Australian Lawyers for Human Rights

March 2003

Access to government information in Australia
Australian Lawyers for Human Rights

Rights of access
Australia has a comprehensive regime of access to government documents which is generally known as “freedom of information”, abbreviated to “FOI”. The Federal Freedom of Information Act 1982 governs access to documents held by the national government. As well, each Australian State has its own Freedom of Information Act, governing access to State government documents.

¹ In this discussion, the national legislation is referred to as the Federal legislation.

The aim of FOI legislation in Australia is to allow greater public accountability and transparency in government dealings. FOI legislation provides for a broad right of access to government information, subject to certain exceptions. As a general rule, it allows individuals to make written request for copies of specified government documents.

The Federal FOI legislation was the first of its kind in Australia. The legislation in various States is generally similar in structure to the Federal legislation, and provides essentially the same rights of access. However, it is fair to say that the more recent legislation (such as that introduced by Western Australia and Queensland in 1992) provides improved rights of access.

“documents”
FOI legislation provides for a right of access to all the documents of a government agency. Thus the term “freedom of information” is something of a misnomer: an agency is only required to provide access to an existing document, and consequently to any information in that document. If government information exists but not in a documented form, for example it is in the recollection or opinion of a government officer but has not been recorded, there is no access to it under FOI legislation.

The term “document” is defined very broadly. The definition of document in s.4 of the Federal Freedom of Information Act is a good example:
“(a) any of, or any part of any of, the following things:
(i) any paper or other material on which there is writing;
(ii) a map, plan, drawing or photograph;
(iii) any paper or other material on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them;
(iv) any article or material from which sounds, images or writings are capable of being reproduced with or without the aid of any other article or device;
(v) any article on which information has been stored or recorded, either mechanically or electronically;
(vi) any other record of information; or
(b) any copy, reproduction or duplicate of such a thing; or
(c) any part of such a copy, reproduction or duplicate”.

If a document of the type requested by an applicant does not exist (for example, if the relevant government discussions were not written down, or if a particular statistical analysis has not been undertaken) an agency is not required to create the document in order to provide access to it.

One restriction that is imposed on the right of access to a document is the definition of “documents of an agency”. Some FOI legislation defines the documents “of an agency” as being the “documents in the possession of an agency.”² Other FOI legislation provides that an agency’s documents include documents in the agency’s custody, possession or control or documents to which an agency has an immediate right of access³ (emphasis added).
The difference can be very important if access is sought to documents which are in the possession of a third party, such as a private contractor. Governments in Australia are increasingly contracting private companies to provide services which were formerly provided by government. Private contractors are not bound by FOI legislation, as they are not government agencies, so documents held by private contractors are not accessible under the Federal legislation. Given that FOI legislation is intended to allow greater accountability and transparency in government dealings, it is unfortunate that rights of access are narrowed at the very point where the public interest might be subverted by private interests and commercial gain.⁴
In contrast to the Federal position, the Western Australian, Queensland and South Australian FOI legislation defines “documents of an agency” to include documents to which the agency itself is entitled to access.⁵ Thus, if there an agency has a contractual right to demand that copies of documents or information in the possession of the contractor be provided to it, those documents will in turn be available under the FOI legislation.

Privacy legislation
For the sake of completeness, it should be noted that there is also Federal legislation, and legislation in some States, which gives an individual access to their own personal information held by governments and by large private bodies or businesses.⁶ This legislation is referred to generally as “privacy legislation”.
Privacy legislation is more concerned with regulating the way in which governments and private industry collects, stores, uses and disseminates private information, than it is about rights of access to that information. Accordingly it is not directly relevant to this paper and is not considered further. There is however an important ‘privacy’ exemption in FOI relating to documents concerning other people’s personal affairs, which is discussed below.
Exceptions to or restrictions on access
All FOI legislation makes the general right of access subject to limitations or exceptions. Although the nature of the exceptions vary, many of them are common to all of the FOI legislation. The way in which the exceptions are worded also varies between the different jurisdictions, but they cover similar issues.
Generally speaking, exemptions are framed in terms of “matter” being exempt rather than the documents themselves being exempt. Therefore, an exemption is directed to the content of the document, not the document itself. The matter or content of the document is the information. This reinforces the fact that an applicant has a right of access to the documents themselves, but the documents are to be edited to delete the exempt material, if that it is reasonably practicable.⁷ To be practicable, the document must be intelligible with the information deleted: there is no point in providing access to a few scattered words on an otherwise blank page.⁸

Cabinet documents
Official records of Cabinet and the Executive Council are exempt from access under FOI.⁹ However, the exemption is far broader than just these documents, and covers material prepared for submission to Cabinet or the Executive Council regardless of whether the document has in fact been submitted. A preliminary draft of a document prepared for submission is also exempt. Any documents which would disclose information concerning the deliberation of Cabinet are exempt, as are copies or extracts from any of these kind of documents.

The need for this exemption is obvious: Cabinet is at the top of the decision-making tree in Australian democracies and must be allowed to discuss matters of importance and make decisions without being constrained by public scrutiny. In addition, the long tradition of cabinet solidarity – that all Ministers will support a cabinet decision once it is reached even if they disagreed during the decision making process – requires that the views expressed in Cabinet meetings remain secret.
Consistently with this rationale, documents which contain merely factual or statistical material, and which would not disclose the deliberation of Cabinet or the Executive Council, are not exempt.
The Cabinet exemption does have limits. The exemption only applies to documents actually prepared for possible submission to Cabinet, rather than simply to any document submitted to Cabinet. This prevents government agencies from piling all of their sensitive documents in a shopping trolley and wheeling it through the Cabinet room in order to claim an exemption. In addition, under some FOI regimes, the Cabinet documents exemption no longer applies following the expiration of between 10 and 20 years after the document came in to existence.¹⁰ Federal Cabinet documents are released 30 years after they were created¹¹.
Inter-governmental relations
Matter in a document is exempt if its disclosure could reasonably be expected to damage relations between governments, or would reveal information of a confidential nature communicated in confidence to the government by another government. This clause includes information communicated by an international government or the government of another State or the Commonwealth.¹² The Federal legislation exempts documents where release could reasonably be expected to damage relations national security, defence or international relations.¹³
Documents affecting law enforcement and public safety
There is a wide ranging exemption for matter in a document where its release would affect law enforcement or public safety.¹⁴ In considering whether matter is exempt under this section, it is important to bear in mind that there are no restrictions on what a person can do with the documents that they obtain under FOI. Thus, although the access applicant may appear to be unlikely to, for example, threaten the witnesses or informants identified in a document, a document will be exempt if it could reasonably be expect that another member of the public might use the information in that way.

This means that parliament has determined that it is in the public interest – for reasons of law enforcement or public safety – for matter in a document to be exempt if it could reasonably be expected to:

prejudice an investigation into a contravention or possible contravention of the law
reveal the existence of a confidential source of information
impair the effectiveness of a method or procedure for preventing, detecting, investigation or dealing with possible contraventions of the law
prejudice the fair trial of a person
endanger the life or physical safety of any person or endanger the security of any property
facilitate the escape of a person from custody.

FOI legislation also identifies some agencies, such as units of the police service, for which matter in all their documents are exempt.

There has been some debate about whether the “law enforcement” referred to in this exemption is no wider than the informant type privileges available to the police or like agencies (such as that provided for in D v National Society for the Prevention of Cruelty to Children [1978] AC 171.)

The alternative view is that the exemption is available to all agencies. Many government bodies administer laws which have offences attached to their contravention. For example, the WA Information Commissioner is of the view that the exemption extends to aspects of the tax and revenue laws, laws about the practice of certain professions, town planning laws, and the regulation of agriculture and fishing. These are examples of government activity which is liable to be undermined if certain enforcement techniques or investigations are prematurely released to the public.¹⁵ However, Commonwealth, New South Wales and Victorian administrative review tribunals have held that the FOI exemption is as limited as the police informer privilege.¹⁶

This exemption has its limits: it does not apply to matter in documents which only shows that the scope of a law enforcement investigation has exceed the legal limits. Nor does it cover a general outline of the structure of an agency’s program to deal with contraventions of the law, or a description of the degree of success of that program.

Documents affecting personal affairs
Documents which concern the personal affairs of a person other than the applicant are exempt, unless disclosure is in the public interest.¹⁷

The phrase “personal affairs” means “the composite collection of activities personal to the individual concerned” (Commissioner of Police v District Court of NSW (Perrin’s case) (1993) 31 NSWLR 606) or “the private aspects of a person’s life” (Curtin and Pine Rivers Shire Council 4 QAR 195). However, the phrase does not cover the names, identifying references or normal duties of public officials: Perrin’s case. In some States (such as Western Australia and Queensland) the distinction between public officials and private individuals has been made explicit in the legislation.

Generally speaking, there is a strong public interest in preserving the private affairs of individuals whose personal details are held by government. There would have to be an extraordinary public interest in favour of disclosure to overwhelm the public interest in maintaining an individual’s privacy.

The most difficult problems arise when the personal information of one person becomes inextricably linked with the personal information of another. This is a difficulty faced by Aboriginal people, and others who have lived under government control, trying to uncover their family history from government files; other family members, whose information is also held in those files, may not wish their past to be disturbed or uncovered. While recognising the importance of providing a person with access to their own information, it often becomes impossible to do so without also revealing information about other family members.

Most FOI legislation says that before a person’s personal information can be released under FOI, reasonable steps must be taken to consult that person. If, despite the person’s objections, the agency still proposes to release the material, the person has a right to seek review of that decision.¹⁸

Documents affecting business affairs of private bodies and governments
This exemption¹⁹ is one of the most controversial, particularly now that governments are contracting many of their services to be performed by private companies.

A fairly straightforward exemption is one for trade secrets: information of a commercial value is exempt provided that its release could reasonably be expected to destroy or diminish the commercial value of that information.

A more difficult exemption to satisfy is for information relating to the business, professional, commercial or financial affairs of an agency or any other person. This information is exempt if its disclosure could reasonably be expected to have an unreasonable adverse effect on those affairs. The use of the term “unreasonable” in this exemption necessarily involves consideration of competing public interest factors.

Like the personal affairs exemption discussed above, if a government agency is considering releasing documents containing information about the business affairs of a third party, it must first consult that third party, who has a right of review if the agency proposes to release the information.²⁰

An example of the difficulty in balancing competing public interest considerations is found in a decision of the Administrative Appeals Tribunal in Re Rogers Matheson Clark and Australian and Australian National Parks and Wildlife Service (1991) 22 ALD 706. Businesses in Australia exported kangaroo meat and skins, with a government license under the Wildlife Act to do so. Greenpeace had requested from the Wildlife Service documents relating to the overseas companies that imported the kangaroo products from Australia. There was considerable evidence to suggest that Greenpeace would use the information to target those companies with aim of getting them to change their business practices. The Tribunal considered the competing interests to be the commercial interests of the Australian exporters in protecting their lawful business, and the public interest in knowing who exports kangaroo products and to whom. On balance, the Tribunal held that if an industry operating lawfully within the Wildlife Act was to be closed down, then that was properly a decision for parliament and not the Tribunal. Access to the information was refused. Interestingly, the Tribunal did not consider either the public interest in accountability, which would be assisted by allowing Greenpeace to check whether the commercial operators were operating within statutory bounds, or the public interest in facilitating legal protest.

A further exemption for information relating to the business, professional, commercial or financial affairs of an agency or any other person, is if its disclosure could prejudice the future supply of information of that type to the government. The concern is that the government’s ability to obtain information from private commercial interests in future will be prejudiced by the prospect of that information then becoming available under FOI. (However, it may also be that neither the business nor government wish to have the arrangement scrutinised.²¹). This claim is readily made, but often does not stand up to closer scrutiny.

Firstly, government often obtains its information pursuant to a statutory power to require that the information be provided. In circumstances of mandatory provision of information to government, businesses have no choice but to provide the information, even if it could be later released under FOI. Information is also often provided to government in order to receive a benefit from government, be it a licence to manufacture a certain drug or a contract to provide a service. Access to that information allows the public to check whether an agency has been captured by the industry it is meant to regulate.²²

Under FOI legislation, the onus is on the government agency to prove its claim in each case. Government agencies will argue that contractors would chose not to tender for government contracts if all of their commercial information were to be made available to public scrutiny. But it is unlikely that a contractor would say that it will never contract with government, or a drug manufacturer will not commercialise drugs in Australia despite the financial rewards, if information is made available under FOI.

The voluntary provision of information to government is in a different category, and the argument for the exemption is stronger.
There will for example be occasions when the government agency will rely on the exemption in relation to information provided not by a private commercial interest, but by another government agency. But Government agencies need to be able to demonstrate that they are operating in a commercial or business environment in order to rely on the exemption to protect their own information or the information of another government agency.

The scope of this exemption is widening as services which were formerly government services, such as water, transport education, power and health, have now been corporatised to a greater or lesser extent. Ironically, therefore, at just the time when openness and accountability are most required in order to ensure that private interests are distributing these services in a just and equitable manner, access to information about them is largely exempt under FOI.²³

Some states (such as Western Australia and Queensland) impose an additional test before there can be an exemption for information relating to government business affairs: a “public interest” test must be satisfied before government agencies can rely on this exemption.

Internal working documents
Documents which record an opinion, advice, recommendation, consultation or deliberation that has taken place in the process of the decision-making functions of the government are exempt, provided that disclosure would, on balance, be in the public interest.²⁴
This exemption is designed to protect the thinking process of an agency, being the process of reflection and weighing up a particular course of action.²⁵ The exemption is not restricted to policy documents: a wide range of documents can be caught, ranging from drafts of letters, documents suggesting possible courses of action, documents recording a preliminary exchange of facts, documents which record the views of Minister of public servants, or assessment of funding applications.

The public interest tests applicable to this exemption have been given an interesting twist. Ordinary conceptions of public participation in the democratic process would suggest that the best time for the public to understand how a decision is being made, and to work to change it, is before a final decision is reached. Yet it has been generally held that the public interest does not favour disclosure of deliberative process documents while the deliberative process is still underway. The WA Information Commissioner, who usually adopts a liberal approach to granting access to documents, expressed her views as follows:

“It would be contrary to the public interest to prematurely disclose documents while deliberations in an agency are continuing, if there is evidence that the disclosure of such documents would adversely affect the decision-making process, or that disclosure would, for some other reason, be contrary to the public interest. I do not generally consider that it is in the public interest for any agency to conduct its business with the public effectively "looking over its shoulder" at all stages of its deliberations and speculating about what might be done and why. I consider that generally the public interest is best served by allowing deliberations to occur unhindered and with the benefit of access to all of the material available so that informed decisions may be made.”²⁶

Documents affecting legal professional privilege
This exemption mirrors the usual test for legal professional privilege which prevents documents from being discovered in litigation or produced on subpoena.²⁷ Documents are covered by legal professional privilege in Australia if they satisfy the following test:
"a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection ."²⁸
This exemption is generally not too controversial. The only issue that arises for consideration with any frequency is whether privilege in a document has been waived, either by the document’s being provided to the government by a private individual or by its being passed from one government agency to another.

Confidential documents
This exemption²⁹ works in two ways. The first is that documents are exempt if they would disclose in breach of confidence. Whether disclosure would be a breach of confidence is generally assessed according to the ordinary legal principles. A breach of confidence could arise in contract, equity or as the result of a breach of fiduciary duties.

The only real controversy here is the possibility that governments could effectively avoid their FOI obligations by including in all of their contracts binding obligations of confidence in respect of every document created in the course of that contract. This would allow an exemption under this heading to be claimed for any of those documents.³⁰

The second way in which this exemption has effect is when disclosure of information obtained in confidence could reasonably be expected to prejudice the future supply of this type of information, and disclosure would be against the public interest.

This exemption generally protects people who assist agencies in their inquiries or investigations. The investigation can be relatively prosaic, such as a neighbourhood dispute, but can extend to investigations into contraventions of the law, disciplinary proceedings or corruption. The exemption also protects whistleblowers or those who report matters of concern to government agencies. It is not necessary for there to be an express undertaking of confidence given, and such an undertaking could not in any event avoid the statutory FOI obligations. It is enough that information is given in circumstances where there is an expectation that it will be kept confidential, or an undertaking is given to keep the information as confidential as possible.

Other exemptions
There are exemptions for documents which are the subject of secrecy provisions, which would affect the economy, financial or property interests of the government, or which would have a significant effect on the operations of government agencies. These are less commonly relied on and are not explained further.

Exemptions for certain bodies
Certain bodies are exempt or partially exempt. These bodies include courts, tribunals, prosecuting authorities, complaint or grievance bodies such as the Auditor General and the Ombudsman, or bodies that carry out business or commercial functions such as the Public Trustee, government superannuation investment bodies, Australian Industry Development Body. Certain named intelligence organisations are also exempt.

Procedure for obtaining access to information
The process for obtaining access to documents is a relatively simple one. A person (“the applicant”) simply makes a written application to the relevant agency specifying the documents to which she or he seeks access. Quite often a fee is charged for seeking access to documents (generally about AUD$30), although the fee can be waived. As often, a further fee is charged for the time taken to locate and copy the documents. This can be very high in some cases, and operates as a real deterrent to access. This problem is discussed further below.

Assisting an applicant
If the application is difficult to understand or is framed too broadly, agencies have an obligation to assist the applicant to clarify the application or to limit its scope. Similarly, if the documents are not held by the agency but the agency considers that they are held by another agency, the FOI application may be transferred to another agency. An application may also be transferred if the documents are held by the original agency but are more closely related to the functions of the second agency.

Time limit
There is a statutory timeframe within which agencies must respond to FOI applications. This is generally 21 days, but it can be extended if there is a need to consult third parties whose personal or business information is contained in the documents. It can also be extended by agreement with the applicant.

If a decision in relation to the application is not made within the 21 day time frame, the decision maker is deemed to have refused the application.

Internal review of a decision
If the agency relies on an exemption, and decides not to give an applicant access to all or some of the requested documents, the applicant can apply for an ‘internal review’ of that decision. The internal review is done by another officer of the agency, who must be more senior than the original decision-maker. Again, there is a statutory timeframe within which the decision must be made (between 10 and 14 days) after which, the internal reviewer is deemed to have refused the review application.
External review and enforcement
If the internal review decision upholds the initial decision, the applicant can apply for an external review. The onus is on the agency to prove that they properly claimed exemption. Similarly, if an agency does not provide documents in accordance with a decision to provide them, an applicant can enforce their right of access. There are different approaches to external review or enforcement of FOI decisions in Australia.

The Federal government, New South Wales and Victoria all have tribunals with the power to conduct administrative review. These tribunals headed by judicial officers, and their members are legal practitioners of some years’ standing. The tribunals are not bound by the rules of evidence, and they are obliged to proceed with as little formality as possible.

In New South Wales and Victoria there is no filing fee for the commencement of proceedings. Although the usual rule in Australia is that the losing party will pay the legal costs of the winning party, an award of costs against unsuccessful applicants in an FOI review is very rare. Many applicants appear for themselves, not represented by a lawyer.

These tribunals have significantly enhanced the process of FOI. Before 1998 in NSW, the right of review of FOI decisions was to the District Court. The Court had no expertise in the area, and the review proceedings were in the same form as ordinary litigation. Only 12 cases were decided in the 10 years before 1998. In October 1998, the Administrative Decisions Tribunal (ADT) commenced operation, and in 2002 alone handed down 37 FOI decisions. As well as providing speedy and efficient administrative review, there is the added benefit of developing FOI jurisprudence, which assists agencies and applicants alike.

At the Federal level, it seems that there are fewer FOI cases being heard by the Administrative Appeals Tribunal (AAT) than was previously the case. In 2001-2002 the AAT heard 138 FOI cases, which constituted only 2% of its workload.³¹ There have been complaints that the AAT is too formalised and too court-like and discourages applicants.³² A filing fee of $574 is payable before proceedings can be commenced, which is a considerable deterrent to applicants. Although legal representation is not essential, FOI access applications are often vigorously contested by the government agencies and are quite difficult; legal representation would be a considerable asset. As FOI cases are heard by a variety of members, some Tribunal members have a limited experience of FOI.

Differently from the Federal, New South Wales and Victorian tribunals, Western Australia and Queensland have an Information Commissioner who acts as a review officer. A letter to the Commissioner attaching a copy of the decision starts the review process. The Commissioner will generally require the agency to produce the documents for inspection, and will then attempt to resolve the matter by informal means. The Commissioner may encourage the agency to provide the documents claimed or explain to the applicant that an exemption is properly claimed and encourage the applicant to withdraw.

In 2002, 60% of the applications for external review made to the WA Information Commissioner were conciliated.³³ If this is unsuccessful, the Information Commissioner proceeds to make a formal decision.

In all States and Federally the Ombudsman has the power to investigate administrative action (or inaction). As such, the Ombudsman provides an alternative avenue of review. The Ombudsman can investigate an agency’s FOI decision and mediate and make suggestions about the way in which the decision making process was handled, but cannot require agencies to comply with their recommendations.

Problems with the effective operation of FOI

There are some practical problems with the way in which FOI operates in Australia.

Expensive access regimes
The first is the cost of getting access to information under FOI. Apart from the initial application fee, agencies are entitled to charge for the time that it takes to search for the documents concerned and then to consider, edit and copy the documents. An agency can ask for an advance deposit on the amount that it estimates will be incurred. For example, in New South Wales, these fees are charged at $30 per hour. However, in New South Wales, if a person seeks information about their own personal affairs, these fees are only charged after the first 20 hours of processing.

On the one hand, fees are justified as FOI can take up an enormous amount of agency time and charging fees is one way of encouraging applicants to think carefully about the types of documents that they seek access to. On the other hand, it is also possible for the costs of FOI applications to be several thousand dollars, which is discouraging for applicants.

Contracting out
There has been much discussion of the reduced effectiveness of FOI in an environment where government services are contracted out to private bodies.³⁴ These issues have already been discussed above.

A welcome change to this approach is the Western Australian FOI legislation which was amended when the prospect of private prisons was introduced. Not only is the contract between the government and the private prison operator available on a website, but the FOI legislation was amended so that the private prison contractor is deemed to be a public body or office for the purposes of the FOI Act, and documents relating to prisons are directly accessible from the prison contractor.³⁵

Public Interest tests
Although many claims for exemption do contain public interest tests, some, such as Cabinet documents, documents relating to law enforcement and business affairs documents, do not. The Victorian Freedom of Information Act 1982 (s.50(4)) is the only legislation to contain a general public interest test.

There has been criticism of the lack of a general overriding public interest test in all FOI regimes. A counter-argument is that where an exemption does not contain a public interest test, Parliament has already undertaken the public interest balancing exercise and decided that in no case could there be a public interest in favour of disclosure.

The public interest tests allow for consideration of the competing interests of democracy and accountability on the one hand, and the needs for the efficient and effective working of government and the privacy of business and members of the public on the other.
It has been argued that this balancing exercise should be undertaken in every case, rather than simply having certain blanket exemptions. Agencies (or more likely, external review bodies) could then give full weight to the democratic objectives of FOI legislation by allowing access to documents where matters have been the subject of widespread community concern and comment and where the release of documents under FOI would allay or explains these concerns or provide relevant material for community discussion.³⁶ However, at present there does not seem to be any push on the part of any of the legislatures in Australia to amend the FOI legislation in this way.

¹ Freedom of Information Act 1989 (ACT); Freedom of Information Act1989 (NSW); Freedom of Information Act1992 (Qld); Freedom of Information Act 1991 (SA); Freedom of Information Act1982 (Vic); Freedom of Information Act 1991 (Tas); Freedom of Information Act 1992 (WA).

² See for example s.4 Freedom of Information Act 1982 (Cth); s. 5 Freedom of Information Act 1982 (Vic)

³ See for example s.6(2)(e) Freedom of Information Act 1989 (NSW); s.4(4) Freedom of Information Act 1991 (SA); Cl. 4(1) of the Glossary to Freedom of Information Act 1992(WA).

⁴ Shergold P "Administrative Law in the Changing Public Service Environment"
(1997) 10 AIAL Forum 4 at 8; and see Allars at fn 23 below.

⁵ Freedom of Information Act 1992 (WA) cl.4(2) of the Glossary

⁶ Privacy Act 1988 (Cth); Privacy and Personal Information Protection Act 1998 (NSW); Information Privacy Act 2000 (Vic);

⁷ s.22 Freedom of Information Act 1989 (Cth); s.21 Freedom of Information Act 1989 (ACT); s.25(4) Freedom of Information Act1989 (NSW); s.32 Freedom of Information Act1992 (Qld); s.20(4) Freedom of Information Act 1991 (SA); s.25 Freedom of Information Act1982 (Vic); s.19(2) Freedom of Information Act 1991 (Tas); s.24 Freedom of Information Act 1992 (WA).

⁸ Police Force of Western Australia v Winterton (unreported, SCWA, 27 November 1997)

⁹ ss.34 and 35 Freedom of Information Act 1989 (Cth); s.35 Freedom of Information Act 1989 (ACT); cls. 1 and 2, Sch. 1 Freedom of Information Act1989 (NSW);ss.36 and 37 Freedom of Information Act1992 (Qld); cl1, Sch. 1 Freedom of Information Act 1991 (SA); s.28 Freedom of Information Act1982 (Vic); ss.23 and 24 Freedom of Information Act 1991 (Tas); cl.1, Sch.1, Freedom of Information Act 1992 (WA).

¹⁰ Eg, cl.1, Sch.1 Freedom of Information Act 1989 (NSW) provides for a 10 year limit; cl.1, Sch.1 Freedom of Information Act 1991 (SA) provides for a 20 year limit; cl.1, Sch.1 Freedom of Information Act 1992 (WA) provides for a 15 year limit.

¹¹ s.3(7) Archives Act 1983 (Cth)

¹² s. 33A Freedom of Information Act 1989 (Cth); s.34 Freedom of Information Act 1989 (ACT); cl.5, Sch. 1 Freedom of Information Act1989 (NSW);s.38 Freedom of Information Act1992 (Qld); cl.5 of Sch. 1 Freedom of Information Act 1991 (SA); s.29 Freedom of Information Act1982 (Vic); s.26 Freedom of Information Act 1991 (Tas); cl.2, Sch.1 Freedom of Information Act 1992 (WA).

¹³ s. 33 Freedom of Information Act 1989 (Cth);

¹⁴ s. 37 Freedom of Information Act 1989 (Cth); s.37Freedom of Information Act 1989 (ACT); cl.4,Sch. 1 Freedom of Information Act1989 (NSW);s.42 Freedom of Information Act1992 (Qld); cl.4 of Sch. 1 Freedom of Information Act 1991 (SA); s.31 Freedom of Information Act1982 (Vic); s.28 Freedom of Information Act 1991 (Tas); cl.5, Sch.1 Freedom of Information Act 1992 (WA).

¹⁵ Re: Henderson and Education Department of WA (WA Information Commissioner, 26 August 1997).

¹⁶ Re Gold and Australian Federal Police (1994) 37 ALD 168; Accident Compensation Commission v Croom [1991] 2 VR 322; BY v Attorney General’s Department [2003] NSWADT 37.

¹⁷ s. 41 Freedom of Information Act 1989 (Cth); s.41 Freedom of Information Act 1989 (ACT); cl.6, Sch. 1 Freedom of Information Act1989 (NSW);s.44 Freedom of Information Act1992 (Qld); cl.6 of Sch. 1 Freedom of Information Act 1991 (SA); s.33 Freedom of Information Act1982 (Vic); s.30 Freedom of Information Act 1991 (Tas); cl.3, Sch.1 Freedom of Information Act 1992 (WA).

¹⁸ s. 27A Freedom of Information Act 1989 (Cth); s.31 Freedom of Information Act1989 (NSW); s.26 Freedom of Information Act 1991 (SA); Part 3A Freedom of Information Act1982 (Vic); 32 Freedom of Information Act 1992 (WA).

¹⁹ s. 43 Freedom of Information Act 1989 (Cth); s.43 Freedom of Information Act 1989 (ACT); cl.7, Sch. 1 Freedom of Information Act1989 (NSW);s.45 Freedom of Information Act1992 (Qld); cl.7 of Sch. 1 Freedom of Information Act 1991 (SA); s.34 Freedom of Information Act1982 (Vic); s.31 to 32A Freedom of Information Act 1991 (Tas); cl.4, Sch.1 Freedom of Information Act 1992 (WA).

²⁰ s. 27 Freedom of Information Act 1989 (Cth); s.27 Freedom of Information Act1982 (ACT); s.32 Freedom of Information Act1989 (NSW); s.27 Freedom of Information Act 1991 (SA); 33 Freedom of Information Act 1992 (WA).

²¹ M Patterson “Commercial in confidence Claims, Freedom of Information and Public Accountability – a Critique of the ARC’s Approach to the Problems Posed by Government Outsourcing” in Administrative Justice – the Core and the Fringe (Papers presented at the 1999 National Administrative Law Forum), R Creyke and J McMillan (ed) 2000 at 245

²² P Bayne, “Freedom of Information in Australia” in T W Bennett (ed) Administrative Law Reform (1993) at 222, D James “A federal Freedom of Information Commissioner Looking Behind the ALRC/ARC Final Report” (1998) 76 FOI review 50 at 194

²³ Allars, “Private Law but Public Power: Removing Administrative Law Review from Government Business Enterprises” (1995) 6 Public Law Review 44 at 45; and see Shergold at fn 4 above.

²⁴ s. 36 Freedom of Information Act 1989 (Cth); s.36 Freedom of Information Act 1989 (ACT); cl.9, Sch. 1 Freedom of Information Act1989 (NSW);s.41 Freedom of Information Act1992 (Qld); cl.9 of Sch. 1 Freedom of Information Act 1991 (SA); s.30 Freedom of Information Act1982 (Vic); s.27 Freedom of Information Act 1991 (Tas); cl.6, Sch.1 Freedom of Information Act 1992 (WA).

²⁵ Re Waterford and Department of Treasury (1984) 1 AAR 1

²⁶ Gallop and Water Corporation, re [1999] WAICmr 36 at [62]

²⁷ s. 42 Freedom of Information Act 1989 (Cth); s.42 Freedom of Information Act 1989 (ACT); cl.10, Sch. 1 Freedom of Information Act1989 (NSW); s.43 Freedom of Information Act1992 (Qld); cl.10 of Sch. 1 Freedom of Information Act 1991 (SA); s.32 Freedom of Information Act1982 (Vic); s.29 Freedom of Information Act 1991 (Tas); cl.7, Sch.1 Freedom of Information Act 1992 (WA).

²⁸ Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67 at [46] per Gleeson CJ, Gaudron and Gummow JJ.

²⁹ s. 45 Freedom of Information Act 1989 (Cth); s.45 Freedom of Information Act 1989 (ACT); cl.13, Sch. 1 Freedom of Information Act1989 (NSW); s.46 Freedom of Information Act1992 (Qld); cl.13 of Sch. 1 Freedom of Information Act 1991 (SA); s.35 Freedom of Information Act1982 (Vic); s.33 Freedom of Information Act 1991 (Tas); cl.8, Sch.1 Freedom of Information Act 1992 (WA).

³⁰ J Carroll and G Bennett “Freedom of Information: Penetrating the Maze” in Administrative Law – the Essentials (Papers presented at the 2001 National Administrative Law Forum), J McMillan (ed) 2003 at 195

³¹ Administrative Appeals Tribunal, Annual Report 2001-2002, Appendix 4.

³² Bayne, at 54-55

³³ Officer of the Information Commissioner Western Australia, Annual Report 2002 p 27

³⁴ In addition to much academic discussion, the issue has been the subject of a report by the Administrative Review Council - Contracting Out of Government Services Report No 42 (1998)

³⁵ A Johnson “FOI, Commercial Confidentiality and Contract Out – a Few Steps Forward” in Administrative Law – the Essentials (Papers presented at the 2001 National Administrative Law Forum), J McMillan (ed) 2003

³⁶ The Victorian provision has been interpreted in this way – see for example Re Just v Department of Justice (1996) 10 VAR 126 (Vic AAT)

This page last updated 4th May 2004