Australia: FOI Reforms: Introduction of a New Public Interest Test Paves the way for Increased Disclosure

Commercial Litigation & Dispute Resolution Update
Last Updated: 19 May 2010
Article by Megan e Valsinger-clark and John Dalzell

On 13 May 2010 the Senate passed two bills relating to the Freedom of Information Act 1982 (FOI Act).

The first, the Freedom of Information Amendment (Reform) Bill 2010 (FOI Bill) introduces a suite of substantial changes to the law relating to freedom of information, most notably the introduction of a new public interest test for disclosure.

The second, the Australian Information Commissioner Bill 2010 establishes the office of the Australian Information Commissioner and the FOI Commissioner (among other things). Importantly, the FOI Bill gives the Australian Information Commissioner and the FOI Commissioner the power to conduct merits reviews of FOI decisions.

The amendments contained in the FOI Bill will result in fundamental changes to the way in which information is disclosed by government bodies. Whether such disclosure will achieve the government's goal of encouraging 'pro-active publication' remains to be seen.

The FOI Bill in a nutshell

The FOI Bill divides the existing list of exemptions from disclosure into two categories: exemptions and conditional exemptions.

Conditional exemptions will be subject to the new public interest test contained in the FOI Bill (the Test).

The Test

Disclosure will be favoured in circumstances where it will:

  • promote the objects of the FOI Bill (including the promotion of public participation in government processes);
  • inform debate on a matter of public importance;
  • promote effective oversight of public expenditure; or
  • allow a person to access his or her own personal information.

In applying the Test, regard is not to be had to whether the disclosure:

  • could result in embarrassment to the Commonwealth Government;
  • could cause a loss of confidence in the Commonwealth Government;
  • could result in any person misinterpreting or misunderstanding a document;
  • relates to a document held by an agency of which the author is or was of high seniority; or
  • could result in confusion or unnecessary debate.

The factors listed in the FOI Bill are not exhaustive.

Personal privacy conditional exemption

The FOI Bill makes substantial changes to the privacy exemption (now the personal privacy conditional exemption).

The FOI Bill grants conditional exemption to documents the disclosure of which would involve the unreasonable disclosure of personal information.

In considering whether a document is conditionally exempt under this section, the following factors must now be taken into consideration:

  • the extent to which the information is well known;
  • whether the person to whom the information relates is known to be (or to have been) associated with the matters dealt with in the document;
  • the availability of the information from publicly accessible sources; and
  • any other relevant matters.

Economy conditional exemption

The FOI Bill similarly made changes to the national economy exemption (now the economy conditional exemption).

This conditional exemption is similar to the national economy exemption contained in the FOI Act with the exception that it now applies to documents the disclosure of which would, or could reasonably be expected to, have a substantial adverse affect on the Australian economy by either:

  • influencing a decision or action of a person or entity; or
  • giving a person (or class of persons) an undue benefit or detriment in relation to business carried on by the person (or class of persons), by providing premature knowledge of proposed or possible action or inaction of a person or entity.

A 'substantial adverse affect on the Australian economy' includes a substantial adverse affect on a particular sector of the economy or the economy of a particular region of Australia.


The FOI Bill extends the scope of the FOI Act to include contracted service providers who are delivering services to the community for and on behalf of the Commonwealth.


Nearly half of the grounds for exemption are now subject to the Test as set out above. The implementation of the Test in addition to the expansion of the FOI Act's application to contracted service providers suggests that the 'pro-active publication' policy underpinning the FOI Bill is more than just rhetoric.

It may very well be that the FOI Bill lives up to its ideal of 'strengthening Australia's representative democracy through increasing participation in government processes and increasing the accountability of government' (Revised Explanatory Memorandum, page 5).

Practically, practitioners who are seeking access to documents to which an exemption applies, will now have potentially greater scope to argue that disclosure should be made.

Table of amendments to exemptions

The FOI Bill lists the following exemptions:

Exemption Amended?
Documents affecting national security, defence or international relations No
Cabinet documents Yes
Introduction of dominant purpose test and expansion of categories of protected documents
Documents affecting enforcement or law and protection of public safety No
Documents to which secrecy provisions of enactments apply No
Documents subject to legal professional privilege Yes
Exemption will not be applicable were legal professional privilege waived
Documents containing material obtained in confidence Yes
Changes to wording, not substance
Documents of which disclosure would be contempt of Parliament or contempt of court No
Documents disclosing trade secrets or commercially valuable information No
Electoral rolls and related documents No

Exemptions removed and not replaced include those relating to executive council documents and documents arising out of companies and securities legislation.

Table of amendments to conditional exemptions

The FOI Bill lists the following conditional exemptions:

Conditional Exemption Amended?
Commonwealth-State relations (previously documents affecting relations with the states) Transferred from the Exemption division, otherwise not amended
Deliberative processes (previously internal working documents exemption) Transferred from the Exemption division, with minor amendments
Financial or property interests of the Commonwealth Transferred from the Exemption division, otherwise not amended
Certain operations of agencies Transferred from the Exemption division with amendments
Personal privacy Transferred from the Exemption division with amendments (see above)
Business (previously document relating to business affairs) Transferred from the Exemption division, otherwise not amended
(CSIRO & ANU only)
Transferred from the Exemption division, otherwise not amended
Economy (previously documents affecting national economy) Transferred from the Exemption division with amendments (see above)

For more information, please contact:

John Dalzell t (02) 9931 4755 e
Fatmir Badali t (03) 9252 2550 e
Dan Pennicott t (07) 3114 0102 e
Matthew Broderick t (07) 3114 0106 e
Paul Sheiner t (08) 9323 0955 e

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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