Snell, Rick --- "Freedom of Information : The Experience of the Australian States - an Epiphany?" [2001] FedLawRw 16; (2001) 29(3) Federal Law Review 343
[*] Senior Lecturer in Public Law at the University of Tasmania, editor FoI Review. For any comments on this paper please contact Rick at r.snell@utas.edu.au
[1] S Zifcak, 'Freedom of Information and Cabinet Government: Are They Compatible In Every Dissimilar Respect?' (1994) 1 Australian Journal of Administrative Law, 208-221.
[2] Rick Snell, 'Comment,' (1997) 67 FoI Review, 1.
[3] South Australia, New South Wales and, in particular, Tasmania.
[4] A Roberts, 'Retrenchment and Freedom of Information: Recent Experience Under Federal, Ontario and British Columbia Law,' 42 (4) Canadian Public Administration, 423.
[5] Electoral and Administrative Review Commission, Issues Paper No. 3: Freedom of Information, Brisbane, May 1990.
[6] Electoral and Administrative Review Commission, Review of Freedom of Information Issues: Public Submissions Vols 1 and 2, Brisbane, July 1990.
[7] Electoral and Administrative Review Commission, Report on Freedom of Information, Brisbane, GoPrint, December 1990.
[8] Parliamentary Committee for Electoral and Administrative Review, Report on Freedom of Information, Brisbane, GoPrint, April 1991.
[9] Electoral and Administrative Review Commission, above n 5, 9.
[10] For a more detailed discussion of this point see the Legal, Constitutional and Administrative Review Committee, Freedom of Information in Queensland, Discussion Paper No.1, Brisbane 1999. See also R Snell and N Tyson, 'Back to the drawing board - Preliminary musings on redesigning Australian freedom of information,' (2000) 85 FoI Review, 2-6.
[11] G Terrill , Secrecy and Openness: The Federal Government from Menzies to Whitlam and beyond, (2000).
[12] For the most comprehensive of these see A Cossins, Annotated Freedom of Information Act New South Wales, (1997), 8-14. The other major contributor is John Cain, the former Premier of Victoria see J Cain, John Cain's Years: Power, Parties and Politics, (1995), 265-267 and J Cain, 'Some Reflections on FoI's early years,' (1995) 58 FoI Review 54-58.
[13] J R Saul The Unconscious Civilization, (1997), 46.
[14] As in Queensland where the Electoral and Administrative Review Commission (EARC) took up the initial recommendation of the Fitzgerald Commission. See above n.7.
[15] The initial efforts of Professor Wilenski in NSW for example. For a more detailed coverage of Wilenski's reforms see A Rath, Freedom of Information and Open Government, Background Paper No 3 2000, NSW Parliamentary Library Research Service, Sydney, September 2000, 7-10 or Cossins above n 12, 8-11.
[16] The position in the other states. For examples see J Cain, above n 12, 265-267 or H Sheridan and R Snell, 'Freedom of Information and the Tasmanian Ombudsman 1993-1996,' University of Tasmania Law Review, 16(2) 1997, 110-111.
[17] S Zifcak, above n 1, 221.
[18] Senate Standing Committee on Constitutional and Legal Affairs on the Freedom of Information Bill 1978 and Aspects of the Archives Bill 1978, Freedom of Information, AGPS, Canberra, 1979 at paras 4.2 and 4.63. See also S Zifcak, above n 1 and Snell and Tyson, above n 10.
[19] The Irish and New Zealand experience is outlined in R Snell 'Administrative Compliance and Freedom of Information in Three Jurisdictions: Australia, Canada and New Zealand,' Freedom of Information – One Year On, Department of Finance and Department of Law, University College Cork, held at St Patrick’s Hall, Dublin Castle, 23 April 1999. Available at <http://www.ucc.ie/ucc/faculties/law/foi/conference/>
[20] Tasmanian Government Submission to the Legislative Council Select Committee on Freedom of Information 1995, 5.
[21] J Cain, above n 12, 265.
[22] See Cossins on the views of Premier Wran in 1988 where he is quoted as stating 'what I found wrong about the FOI system is that it provides a plundering instrument for political opponents. I know the principles of FOI, but so much of the expenditure is on the basis of some ratbag backbencher in the Opposition who gets some bee in his bonnet and then wastes tens of thousands of public dollars.' Alaba, Inside Bureaucratic Power: The Wilenski Review of NSW Government, (1994) quoted in Cossins above n 12, 9.
[23] See D Roden, 'Some considerations about implementing FoI legislation in New South Wales,' (1992) 41 FoI Review at 54.
[24] V Evans, 'Freedom of Information in South Australia,' (1993) 43 FoI Review at 2.
[25] See M Haward and P Larmour, The Tasmanian Parliamentary Accord and Public Policy 1989-92, (1993) 219.
[26] Justice Michael Kirby, 'Freedom of Information: The Seven Deadly Sins,' presented to JUSTICE, the British Section of the International Commission of Jurists, Fortieth Anniversary Lecture Series, London Wednesday 17 December 1997, 20.
[27] Committee on Official Information (Danks Committee) Towards Open Government, Vol 1, General Report, para 107.
[28] H Sheridan, 'Western Australia: A brief look at the first 18 months,' (1995) 57 FoI Review 38-43. For an update see P Walker, 'The Western Australian experience 1996–1998—Any lessons for reform?' (1999) 79 FoI Review, 7-12.
[29] Cossins above n 12, 10. In addition Professor Wilenski in his Further Report: Unfinished Agenda , at 50 seemed to suggest a fairly vigorous internal opposition to FOI in NSW when he stated 'All this activity has had little effect on the New South Wales administration, except prehaps to reinforce the opposition to increased public scrutiny. The administration remains a bastion of secrecy ...' quoted in A Rath, above n 15, 9.
[30] J Cain, above n 12, 265.
[31] J Cain 'Some Reflections on FoI's early years,' above n 12, 54.
[32] Departments of Premier, Economic and Trade Development and Attorney-General's Department, Submission in Electoral and Administrative Review Commission, Review of Freedom of Information Issues: Public Submissions, Volume 2, July 1990, Brisbane, para 1.2.
[33] See R Snell, 'Administrative Compliance—evaluating the effectiveness of freedom of information,' (2001) 93 FoI Review 26-32.
[34] M Kirby, above n 26.
[35] A Cossins, above n 12, para 1.3–1.3.12.
[36] R Snell above n 33. Weakened because of the signals transmitted to the bureaucracy of the lack of support for the legislation and/or steps taken by the public service in anticipation of the amendments being carried.
[37] S Zifcak, above n 1, 209 at n 6. An example was the failure to exclude factual material from the Cabinet exemption.
[38] For details of the Victorian attempts see S Zifcak, above n 1, 210-215. For the Tasmanian experience see H Sheridan and R Snell, above n 16, 156-158.
[39] A series of legislative changes have been made to FOI legislation in Queensland since 1993. The Kennett Government in Victoria made several major changes. For 1993 changes see S Zifcak, above n 1, 215. A Cossins, 'Paving the way for less open government in Victoria: Amendments to the Cabinet documents exemption,' (1993) 45 FoI Review, 27-30. S Zifcak, 'Kennett's FoI: open and shut,' 45 FoI Review, 26-27. Developments between 1993-1999 are covered in M Batskos, 'Putting the "O" Back Into FOI,' [2000] AIAdminLawF 8; (2000) 25 AIAL Forum, 10-14; M Batskos, 'Recent Developments in Freedom of Information in Victoria,' [1999] AIAdminLawF 3; (1999) 20 AIAL Forum, 22-31; J Pizer, 'The Freedom of Information (Amendment) Act 1999—Victorian FOI is Floored by a Flawed Regime,' Australian Journal of Administrative Law, 7 (1999) 56-63. L Dunlevy, 'The silent strangling of freedom of information,' (1994) 49 FoI Review, 7-8.
[40] For details of these amendments see A Rath, above n 15, 11-12.
[41] For examples of these type of reactions see R Coulthart, 'Why the FoI act is a joke or 'don't shoot the media, we're doing our best' (1999) 81 FoI Review 43-46 or N Clark, FoI in Tasmania: room for improvement,' (1995) 60 FoI Review, 97. For a more positive response see B Birnbauer, 'The Story Behind Fatal Care,' The Fifth Estate, at <http://fifth.estate.rmit.edu.au/August/bill.htm>
[42] H Sheridan and R Snell, above n 16, 139-145.
[43] Australian Law Reform Commission (Report 77) and Administrative Review Council (Report 40) Open Government: a review of the Commonwealth Freedom of Information Act 1982. For analysis of reforms see R Snell, 'Open Government: A Slow Train Coming,' (1996) 61 FoI Review 2-4.
[44] For an update see Senate Legal and Constitutional Legislation Committee, Inquiry into the Freedom of Information (open Government) Bill 2000, Canberra, 5 April 2001.
[45] S Zifack. 'Freedom of Information: Torchlight not Searchlight,' 66 Canberra Bulletin of Public Administration, 162.
[46] G Terrill, 'Individualism and freedom of information,' (2000) 87 FoI Review, 31.
[47] Ibid.
[48] Ibid.
[49] A Roberts, 'Quietly limiting openness - the Canadian Experience,' (1998) 77 FoI Review 68-69. Other papers on this theme can be found at <http://qsilver.queensu.ca/~foi/>
[50] A Ardagh, 'Freedom of Information in Australia: a Comparative and Critical Assessment' paper delivered at ALTA Conference, Western Australia 1991 reprinted in R Douglas and M Jones, Administrative Law: Cases and Materials (1993) 137-147, 145.
[51] M Allars, 'Interim results of a study of the impact of the NSW FoI Act,' (1995) 56 FoI Review 18-22.
[52] S Kearney, 'The media and FoI—working the sources,' (2000) 87 FoI Review 32-33.
[53] M Paterson, 'Victoria's new FoI Bill: some long overdue reforms but still room for improvement,' (1999) 84 FoI Review 90.
[54] Ibid.
[55] Freedom of Information Amendment (Cabinet Exemptions) Act 1999 (Tas).
[56] NSW Ombudsman Annual Report 1998-1999, 123-128.
[57] C Wheeler, 'Public Sector Compliance with FoI in New South Wales' (1999) 81 FoI Review, 38-42.
[58] A Rath, above n 15, 53-77.
[59] NSW Ombudsman Annual Report 1998-1999, 110.
[60] C Finn, 'Getting the Good Oil: Freedom of Information and contracting out' (1998) 5 Australian Journal of Administrative Law.
[61] Legislative Review Committee of South Australia, The Freedom of Information Act 1991, Adelaide, September 2000, 2.
[62] Ibid 3.
[63] Ibid 55.
[64] Ibid 2.
[65] Ibid 3.
[66] South Australia, Parliamentary Debates, Legislative Council, (Hansard), 25 July 2001, 2053.
[67] This policy document outlined new and radical principles for the increased public disclosure of the major contracts for goods, services and works.
[68] See Legislative Review Committee of South Australia, The Freedom of Information Act 1991, S Sody, 'A Charter to Withhold Information: The South Australian Freedom of Information Act,' (2000) 88 FoI Review, 53-58. C Finn, above n 60, 113.
[69] Legal, Constitutional and Administrative Review Committee, Freedom of Information in Queensland, Discussion Paper No.1.
[70] Ibid 4-5.
[71] Ibid 6.
[72] G Terrill, above n 46, 30.
[73] Legal, Constitutional and Administrative Review Committee, above n 69, 6.
[74] Information Commissioner Queensland, Submission No. 56 to Legal, Constitutional and Administrative Review Committee Review of Freedom of Information in Queensland, para A 36.
[75] Sir Brian Elwood, 'The New Zealand Model—The Official Information Act 1982,' Freedom of Information and the Right to Know Conference, Communications Law Centre and International Commission of Jurists, Melbourne 19-20 August 1999, 12.
[76] For a copy of the Information Commissioner of Canada's Annual Report 1999-2000 see <http://qsilver.queensu.ca/~foi/review/index.html>
[77] Office of the Information Commissioner, Annual Report 1999, 2. In addition there had been a perceptible difference in frequency and types of usage of the FOI Act by journalists in WA during this period than in other jurisdictions. Findings of an unpublished undergraduate research project by Alistair McKenzie and Fiona Goodman, 'Freedom of Information and the Print Media: A Comparative analysis of Tasmania, Western Australia and Queensland, October 2000 held at the Law School, University of Tasmania.
[78] See in particular Office of the Information Commissioner, Annual Report 1997-1998, 2-8.
[79] B Keighley-Gerardy, 'Freedom of Information, Past, Present and Future,' (Paper presented at the Open Government Conference, Hobart, Tasmania 30/11/1999) <http://www.foi.wa.gov.au/FOIFrames.htm>
[80] Office of the Information Commissioner, Annual Report 1997-1998, 7.
[81] Submission by the Information Commissioner (Qld) to the Legal, Constitutional and Administrative Review Committee on The Review of the Freedom of Information Act 1992 Qld, Submission No 56, 1-12.
[82] Ibid 12.
[83] B Elwood, above n 75, 4. See Cooke P in Commissioner of Police v Ombudsman [1988] NZCA 211; [1988] 1 NZLR 385, 391.
[84] Information Commissioner of Canada, Annual Report 1999-2000, 9.
[85] Ibid 11.
[86] Ibid 9.