Law hides a sleeping cancer

by Chris Griffith
Published 26 July 1992 in The Sun-Herald


my face


Queensland's Freedom of information (FOI) Bill has enjoyed an enormous gestation period. So far FOI, prescribed by Tony Fitzgerald QC's report, has been subject to three reviews before it is ever used -- by the Electoral and Administrative Review Commission (EARC), by EARC's governing parliamentary committee, and by the state government.

However, what some see as extensive preparation and consultation, others see as deliberate delay.

The state opposition is angry that the FOI Bill, which was first drafted by EARC in December 1990, is to be passed only now, just weeks before a state election. The opposition says, with credibility, that the government can trumpet passing FOI, yet no one, including the opposition, can use it to scrutinise government before this year's state election.

The government says, also with credibility, that in three years it has achieved what the previous government never attempted in 32.

Nevertheless the Queensland public now has a legal right to documents held by state and local government authorities unless those documents are exempt, either held by exempted authorities or exempted from FOI by their nature.

Those who assess FOI legislation around Australia say the extent of exemptions indicate how serious a government is with freedom of information.

Too many exemptions - and the legislation is considered toothless and impotent as a means by which the media and the public can monitor government.

Of course, FOI is not just for the media or other watchdogs of government. It allows individuals access to information held about them by government bureaucracies - and to have that information corrected where inaccurate. In Queensland's case, the state government deserves credit for legislation that in some areas goes further than FOI Acts.

The inclusion of local government, unlimited retrospectivity, and the phasing out in two years of secrecy clauses in other Acts is commendable.

However the legislation has not attempted to break down exemption barriers in other Australian FOI Acts.

Cabinet documents in particular are totally exempt and ministers can sign `conclusive certificates' to render secret without challenge documents for up to 28 days.

Journalist Paul Chadwick, the Victorian co-ordinator of the Communications Law Centre, is among this country's leading FOI authorities and a seasoned user of Commonwealth and Victorian FOI.

Mr Chadwick says the new Queensland law "is the product of a good process", and believes the government deserves credit for providing access to personal information free-of-charge.

On the charge for non-personal information, Mr Chadwick says the $30 application fee and 50c per page would inhibit local environment and heritage groups who find themselves up against a planning department in a public policy dispute.

"Remember, a lot of the most interesting and important issues in government generate lots of paper precisely because they are important and interesting. They're the ones that FOI is designed to reveal," he said.

Mr Chadwick is also critical of the Government's decision to make the Ombudsman responsible for processing appeals against bureacratic denials of access to sought-after documents instead of an Administrative Appeals' Tribunal.

However, his major concern is what he calls "a sleeping cancer", Attorney-General Dean Wells's last minute change to FOI which will allow government bodies to be exempted from FOI by regulation - without alteration to the FOI Act in parliament.

Mr Wells says there is an ongoing need to add exemptions - religious groups, P&Cs, and Grammar Schools will be excluded from FOI in this way.

"Specific exemptions by regulation will allow the Government to respond to any new cases without coming back to Parliament," Mr Wells said. "Otherwise, the Freedom of Information Act may become unworkable."

Mr Chadwick says he cannot understand the Attorney-General's justification. "I understand why it's administratively convenient for the Attorney-General, his government or any future government," Mr Chadwick said. "But it's not in the public interest given that there will often times when government is sorely tempted to place a section of public administration out of the reach of FOI."

Perhaps Mr Chadwick's most interesting comment on FOI is the way the Victorian Cain and Kirner Governments moved to add exemption categories to hide that state's economic disasters. He said the Victorian government was quick to `seal off' the Victorian Economic Development Corporation (VEDC) from FOI scrutiny after revelations about the millions lost.

It did the same thing after signing an agreement with Alcoa for a joint government-private sector aluminum smelter.

Excluding from FOI religious groups, grammar schools and P&C's may not alarm many, however Mr Chadwick is concerned at the Government's intention to add by regulation exemptions for government corporations competing with private organisations.

He says there are already standard exemptions that would protect government agencies' information being poached for economic advantage. He says the use of FOI by journalists could help prevent the abuse of taxpayers' money by these agencies.

"First, you've got to look to who the shareholders are," Mr Chadwick said. "The people of Victoria have got a lot of experience at being shareholders of agencies, which although they have the veneer of a corporate structure, are nevertheless funded by the Victorian taxpayer and in the 1980's went bad."

Meanwhile, the Government has added what can be described conservatively as a `failsafe' clause to maximise its ability to prevent the accidental disclosure of politically damaging material.

A new clause makes available documents "the disclosure of which may reasonably be expected to be of substantial concern ... only if the agency or Minister has taken such steps as are reasonably practicable to obtain the views of the government, agency, or person concerned about whether or not the matter is exempt matter."

It will be interesting to see if what is now a good Act becomes eroded in time. After all, no government repeals an FOI Act, it simply amends it (or regulates it) into oblivion.