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Ludwig, Joe --- "The Freedom of Information Act - No Longer a Substantial Disappointment" [2010] AdminRw 3; (2010) 59 Admin Review 4

The Freedom of Information Act—no longer a substantial disappointment

Senator the Hon. Joe Ludwig[*]

In the last two years there has been a renewed focus on freedom of information laws at both the Commonwealth and the state and territory levels[1], resulting in a raft of reforms. At the Commonwealth level the renewed focus is the result of the election of a Labor Government committed to restoring trust and integrity in government, including reforming FOI laws. Labor’s FOI platform was formulated largely in response to the secrecy of the Howard government, evidenced by its high-profile use of conclusive certificates to prevent the disclosure of government information.[2] The Labor Government’s platform was also informed by, among other things, Australia’s Right to Know, the public campaign for free speech by a coalition of 12 major media organisations and journalists.

In this paper I first discuss FOI in the field of administrative law in Australia and briefly set out the main events leading to enactment of the Commonwealth’s Freedom of Information Act 1982. Second, I outline the main problems with the FOI Act in its current form and, third, I identify aspects of the reforms the Government has proposed in order to redress these problems.

I conclude with a discussion of the need for cultural change in departments and agencies if the Government’s ambitious FOI reform agenda is to be realised.

The role of freedom of information in administrative law

The legislation that constitutes the system of administrative law in Australia is important in defining the relationship between citizens and their government: it not only sets out the principles governing the proper exercise by government of its decision-making powers but also provides for the right of individuals to challenge the exercise of those powers. Put broadly, administrative law provides individuals a general right of access to information held by government.

The bases of the administrative law framework are the concepts of open and accountable government. The concept of openness is based on citizens’ right to know about their government and the actions it takes or does not take on their behalf. The concept of accountability is based on government decision making being both open and subject to review.

It is well known to administrative lawyers that the recommendations of the Kerr Committee[3] and the subsequent Bland[4] and Ellicott[5] Committees constitute the architecture of the modern system of Australian administrative law.[6] Although enactment of the FOI Act was not a recommendation of the Kerr,[7] Bland or Ellicott Committees, the right of access to government‑held information is principally facilitated through the FOI Act. In this way the FOI Act operates as an integral part of the administrative law framework.

In 1983, in the foreword to the first annual report on the FOI Act, the then Attorney-General, Gareth Evans, described the basic purposes of FOI legislation:

• to improve the quality of decision-making by government agencies in both policy and administration matters by removing unnecessary secrecy surrounding the decision-making process;

• to enable groups and individuals to be kept informed of the functioning of the decision-making process as it affects them and to know the kinds of criteria that will be applied by government agencies in making those decisions;

• to develop further the quality of political democracy by giving the opportunity to all Australians to participate fully in the political process;

• to enable individuals, except in very limited and exceptional circumstances, to have access to information about them held on government files, so that they may know the basis on which decisions that can fundamentally affect their lives are made and may have the opportunity of correcting information that is untrue or misleading.

Although a Liberal government under Malcolm Fraser enacted the FOI Act, creation of such an Act had become Labor Party policy long before, in 1972. That policy was detailed in a speech by the then Leader of the Opposition, Gough Whitlam:

A Labor Government will introduce a Freedom of Information Act along the lines of the United States legislation. This Act will make mandatory the publication of certain kinds of information and establish the general principle that everything must be released unless it falls within certain clearly defined exemptions. Every Australian citizen will have a statutory right to take legal action to challenge the withholding of public information by the Government or its agencies.[8]

Realising Australians’ right to have access to government information proved, however, a difficult and lengthy task. The then Attorney-General, Lionel Murphy, established an interdepartmental committee to ‘identify the modifications required and any important issues involved in adapting the United States Freedom of Information Act to the Australian constitutional and administrative structure’.[9] The committee reported to government in September 1974. In 1975, under the Fraser government, another interdepartmental committee was established to ‘study and report … on policy proposals for freedom of information legislation, taking into account the Report of the Interdepartmental Committee on Proposed Freedom of Information legislation that was tabled in parliament in 1974’.[10] Following provision of that report to government in November 1976, the first FOI Bill was introduced into the Senate on 9 June 1978. The Bill was subsequently referred to the Senate Standing Committee on Constitutional and Legal Affairs, which reported back to the parliament in 1979. Two years later, on 2 April 1981, a second FOI Bill was introduced into the Senate. That Bill eventually passed the House of Representatives on 24 February 1982 and came into force on 1 December 1982.

As is apparent from the sequence of events just described, establishing the FOI Act in Australia was a prolonged, tortuous affair. This was largely because it was such a contentious matter (as it continues to be) both within and outside government. At the heart of the contention within government is a debate about the compatibility of freedom of information with one of the strongest traditions of the Westminster system of responsible government—the provision of frank, candid and confidential advice by public servants to ministers.

It cannot be denied that a tension does exist between the fundamental goal of freedom of information—namely, access to government information—and the Westminster tradition of confidentiality. Like the 1979 Senate Standing Committee, however, I believe claims that the two are incompatible are overstated. This is because the FOI Act, through the application of the exemptions and the public interest test, gives both decision makers and review bodies sufficient scope and instructive precedent to support the weighing up of competing interests.

The Australian Government’s reforms shift this balance further towards openness. It is the Government’s intention, as outlined in the following sections, to make the disclosure of government information the starting point for decision makers through its FOI reforms.

Problems with the Act

The Freedom of Information Act, which has remained largely unchanged since its inception, has been criticised for failing to live up to its originally expressed purposes. Sir Anthony Mason diplomatically described it in 2007 as a ‘substantial disappointment’.[11] Others have been less kind, describing it as a ‘regime … in danger of terminal decline’[12], while at least one member of the fourth estate has gone so far as to describe it as ‘a sick joke, marked by delays, obstruction and a presumption against releasing documents’.[13]

The problems with the operation of the Act and its application by decision makers are not new. In fact, many of them were noted in the 1995 joint Australian Law Reform Commission – Administrative Review Council report Open Government.[14] Among those problems are the following:

• that the operation of a ministerial veto through the application of conclusive certificates is inconsistent with the objects of the Act[15]

• that there is a need for an independent monitor and advocate for freedom of information who is responsible for promoting the Act and its philosophy[16]

• that the costs associated with making FOI applications and seeking to have decisions reviewed both internally and externally can discourage use of the Act[17]

• that processing delays are one of the most common problems FOI applicants experience[18]

• that the starting point for many agencies when considering an FOI application is not one of disclosure[19]

• that the Act is not universally accepted by public servants as an integral part of the way democracy in Australia operates.[20]

To take just one example, delays in processing FOI requests continue to be a problem, although there is room for some optimism in view of recent improvements.

It was recorded in the 2007–08 FOI annual report (which covers both the former and the current governments’ terms in office) that agencies took longer to make FOI decisions than in the previous reporting period. The proportion of decisions made and notified within 30 days in 2007–08 was 67.9 per cent, a fall from 77.2 per cent in 2006–07. Further, the proportion of requests taking over 90 days more than doubled between 2006–07 (7.1 per cent) and 2007–08 (14.9 per cent).[21]

The 2008–09 annual report shows, however, that the promptness of responses has improved markedly: 83.3 per cent of decisions were made within 30 days and only 1.77 per cent took more than 90 days during the reporting period.[22] These figures demonstrate that there is much room for improvement in the operation and application of the FOI Act.

Problems such as delays in processing FOI requests are not unique to the Commonwealth. In fact, many, if not all, of the problems identified in the Open Government report apply equally to the states and territories. These difficulties have been noted in various reports, among them the report of the Independent Audit into the State of Free Speech in Australia (conducted by

Ms Irene Moss AO and commissioned by Australia’s Right to Know)[23], the Solomon report[24], the New South Wales Ombudsman’s report[25] and the Tasmanian Justice Department’s directions paper.[26]

Restoring trust and integrity in government through FOI reforms

In 2007 Labor in Opposition produced a detailed FOI policy, set out in the document entitled Government Information: restoring trust and integrity.[27] Commitments were made to do the following:

• revise the FOI Act to promote a culture of disclosure and transparency

• appoint a statutory FOI Commissioner

• rationalise the exemption provisions

• publish guidelines with the overriding principle that information is withheld only when to do so is in the public interest

• review FOI charges to ensure that they are compatible with the objectives of disclosure and transparency.[28]

The reality of government slowed the pace of change but, despite the pundits, real reform continued. The reforms have progressed in two stages. In stage one, on 26 November 2008 the Government introduced into the Senate a Bill to remove the availability of conclusive certificates as a device for preventing full merits review of FOI decisions to refuse access to documents. The Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009 came into force on 7 October 2009.

In stage two, on 26 November 2009 the Government introduced into the House of Representatives the Information Commissioner Bill 2009 and the Freedom of Information Amendment (Reform) Bill 2009. Both Bills are products of a participatory process. The Government released exposure drafts of each Bill for public comment in March 2009 and received a number of public submissions, which were taken account of in the preparation of the final Bills introduced into Parliament.

The Bills contain wide-ranging reforms to the FOI Act, with the purpose of revitalising the Act so that it delivers on the important objects of increasing participation in and the accountability of government. A number of these reforms are discussed in the paragraphs that follow.

Removing conclusive certificates

The question of conclusive certificates had both a real and a symbolic impact during the FOI debate. The certificates were able to be issued under specific exemption provisions of the FOI Act[29] and operated to establish conclusively the exempt status of identified documents.

Removing the power to issue conclusive certificates means all decisions by agencies to refuse access to documents are subject to full merits review and a minister is no longer able to override an adverse decision made by the Administrative Appeals Tribunal.

Modernising the objects of the Act

It is more than a quarter of a century since the FOI Act came into operation. The Government proposes to amend the objects of the Act to more accurately reflect the modern philosophy that is the basis of FOI laws. This will be achieved by including in the objects clause the purposes of the legislation and by removing the existing references to limitations on the right of access to information being limited by exceptions and exemptions, so as to reflect the Government’s proposed emphasis on disclosure.

The purposes to be included in the objects clause are as follows:

• to promote Australia’s representative democracy by contributing to increased public participation in government processes, with a view to promoting better informed decision making and increasing scrutiny, discussion, comment and review of government’s activities

• to recognise that information held by government is to be managed for public purposes and is a national resource

• to facilitate and promote public access to information, promptly and at the lowest reasonable cost.

Although the proposed objects clause does not import any obligation on decision makers to construe exemption provisions narrowly[30], other proposed amendments in the FOI Reform Bill require agencies to have specific regard to the Act’s objects clause when they determine what material to publish in accordance with the proposed publication scheme and when decision makers apply the public interest conditional exemptions.[31]

Establishment of the Office of the Information Commissioner

The centrepiece of the Government’s FOI reforms is the establishment of the Office of the Information Commissioner. This will, for the first time, bring oversight of both the privacy and the FOI regimes together in a single office. The office will be headed by a new statutory officer, the Information Commissioner, who will be vested with both FOI and privacy functions.[32] The Information Commissioner will be supported by the Privacy Commissioner, who will mainly perform the privacy-related functions. The Information Commissioner will also be supported by a new FOI Commissioner, who will mainly perform the FOI-related functions.

The Information Commissioner will have the additional responsibility of providing to government advice on broader information management policy and will report to the Cabinet Secretary on matters relating to government information policy and practices.[33]

Among the FOI functions of the Information Commissioner are the following:

• promoting the FOI Act

• issuing guidelines on the administration of the FOI Act, including operation of the publication scheme (discussed shortly) and application of the public interest test

• providing training to FOI decision makers

• providing assistance to members of the public and agencies handling FOI requests.

The Information Commissioner will also be responsible for investigating complaints made by applicants in relation to agencies’ handling of FOI requests. Further, the commissioner will have the power to conduct own‑motion investigations into agencies’ compliance with the Act. The Ombudsman will continue to have jurisdiction to investigate FOI matters where appropriate—for example, when an FOI complaint forms only a small part of a larger complaint against an agency.

Creation of a publication scheme

Another important element of the Government’s proposal is the establishment of a new information publication scheme for the proactive publication of government information. This scheme—which embraces the notion of the ‘push model’ identified in the Solomon report—reconceptualises the role of freedom of information in facilitating access to government information. It does this by establishing an entirely new scheme that requires agencies to routinely and proactively publish information in the absence of FOI requests.

Under the proposed reforms every agency will be required to prepare a plan showing what information it proposes to publish and how and to whom it is to be published. Plans are to be kept up to date and, in conjunction with the Information Commissioner, agencies must review the operation of their schemes not less than every five years.

Agencies will also be required to publish various categories of information, including the information in documents agencies routinely provide to parliament or to applicants in response to FOI requests.

Two-tier merits review

The FOI Reform Bill establishes a two-tier system of merits review, the first tier being conducted by the Information Commissioner and, if a party is not satisfied, the second being conducted by the Administrative Appeals Tribunal.

It is envisaged that, on receipt of an application for review of a decision to refuse access, the Information and FOI Commissioners will first try to resolve the dispute through mediation and, failing resolution, make a decision. Although there will be the capacity for the Information Commissioner to conduct formal hearings, it is envisaged that the vast majority of these reviews will be conducted on the papers. Applicants will be able to elect not to seek internal review of an agency decision to refuse access to documents and go directly to the Office of the Information Commissioner.

The objective of this reform is to give applicants a quick, free mechanism for resolving access disputes, while at the same time, and if needed, affording both applicants and agencies the opportunity to resolve disputes in a fully contested hearing in the Administrative Appeals Tribunal.

Considering that more than 50 per cent of all applications to the AAT for review of FOI decisions in the three years to 2008–09 were resolved by consent or were withdrawn without a hearing[34], it is expected that the majority of contested FOI applications will be resolved by the Information Commissioner.

Rationalising, reorganising, narrowing and clarifying exemption provisions

A major focus of the Government’s reforms is ensuring that the right of access to documents under the FOI Act is as comprehensive as possible, limited only when a stronger public interest lies in refusing access. It is this philosophy that has guided the Government’s proposed reforms to the Part III request regime.

Consistent with recommendations in the Open Government report, the Government will repeal the exemptions for Executive Council documents and documents arising out of companies and securities legislation.

The exemption provisions will be reorganised into two categories—those that are subject to a public interest test, referred to as ‘public interest conditional exemptions’, and those that are not, referred to simply as ‘exemptions’. Further, a public interest test is to be added to the personal privacy, business affairs (but not trade secrets or commercially valuable information) and research exemptions, as well as to the reformulated national economy exemption.

Additionally, there will be a single formulation of the public interest test, in contrast to the three formulations at present in the FOI Act. The proposed formulation of the test is as follows: ‘The agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest’.[35] This test makes it abundantly clear that disclosure is the starting point for decision makers when considering whether or not to release conditionally exempt documents.

The test is further clarified by listing in the FOI Reform Bill specific matters that must not be taken into account when deciding whether access to a document is contrary to the public interest, as well as specifying matters that favour disclosure of a document in the public interest. The factors favouring non-disclosure are not listed because most of the conditional exemptions encapsulate a harm threshold that in itself is a factor against disclosure. The reformulated national economy exemption, for example, states in part that a document would fall within that category of exemption only if ‘its disclosure … would, or could be reasonably expected to, have a substantial adverse effect on Australia’s economy’. The fact that the disclosure of a document would reasonably be expected to have a substantial adverse effect on Australia’s economy would undoubtedly weigh strongly against disclosure when applying the public interest test. For conditional exemptions that do not contain a harm threshold—for example, the ‘deliberative process’ exemption—the process of identifying factors against disclosure might be more contested.

The proposed factors that cannot be taken into account when deciding whether access to a document would on balance be contrary to the public interest are as follows:

• that access to the document could result in embarrassment to the Government or cause a loss of confidence in the Government

• that access could result in any person misinterpreting or misunderstanding the document

• that the author of the document was or is of high seniority in the agency

• that access could result in confusion or unnecessary debate.

Among the factors favouring access to a document are where giving access would:

• promote the objects of the FOI Act

• inform debate on a matter of public importance

• promote effective oversight of public expenditure

• allow a person access to their own personal information.

The Government also proposes a reformulation of the Cabinet exemption. Under the reformulation, the exemption will be narrowed so as to apply only to documents brought into existence for the dominant purpose—as opposed to the single purpose—of submission for consideration by Cabinet. In line with this amendment, the proposed exemption will not apply to documents just because they are merely attached to Cabinet documents.

The existing scope of the Cabinet exemption will also be extended to make it clear that briefing notes created for the dominant purpose of briefing a minister on Cabinet submissions or proposed submissions are excluded. In addition, drafts, copies or extracts of Cabinet documents will also be exempt.

Eliminating prohibitive costs and delays

Prohibitive costs and delays have regularly been identified as major impediments for FOI applicants.

The Government proposes to deal with the question of costs in two ways. First, all FOI application fees will be removed. The first hour of decision-making time will be free of charge for all applicants, and journalists and not-for-profit organisations will receive five free hours of decision-making time. Individuals’ FOI requests for their own information will be processed completely free of charge, a measure that is particularly significant in view of the fact that the vast majority of FOI applications are made by individuals seeking access to their own information.[36]

Applicants will, at no cost, be able to seek full merits review by the Information Commissioner of decisions by agencies and ministers to refuse FOI requests in full or in part. This contrasts with the current situation whereby applicants wishing to seek an external merits review by the Administrative Appeals Tribunal must first pay an application fee of $682. There is no doubt that this fee operates as a substantial impediment to merits review.

Second, the Government has announced that it will ask the Information Commissioner to carry out a full review of the FOI charging regime within 12 months of the commissioner’s appointment, offering the potential for further reforms to FOI fees and charges.

On the question of delays, the FOI Reform Bill proposes that agencies unable to process an FOI request within the required period of 30 days because the request is complex or voluminous must seek an extension of time from the Office of the Information Commissioner. If agencies fail to process FOI applications within the required time frame, including as extended, they must process those applications free of charge.

Other important transparency measures in the FOI Reform Bill

The Government proposes to amend the Archives Act 1983 by changing the open access period for most government records, including Cabinet documents, from 30 years to 20 years and for Cabinet note books from 50 years to 30 years. Access is to be phased in over 10 years, with the first multi-year release beginning on 1 January 2011.

The Government also proposes to extend the FOI Act to cover documents of contracted service providers and subcontractors delivering services for and on behalf of the Commonwealth insofar as the documents relate to the delivery of those services to members of the community. Although FOI requests for such documents will be made to the relevant agencies, it will be incumbent on the agencies to ensure that suitable contractual measures exist with the contracted service providers in order to facilitate access.

The importance of cultural change

It is well understood that agencies have varying approaches to freedom of information. Some agencies appear to have embraced the philosophy underpinning the FOI Act, but it seems that others have been slower to do this. Mr Andrew Podger, a former public servant who held several senior positions in the Public Service between 1990 and 2005[37], recently referred to attempts in departments to thwart FOI applications, including by destroying documents.[38] Another mechanism involved establishing ‘systematic arrangements to tie as much policy advice to Cabinet papers as possible’ in an attempt to gain the benefit of the Cabinet exemption.

Although the Government’s proposed legislative reforms will, if passed, result in extremely important pro-disclosure changes to the FOI Act, the reforms will not of themselves achieve the Government’s stated aim of restoring trust in and the integrity of government: they must be accompanied by cultural change. And if cultural change is to occur there must be leadership not only from the Government but also from senior management within agencies. To this end, my predecessor Senator Faulkner wrote personally to all agency heads, calling on them to:

… take a lead role in facilitating the Government’s policy objective of enhancing a culture of disclosure across agencies. This includes making it clear to FOI decision-makers in your department or agency that the starting point for considering FOI requests should be a presumption in favour of giving access to documents.[39]

In addition, Senator Faulkner called on FOI practitioners to support the Government’s reform objectives:

I also seek your support … Those of you handling or advising on FOI applications have a vital role to play in ensuring that changes in FOI law are carried through to changes in FOI practice. We will be relying on you to ensure that these reforms actually deliver more open and more accountable government.[40]

The Government also recognises that a major focus of both the Information Commissioner and the FOI Commissioner will be bringing about the required cultural change. It is envisaged that the commissioners will do this by deploying various mechanisms, among them high-level contact with agency heads, provision of training, issuing of guidelines, reviewing of decisions and investigation of FOI administrative practices.


The legislation now before the Parliament comprises a strong package of measures to improve public access to government-held information. The legislation will achieve the Government’s goal of greater openness and transparency in government through the FOI Act. To ensure that the reform package does bring about effective change, the FOI Act and the Information Commissioner Act will be reviewed two years after the reforms are introduced.

Transparency and accountability are cornerstones of good governance. They are principles that have great importance for administrative law, and they underlie the purpose of FOI legislation. I am confident that the revitalised FOI Act, combined with leadership from the Government, the Office of the Information Commissioner and the senior levels of the Public Service, will lead to the development of a greater pro-disclosure culture throughout government.

[*] Senator Ludwig is the Rudd Government’s Cabinet Secretary and Special Minister of State. After this article was sent for printing, on 13 May 2010, the Australian Information Commissioner Bill 2010 and the Freedom of Information Amendment (Reform) Bill 2010, passed through the Parliament.

[1] In Queensland, the new Right to Information Act 2009 came into force on 1 July 2009 following receipt of recommendations from an expert panel chaired by Dr David Solomon AM, as contained in the report entitled The Right to Information: reviewing Queensland’s Freedom of Information Act, published in June 2008 (the Solomon report). In New South Wales, the Government Information (Public Access) Act 2009 was assented to on 26 June 2009 but is not expected to commence until early 2010. The assent followed the release on 5 February 2009 of the NSW Ombudsman’s report entitled Opening up Government: review of the Freedom of Information Act 1989. The new Tasmanian Right to Information Act 2009 will commence on 1 July 2010. This Act follows the release in March 2009 of the Tasmanian Justice Department’s directions paper entitled Strengthening Trust in Government … everyone’s right to know.

[2] See McKinnon v Secretary of the Treasury Department (2006) 229 ALR 187.

[3] Administrative Review Committee 1971, Report, Commonwealth of Australia, Canberra.

[4] Commonwealth of Australia 1973, Interim Report of the Committee on Administrative Discretions, Parl. Paper no. 53; Commonwealth of Australia 1973, Final Report of the Committee on Administrative Discretions, Parl. Paper no. 316.

[5] Commonwealth of Australia 1973, Prerogative Writ Procedures: report of Committee of Review, Parl. Paper no. 56.

[6] Sir Anthony Mason 2007, ‘The 30th anniversary: a judicial perspective’,

Admin Review, no. 58, 13.

[7] Although the Kerr Committee did not recommend an FOI Act, it did recommend that the government should enact legislation which provided for the disclosure of official documents where it was relevant to an administrative tribunal. See n 3, [343]-[344] and recommendation 28.

[8] Interdepartmental Committee 1974, Proposed Freedom of Information Legislation, Commonwealth Parliament, Canberra, Appendix A.

[9] ibid. 1.

[10] Commonwealth of Australia 1976, Policy Proposals for Freedom of Information Legislation: report of Interdepartmental Committee, Parl. Paper no. 400.

[11] Sir Anthony Mason 2007, ‘The 30th anniversary: a judicial perspective’, Admin Review, no. 58, 14.

[12] Denis O’Brien 2005, Freedom of Information Law in Need of Overhaul, Democratic Audit of Australia, 1,, viewed 2 June 2009.

[13] Laurie Oakes 2009, ‘Legal strategies to protect dark secrets’, Daily Telegraph, 2 May, 24.

[14] Australian Law Reform Commission & Administrative Review Council 1995, Open Government: a review of the federal Freedom of Information Act 1982, Report no. 77 & report no. 40, ALRC & ARC, Sydney & Canberra.

[15] ibid. 99.

[16] ibid. 63.

[17] ibid. 181–91.

[18] ibid. 84.

[19] ibid. 30.

[20] ibid. 35.

[21] Commonwealth of Australia 2009, Freedom of Information Act 1982 Annual Report 2007–08, [1.26],, viewed 2 June 2009.

[22] Commonwealth of Australia 2009, Freedom of Information Act 1982 Annual Report 2008–09, [1.26],, viewed 2 February 2010.

[23] Australia’s Right to Know 2007, Report of the Independent Audit into the State of Free Speech in Australia, 31 October.

[24] See n 1.

[25] ibid.

[26] ibid.

[27] Kevin Rudd MP & Senator Joe Ludwig 2007, Government Information: restoring trust and integrity, Labor Party election policy document,, viewed 2 June 2009.

[28] ibid. 5.

[29] Sections 33 (‘Documents affecting national security, defence and international relations’), 33A (‘Documents affecting relations with states’), 34 (‘Cabinet documents’), 35 (‘Executive Council documents’) and 36 (‘Internal working documents’).

[30] See, for example, News Corporation Ltd v National Companies and Securities Commission (1984) 1 FCR 64; Arnold v Queensland [1987] FCA 148; (1987) 73 ALR 607 (Arnold); Searle Australia Pty Ltd v Public Interest Advocacy Centre [1992] FCA 241; (1992) 36 FCR 111.

[31] Freedom of Information Amendment (Reform) Bill 2009 (Cth), proposed ss 9A and 11B(3).

[32] Commonwealth Ombudsman Prof. John McMillan AO was appointed Information Commissioner Designate on 26 February 2010.

[33] The Information Commissioner’s functions, as set out in s 7 of the Information Commissioner Bill 2009, include reporting to the Cabinet Secretary on any matter that relates to the ‘Commonwealth Government’s policy and practice with respect to: the collection, use, disclosure, management, administration or storage of, or accessibility to, information held by the Government; and the systems used, or proposed to be used for … [those] activities …’

[34] See the Freedom of Information Act annual reports, for 2006–07 to 2008–09,, viewed 2 February 2010.

[35] Freedom of Information Amendment (Reform) Bill 2009 (Cth) cl 11A(5).

[36] In 2007–08, 85 per cent of all FOI applications fell within this category. See the Freedom of Information Act annual report for 2007–08, [1.9],, viewed 2 June 2009.

[37] Between 1993 and 1996 and 2002 and 2004 Andrew Podger held the positions of Secretary of the Department of Administrative Services and the Arts and the Department of Health and Family Services and was the Australian Public Service Commissioner. In addition, he was Chair of the Review of Health Services Delivery in the Department of the Prime Minister and Cabinet between 2004 and 2005.

[38] Andrew Podger 2009, The Role of Departmental Secretaries: personal reflections on the breadth of responsibilities today, 128.

[39] Letter from Senator the Hon. John Faulkner to departmental secretaries and agency heads, 30 April 2009,, viewed 2 June 2009.

[40] Senator the Hon. John Faulkner, Speech delivered at the FOI Practitioners Forum, Canberra, 3 April 2009,, viewed 2 June 2009.

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