A new approach
Foremost, in attempting to address these deficiencies the Review has proposed that a whole new approach to the Act is required- from one of 'not disclosing information unless absolutely required, to one of disclosing unless there is a very good reason not to'. This new approach may be viewed as simply one of pro-disclosure. In order to achieve this shift the Review suggests a number of reforms, essentially including, (1) a change in interpretation of the Act, (2) changes to ensure that agency culture is pro disclosure, and (3) making an independent person responsible for monitoring the government's commitment to FOI. This latter suggestion provides the basis for many subsequent reform proposals made by the Review, and should be viewed as one of the most, if not the most important reform proposal made by the Review.
1) Interpreting the Act
The Review suggests that a more 'contextual interpretation' of the Act is needed, as the stated role of the Act - that being of public access rights to official government documents - does not indicate the source of those rights, why they are important or their broader purpose. It argues that to counteract a possible narrower application of the Act's objectives, both a preamble and an amended objects clause are desirable.
As stated by the ALRC :
A preamble
..." The preamble should make clear that access to government information is a right. It should make clear that the FOI Act is intended as a legislative back up to openness in government. It should also acknowledge the privacy aspect of giving individuals a right of access to their own personal information.1 Several things will flow from such a preamble. First, FOI rights will clearly be an integral part of our system of government and will, therefore, be less vulnerable. Second, the way courts, tribunals, parliamentary committees and other decision making bodies regard citizen participation in government through better access to information will change. "
Proposal 3.1: the FOI Act should include a preamble that explains that
" A pro-disclosure interpretation needed. Section 3 of the FOI Act states that the object of the Act is to provide a right of access to government held information. The preamble discussed in the previous paragraph will acknowledge that this right is not an end in itself but an important element in our system of government. The Review considers that this warrants the Act being interpreted in a way that favours disclosure. This does not mean that exemption provisions should not be given their full meaning. Rather, where discretion is required to be exercised, it should be exercised in a way that favours disclosure. This was clearly the intention of Parliament in 1982. Section 3(2) provides that the Act is to be interpreted so as to further the object set out in s 3(1) and that any discretions are to be exercised so as to facilitate and promote the disclosure of information. . . . There appear to be two reasons why a pro-disclosure interpretation of the Act is not always taken: s 3(1) does not indicate why a right of access is important or what broader purpose it serves, and it refers expressly to the exemptions. Accordingly, it is arguable that giving effect to the exemptions is just as much an object of the Act as providing a right of access. There are two main ways to overcome these obstacles. First, the Review's proposal to include a preamble will give interpreters of the Act - agencies and review bodies - a clearer indication of the broader purpose of the Act.2 To ensure that they take the preamble into account, s 3 should refer to it. Second, the exemptions should not be referred to in s 3(1). They deserve to be mentioned, if only to alert applicants to the reality that the access rights provided by the Act are not absolute, but not in a way that enables s 3(2) to be rendered ineffective.
Proposal 3.2: s 3 should be reworded as follows:
(1) The objects of this Act are
(a) to make available to the public information about the operations of departments and public authorities and, in particular, to ensure that rules and practices affecting members of the public in their dealings with departments and public authorities are readily available to persons affected by them
(b) to give the Australian community a right of access to information held by the Commonwealth
(c) to give individuals a right of access to personal information about themselves held by the Commonwealth and a right to bring about the amendment of that information if it is incomplete, incorrect, out of date, irrelevant or misleading.3
(2) The rights of access given by this Act are limited by specified exceptions and exemptions necessary for the protection of essential public interests and the private and competitive commercial activities of persons in respect of whom information is collected and held by departments and public authorities.
(3) The provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and the purposes set out in the preamble and any discretion conferred by this Act (for example, in interpreting the exemption provisions) shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.
1. See further at para 3.5.
2. The Acts Interpretation Act 1901 (Cth) s 15AA requires a construction of a provision of an Act that promotes the purpose or object underlying the Act to be favoured over a construction that would not.
3. See para 8.6.
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