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History of the FOI Act

The text below contains an extract from: "Annual Report on the Operation of the Freedom of Information Act 1982 for the period 1 December 1982 to 30 June 1983" (Canberra, AGPS, 1983)

First Annual Report - Foreword

Effective freedom of information (FOI) legislation in Australia has been a long time coming. The Freedom of Information Act 1982 had its origins in a 1972 election policy commitment of the Australian Labor Party. Until that time,  FOI had scarcely been part of the academic's prescription for administrative reform, let alone part of the political agenda. It is a matter of regret that the relative brevity of the  Whitlam government's term of office did not allow the policy commitment to crystallize into legislation.

Subsequently, however, the concept of FOI legislation was also adopted by the Federal Liberal Party and in due course the first FOI Bill in Australia was introduced by the Fraser Government in 1978. The 1978 Bill was exhaustively reviewed by the Senate Standing Committee on Constitutional and Legal Affairs whose 1979 Report resulted in the significantly reshaped legislation which ultimately became the FOI Act 1982.

The FOI Act came into force on 1 December 1982. This is the first Annual Report on the operation of the Act, prepared in compliance with section 93 of the Act, and it deals with the first 7 months operation of the Act to 30 June 1983. Having been personally associated for some time with the campaign for effective freedom of information legislation, and having had the opportunity as a member of the Senate Committee to explore in depth the scope and limits of the concept of freedom of information, it gives me particular pleasure to present this report to the Parliament.

The basic purposes of FOI legislation, and the benefits which it is intended to confer upon the relationship between citizens and government are as follows:

• to improve the quality of decision-making by government agencies in both policy and administrative matters by removing unnecessary secrecy surrounding the decision-making process;
• to enable groups and individuals to be kept informed of the functioning of the decision-making process as it affects them and to know the kinds of criteria that will be applied by government agencies in making those decisions;
• to develop further the quality of political democracy by giving the opportunity to all Australians to participate fully in the political process;
• to enable individuals, except in very limited and exceptional circumstances, to have access to information about them held on government files, so that they may know the basis on which decisions that can fundamentally affect their lives are made and may have the opportunity of correcting information that is untrue or misleading.

Whatever the shortcomings of the 1982 Act - and the  FOI Amendment Act 1983 is designed to correct many of them - it was path breaking legislation. The commencement of the Act marked a fundamental change in the law relating to access to official information in the possession of Commonwealth ministers and agencies. That change has two important dimensions. The Act:

• gives members of the public a legally enforceable right of access to official information in documentary form held by ministers and agencies, except where an essential public interest requires confidentiality to be maintained; and
• requires information about the operations of Commonwealth agencies to be made publicly available, particularly rules and practices affecting members of the public in their dealings with those agencies.

The basic concept and objectives of  FOI have now been accepted by all major political parties at the Federal level. There remain, however, differences of opinion as to just how far FOI legislation should go in opening up government information to public scrutiny. The reservations expressed about the scope of  FOI have been principally of two kinds - first that the resource costs of   FOI would outweigh the likely benefits, and secondly that FOI in practice runs counter to the Westminster system of responsible government as it operates in Australia. Those reservations have not only been expressed at the political level but have also been, as is well-known, strongly held within important sections of the Australian Public Service.

Although the  FOI Act has now been in operation for a comparatively short period, my own firm view is that the prophesies of doom have not been, and will not be, fulfilled. The exhaustive review process which has preceded the preparation of this report has not turned up any evidence which would suggest that the operation of the FOI Act has had a detrimental effect on our system of Government. Most departments and authorities appear to have responded well to the major changes in procedure and attitude required of them.

The resource implications have been far less serious than was forecast:

• the number of requests for access to documents under the Act has been a fraction of the numbers feared by some departments and authorities when the Bill was before the Senate Committee. Similarly, the fear of a substantial volume of review litigation in the Administrative Appeals Tribunal has not been realized;
• most of the requests have been for documents relating to the personal affairs of the applicant and have been made to the large client-oriented agencies such as the Department of Social Security, the Commissioner of Taxation and the Department of Veterans' Affairs;
• most requests have been dealt with well within the 60 day time limit even though many departments and authorities are still in the learning stage of handling requests.

The fact that less use is being made of the Act than was anticipated suggests that public awareness of the rights created and benefits conferred by the Act is not as great as it should be. It is somewhat less likely but nevertheless possible that those rights are perceived by the public to be overly restricted and therefore not worth pursuing. To date there has been some government publicity, in the form of seminars and brochures, but priority has inevitably been given to ensuring that the Public Service itself was equipped to meet its obligations. The time has now come to give greater priority to increasing public awareness of the Act and to improving its effectiveness.

The Hawke Labor Government was elected on 5 March 1983 with a firm commitment to broadening the rights of citizens under the FOI Act, as part of a policy to implement fully the principles of open government. The starting point for the reform of the FOI  legislation was the 1979 Report of the Senate Committee.

On 2 June 1983 I introduced into the Senate the Freedom of Information Amendment Bill 1983. The main changes effected by the Bill, as amended by Parliament and passed by it on 20 October 1983 are:

• a substantial expansion of the scope of the legislation will be achieved by an amendment allowing the public a greater right of access to 'prior documents';
• the special Document Review Tribunal is to be abolished and its functions transferred to the Administrative Appeals Tribunal (AAT);
• where a minister does not adopt the AAT's recommendations in relation to conclusive certificates, he or she will be required to table in the Parliament a statement of reasons for his or her decision not to accept the recommendations;
• an overriding public interest test in favour of disclosure of information will be introduced for several important categories of exemption;
• there is to be a progressive reduction in time to comply with requests from the present 60 days to 30 days by 1 December 1986;
• the Ombudsman will be given an enhanced role including the power, in appropriate cases, to represent applicants before the AAT in  FOI matters.

When the 1983 Amendment Bill comes into force it will complete the first phase of the introduction of F0I legislation in Australia. All Australians will then have a statutory right of access to most government-held material which affects them, whether as members of the Australian community, as members of particular interest groups or as individuals. The next phase will be to ensure that Australians become fully aware of these rights, and are able to exercise them as straightforwardly and cheaply as possible.

In December 1985 the Senate Committee will embark on a review of the operation of the Act over the first 3 years. This report and those which will succeed it in 1984 and 1985 should provide invaluable information and analysis to assist the Committee in its work. I take this opportunity to commend the officers of my Department who prepared this report: their care and thoroughness which characterizes the report has similarly enhanced the administration of  the FOI legislation since its inception. I hope that this report will be read with interest by all who have a concern for the development of open government in Australia.

GARETH EVANS
Canberra
5 December 1983

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The Philospohy of Fredom of Information - a Key

Element of the 'New Administrative Law'

1.1 Advent of the Freedom of Information Act 1982

1.1.1. The Freedom of Information Act 1982 ('FOI Act') commenced operation in Australia on 1 December 1982 after  a gestation period spanning more than a decade. During that period the merits of  FOI legislation were discussed in the community at large, considered by a royal commission, two public service committees and a committee of the Parliament. Bills for an  FOI Act were debated at length by two successive Parliaments. That debate frequently crossed party lines. The  FOI Act in its final form incorporates many amendments made in the course of parliamentary debate. For a single legislative proposal to undergo such extensive processes of preparation, debate, criticism and modification was unusual indeed.

1.1.2. The FOI Act is the first national legislation of its kind to be introduced in a Westminster type system.  Its advent marks a major step towards open government in Australia. The FOI Act:

• establishes for the Australian community a legally enforceable right of access to information held by Commonwealth ministers and government agencies, except where an essential public interest or the private or business affairs of persons may require confidentiality to be maintained
• gives Australian citizens and permanent residents the right to request amendment of government-held records  relating to their personal affairs that are incomplete, incorrect, out of date, or misleading
• requires agencies to publish information about their organization and functions and the types of documents they hold and to make available manuals, rules, guidelines and precedents used in making internal decisions affecting the public.

The Act is not a code of access to information and does not prevent or discourage the giving of access - it sets a minimum not a maximum standard.

1.1.3. Because of the new ground broken by the FOI Act, the level of public interest in it and the fact that this is the first annual report on its operation, the opening two chapters are devoted to the origins of the Act. This Chapter looks at the broad principles and basic premises on which the case for open government was built and examines how events and circumstances over the last decade gave rise to progressively increasing access to information and documents held by governments. The second Chapter traces the history of FOI legislation proposals in Australia to explain how the Act came to be passed in its present form. Later chapters go on to deal with implementation and co-ordination arrangements (Chapter 3), use of the legislation (Chapter 4),use of exemptions (Chapter 5), impact of the Act (Chapter 6) and future directions (Chapter 7).

1.2 Philosophic issues

1.2.1. The philosophy underlying the legislation is that:

• when government is more open to public scrutiny it becomes more accountable
• if people are adequately informed and have access to information, there is likely to be more public participation in the policy-making process and in government itself
• groups and individuals who are affected by government decisions should know the criteria applied in making those decisions
• every individual has a right:

  - to know what information is held in government records about him or her personally subject to certain exemptions to protect essential public interests

  - to inspect files held about or relating to him or her

  - to have inaccurate material on file corrected.

The Senate Standing Committee on Constitutional and Legal Affairs ('Senate Committee') examined the background and operation of these principles in its 1979 report on the Freedom of Information Bill 1978 ('Senate Committee Report').

1.2.2. Against a background of governments having an increasingly greater impact on the lives of individuals, groups and corporations, the inadequacy of traditional forms of accountability has now been widely recognised in Australia. At the Federal level, all major political parties agree that members of our community must have adequate access to information in order to make valid judgments about government policy and to exercise effectively their choice as to who should govern them. The Senate Committee said:

'The essence of democratic government lies in the ability of people to make choices: about who shall govern; or about which policies they support or reject. Such choices cannot be properly made unless adequate information is available. It cannot be accepted that it is the Government itself which should determine what level of information is to be regarded as adequate.'

1.2.3. The greater the extent of open government, the more effective is the opportunity for participation by individuals, groups and the community generally in important political decisions before they are made and for public understanding and acceptance of decisions after they have been taken. Public debate on issues and policies and substantial community participation in the processes of policy-making and government itself, establish essential dialogue between government and those affected by its decisions.

1.2.4. Since activities of modern governments so closely affect the lives of individuals in fields such as social security, repatriation, health, immigration and citizenship, it is also important that people should have access to information concerning them held in government records. It follows that people should be entitled to inspect government-held documents relating to them and to have those documents corrected if they are inaccurate. False or misleading information about individuals can have serious effects on their lives and should be subject to prompt amendment at the instance of the person affected.

1.2.5. An FOI statute should enable members of the public to exercise their rights effectively and to know what their obligations are. The internal rules, policies and guidelines of departments and agencies which affect, in important ways, the outcome of discretionary decisions made under legislative and administrative schemes should be readily available. Examples are manuals and guidelines concerning social security and repatriation benefits, legal aid and housing grants.

1.2.6. FOI legislation ensures greater accountability of public servants to their ministers and to the public. But if it is to be soundly based, such legislation must achieve a proper balance between, on the one hand, the rights of members of the communit y to obtain access to information and, on the other, the need for confidentiality in the innermost workings of government and the need to protect essential public and private interests. Where that balance should lie is the issue which has attracted most of the debate on FOI legislation.

1.2.7. Proposals for FOI legislation in Australia initially raised fears that it would be incompatible with a number of features of our system of government and create excessive pressures on public resources. The Senate Committee identified these features as:

• collective ministerial responsibility ('Cabinet solidarity') which was said to require all ministers to consider them selves equally responsible for and bound by the decisions of the executive government
• individual ministerial responsibility, which was said to hold each minister personally responsible for all decisions made and carried out by his or her department
• a politically neutral public service in no way involved in partisan controversies, which was said to be able to serve any government with an equal degree of loyalty and efficiency regardless of the government's political persuasion
• personal anonymity of members of the public service (as far as possible), so that particular views are neither ascribed to individual public servants or seen to be at variance with the views ultimately expressed by the executive government.

1.2.8. After carefully examining the arguments advanced by those raising fears about the impact of FOI legislation on our system of government, the Senate Committee concluded:

'We value the Westminster system of government; we do not seek to change it; nor do we believe effective freedom of information legislation would change it. A great deal of the talk about the Westminster system and how it would be altered by freedom of information legislation has been obscure and misleading. To a great extent the term 'Westminster system' has been used as a smoke - screen behind which to hide, and with which to cover up existing practices of unnecessary secrecy. Very often people have alleged that the Westminster system is under attack by freedom of information legislation when what is actually under attack is their own traditional and convenient way of doing things, immune from public gaze and scrutiny. We are indeed seeking to put an end to that. What matters is not the convenience of ministers or public servants, but what contributes to better government. The only feature of the Westminster system which cannot be in any way modified without fundamentally subverting that system is the need to ensure that members of the Executive Government are part of, and drawn from, the Legislature. Freedom of information legislation does not alter this one iota. The other features of the Westminster system which we have identified will either not be significantly changed by our freedom of information proposals or else will, we believe, be changed for the better.

1.2.9. Excessive secrecy in matters of government has its roots in the English tradition (established at the time when royal officials were subordinate to the person of the monarch) that official information was the property of the Crown which the Crown could disclose or withhold at will.

1.2.10. Over time, secrecy in official decision-making extended to the detail of government administration. As government activities and institutions grew in size and complexity the concepts applied in earlier ages to the conduct of great affairs of State came to be applied to abroad range of the administrative acts carried out today by modern governments. Judicial attitudes to secrecy were reflected in observations such as:

'To set up any rule that [the challenged] decision must on demand, and as matter of right, be accompanied by a disclosure of what went before, so that it may be weakened or strengthened or judged thereby, would be inconsistent, as I say, the efficiency, with practice, and with the true theory of complete parliamentary responsibility for departmental action' 1

and more directly -

'The counsels of the Crown are secret and an inquiry into the grounds upon which the advice tendered proceeds may not be made for the purpose of invalidating the act formally done in the name of the Crown . . . '

It was not until recently that this tradition of official secrecy came to be questioned and challenged at the popular and political levels.

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1.3 J udicial developments towards more open government

1.3.1. In the last 20 years in Australia and elsewhere there has been a significant trend in judicial decisions towards greater access to official information and more open government. One important aspect of this trend has been the re-emergence and substantial development of the concept of natural justice and, in particular, of the right of a person whose rights or legitimate expectations are in issue to know the case against him or her.

1.3.2. Another aspect of the same trend has been the change in attitude of the courts to what used to be known as 'Crown privilege'. Decisions such as  Conway  v. Rimmer 1 and  Sankey v. Whitlam  have established that it is the duty of the court and not the privilege of executive government to decide whether a Crown document will be produced or withheld in court proceedings. The test is whether the public interest i n the administration of justice outweighs any public interest in with holding the documents. The emphasis has shifted from the privilege of the Crown to a privilege from disclosure based on the public interest involved.

1.3.3. At issue in Sankey v Whitlam was whether Crown privilege protected certain Cabinet documents, Executive Council documents, documents recording the deliberations of Cabinet ministers, the advice given by heads of Commonwealth departments, Loan Council documents and various inter-departmental and inter-ministerial documents from production in criminal proceedings. The documents were, in the main, concerned with the very highest levels of executive government. The High Court held that only the Loan Council documents were privileged and then only privileged in part. It ordered all documents to be produced including parts of the Loan Council documents.

1.3.4. Commonwealth v John Fairfax & Sons Ltd & Ors was the first major Australian case seeking the prevention of publication of sensitive government documents relating to Australia's national security and foreign policy. The Commonwealth succeeded on the grounds that publication would be an infringement of copyright, but failed on an alternate ground that publication would constitute a disclosure of confidential information contrary to the public interest. The High Court said:

'But it can scarcely be a relevant detriment to the government that publication of material concerning its actions will merely expose it to public discussion and criticism. It is unacceptable in our democratic society that there should be are restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticize government action. ' 1

and

'If, however, it appears that disclosure will be inimical to the public interest because national security, relations with foreign countries or the ordinary business of government will be prejudiced, disclosure will be restrained. There will be cases in which the conflicting considerations will be finely balanced, where it is difficult to decide whether the public's interest in knowing and in expressing its opinion, outweighs the need to protect confidentiality.'

1.3.5. The Court found that the contents of some of the documents in issue could, if published, embarrass Australia's relations with other countries and consequently affect their willingness to make available defence and diplomatic information on a confidential basis. However, it was not persuaded that the degree of potential embarrassment to Australia's foreign relations was enough to justify the Court preventing publication.

1.3.6. Although the extent of the protection the courts have been willing to give to maintaining candid advice appears to have diminished the issue is still very much alive. It is interesting to note in this context the comments of the Governor-General, Sir Ninian Stephen, in an address to a seminar on FOI delivered on 27 May 1983, 5 years after his judgment as a member of the Court in Sankey v Whitlam:

'This is not, for a moment, to deny the virtue of open government but only to suggest that there may be limits to frankness which our own earthy natures impose and beyond which we go at our peril.

'Perhaps an instance of this occurs in the case of what used to be a proper consideration when Crown privilege was claimed for classes of documents. It was said that if Crown privilege did not apply to certain classes of documents public servants would not feel free to express candidly their views, particularly their advice to Ministers. In Sankey v. Whitlam I rejected this consideration, sharing Lord Radcliffe's view that Crown servants were, or perhaps should be encouraged to be, "Made of sterner stuff". I am now not sure whether that was not to some extent a perfectionist view, perhaps not according sufficient weight to human failings.1

1.3.7. It can no longer be expected that immunity from production of a document in legal proceedings will be granted merely because it is a Cabinet minute, or contains a high level communication between a minister and his or her senior advisors. It must be shown that to disclose the documents in question in the course of the particular judicial proceedings will be contrary to the balance of the public interest.

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1.4   Political and administrative changes towards open government in Australia

1.4.1. Changes in judicial attitudes have been paralleled by changes in administrative practices. Developments have included:

• extensive and detailed use by parliamentarians of questions on notice to elicit information
• an expansion of the role of parliamentary committees (including standing committees, select committees and estimates committees)
• the regular appearance of senior public servants before these committees where quite free exchanges of opinion and information occur
• wide-ranging royal commissions and committees of inquiry
• publication of annual reports by departments and statutory authorities
• public release of reports by a range of advisory bodies such as the Industries Assistance Commission
• the repeal in 1974 of Regulation 34(b) of the Public Service Regulations (the statutory restriction on public comment by public servants on any administrative action or the administration of any department)
• canvassing in the press, Parliament and elsewhere of the views of senior public servants
• greater participation of public servants in public affairs e.g. public addresses and regular dealings with representatives of industry and interest groups
• alterations to decision-making processes e.g. environmental impact statement procedure, regular public hearings by the Australian Broadcasting Tribunal
• the tabling in Parliament of official documents (e.g., the tabling, on 22 September 1982, of documents revealing exchanges between the Commissioner of Taxation and the Treasurer and between ministers on taxation policy. )

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1.5. Reforms in other areas of administrative law

1.5.1. The most substantial changes have come through statutory reforms in Commonwealth administrative law, an important aim of which has been to draw back the veil of official secrecy in administrative decision-making. This has been achieved by new provisions requiring reasons for decisions and by making decisions more open to review.

1.5.2. At common law, the means of review available to a citizen aggrieved by an administrative decision were generally technical, cumbersome and costly. In many cases there was no opportunity at all for review on the merits. There was an obvious need for more effective and accessible forms of redress and review. Three Commonwealth Acts, the Administrative Appeals Tribunal Act 1975 , the Ombudsman Act 1976 and the Administrative Decisions (Judicial Review) Act 1977 have provided new mechanisms of redress and review of Commonwealth administrative action. Together they are referred to as 'the new Commonwealth administrative law'.

1.5.3. The Administrative Appeals Tribunal Act 1975 established a new high level independent tribunal, the Administrative Appeals Tribunal ('AAT"), with jurisdiction to review on the merits a wide range of decisions made by ministers, public servants, statutory authorities and various tribunals. Jurisdiction is conferred on the AAT by over 140 Commonwealth Acts and regulations. This jurisdiction is being continually expanded.

1.5.4. Under the Administrative Decisions (Judicial Review). Act 1977 the lawfulness of Commonwealth administrative decisions may be reviewed by a new and simple procedure in the Federal Court of Australia.

1.5.5. The Administrative Appeals Tribunal Act 1975 and the Administrative Decisions (Judicial Review) Act 1977 both contain provisions enabling those who are entitled to seek a review of an administrative decision under those Acts to obtain a written statement setting out the reasons for the decision.

1.5.6. A more informal avenue of complaint is to the Commonwealth Ombudsman established by the Ombudsman Act 1976. He has wide powers to investigate administrative acts and recommend remedial action, including the power to report to the Prime Minister and the Parliament.

1.5.7. Taken together, the Administrative Appeals Tribunal Act 1975 , the Ombudsman Act 1976 and the Administrative Decisions (Judicial Review) Act 1977 have substantially advanced Australia's progress towards open government by creating rights to reasons for decisions and establishing more effective mechanisms for the review of administrative action.

1.5.8. The Freedom of Information Act 1982 is a key element in this package. By providing a general right of access to documents on the basis that:

• the right of the Australian community to information in the possession of the Commonwealth Government should be extended as far as possible
• the Government must justify withholding access rather than the applicant justify his or her case for access
• there should be provision for a review of decisions to withhold access and a mechanism for amendment of government-held personal records,

the Act makes its own substantial contribution to the further evolution of open government in Australia.

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History of the Freedom of Information Act 1982

2.1 Introduction

2.1.1. Chapter 1 looked at the principles and basic premises of FOI. This Chapter outlines the history of proposals for FOI legislation in Australia culminating in the Freedom of Information Act 1982 and the Freedom of Information Amendment Bill 1983.

2.1.2. The first political commitment to enact FOI legislation in Australia was made during the 1972 election-campaign by the then Opposition Leader, Mr E.G. Whitlam, Q.C., M.P.. In his policy speech he stated:

'A Labor Government will introduce a Freedom of Information Act along the lines of the United States legislation. This Act will make mandatory the publication of certain kinds of information and establish the general principle that everything must be released unless it falls within certain clearly defined exemptions. Every Australian citizen will have a statutory right to take legal action to challenge the withholding of public information by the Government or its agencies.

2.1.3. The United States Freedom of Information Act 1966 had commenced operation on Independence Day 1967. The scheme of the Act was that :

• Congress specified that access be given to all documents other than those falling within certain classes where on grounds of public policy there should be no right of access
• the final decision as to whether a particular document fell in one or more of the exempt classes was left to the courts
• the agency concerned had the final power to decide whether access would be given to a document in an exempt class.

The Act contained 9 categories of exempt documents, namely:

• those specifically authorised under criteria established by an Executive order to be kept secret in the interest of national defence or foreign policy and which are In fact properly classified pursuant to such Executive order
• those related solely to the internal personnel rules and practices of an agency
• those specifically exempted from disclosure by statute
• trade secrets and commercial or financial information obtained from a person which is privileged or confidential
• inter-agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency
• personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy
• certain investigatory records compiled for law enforcement purposes
• certain documents prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions
• geological and geophysical information and data, including maps, concerning wells.

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2.2 First Interdepartmental committee (1973-1974)

2.2.1. Following the election of a Labor Government at the December 1972 general election, the then Attorney-General, Senator the Hon. Lionel Murphy, Q.C., (now Mr Justice Murphy) announced on 10 January 1973 that the Government had decided to take action to ensure that undue secrecy in public affairs should be avoided and that a proper flow of information should be achieved. He said that the legislation would be along the lines of the system in operation in the United States of America under the Freedom of Information Act. However, modifications would be required to adapt the American system to the Australian constitutional and administrative structure. An interdepartmental committee ('IDC') was established to identify the modifications required and any important issues involved in adapting the United States legislation to Australian circumstances.

2.2.2. The report of the IDC was completed in September 1974 and tabled in Parliament on 5 December 1974 ('1974 Report').   The principal recommendations were that the scheme of the United States Act be modified:

• to ensure confidentiality of Cabinet discussions and of consultations between ministers
• to maintain the authority of ministers over departments for which they are responsible.

These two features of Cabinet government and ministerial responsibility distinguish the Australian constitutional and administrative structure from that of the United States and, together with the issue of resource costs of FOI, have pervaded all subsequent debate on the development of FOI legislation in Australia.

2.2.3. The legislation proposed by the IDC was based upon the fundamental proposition that a person has an enforceable right of access to an official document without showing special interest or need. However, the IOC considered that the realities of ministerial responsibility and the need for confidentiality in some areas of Government operations required that certain categories of documents should be specifically exempted by statute from the requirement of disclosure. These were:

• documents conclusively certified by a minister to be excluded from the Act (national security, defence, foreign or Commonwealth/State relations, and information received In confidence from foreign governments). In the case of Cabinet documents, the IDC favoured conclusive certificates, but left the question open for further consideration
• documents the disclosure of which is prohibited by statute
• documents containing matter in the nature of opinions, advice or recommendations and other material reflecting deliberative or policy-making processes
• drafts of documents and documents not brought into the final form for which they were prepared
• documents the disclosure of which would be reasonably likely to have a substantial adverse effect on

  - the financial, property or personnel management interest or operations of a department

  - the position of a department in negotiations or in legal proceedings

  - the suppression of criminal activities and the enforcement of the law

• documents the disclosure of which would

  - constitute an unreasonable invasion of personal privacy

  - reveal trade secrets or other commercial or financial information that would expose a commercial or financial enterprise unreasonably to disadvantage

  - otherwise constitute a breach of confidence by revealing material obtained in confidence.

In respect of exempt documents other than those the subject of conclusive certificates, the IDC recommended that an appeal lie to the then proposed AAT on the question of whether the document is exempt.

2.2.4. Where a document was within an exempt category the IDC felt that the document could, as a matter of discretion, be released by the minister or authorized officer, unless the document was required by law to be kept secret.

2.2.5. There was little public comment on the 1974 Report and the Government received only 7 submissions on the proposals. These were from 1 trade union and 1 trade union peak council, 3 public interest groups, a minor political party and an individual. While tending to favour the idea of FOI legislation they also raised a number of criticisms of the Report, including:

• its brevity and its failure to discuss important procedural amendments made to the United States Act in 1974
• the proposed legislation was prospective only and gave no right of access to 'prior documents' 1
• ministerial discretion to withhold certain classes of documents would not be reviewable
• the exemption of Cabinet documents was too wide and the internal working document exemption undesirable
• publication of departmental manuals and the like should be required.

No action was taken on the 1974 Report prior to the1975 general election.

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2.3 Second interdepartmental committee (1976)

2.3.1. Following the election of the Liberal-National Country Party Government in December 1975, the then Prime Minister, the Hon. J.M. Fraser, M.P., established a further inter-departmental committee ('1976 IDC') to study and report to the Attorney-General on policy proposals for FOI legislation, taking into account, among other things, the 1974 Report and the implications of amendments to the United States FOI Act made in 1974 but not dealt with in the 1974 Report. The Prime Minister explained the new Government's support for FOI legislation at an address to mark the 50th anniversary of  'The Canberra Times' on 22 September 1976:

'If the Australian electorate is to be able to make valid judgments on government policy it should have the greatest access to information possible. How can any community progress without continuing an informed and intelligent debate? How can there be debate without information?' 1

2.3.2. The report by the 1976 IDC ('1976 Report'), was tabled in Parliament on 9 December 1976. The1976 Report became the basis for the Freedom of Information Bill 1978 (see para 2.5 below). Its proposals substantially developed the cryptic outline of legislative proposals contained in the 1974 Report. They were based on the same principle that a person should have a legally enforceable right of access to any identifiable document in the possession of a department unless the document was in an exempt category.

2.3.3. The 1976 Report took a much stronger stand than that taken in the 1974 Report on the issue of conclusive certificates and the range of matters to be covered by them. It concluded that no public access should be given to the proceedings of Cabinet or to the advice and consultation between a minister and his or her department. Further, ministers and not courts or independent tribunals were to have final responsibility for determining whether release of a document would be prejudicial to national security, defence, international relations or Commonwealth/State relations.

2.3.4. The main differences in detail between the1976 IDC proposals and the 1974 IDC proposals were:

• a new exemption for documents the disclosure of which would otherwise be in contempt of court or infringe Parliamentary privilege
• the exemption for investigatory records compiled for law enforcement purposes was more specifically and comprehensively defined
• a new exemption in respect of documents the disclosure of which would be reasonably likely to have a substantial adverse effect on the public interest in the efficient and economical operations of a department
• the Attorney General was to be able to certify that a document should be withheld on a ground of public interest such as would support a claim of crown privilege for the document in judicial proceedings (review was to lie to the AAT on the question of whether the particular document might be made available without damage to the public interest)
• deferral of access was to be permitted where deferral was in the public interest or reasonably necessary to permit normal administrative action or action required by statute before access was granted (appeal was to lie to the AAT)
• where it was reasonably practicable to delete or excise exempt matter, a copy of the document with the exempt material excised was to be made available (appeal was to lie to the AAT)
• departments were to be authorised to impose charges on the basis of direct cost of search and, where appropriate, copying. Charges were to be prescribed by regulation. No charge was to be made where a request was not met (AAT to have jurisdiction to review questions relating to charges)
• time limits on the access decision were not to be fixed for the present on the basis that powers given to the ombudsman under the ombudsman Act 1976 should be adequate to prevent undue delay
• departments were to be required to make available to the public

  - interpretations of statutory provisions administered by a department and used in deciding questions of rights, privileges, benefits or obligations under those provisions

  - staff manuals and other rules of procedure used to guide officials in carrying out their duties

  - written decisions given in the exercise of a statutory discretion or other adjudicative functions where these have general application to future cases.

2.3.5. The 1976 Report also addressed the questions of cost of administration and impact on departmental resources, in an attempt to avoid some of the administrative dislocations that had occurred in some United States agencies. These issues had not been addressed in the 1974 Report. The 1976 IDC identified a number of types of costs that would be incurred under an FOI scheme but produced no quantitative predictions. These anticipated costs were:

• re-organization costs - new procedures for handling requests, staff training, publication of departmental manuals, initial publicity on how to make requests
• recurrent costs each time a document is requested search time, ascertaining whether an exemption should be claimed, whether exempt portions could be deleted, cost of actually making documents available, provision and maintenance of facilities for inspection and salary costs of decision-makers, especially as refusal would be likely to be made at a senior level, costs of providing advice to agencies, staff training programs.

2.3.6. The IDC found it impossible to predict the likely workload. It saw it as depending on factors such as the amount of publicity given, topical issues of the day and the type and complexity of requests. It considered that total costs would have to recognise that many requests for documents will be met in the future, as in the past, with or without a legislative scheme and so only those costs that arose from the additional volume of requests would be relevant. The 1976 IDC proposals sought to avoid some of the most expensive and administratively burdensome features of the United States FOI Act by not recommending the introduction of specific time limits and making less onerous proposals for publication of departmental rules.

2.3.7. As with the 1974 Report, only a few submissions on the 1976 Report were received, in this case from organizations such as the Associated Chambers of Manufacturers of Australia, the Council of Australian Government Employee Organizations and a number of FOI legislation lobby groups. However, the Report appeared to generate much more press and public Interest. The Report was criticized for proposing legislation that would unnecessarily restrict the public right of access to documents. It was seen as weighted unduly in favour of administrative convenience. Other critics felt it failed to articulate the reasons why FOI legislation was necessary.

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2.4 Royal Commission on Australian Government Administration

2.4.1. Concurrently with debate on the 1974 Report and the preparation of the 1976 Report, the Royal Commission on Australian Government Administration examined, amongst others matters, aspects of the availability of government information. Its Report tabled in Parliament on 18 August 1976 included a Minority Report of Commissioner Paul Munro containing a draft FOI bill and explanatory memorandum.  The Commission itself felt it was inappropriate either to endorse or to recommend a specific draft bill. However, it did urge greater openness and freedom of access to information about governmental processes, and agreed that legislation could well contribute to those objectives. The draft bill supported by Commissioner Munro went much further than either of the IDC reports in requirin g agencies to respond to public requests for  information.

2.4.2. The main distinguishing features of the Minority Report Bill can be summarised as:

• narrow exemptions, some of which listed criteria favouring disclosure that must be considered by an agency
• none of the exemptions were conclusive the AAT was to have a general power to order that any exempt document should be released in the public interest 
• a general Index of available documents to be prepared by each agency
• requests to be answered within 10 working days, and charges to be regulated by criteria in the Act
• a wide range of powers to be conferred on the AAT, e.g. to award costs against the Government or decide that no charge be levied for a document decided on review not to be exempt.

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2.5 Freedom of Information Bill 1978

2.5.1. On 9 June 1978 the Freedom of Information Bill 1978 was introduced into the Senate by the then Attorney-General, Senator the Hon. P.D. Durack, Q.C., with the following remarks:

'The Freedom of Information Bill represents a major initiative by the Government in its program of administrative law reform. It is, in many respects, a unique initiative. Although a number of countries have freedom of information legislation, this is the first occasion on which a Westminster-style government has brought forward such a measure. This Bill, together with the Archives Bill, which is the responsibility of my colleague the minister for Home Affairs ..., will establish for members of the public legally enforceable rights of access to information in documentary form held by Ministers and Government agencies except where an overriding interest may require confidentiality to be maintained.

2.5.2. The Bill was substantially based on the proposals of the 1976 IDC. The Bill applied to all Commonwealth departments and agencies but not to Parliament or the courts. Agencies could be excluded from the Bill by regulation, either entirely or as to certain functions and a regulation so made would be subject to disallowance by either House of the Parliament.

2.5.3. A minister who had a document in his or her possession relating to the affairs of an agency was required to allow access to that document unless the document was exempt or contained matter not relating to the affairs of an agency. However, the legislation did not apply to documents relating to party matters or to a minister in his or her capacity as a member of Parliament.

2.5.4. The Bill exempted the following categories of documents from production:

• documents conclusively certified as exempt by a minister or an official responsible to the minister (documents affecting national security, defence, international relations and relations with the States, Cabinet documents, Executive Council documents and internal working documents)
• documents affecting enforcement or administration of the law
• documents to which secrecy provisions of other legislation applied
• documents the disclosure of which would have a substantial adverse affect on the financial, property or staff management interests of the Commonwealth or an agency, or on the efficient and economical conduct of the affairs of an agency 
• documents affecting personal privacy
• documents affecting legal proceedings or subject to legal professional privilege 
• documents containing trade secrets or other commercially sensitive information 
• documents affecting the national economy 
• documents containing material obtained in confidence
• documents the disclosure of which would be in contempt of Parliament or in contempt of court
• documents certified by the Attorney-General as ones which could be protected by crown privilege if sought in legal proceedings and which should not be disclosed in the public interest.

2.5.5 The Bill required that denial of access to a document be accompanied by a statement of reasons for that denial. Only part of the information in a document being exempt material would justify denying access to the document but wherever practicable a copy of the document with that exempt matter deleted was to be produced and made available.

2.5.6. Procedures for gaining access to documents were kept as simple as possible. A request for access did not have to be in any particular form. However, if an applicant wished to insist on a 60 day time limit for a response to his or her request that request was required to be identified as being made under the Act and was required to be sent to the agency concerned at a prescribed address.

2.5.7. A person whose request was not dealt with promptly could:

• Complain to the Ombudsman if he or she thought there had been undue delay, even though the 60 day time limit had not expired
• appeal to the AAT after 60 days on the basis that the AAT would deal with the matter as if the request had been refused and could allow the agency further time.

2.5.8. A person who was refused access to a document could appeal to the AAT, except where a conclusive certificate had been issued. The AAT was to decide whether the document concerned was within an exempt category but was not to have power to give access to an exempt document.

2.5.9. Dealing with FOI requests was expected to have a significant impact on agency resources. The Bill attempted to strike a balance in the application of these resources. This was expressed in a number of provisions of the Bill:

• the Bill did not apply generally to documents in existence and in the possession of agencies before it came into operation, except departmental manuals and the like
• the Bill did not require agencies to make available information that was not already in documentary form except in two cases. The first was in relation to publication of material under Part II of the Bill (statements about agencies' organization, functions, powers, types of documents held or used in decision making, the second related to the obligation to   provide computer printouts of information stored in computers or to provide transcripts of sound recordings)
• the Bill required an applicant for access to a document, in consultation if necessary with the agency concerned, to provide a reasonable identification of the document sought. This provision was intended both to assist applicants in making their requests and to eliminate 'fishing' expeditions into the files of agencies
• the requirement to give a decision on a request as soon as practicable but in any event within 60 days represented a compromise between the desirability of early decisions and the diversion of resources that would be required to meet shorter time limits.

2.5.10. At the same time as the 1978 Bill was presented to the Senate, Senator Durack tabled, on behalf of the then Government, a ministerial statement on access to official information.   The statement canvassed the other steps which had been taken to provide access to official information through the mechanisms of the Ombudsman, the AAT and the Administrative Decisions (Judicial Review) Act 1977, as well as by administrative measures.

2.5.11. A number of criticisms were made of the 1978 Bill shortly after its introduction. Among the more important were :

• the Bill left decisions on requests in the hands of public servants who had an interest in preventing access
• there should be right of Appeal against a refusal against a refusal in all cases
• the Cabinet documents exemption was too broad; Federal/State relations should not be an exemption; the internal working documents exemption only served to protect the bureaucracy; and a public servant wielding a secrecy stamp could prevent access to a document
• the Bill gave no right of access to 'prior documents',
• the 60 day time limit for replying to requests for access was too long
• the legislation would impose substantial burdens on departments, particularly in view of budget restrictions and staff ceilings.

2.5.12. Late in 1978 the Attorney-General's-Department published a booklet which set out, among other things, the main criticisms of the Bill, explanations and answers.

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2.6 Senate Standing Committee on Constitutional and Legal Affairs

2.6.1. On 28 September 1978 the Senate referred the Freedom of Information Bill 1978 and the public access provisions of the Archives Bill 1978  to the Senate Standing Committee on Constitutional and Legal Affairs ('the Senate Committee') for detailed examination and report.

2.6.2. The Senate Committee undertook and extensive inquiry and received almost 170 submissions from individuals and organizations. In addition it sought elaboration of written submissions through 16 public hearings throughout Australia attended by 52 organizations and 13 private individuals. A total of 129 witnesses appeared.

2.6.3. The Senate Committee presented its comprehensive report to the Senate on 6 November 1979. the Report canvassed in detail many of the issues associated with access to official information and made 106 recommendations in relation to the 1978 Bill and the associated Archives Bill 1978. The Committee's main recommendations in relation to the1978 Bill were:

Agency Publications

• expansion of the range of information directories, indexes, manuals and 'internal law' required to be made available by agencies and these to be updated quarterly rather than annually

Implementation

• substantial training, guidance and publicity work to be undertaken
• imposition of a responsibility on agencies to make the maximum amount of Information available promptly and inexpensively
• agencies to have 60 days to respond to requests, reducing to 45 days after 2 years and 30 days after 4 years, with further reduction subject to future review
• refusal of access on administrative grounds to be based on a substantial and unreasonable burden on agency operations or ministerial functions
• revision of the Protective Security Handbook
• establishment of reading rooms and other inspection facilities
• a scheme of charges and fees designed to minimize charges to applicants and enable remission of charges

Personal affairs

• access to be given to 'prior documents' relating to the personal affairs of the applicant
• access to be given to all other prior documents up to 5 years old at the time of proclamation (right of access not to be effective until 1 year after proclamation) with access to documents up to 30 years old being progressively given by subsequent amendments to the Act whenever administratively possible
• creation of a right for Australian citizens and permanent residents to have corrected inaccurate or misleading information about themselves in official records

Exemptions/exclusions

• Commonwealth/State relations exemption to include a public interest test and be reviewable by the AAT
• the scope of conclusive certificates to be significantly narrowed and the way opened for a right of appeal to the AAT in relation to documents affecting security, defence and international relations, Cabinet and Executive Council documents and internal working documents
• secrecy provisions after enactment to be subject to Parliamentary scrutiny and prescribed under the Bill with urgent consideration to be given to limiting the statutory prohibitions on disclosure of official information
• deletion of the breach of confidence and the 'substantial adverse affect on the national economy' exemptions
• Parliamentary control over the exclusion of agencies or of the activities of agencies

Reverse FOI

• the incorporation of a reverse-FOl procedure with appeal to the AAT in respect of the business affairs exemption

Ombudsman

• substantial expansion of the Ombudsman's powers to investigate ministerial decisions, act as counsel before the AAT on behalf of any applicant, advise agencies about their obligations under the Act and oversee administration of the Act, calling attention to misbehaviour or maladministration in FOI matters

Review and appeal

• various amendments to enhance the position of an applicant to the AAT including a power in the AAT to award costs in favour of the applicant and to extend its jurisdiction to review the merits of exemption claims

Monitoring

• A group of recommendations was also made for detailed administrative monitoring of the implementation and operation of the Act and Parliamentary monitoring by way of annual reports and a review by the Senate Committee after 3 years' operation.

2.6.4. The Senate Committee also undertook an extensive evaluation of the resource implications of the 1978 Bill both as drafted and in the form to which the Committee proposed that it be amended. It was assisted by the Public Service Board which, at the Committee's request and in consultation with it, surveyed the responses of 37 departments and agencies to a resources impact questionnaire. The Committee also examined a number of witnesses on the likely impact of the legislation on Commonwealth administration and in relation to overseas experience with similar legislation, particularly in the United States. On the resources question, the Committee concluded that:

• there was almost universal uncertainty about the expected extent of utilisation of the Act, and it was not possible to predict the resource consequences of the 1978 Bill with any precision
• agency estimates of the net resource consequences of the 1978 Bill had tended to over state the likely extent of the problem, particularly in the area of expected utilization of the Act
• systematic training and development should not be especially costly
• off setting savings should flow from better information keeping and management within government; savings could also result from improving the effectiveness of existing departmental information services and bringing procedures into line with those associated with FOI
• by bringing forward the Bill, the Government had implicitly accepted responsibility for providing necessary resources to make it work effectively

The Committee acknowledged that the changes proposed to the Bill would have resources effects, particularly in the area of 'Prior documents' and reduction of response time. However, it considered that phasing-in should minimise these and that other changes proposed such as the establishment of more far-reaching review and appeal procedures would not significantly increase resource demands.

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2.7 The Fraser Government's response to the Senate Committee's recommendations

2.7.1. The Fraser Government's response to the Senate Committee's Report was tabled in the Senate on 11 September 1980.   The response was to accept some recommendations but reject the majority. Recommendations that were rejected included those for the restriction of the system of conclusive certificates, and those that seemed to require a substantial increase in the commitment of resources. However, the Government agreed that there was much in the report which would lead to improvements in the Bill and in the administration of the legislation. It undertook to include these improvements in proposed Government amendments to the Bill. The Government's intention was that there should be a period of experience in working with the legislation and that it should be reviewed by the Senate Committee after 3 years.

2.7.2. Important aspects of the former Government's response to the Committee's proposals included:

Agency publications

• accepted that agencies should be required to publish particulars of FOI access procedures and points of contact, however other additional information sought could be made available by administrative direction without any statutory obligation

• statutory expansion of categories of internal law unnecessary - publication and indexing already required by the terms of the Bill as they stood

• no reduction in index - updating requirement for 'internal law' from 12 monthly to 3 monthly, but agencies will be encouraged to update more frequently where reasonable and efficient to do so.

  Implementation

• progressive reduction of response time from 60 to 45 days after 2 years and 30 days after 4 years with further reductions subject to future review accepted in principle. The Government was not prepared to adopt a rigid timetable at that stage, however it was prepared to amend the Bill to allow response time to be reduced by regulation in the future

• the question of appropriate charges and fees would be dealt with by Regulations and consideration would be given to reduction or waiver of fees at that time

  Personal affairs

• no phased-in right of access to 'prior documents' or scheme for amending personal records because of the likely administrative burden on agencies. The Government was prepared to reconsider the position after the 3 year review 

• no final decision on issues of access of an individual to documents containing information relating to that person until the Law Reform Commission had reported on the whole question of privacy.

  Exemptions/exclusions

• deletion of the breach of confidence, Crown privilege and protection of the national economy exemptions was rejected; however the Government was prepared to review the scope of the national economy exemption 

• no public interest test or appeal to the AAT with the Commonwealth/State relations exemption; differences of opinion to be resolved at the political level and not by legal procedures 

• parliamentary control over the exclusion of agencies was accepted

  Reverse FOI

• scheme governing the response of agencies to requests for sensitive business documents accepted

  Ombudsman

• expansion of Ombudsman's role accepted to the extent of ensuring that the Ombudsman could investigate a complaint where there was also a right of appeal to the AAT, but otherwise rejected on the basis that his powers ought to be sufficient and that in any event the Ombudsman's role was in the process of being reviewed and reported on by the Administrative Review Council

  Review and appeal

• broader review powers for the AAT rejected on the grounds that final decisions on Cabinet and Executive Council documents, internal working documents and on other exempt documents in the areas of defence and national security, the conduct of international relations and the maintenance of proper relations between Commonwealth and State Governments, should rest with ministers and officials who are responsible to them, with Parliament as the proper forum for challenge

  Monitoring

• proposals accepted in principle, however implementation to be by administrative arrangement, not statutory requirement.

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2.8 Freedom of Information Act 1982

2.8.1. The Fraser Government introduced the revised FOI Bill into the Senate on 2 April 1981 ('the 1981 Bill'). The 1981 Bill incorporated the amendments to the 1978 Bill foreshadowed in its response to the Senate Committee's recommendations. In particular, it incorporated a 'reverse-FOI' procedure in respect of sensitive business information and provided for the Ombudsman to investigate complaints of delay. In addition, the Bill gave a limited right of access to 'prior documents' where access was reasonably necessary to gain a proper understanding of another document to which a person has lawfully had access.

2.8.2. The 1981 Bill was subjected to extensive amendment during its passage through the Senate. The Senate amendments gave effect to a number of recommendations by the Senate Standing Committee which had the support of Government members of that Committee. However, many of the Committee's recommendations, particularly the more fundamental ones, were not accepted by the then Government. A compromise was reached whereby the Government agreed to some changes and in return the Government members of that Committee did not press for other changes. Opposition senators pressed for all the changes recommended by the Committee.

2.8.3. The effects of the more important amendments made in the Senate were:

Agency publications

• agencies required to publish more information about their functions and the documents they hold, e.g. arrangements for participation by outside bodies in policy formulation and agency administration 

• agencies required to make available to the public more documents containing 'hidden law' applied in reaching agency decisions

• members of the public not to be prejudiced by decisions based on unpublished 'hidden law'

Implementation

• the establishment of special offices where applicants could be given access to documents 
  
• the provision of machinery to enable the remission of access charges and an appeal right to the AAT on the question of charges - this was a government amendment in response to concern that the power to impose access charges could be used to prevent a person from obtaining access

Personal affairs

• a right of access provided to 'prior documents' up to 5 years old relating to the personal affairs of the applicant 
  
• a right provided to amend personal records that are incomplete, incorrect, out of date or misleading, including a right to appeal to the AAT on the question

Exemptions

• clarification and narrowing of exemptions relating to national security, defence, international relations, relations between the States, internal working documents, the enforcement or administration of the law, the operation of agencies and the national economy 
  
• deletion of the exemption relating to documents the disclosure of which would be reasonably likely to have a substantial adverse effect on the interests of the Commonwealth or an agency in pending or listed legal proceedings 
  
• deletion of the exemption whereby the Attorney-General could certify (but not conclusively) that a document or class of documents would be protected by Crown privilege and disclosure would be contrary to the public interest

Review and appeal

• right of appeal to a new Document Review Tribunal (DRT), in respect of conclusive certificates; the ORT to decide whether reasonable grounds existed for the exemption claimed; the Minister retaining the discretionary power to revoke a certificate, having regard to the decision of the DRT. This was a government amendment in response to concern about the conclusive certificate system

Monitoring

• specification of extensive statistical reporting requirements in the annual report to Parliament by the Minister administering the FOI Act to enable proper parliamentary monitoring of the operation of the Act.

2.8.4. The 1981 Bill passed the Senate on 12. June 1981 and the House of Representatives on 24 February 1982. It was assented to on 9 march1982 and came into operation on 1 December 1982 ( A summary of the Act is set out at Appendix 'A'). Commencement was originally proposed for 1 July 1982 but this date was put back first to 1 October 1982 then to 1 December 1982. The delay was mainly due to the extent and nature of the preparatory work that had to be completed to ensure successfull implementation. This work is reported in detail in Chapter 3.

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2.9 Freedom of Information Amendment Bill 1983

2.9.1. The Hawke Government was elected to office in March 1983 with a commitment to expand the scope of the FOI Act. The starting point was to give effect to those changes to the FOI Act proposed by the Senate Committee which had not been incorporated in the 1982 Act.

2.9.2. After the election, immediate action was taken to prepare amendments to the Act and on 2 June 1983, the new Attorney-General, Senator the Hon. Gareth Evans, introduced the Freedom of Information Amendment Bill 1983 ('the 1983 Amendment Bill') into the Senate. The Bill will amend the Act as it stands in several important respects:

• the scope of the legislation is to be substantially expanded by an amendment allowing the public a greater right of access to 'prior documents'
• the special Document Review Tribunal is to be abolished and its functions transferred to the AAT 
• the AAT is to be empowered to consider and decide whether in its opinion there are reasonable grounds for the claim that a document is exempt in any case where a conclusive certificate has been issued and to recommend accordingly
• where a minister does not adopt the AAT's recommendations, he or she will be required to table in the Parliament a statement of reasons for his or her decision not to accept the recommendations
• an overriding public interest test in favour of disclosure of information will be introduced for several important categories of exemption
• the overriding public interest test will apply to the Commonwealth/State exemption, but a State will be entitled to be consulted before the release of a document and will be entitled to appeal to the AAT against a Commonwealth decision to release the document
• the time for compliance with requests is to be progressively reduced from the present 60 days to 30 days by 1 December 1986.

2.9.3. These changes, together with other amendments made by the 1983 Amendment Bill, will widen in various ways the scope of the Act, clarify or improve its practical operation and bring marked advantages to the public in the working of the legislation.

The Bill, when enacted, will enhance the standing of the FOI legislation as a substantial contribution to open government in Australia.

2.9.4. The 1983 Amendment Bill, details of which are at Appendix 'B' is expected to be considered during the 1983 Budget Sittings.

Lionel Murphy Library - Attorney-General's Department,
Robert Garran Offices, National Circuit, Barton, Canberra, ACT, 2600

Telephone (02) 6250 6575; facsimile (02) 6250 5941

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