Australia: Queensland Government releases discussion paper on the review of the Right to Information Act

Key Points:

The Queensland Government has invited submissions on the issues raised in the Right to Information Act Discussion Paper by Friday, 15 November 2013.

The Queensland Government has commenced a review of the Right to Information Act 2009 (Qld) (RTI Act) and the Information Privacy Act 2009 (Qld) with the recent release of the "Review of the Right to Information Act 2009 and Chapter 3 of the Information Privacy Act 2009" discussion paper. The review process is required under the Acts.

Under the review process, the Queensland Government has invited submissions on the issues raised in the Discussion Paper by Friday, 15 November 2013.

The Discussion Paper addresses a wide range of issues relating to the RTI Act. In this article, we will highlight some of the key issues raised in the Discussion Paper.

Government Owned Corporations and other Government Owed Commercial Entities

The Discussion Paper raises the issue of whether the current exemption framework that applies to Government Owned Corporations (GOCs) established under the Government Owned Corporations Act should be changed, and what the change should be.

The GOCs presently have differing exemption status depending on the nature of the services that the relevant GOC provides. This means that some GOCs are currently largely excluded from the operation of the RTI Act, except in relation to community service obligations, while some GOCs have no specific exemptions for documents created or received post July 2009.

The Discussion Paper also raises the question whether other Government owned corporate entities that exist outside the GOC framework should also be subject to the RTI Act. Presently, these types of government owned corporate entities are often not subject to the RTI Act.

Application to non-government organisations

The Discussion Paper also asks whether documents held by non-government organisations that are performing services on behalf of an agency should be subject to the operation of the RTI Act. This is particularly relevant in the context of increased further outsourcing activity by the State Government.

This is not a new issue and was specifically considered in the context of the Solomon Review, which was the review that preceded the enactment of the RTI Act.

Third party consultation

The current third party consultation regime established under section 37 of the RTI Act has also been identified in the Discussion Paper as a potential area for further consideration.

Specifically, the Discussion Paper highlights the broader consultation framework under section 37 of the RTI Act as compared to the consultation framework that was established under the now repealed section 51 of the Freedom of Information Act 1992 (Qld) (FOI Act). The paper considers whether the current third party consultation framework should be reduced back to the previous section 51 FOI Act test. The Discussion Paper also notes that the broader test under section 37 of the RTI Act has led to an increase in consultation activity.

Presently, the legal test for triggering the third party consultation framework requires third party consultation where the release of a document may reasonably be expected to be of concern to the relevant third party. Under section 51 of the FOI Act, this requirement was triggered where the disclosure of a document would be of "substantial concern" to the relevant third party.

Public Interest Test

The establishment of a prescribed Public Interest Test as a stand-alone basis for exempting information was one of the RTI Act's key reforms. The Discussion Paper raises several issues for consideration, including whether the Public Interest Test can be simplified by condensing Parts 3 and 4 of Schedule 4 of the RTI Act into one part of Schedule 4 of the RTI Act. The Discussion Paper also asks if the thresholds are too high for some of the prescribed factors.

New exemptions and factors favouring non-disclosure under the Public Interest Test

The Discussion Paper identified whether the RTI Act should include new exemptions such as:

  • an express exemption for communications between Ministers and Departments from the ambit of the RTI Act; and
  • protection of Mining Safety Information to protect the details of complaints made about mining related workplace issues. The Discussion Paper suggests that a factor favouring non-disclosure to Schedule 4 of the RTI Act could go one step further to protect the confidentiality of these documents. Specifically, it considers whether the current provisions are sufficient to deal with access applications for information relating to mining safety in Queensland.

The Discussion Paper also raises issues about the availability of information relating to public sector positions, in particular information about successful applicants for public service positions. It identifies several difficulties in dealing with access applications for this type of information under the RTI Act, including those that can arise from the necessity for Government processes to be transparent, balanced against the importance of the privacy of the individuals who have been appointed in public service roles. The Discussion Paper asks whether the current provisions in the RTI Act are sufficient to deal with access applications for information about successful applications for public service positions.

Processing changes

The Discussion Paper has also raised several issues relating to the current processes and procedures that are undertaken in processing access applications under the RTI Act. These include:

  • whether the requirement to have a Schedule of Relevant Documents should be maintained;
  • whether the current system of Charges Estimate Notices is beneficial for applicants and whether consideration should be given to removing this requirement; and
  • should fees and charges for applications be more closely aligned with other Government administration fees such as for access to court documents.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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