An amendment that would fatally undermine the move to more open government has been slipped in to the Freedom of Information reform Bill now before federal parliament.
The amendment, which was not in the exposure draft of the Bill put out for public comment last year, would overturn the assumption of openness that has underlain freedom of information laws since they were introduced in 1982, by reversing the onus of proof in appeals.
Channel Seven journalist Mike McKinnon, who has been one of the leading advocates of FOI reform, this morning told Crikey that he would prefer to continue with the present flawed legislation than to see the Bill in its present form enacted.
McKinnon said the amendment would “stuff the whole Act” and make a mockery of the Government’s promises of open government and reform.
He said that he knew senior ministers of the government, including Nicola Roxon, Lindsay Tanner, Julia Gillard and John Faulkner were committed to FOI reform. “I find it difficult to believe that they know what is going on here,” he said.
“It strikes me as a last-ditch effort by the bureaucracy to stuff FOI reform.”
And it seems McKinnon may be right. Just before Crikey’s deadline this morning Special Minister of State Joe Ludwig responded to requests for comment by saying it had “never been the government’s intention” to wind back appeal rights. Ludwig suggested that the Government would now look to a Senate Committee report to help it correct the situation.
Ludwig said: “The committee will examine whether the measures contained in the Bill will be effective in ensuring that the right of access to documents is as comprehensive as it can be and whether the proposed new processes for FOI requests could be further improved. I look forward to receiving the committee’s recommendations.”
If it wasn’t the government’s intention, how could such an amendment have been made? At best, it looks like bungling, at worst, a case of bureaucracy going its own way and against ministerial intention.
One of the few things freedom of information has had going for it through all these years is that the onus of proof rests with the government. In appeals under the legislation, the bureaucrats have to justify why a document should not be released. The applicant has nothing to prove.
The fact that the onus of proof rests with government means that documents are frequently released almost on the doorstep of the Administrative Appeals Tribunal, because the Government realises it doesn’t not have a sufficiently strong case.
But if the Bill was passed in its present form, applicants — often poorly resourced and self represented — would have to establish a case for release, against the big legal guns of the federal government.
Against this, Ludwig points out that the Government hopes most FOI matters will be resolved by the new position of Information Commissioner, who will have full powers to review the merits of all FOI decisions.
But as McKinnon says, it is the sensitive matters to do with policy implementation — the details of broadband roll out and health reform to pick a couple — that are most likely to go to formal appeal.
As laid out here, reform to freedom of information laws was a plank in Labor’s policy platform in the lead up to the 2007 election, with powerbroker John Faulkner and others driving the push for more openness.
Bills to reform the Act were introduced into the parliament in late 2009 after comments had been received on an exposure draft. But the exposure draft did not contain the key amendment reversing the onus of proof, which potentially undermines all the other reforms.
The key part is Section 61 of the Act, which in the bill now before Parliament reads:
61 Onus
(1) In proceedings under this Part, the person who applied to the Tribunal has the onus of establishing that:
(a) a decision given in respect of the relevant request or application is not justified; or
(b) the Tribunal should give a decision adverse to a party to the proceeding.
This is a reverse of the present Section 61, which reads:
Onus
(1) Subject to subsection (2), in proceedings under this Part, the agency or Minister to which or to whom the request was made has the onus of establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant
The Bill has been referred to the Senate Finance and Public Administration Committee, which holds public hearings this Friday, with McKinnon due to give evidence on behalf of the Right to Know coalition of media organisations.
Expect some drama.
The committee is due to report by mid-March.
What more can you expect from this lying bunch of bastards headed by Dr. Death. Just about every undertaking given by this government prior to the election has been broken in one form or another. Grocerywatch, Fuel Watch, greenhouse gas emissions, improvedFOI and protection for whistleblowersto name but a few.
The screws are being tightened in terms of internet censorship, reduced FOI, 5% greenhouse gas reduction (if everybody else does), the 2020 summit which disappeared without trace, and obfuscation, misinformation and denial becoming the stock in trade of this government.
We are in this appalling mess because of that cretin John Howard who effectively destroyed the Liberal Party’s chance of government, and the Rudd victory was achieved as a consequence of the massive disillusion with Howard.
Having been effectively gutted, the Liberal Party is still incapable of mounting a serious tilt at government, so Rudd and his henchmen will go onto progressively destroy our government accountability is and further reduce our civil liberties in the interests of preserving their own power.
Remember that it was in Queensland under Bjelke-Petersen that we almost had a fascist police state, and Rudd, the Queensland control freak, will drag us down the same road if he is allowed to continue.
From Peter Timmins.
While the issue highlighted is important there are other aspects of the legislation that fall well short of the mark. For example the unexplained failure to act on many recommmendations made by the Australian Law Reform in 1995 that the parliamentary departments should be brought within the scope of the act, that the time limit should progressively be brought down from 30 to 14 days, that chief executives should have a statutory duty to ensure full and accurate records are maintained (they don’t at the moment.) Three recent state reforms mean Queensland, NSW and Tasmania will have laws that encourage objective decisions, making it an offence for anyone including a minister to improperly interfere with a public servant making a decision. Not a word of this sort of spine stiffening in the Commonwealth act. On the issue of appeals, and before we get to onus, an equally important issue is the right an agency will have to seek Tribunal review of an Information Commissioner decision on the basis it is wrong. This extends beyond an error of law and needs to be subject to a limitation – for example certification by the minister that the issue is of sufficient importance to warrant further expenditure of public money – to avoid what may become a classic delay tactic. For some additional comment and a link to submissions see http://bit.ly/bsAFeD