Under the Radar: Is Australia’s Freedom

Design and Building Practitioners Act 2020 (NSW)

In response to the perceived construction crisis in NSW, the State government has passed new laws to restore public confidence in the building industry and regulate the design and construction of new buildings. The Act aims at improving the quality and compliance of construction work in NSW. Arguably the most significant change is the introduction of a non-delegable and retroactive statutory duty of care.

Westpac Settles AUSTRAC Money Laundering Case with $1.3 Billion Fine

In November 2019, AUSTRAC launched a Federal Court action accusing Westpac of breaching anti-money laundering and counter-terrorism financing laws more than 23 million occurrences. These allegations included allowing customers to transfer money to the Philippines in a manner consistent with child exploitation. Westpac formally admitted to these claims in May 2020, opening the way to a settlement and agreed to settle by paying a record $1.3 billion penalty. It is one of the most substantial penalties in Australia corporate history and almost double the previous record paid by the Commonwealth Bank of Australia for 54,000 money laundering breaches in 2017.

Is Australia’s Freedom of Information System in Need of Reform?

Julian Favero

Australia’s Freedom of Information (‘FOI’) regime was established to enable citizens to access documents that are held by Australian Government ministers and agencies. These include documents that contain personal information, policy-making documents and administrative decision-making documents. This system is regulated by the Commonwealth Freedom of Information Act 1982 (‘FOI Act’), which recognises that information held by government departments should be made available to the public on request and that access should be provided in a timely and cost-effective manner.

The FOI Act stipulates that FOI requests must be processed within 30 days from the date of lodgement. As of December 2019, FOI refusals are at a record high of 17%, with access to information taking several months to be granted. The issue with delayed access is that several documents are, in effect, outdated by the time they are released. Currently, the Department of Home Affairs receives more FOI requests than any other government department. In the financial year ending June 2019, the Department received a total of 15,220 requests of which 1,990 failed to be processed within the statutory timeframe. The high delays in recent years have been attributed to staffing cuts across several government departments in FOI teams over the past few years. For example, the Department of Social Services has had six FOI staff members cut since 2014-15, while the Australian Taxation Office has wiped out fifteen FOI roles since 2014. It is well established that a key factor contributing to the inability of several government departments to meet

FOI deadlines in recent years is staffing shortages. It remains unclear whether this is a strategic position that has been adopted by the government in an attempt to limit the extent of information available to the public for security reasons. However, it is obvious that Australia’s FOI system is severely depleted, and reform is well overdue.

A key function of Australia’s FOI regime is the Australian Information Commissioner – an independent regulator for privacy and FOI. The Information Commissioner is responsible for ensuring accessibility and accountability in all aspects of the FOI process. However, the Commissioner is also responsible for matters relating to privacy and data handling, including credit reporting and data breaches. As it stands, there is no independent commissioner responsible solely for the operation of the FOI regime in Australia. A further problematic element of the current system is that there are no strict penalties for breaching the FOI Act. In most instances where a breach has occurred, the Information Commissioner will simply recommend processes to improve efficiency and reduce delays.

It is clear that Australia’s FOI system would benefit from reform to ensure that statutory guidelines are met. The current delays in relation to access of information and rejections for information are not in conformance with the overarching objectives of the law. One proposal for reform is for the Commonwealth to establish an independent Freedom of Information Commissioner, who would have the responsibility of ensuring transparency between government departments and individuals seeking access to government information. The Commissioner would also manage staffing levels and ensure that there is sufficient staff to meet workloads and public demand. A further proposal for reform is the introduction of statutory penalties for breaching the provisions of the FOI Act. This would place greater pressure on ministers and government agencies to ensure that they are meeting deadlines. Ultimately, these proposals would help to ensure that citizens are able to access Commonwealth documents in a more timely and cost-effective manner.