Since the introduction of FOI legislation in Australia in the early 1980’s, Freedom of Information has become increasingly considered a prerequisite for the transparency and accountability of governments.
Yet a matter before the Victorian Courts shines a light on a Government bureaucracy that sees Freedom of Information legislation as an instrument to suppress, redact and block; a culture, if you like, of freedom from information.
On 30 November 2016, the Victorian Civil and Administrative Tribunal (VCAT) presided over a full-day hearing to determine whether the Victorian Government should release a document requested under Freedom of Information (FOI) laws.
This was the culmination of a process first initiated in September last year, for which a decision is anticipated in coming weeks.
For 14 months, FARE has been seeking to obtain advice provided to the Hon Jane Garrett MP, then Victorian Minister for Consumer Affairs, Gaming and Liquor Regulation, that informed her decision to provide exemptions to a moratorium on new licences for late-night alcohol trade in several inner Melbourne municipalities.
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The document being appealed contains advice prepared by the Liquor Control Advisory Council (LCAC), which had been tasked with advising the Minister on her decision.
The decision to effectively end the freeze has been to the detriment of effective alcohol policy in Victoria and, ultimately, will have a bearing on the level of alcohol harm experienced in the State.
But the decision should be of interest and concern beyond alcohol policy circles, serving as it does as an important case study on the value and need for Freedom of Information laws.
These exemptions effectively undermined a policy that had been introduced in 2008 to stem growing rates of alcohol harm across the city. The decision appeared to be contrary to evidence demonstrating a marked reduction in harm since the implementation of the freeze, driven by large reductions in the Local Government Area (LGA) of Melbourne.
Naturally, the team at FARE were keen to find out what motivated such a change of heart.
What was the LCAC advice relied upon by the Minister? How was it sought? Where did it come from, and why, despite being contrary to the evidence and the recommendations from the health and medical experts, was it accepted so readily? Was the alcohol industry consulted and how much weight was given to their demands?
Here we have a Government abandoning a successful policy that had been in place for six years; a Government making a sudden, sharp and unexplained policy change.
LCAC’s advice must have been compelling.
According to the Liquor Control Reform Act 1998 (Vic), LCAC was established to advise the Minister on problems of alcohol abuse and other matters referred to it by the Minister. Current members include individuals from public health groups and leading researchers, as well as alcohol industry representatives.
Access to the information prepared by groups like LCAC would appear to be fundamental to any notion of open government. And details of advice prepared by LCAC have been made publicly available previously, most recently in an Auditor-General report in 2012.
Yet in this instance, the custodians of this information have decided to block access at every pass, choosing instead to engage independent counsel for a costly legal battle to suppress the advice it had received.
Opposition to releasing the information has hinged largely on the fact that the requested document was attached to a brief that went to Cabinet. The problem, and it’s a big one, is this argument completely ignores that its attachment to a Cabinet brief only occurred some nine months after the advice had been prepared. In fact, the Minister requesting the brief had been superseded by the time it made its way to Cabinet.
To suggest that it was prepared with the intention that it would go to Cabinet seems strange and disingenuous considering the stated purpose of the LCAC, the Minister’s delegation with respect to the decision, and the fact that LCAC advice has been made public on several prior occasions.
Interestingly, this is not the first time that the Cabinet document exemption has been applied under dubious circumstances.
In a high-profile case more than ten years ago, VCAT overturned a government agency’s decision not to release documents on the basis of the Cabinet exemption. Louise Asher, an Opposition member and the requesting party, urged the ombudsman to investigate misuse of the exemption saying, “The cabinet confidentiality reason has been used a lot to deny access to documents and in this instance it is absolutely clear that to argue that this was a cabinet-in-confidence document is nonsense”.
The Senate committee report that preceded the first FOI laws in Australia identified three reasons why freedom of information is important: to allow individuals to identify and correct government-held information, to enhance transparency in policy-making and administrative decisions, and to facilitate more effective participation in democracy.
When any government throws up unnecessary obstructions to parties attempting to access information, it does so at the detriment of these outcomes.
Change is needed to move away from this model of secrecy and toward an approach that acknowledges the benefits of having valuable information in the public arena. Rather than continuing to make policy decisions behind closed doors, shrouded in a veil of secrecy, governments need to recognise their responsibility to foster a system that demands transparency and accountability.
As a first step, let’s hope that VCAT’s decision in coming weeks prioritises the freedom of information.