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The Report of the Independent Audit into the State of Free Speech in Australia covers subjects from protecting whistle blowers to the constraints of sedition laws and the courts. The following is an extract from the executive summary of Chapter 6 which audits Freedom of Information.

“…No government, federal, state or territory, has taken sustained measures to deal with an enduring “culture of secrecy” still evident in many agencies. There are few visible, consistent advocates of open government principles, within government systems and leadership on FOI is lacking.

FOI performance is patchy across all governments. In some agencies applications are managed in a professional manner and decisions on access reflect the law, its spirit and intent. In other cases the FOI process involves delay, high cost, and what could be seen to be obstruction, often suggesting attempts to protect politically sensitive information.


Some requests can take months or even years to resolve despite the fact that a limited statutory deadline applies to the processing of applications.

A request in April 2005 to the Department of Defence for documents on Australia’s position regarding rendition is still awaiting a determination.

An application was made for the results of public opinion surveys carried out for the Department of Employment and Workplace Relations to assess the success of about $32 million spent advertising the WorkChoices law. The department deferred access until later this year, presumably after the election. The reason for the delay was that a government committee wanted to see all the results of the surveys together. The department decided to withhold them all until such time. Using this argument, no results of any surveys ever need be released provided the government claims to have plans to conduct further surveys.

In 2005-2006, 25 per cent of applications to federal agencies for non-personal documents took longer than 90 days to process, three times longer than the statutory time of 30 days. The Victorian Ombudsman reported only 56 per cent of decisions by government departments in 2003 were made within the statutory time of 45 days. Nearly 21 per cent of decisions took more than 90 days. Over 40 per cent of requests being handled by Victoria Police at any time during the period covered by the Ombudsman’s review were taking more than 45 days

High cost

The Herald Sun abandoned a two-year campaign seeking information about travel of federal politicians after it was quoted a fee of $1.25 million, which amounted to 32 years of full-time work for a public servant. The Administrative Appeals Tribunal accepted that those named in the list would need to be consulted before disclosure, but the Government was entitled to seek payment for the time spent in consultation and decision-making.

Decision making time chargeable to the applicant can run to hundreds of hours and thousands of dollars in charges. Included in an estimate of fees of $12,718 for access to documents about the effect of global warming on the Great Barrier Reef are charges for 538.95 hours for making a decision on the status of the documents.

Federal – State Differences

Associate Professor Anne Twomey of the University of Sydney School of Law carried out research on the Australia Acts 1986. The Acts were passed by all Australian parliaments to sever residual links with the United Kingdom.

She reported:

The Commonwealth was a completely different story [from other jurisdictions involved]. After a bureaucratic process of meetings, submissions, reports, consultations, vettings, demands for ASIO security clearances, and scandalous delays lasting almost three years, only a small proportion of the Commonwealth’s documents, described by officials as ‘the innocuous ones’, were released by the Commonwealth Attorney-General’s Department. The Prime Minister’s own department still has not managed to release a document after three years. Access to legal opinions was also formally denied by the Attorney-General’s Department, despite the fact that they were more than 20 years old. In contrast, the states, the United Kingdom and the Special Committee of Solicitors-General released their legal opinions.

The existence of powers in the Federal Act for the issue of conclusive or ministerial certificates, and limited rights of review of the decision to issue a certificate, is inconsistent with the scheme of the legislation.

Common Problems

Claims that FOI is achieving its intended purpose, including opening government activities to scrutiny and criticism, are not substantiated by the evidence.

In the federal arena in particular, FOI is marked by a high degree of legal technicality which dominates considerations about whether disclosure is in the public interest, or may demonstrate harm to an essential public interest.

There are inadequacies in the design of the laws; too much scope for interpretation of exemption provisions in ways that lead to refusal of access to documents about matters of public interest and concern; cost barriers to access; and slow review processes that often fail to provide cost-effective resolution of complaints.

Given the original objectives of FOI, there is a need for clarification about the extent to which advice to government should be based on notions of confidentiality. While some confidentiality about some advice in some circumstances may be appropriate, blanket claims seem counter to the objective of informing public debate, and accountability for government decisions.


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