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Public sector accountability and transparency

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Parliamentary library briefing book: Key Issues for the 43rd Parliament Page | 68 Page | 69 law, justice and human rights

the agreements between the minority l abor government with the various independents have a common theme of pursuing principles of transparent and accountable government. a ligned with these promises is a new and important phase of information disclosure in a ustralian government administration set to commence later this year.

freedom of information reform

freedom of information ( foi), or the statutory right of access to government documents, is justified on the grounds that it encourages transparency and political accountability and promotes public participation in government and representative democracy.

in the 1970s a ustralia was a leading nation in introducing foi laws into a Westminster-style democracy. however over time there was a general view that those 1970s reforms were not successful—that there was minimum cultural change and that a presumption in favor of disclosure was not practised across government. it was felt that government agencies could exploit restrictions and gaps in foi laws to make it harder for the public to gain access to government information, especially information that might be embarrassing to the government or agency.

the rudd labor government introduced major foi changes with the principal objects of promoting a pro-disclosure culture across the g overnment and building a stronger foundation for more openness in government. t hese reforms, the bulk of which commence on 1 n ovember 2010, are comprehensive with all aspects of the foi laws being reformed—access procedures, foi charges, exemption criteria, foi objectives, the procedure for review of disputed decisions, publication of information by agencies, and foi reporting by agencies.

a major part of the foi reforms is the creation of an information Commissioner position. i t is an independent statutory position, with a range of functions that include investigation of complaints about foi administration, merit review of access denial decisions, publication of foi guidelines, and providing advice to government on information policy. the information Commissioner Designate, John m cmillan, is enthusiastic about the new position noting that the range of functions conferred is extensive and go beyond the traditional review role of settling individual disputes about document access. h e foresees that agency heads and m inisters will need to heed the work of the i nformation Commissioner and take a greater involvement in foi administration. h e also notes that the budget allocated to the new office of $12.2 million over four years is more generous that perhaps was expected.

another change that is likely to enhance the right to access is that agencies are being encouraged as part of a new scheme to make documents public independently of an foi request. t his information publication scheme is due to commence in m ay 2011 and again, the i nformation Commissioner will play a large role in providing guidance and a stimulus to agencies.

the new foi scheme has been welcomed. i t has been described as the biggest shake-up in the foi act’s history which hopefully will be effective in causing a permanent cultural shift of openness within public administration. Parliament, however, may see calls for further, more radical reform, particularly in the area relating to those exemptions that continue to apply to certain types of documents and certain agencies. f or example, the greens and some independents are on the record as wanting to ensure that all government agencies, including intelligence agencies, are fully open to scrutiny and are accessible under foi laws, whilst safeguarding national security.

Public sector accountability and transparency mary anne n eilsen, l aw and b ills Digest s ection

Whistleblower protections—proposals for reform

Whistleblower protection is ultimately about disclosure of information. t he thrust of a whistleblower protection scheme is to protect workers who draw attention to problems they see in the workplace, ranging from corruption and threats to public health and safety, to mismanagement and public wastage. a worker who follows a designated procedure in disclosing information about workplace wrongdoing will receive protection against criminal and disciplinary sanctions and receive assistance aimed at safeguarding their employment and career.

australia’s federal laws currently offer very few protections for public interest disclosures. the rudd labor g overnment had plans to address this gap. i t had accepted most of the recommendations for legislative reform made in a 2009 house of r epresentatives l egal and Constitutional a ffairs Committee report on whistleblower protection and was planning to introduce legislation later this year. t he proposed scheme would facilitate public interest disclosures in the a ustralian public sector being made by

public officials where there had been an honest and reasonable belief that the public interest disclosure should be reported. t he range of matters that could be protected include amongst others: illegal activity, maladministration, wastage of public funds, dangers to public health or safety, dangers to the environment; and official misconduct. responsibility would be assigned to the Commonwealth o mbudsman and the inspector- general of i ntelligence and s ecurity for receiving whistleblower complaints, monitoring the investigation and handling of those complaints by government agencies, and ensuring that whistleblowers are properly protected. o n one matter, the g overnment’s response went further than the s tanding Committee report, in expanding the circumstances in which a person can make a public interest disclosure to a third party, such as the media.

With the g reens and some independents also making strong calls for the introduction of whistleblower protection laws and for more protection of journalists’ sources, the promised reforms of the previous l abor g overnment are likely again to be on the political agenda during this Parliament.

library publications and key documents

J mcmillan, FOI and privacy reform: presentation to a joint seminar of the Commonwealth FOI Practitioners’ Forum Privacy Contact Officer Network , Canberra, 26 June 2009.

m a neilsen, Freedom of Information Amendment (Reform) Bill 2009 , bills Digest, no. 115, 2009-10, Parliamentary l ibrary, Canberra, 2009.

m a neilsen, Information Commissioner Bill 2009 , bills Digest, no. 114, 2009-10, Parliamentary l ibrary, Canberra, 2010.

house of r epresentatives s tanding Committee on l egal and Constitutional a ffairs, Whistleblower protection: a comprehensive scheme for the Commonwealth public sector; report of the inquiry into whistleblowing protection within the Australian government public sector, house of r epresentatives, Canberra, 2009.

australian g overnment, g overnment response to the h ouse of r epresentatives s tanding Committee on l egal and Constitutional a ffairs, Whistleblower protection: a comprehensive scheme for the Commonwealth public sector, 2010.