On the whole, with some notable exceptions (including Cabinet documents, the rejection of the Information Commissioner model and the retention of the AAT as the external determinative review body) the Review has dragged the Commonwealth FOI Act up to current best practice level in Australia. In only one or two areas the Review probably has set new standards (a public interest test for legal professional privilege is one).
The Review has managed to pinpoint many of the problems with current access laws and presented many workable solutions. Paragraphs 3.11-3.26 represent an interesting, and in the context of Australian FOI experience, the first real serious attempt to present solutions to the problems raised over the years by various editors and writers in the FOI Review,, the NSW Ombudsman and the Canadian Information Commissioner. At the end of the day the solution of an independent monitor in preference to, rather than in addition to, an Information Commissioner is disappointing but understandable.
The embracing of an Information Commissioner would cause temporary, and only minor dislocation and disruption to the operations of the AAT (given the minor case load)1. The transfer of determinative functions, case load and prestige from the AAT to a new institution would be strongly resisted by many.
Most of the functions and activities assigned to a new independent monitor would fit perfectly well with a Information Commissioner namely,
The Queensland and Western Australian experience demonstrate that the Information Commissioner can operate as an external determinative review agency in a manner that furthers the objects of the legislation and at a standard far exceeding that reached by the AAT (or likely to be reached even with recent changes). The former NSW Ombudsman has made a very convincing case in favour of the Information Commissioner Approach.2
The collection and analysis of statistics, promotion and direct performance monitoring could be undertaken by an Information Commissioner or by an Independent Monitoring body. The key appeal in the Independent Monitor concept is that it addresses a major deficiency in FOI operation. Namely that it is largely self regulating and relies on agencies or governments to promote a device which can cause them inconvenience, bad publicity or threaten possible loss of office etc.
An Independent Monitoring Agency could champion the FOI Act, promote its use by all users (not just personal information seekers) and have a role to play in "auditing" or quality control checking the way various agencies administer their FOI operations. However the Information Commissioner of Canada is an example of how the Information Commissioner model can perform "auditing tasks (see Attachment 1).
The Review is to be commended but also urged to build upon a strong base of reform contained in Discussion Paper 59. The Review needs to contemplate the concern expressed by the Canadian Information Commissioner in his 1994-1995 Annual Report:
The dreary problems and frustrations faced today by many a seeker of government information will not be swept away by mere cleverness and the ingenuity of wondrous new machines. No, the key to opening up government is not better applied science; it is somehow changing the encrusted, timorous old attitudes which see openness as a threat, not an opportunity for both citizens and governments.
The Review is now in a position to formulate a Freedom of Information Act that can set the standard for the rest of Australia. With the possible advent of FOI in Ireland and South Africa it would be disappointing if the Review misses the opportunity to keep Australian FOI at the forefront of world best practice.
2. NSW Ombudsman, Freedom of Information: The Way Ahead, 6-7.
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