queensland Government, The Right to Information: A Response to the Review of Queensland’s Freedom of Information Act (2008).

[131]Re Actors Equity Association of Australia and Australian Broadcasting Tribunal (No 2) (1985) 7 ALD 584, 594.

[132] See Ch 5.

[133] The protection of Indigenous sacred and sensitive information is discussed in Ch 8.