Page 4457 - Week 14 - Thursday, 28 November 2013
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The public right to government information is recognised in international law as being included within the right protected by section 16 of our Human Rights Act. The UN Special Rapporteur on Freedom of Opinion and Expression, in successive annual reports to the UN Commission on Human Rights, has stated that under the right protected by article 19 of the International Covenant on Civil and Political Rights, the equivalent of our section 16 of the Human Rights Act:
… everyone has the right to seek, receive and impart information and this imposes a positive obligation on the States to ensure access to information … subject only to such restrictions as referred to in article 19, paragraph 3, of the International Covenant on Civil and Political Rights.
Those restrictions can be summarised as restrictions necessary for the protection of the rights of others and the protection of public health and safety or, as expressed in the bill, the protection of the public interest.
The most important part of the bill is that it creates a single public interest test for the release of information and removes the existing class-based exemptions from the public right to government information. The exemptions are, of course, the most controversial element of any freedom of information scheme. Often when there is the greatest public interest in the release of government information the exemptions operate to prevent it. The reality is that the current act is structured in a way such that it allows the government to be secretive when transparency is most required.
The New Zealand Law Reform Commission has made the observation that “class exemption contradicts open government”. The Commonwealth Human Rights Initiative also strongly recommended against class-based exemptions, noting:
Such class exemptions are anathema to the third generation of access to information laws.
Across Australia, different jurisdictions have different exemption provisions. In some jurisdictions, certain information is exempt from the right to public access, while in other jurisdictions the same information must be released to the community if it is in the public interest to do so. This reality demonstrates just how problematic the current framework is.
For example, in South Australia and New South Wales, with some exceptions, law enforcement material is subject to a public interest test. However, in Victoria, and under the current ACT Freedom of Information Act, the same material is exempt. This means that irrespective of the public interest in release of information, the law does not compel that release. It is also worth noting that in Victoria, for all but four classes of information, the Victorian Civil and Administrative Tribunal may apply a public interest test to release information that would otherwise be exempt.
The underlying problem with exempting classes of information is that even when it is in the public interest to release a particular piece of information, the law operates as a barrier to both the public right to information and making governments more accountable.
The draft bill takes a different approach. Instead of setting up artificial categories and adding additional criteria that have to be evaluated needlessly, information held by
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