Shedding light on Australia's Freedom of Information laws
OPINION: The saying goes that babies and governments should be changed often and for the same reasons. And if Freedom of Information (FOI) laws are anything to go by, that’s certainly the case here in Australia.
South Australia, whose Labor Government has been in power for 35 of the past 49 years, is the most secretive in the nation.
Its lack of accountability and transparency is such that last year it introduced an Independent Commissioner against Corruption (ICAC), but unlike the one that has uncovered conflicts of interest which went all the way to the top in New South Wales, this one appears to be more of a tool to intimidate and bully the Government’s enemies.
I would like to discuss this more, but the SA legislation prevents me from doing that as it’s against the law to report on any matters ICAC is investigating and even if the matter proceeds to court, it’s still illegal to report ICAC’s involvement.
Penalties can include a $30,000 fine for an individual and $150,000 fine for a corporation if they publicly convey any revelations of ICAC investigations.
Given the nature of the investigations I’ve been made aware of so far, if there were any dubious bottles of Grange given to the Premier by successful contractors in the same way as what happened in NSW, we probably would never know about it.
As for its FOI laws, don’t just take my word for it, State Ombudsman Richard Bingham’s report into SA’s FOI laws tabled in Parliament this month raised concerns that government departments were “defensive” and a “paranoid culture” prevented the release of any information which may embarrass the Government.
When I mentioned to an SA FOI officer that the laws were the worst in the country, he agreed they probably were and even appeared quite cheerful about it.
When asked why they didn’t seek extensions for overdue decisions, he practically baulked at the idea saying they’d have to do that for all their applications and while as an applicant I was entitled to seek a review, they’d just keep working on it anyway. That’s because he knows a review would take even longer.
So basically, I’ll just get it back when they’re good and ready. One case in the Ombudsman’s report alleged a Government department delayed the release of documents captured in an FOI application for more than 14 weeks ahead of a ministerial reshuffle. It’s not hard to believe.
That said, until it’s made clear what, if anything, I’ll be getting back by way of documents under SA FOI laws, in future, it may just be more effective to go straight to the Ombudsman as soon as the processing time expires.
So if SA is the worst, which state is the most open and transparent?
Thanks to another Labor Government (1998-2012), Queensland undoubtedly has the best FOI laws in the nation.
Introduced in 2009 by the then Bligh Government, the FOI laws were renamed Right to Information (RTI) and provide for a much more efficient and user-friendly system. Applications can be made online and you can even pay by credit card rather than cheque.
Documents can be provided on disk (in other states, they have to be provided in hard-copy and a photocopying fee applies) and it definitely has a pro-disclosure bias. That said, there is still room for improvement, especially relating to the transparency of fees, which subsequently appear to be used as a deterrent to applicants in some cases.
So far, the Liberal National Party Government under Premier Campbell Newman, has not watered the current laws down. However, there have been murmurings following a review. Fortunately, nothing too damaging has transpired and Newman does appear to take great pride that the state’s RTI laws are the most open and accountable in the country.
Federal, New South Wales and West Australian laws are all comparatively average with much room for improvement and Victorian laws are only slightly better than SA. However, like everywhere, some departments are worse than others.
For example, getting the scope of one application I lodged sorted with the Victorian Department of Human Services proved problematic, with FOI officers appearing to prefer writing letters rather than picking up the phone.
When I finally got hold of one officer, I asked what he suggested would make my scope more workable and he replied that it wasn’t his job to write my application for me. Most FOI officers are more than happy to provide workable alternatives, which he reluctantly did in the end when I pointed this out.
Meanwhile, the Victorian Department of Justice rejected one of my applications without making any attempt whatsoever to contact me to advise there was a problem with my scope. Every other state – including SA – did consult on the same application and QLD had already released documents on the subject after two previous successful applications.
Also Victoria’s FOI Commissioner, which undertakes external reviews, is not as user-friendly as Queensland’s. The worst part of it is they don’t do preliminary views – ie. allow you to respond to their concerns before a final decision is made. For the average person, this is problematic because you basically have to be a lawyer, or know the law very well, to fight a negative decision.
Hardly fair for the average person, who the laws are meant to accommodate.
Also, unlike Queensland, their officers won’t communicate any concerns with an external review applicant prior to a decision, which again is very unfair given FOI laws are supposed to be a tool accessible by the general public. More on that another time.
This is the first of many blogs I will write to not only provide insight into FOI laws in Australia and the openness and accountability of the Australian and State governments, but reveal astonishing details that the nation’s leaders don’t necessarily want you to know.
Alison Sandy is Network Seven’s FOI Editor.
Email Alison: asandy@seven.com.au
