BILLS DIGEST NO. 44, 2014–15              27 October 2014

Freedom of Information Amendment (New Arrangements) Bill 2014

Mary Anne Neilsen
Law and Bills Digest Section 

Date introduced: 2 October 2014

House:  House of Representatives

Portfolio: Attorney-General

Commencement:  The substantive provisions commence on 1 January 2015.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website.

Purpose of the Bill

The purpose of the Freedom of Information Amendment (New Arrangements) Bill 2014 (the Bill) is to implement the new arrangements to deliver privacy and freedom of information (FOI) functions as outlined in the 2014–15 Budget measure, Smaller Government – Privacy and Freedom of Information functions – new arrangements. These include repeal of the Australian Information Commissioner Act 2010[1] (the AIC Act) and amendments to the Freedom of Information Act 1982[2] (the FOI Act), the Privacy Act 1988,[3] the Ombudsman Act 1976[4] and other Acts that will:

•       abolish the Office of the Australian Information Commissioner (OAIC) and the positions of Australian Information Commissioner (Information Commissioner) and Freedom of Information Commissioner (FOI Commissioner)

•       provide for an Australian Privacy Commissioner as an independent statutory office holder within the Australian Human Rights Commission (AHRC)

•       provide that external merits review of FOI decisions will only be available at the Administrative Appeals Tribunal (AAT)

•       provide for the Attorney-General to be responsible for FOI guidelines, collection of FOI statistics and the annual report on the operation of the FOI Act, in place of the Information Commissioner and

•       provide for the Commonwealth Ombudsman to be solely responsible for investigating complaints about FOI administration.

Structure of the Bill

The Bill consists of four Schedules:

•       Schedule 1—contains amendments to the FOI Act to remove some Information Commissioner functions and transfer other functions to the Attorney-General. It also contains consequential amendments to the Ombudsman Act, to provide for some FOI functions to be undertaken solely by the Commonwealth Ombudsman

•       Schedule 2—contains amendments to the Australian Human Rights Commission Act 1986[5] (AHRC Act) and Privacy Act to provide for an independent statutory officer, the Australian Privacy Commissioner in the AHRC, responsible for the exercise of privacy functions under the Privacy Act

•       Schedule 3—Part 1 repeals the AIC Act. Part 2 contains consequential amendments in other legislation and

•       Schedule 4—sets out transitional arrangements for the new merits review and complaint arrangements under the FOI Act and for the transition to the new arrangements for the ongoing exercise of privacy functions by the Australian Privacy Commissioner.

Background

FOI, or the statutory right of access to government documents, is justified on the grounds that it encourages transparency and political accountability and discourages corruption and other forms of wrongdoing.

While Australia was a leader among Westminster-style democracies in introducing FOI laws during the 1970s and 1980s, over time, a series of reviews and reports concluded that those early reforms were inadequate—that there was minimum cultural change and that a presumption in favour of disclosure was not practised across government. There was a general view that government agencies could exploit restrictions and gaps in FOI laws to make it more difficult for the public to gain access to government information, especially information that might be embarrassing to the government or agency.[6]

In 2009 and 2010, the Rudd Labor Government, introduced major FOI changes with the principal objects of promoting a pro-disclosure culture across the Government and building a stronger foundation for more openness in government.[7] These reforms were wide reaching, affecting all aspects of the FOI laws—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 2010 FOI reforms[8] was the establishment of a new statutory agency, the OAIC. The previously free-standing Office of the Privacy Commissioner was integrated into the new arrangements and two new statutory positions were established—the FOI Commissioner and the Information Commissioner. The OAIC was given a comprehensive range of powers and functions to provide independent oversight of privacy and FOI and advance information policy and management across Australian Government agencies.

The establishment of the OAIC was welcomed by FOI advocates as a significant shift, noting that a major shortcoming of the then federal FOI scheme was a lack of an ‘FOI champion who is independent of government, has a dedicated role and powers, adequate funding and a secure power-base’.[9] FOI Commissioners had by this time become a feature of more modern FOI regimes in other jurisdictions including the United Kingdom, Canada and several Australian states.[10]

This initial enthusiasm for the establishment of the OAIC waned to a degree during the Office’s first years of operation, when problems of time delays and backlogs in processing review of FOI decisions became evident.

The 2010 changes brought a new system of two-tiered system of external merits review of FOI decisions—the first review being conducted by the Information Commissioner and if a party is not satisfied, the second being conducted by the AAT.[11] The advantage of the Information Commissioner review is that it can be undertaken without prior internal review, without legal advice and without application fees. These were all factors contributing to the significant increase in external merits review applications to the Information Commissioner and for the subsequent delays associated with review.[12]

The 2013 Hawke Review into the 2010 changes to FOI laws,[13] while noting the reforms had been operating as intended and have been generally well received, did raise questions about the new two-tiered FOI merits review process. The Review however considered that as the system had only been in operation for two and a half years there was insufficient evidence to determine whether ‘this is the most effective and efficient model for reviewing FOI decisions’. The Review therefore recommended that the two tier external review model be ‘re-examined as part of a more comprehensive review of the FOI Act’.[14]

Against this background, the Government announced the abolition of the OAIC in the 2014–15 Budget. The announcement was unexpected to the extent that the disbanding of the OAIC was not one of the National Commission of Audit recommendations, although the Commission did make a recommendation regarding the amalgamation of other specialised merits review tribunals.[15]

The Budget measure relating to the OAIC was explained as follows:

From 1 January 2015 the OAIC’s status as an agency under the Financial Management and Accountability Act 1997 will cease and funding for ongoing functions will be transferred to other agencies. The new arrangements for privacy and FOI regulation are forecast to produce a saving of $10.2 million over four years.[16]

From 1 January 2015 an Office of the Privacy Commissioner will be established as an independent statutory position within the Australian Human Rights Commission. It will be responsible for the exercise of statutory privacy functions.[17]

External merits review of FOI decisions, which are currently conducted by the OAIC, will transfer to the Administrative Appeals Tribunal (AAT). A total of $1.8 million will be transferred to the AAT over four years to assist with the processing of FOI reviews.[18]

Other Information Commissioner functions related to FOI guidelines and FOI statistics will be administered by the Attorney-General’s Department. Complaints about FOI administration will be directly dealt with by the Commonwealth Ombudsman.[19]

In terms of the three Commissioner positions, the FOI Commissioner (James Popple) and the Information Commissioner (John McMillan) will be abolished but the Privacy Commissioner (currently Timothy Pilgrim) will transfer to the new position of Australian Privacy Commissioner operating independently within the AHRC. At the time of the Budget announcement, it was unclear how many OAIC staff would be made redundant and how many may transfer to other agencies, although the Budget papers estimate a saving of 23 positions.[20] It is of note that the Bill provides for OAIC staff to transfer to the AHRC on commencement (that is 1 January 2015).[21]

These changes would in many respects return FOI and privacy structural regulation to the position prior to the 2010 Labor Government changes.[22]

The Government’s stated rationale for the measure appeared to be strongly based on the perceived advantages of moving external FOI merits review to the AAT, with the Attorney-General arguing:

The complex and multi-level merits review system for FOI matters has contributed to significant processing delays. Simplifying and streamlining FOI review processes by transferring these functions from the OAIC to the AAT will improve administrative efficiencies and reduce the burden on FOI applicants.[23]

Committee consideration

To date, the Bill has not been referred to a parliamentary committee for inquiry.

Policy position of non-government parties/independents

The Shadow Attorney-General Mark Dreyfus, at the time of the Budget announcement, criticised the changes, stating the cut has come with no consultation and will make a minor saving at the cost of Australians’ access to information about their Government.[24]

Greens spokeswoman Senator Lee Rhiannon in Senate Estimates questioning was highly critical of the removal of staffing and resources from the OAIC, accusing the Attorney-General of breaking an election commitment of restoring accountability and improving transparency measures.[25]

At the time of writing, the views of independents are not publicly known, although one media report states that the Palmer United Party will oppose the Bill in the Senate.[26]

Position of major interest groups

Media groups and media reports

It is of interest that media groups who publicly supported the 2010 reforms have not come out in opposition to the Bill and in fact generally appear in favour of returning FOI merits review to the AAT.

For example Michael McKinnon currently the ABC's FOI editor[27] believes the model set up in 2010 was flawed stating ‘unless you've got a timely court appeal or tribunal appeal process, you don't have an effective FOI Act’.[28]

Furthermore McKinnon argues that the time delays for appeals has caused agencies to engage in time delaying tactics of their own:

Government agencies are aware it takes an extraordinarily long time to have any appeal heard by the information commissioner. So they can provide flawed and wrong decisions; they can delay decisions; they can choose just to not even do anything about FOI applications, and my only real option is to appeal to the information commissioner and, as I said, 220 days later, someone will start looking at my appeal.

Well, information delayed is information denied to the public.[29]

McKinnon further argues that winning FOI disputes in a tribunal setting has a greater role in changing the culture of a secrecy-prone bureaucracy:

If a case was to be run on the incumbent Government briefs, which were released but are now not being released to some extent, and that was to find that the information should be released, under the Commonwealth model litigant code, agencies would be very hard put to fight the same fight again. Basically, once they've lost the fight in the tribunal, unless there's legislative changes, then, in my view, they're obliged to comply with the decision where they've got to release information.[30]

In a joint submission to the Hawke Review, a number of media groups,[31] expressed concern about the OAIC and recommended amendment of the FOI Act to provide a direct right to apply to the AAT for applicants:

… the provision of an appeal process direct to the AAT from a refusal or deemed refusal of an agency would alleviate pressure on the OAIC and provide an alternative mechanism for applicants interested in accessing an independent tribunal with extensive experience with FOI matters.  It is only through such a mechanism that the perceptions of lack of independence can be addressed in circumstances where those perceptions are necessary attributes of the OAIC’s other functions, and of the OAIC’s implementation of Alternative Dispute Resolution mechanisms.[32]

On the other hand, Peter Timmins, a lawyer and blogger on FOI issues website, Open and Shut, thinks it is an unfortunate decision and a backwards step to abolish Information Commissioner review. Defending the OAIC, Timmins states that the backlogs and time delays which he says were due to under-resourcing at least gave people the right to make an application for review without fees. Timmins argues the change to AAT review will place FOI review back into the realm of expensive legal representation. Noting the $816 AAT application fee, Timmins believes the changes in the Bill will put challenges to FOI refusals beyond the reach of the average citizen.[33]

Professor Richard Mulgan, from the Crawford School of Public Policy, ANU, also believes that under-resourcing has been a major cause of the OAIC’s problems. He describes the 2010 regime with no fees either for initial FOI requests or for external review by the OAIC as ‘a classic case of idealistic principle foundering on inadequate resourcing. The result was a clogged-up system that won few supporters, in spite of the OAIC’s valiant efforts to improve its throughput.’ Pointing to the Hawke Review he notes that there was a fivefold increase in AOIC review applications which the OAIC was unequipped to handle with sufficient timeliness.[34]

Mulgan takes issue with the Attorney-General’s argument that returning merits review to the AAT will improve efficiencies and reduce the burden on FOI applicants describing it a ‘deceitful sophistry to describe improved service caused by pricing out most would-be applicants as “reducing the burden on applicants”’:

If the government had been sincere in its aim to simplify service while minimising burdens on the public, it could have adopted other reforms canvassed by Hawke, such as abolishing the second tier of appeal to the AAT, leaving the OAIC as the sole avenue of external review while imposing a small application fee.[35]

OAIC

The three AOIC Commissioners, in an initial statement acknowledging the Budget decision, committed to providing a smooth transition to the new arrangements and took the opportunity to draw attention to OAIC’s substantial achievements since its commencement in November 2010.[36]

The Commissioners also defended the OAIC’s record in review, noting that the completion rate has continued to improve:

… for example, by 31 March 2014 the completion rate for Information Commissioner reviews had climbed to 4.7 cases per day (from 0.37 cases per day in the first 18 months), the FOI complaint closure rate to 1.1 per day (from 0.21 per day in the first 18 months) and the privacy complaint closure rate to 20.1 per day.[37]

The recently released OAIC 2013–14 Annual Report also confirms the OAIC’s progress with improved response times despite an increased workload for the office. John McMillan in a media statement releasing the Annual report states:

The OAIC made excellent progress in resolving freedom of information (FOI) matters, completing 646 Information Commissioner reviews, an increase of 54% from last year. Another success was to reduce the time taken to commence work on new review applications, down from 206 to 40 days.

The OAIC was delighted with this turnaround in individual case handling. This success stems from two years of the OAIC actively seeking and trialling different methods of efficient case handling. The OAIC also processed 2456 extension of time requests and notifications and responded to 1903 phone and written enquiries about FOI.[38]

Financial implications

The Explanatory Memorandum states that new arrangements for privacy and FOI functions will achieve savings of $10.2 million over four years.

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act.[39] The Government considers that the Bill is compatible.

Key issues and provisions

Schedule 1—Amendments relating to freedom of information

Abolition of external merits review of FOI decisions by the Information Commissioner

A key feature of the 2010 FOI reforms was the introduction of a new layer of external merits review of FOI decisions. A new Part VII was inserted into the FOI Act which set up the process for enabling review of FOI decisions by the Information Commissioner. AAT review was retained but only available in relation to matters that have already been reviewed by the Information Commissioner, or in cases where the Information Commissioner decides the matter is better dealt with by the AAT. The advantage of the Information Commissioner review is that it can be undertaken without prior internal review, without legal advice and without application fees. In contrast, standard AAT application fees for merits review are $816.[40]

Item 35 is a key amendment. It repeals Part VII of the FOI Act that deals with merits review of FOI decisions by the Information Commissioner. The practical effect of this repeal is that the AAT will be the sole body responsible for external merits review of FOI decisions.

Existing section 57A deals with AAT review. Item 36 repeals and replaces section 57A to take account of the abolition of Information Commissioner review. New section 57A sets out the FOI decisions about which applicants will be able to seek review by the AAT. In general, applicants will not be able to seek review by the AAT unless they have first sought internal review of the decision under Part VI of the FOI Act and a decision has been made in relation to the internal review.

Transfer of complaint investigation powers of the Information Commissioner

Divisions 1 and 2 of Part VIIB of the FOI Act provide the Information Commissioner with complaint investigation powers. One of the 2010 reforms was to provide the Information Commissioner with the function of dealing with complaints about FOI investigations. While the powers of the Ombudsman in dealing with FOI complaints were specifically preserved (section 89F), the intention was that most complaints would be dealt with by the Information Commissioner rather than the Ombudsman.[41]

Item 43 repeals Divisions 1 and 2, with the effect of abolishing the Information Commissioner’s role in complaint investigations. Under the new arrangements the Ombudsman will be solely responsible for investigating complaints about FOI processing.

There are some consequential amendments to the Ombudsman Act reflecting this change. Currently section 6C of the Ombudsman Act provides that complaints to the Ombudsman about agency processing under the Privacy Act or under the FOI Act are to be referred to the Information Commissioner where it is more appropriate. Items 57 to 59 amend section 6C of the Ombudsman Act to remove references to the complaint investigation powers of the Information Commissioner. Privacy complaints will be transferred from the Ombudsman to the Australian Privacy Commissioner (achieved by items 54 to 61 of Schedule 3).

Comment

The role of investigating complaints about agencies dealings with FOI matters will lie solely with the Commonwealth Ombudsman’s Office. A question might be whether that Office will have the resources to deal with those complaints along with all its other responsibilities.

Removal of Information Commissioner assistance and monitoring of the information publication scheme

Part II of the FOI Act deals with an information publication scheme for Commonwealth agencies that are subject to the FOI Act. It places obligations on agencies to publish certain information independently of an FOI request—the rationale being that a proactive publication scheme underpins a successful FOI regime.

The scheme currently in force was enhanced and expanded in the 2010 reforms, with the Information Commissioner being given a role in assisting agencies with their publishing obligations (section 8E) and also in reviewing and monitoring agencies’ compliance with the information publication scheme (section 8F). Agencies and the Information Commissioner also have a responsibility to work together to review the operation of the scheme from time to time and at least every five years (section 9).

Items 14 and 15 repeal these provisions with the effect of removing these Information Commissioner functions in relation to the information publication scheme and also removing the obligation on agencies to conduct five yearly reviews.

Transfer of certain Information Commissioner functions to the Attorney-General

FOI Guidelines

Under the 2010 reforms, section 93A provides the Information Commissioner with a discretionary power of issuing guidelines for the purposes of the FOI Act and agencies. These guidelines are significant in that persons (including Ministers) exercising powers or functions under the Act must have regard to any such guidelines. Item 53 amends section 93A so that the Attorney-General (rather than the Information Commissioner) will be responsible for issuing guidelines under the FOI Act.

Annual report

Section 30 of the AIC Act currently places annual reporting obligations on the Information Commissioner. With the abolition of the OAIC the Attorney-General will assume the role of reporting on the operation of the FOI Act (item 50, proposed section 92A). Agencies and Ministers will also be obliged to give the Attorney-General statistical information required for preparation of the annual report (item 52).

Transfer of other functions

The Information Commissioner has other functions under the FOI Act that are to be transferred to the Attorney-General including:

•       Information Commissioner may determine that certain information is not required to be included in an agency’s information publication scheme (subparagraph 8(2)(g)(iii) and subsection 8(3), amended by items 10 and 11) and

•       Information Commissioner has power to make a determination about matters that would be unreasonable for an agency to publish on the disclosure log[42] (section 11C amended by items 18 and 19)

There are also other Information Commissioner functions that will not be transferred and therefore will not continue namely:

•       the power to declare a person to be a vexatious applicant (Division 1 of Part VIII repealed by item 47)[43] and

•       the power in section 54D to allow further time to process an internal review when the initial decision period has expired (item 34).

Schedule 2—Australian Privacy Commissioner

Amendments to the Australian Human Rights Commissioner Act 1986

As noted above, the new position of the Australian Privacy Commissioner is to be an independent statutory officer operating within the AHRC. Items 1 to 7 of Schedule 2 amend the AHRC Act to reflect this arrangement.

Item 3 repeals and replaces section 43A of the AHRC Act. Current section 43A provides that the AHRC may make administrative services available to the Information Commissioner. New section 43A provides that the AHRC must provide assistance to the Australian Privacy Commissioner as is necessary for the performance of the Commissioner’s functions. Assistance could include but is not limited to staffing and administrative services. When assisting the Commissioner the member of staff would be subject to directions from the Commissioner and not the AHRC.

Items 4 to 7 make amendments dealing with financial and accountability requirements of the AHRC to reflect the exercise of the new privacy functions as well as the existing AHRC functions.

Amendments to the Privacy Act 1988

Item 11 is a central amendment in Schedule 2. It amends existing Part IV of the Privacy Act to take account of the changes that will remove the Information Commissioner’s function in relation to privacy and place the new Australian Privacy Commissioner in that role. The amended Part IV is renamed the ‘Australian Privacy Commissioner’ and new Division 1 deals with administrative matters concerning the new position of Australian Privacy Commissioner. It includes provisions to do with appointment, remuneration, leave, disclosure of interests, resignation and termination of appointment. In many respects the new Division 1 reflects the equivalent provisions that were repealed in 2010. The Commissioner is to be appointed by the Governor-General and may hold office for a period up to five years. Significantly, the transitional arrangements also provide for the current Privacy Commissioner (that is Timothy Pilgrim) to be the new Australian Privacy Commissioner on commencement of the new Act (see Schedule 4, item 7).

The functions of the Australian Privacy Commissioner will be those that currently belong to the Information Commissioner and are set out in existing Division 2 of Part IV of the Privacy Act (sections 27 to 29).[44]

Proposed section 26XK deals with delegation allowing the Australian Privacy Commissioner to delegate, functions and powers to a member of staff of the AHRC other than the power to issue rules under section 17 or the power to make determinations under section 52. Proposed subsection 26XK(2) gives the Commissioner a similar power to delegate to the staff of the Ombudsman’s Office in relation to complaints and investigations regarding privacy matters.

Proposed section 26XL of the Privacy Act would provide for the Privacy Commissioner to prepare an annual report on the performance of the Commissioner’s functions under section 27 of the Privacy Act. This is to replace the current arrangements where the Information Commissioner provides an annual report under section 30 of the AIC Act relating to both privacy and FOI.

Item 14 repeals Part VII of the Privacy Act which provides for the Privacy Advisory Committee. The Explanatory Memorandum states that as part of the new streamlined arrangements for FOI and privacy regulation, the Government has decided to abolish both this Committee and the Information Advisory Committee[45]. The two Committees were established to provide advice to the Information Commissioner on privacy and FOI matters respectively.

Proposed section 26XJ of the Privacy Act permits the Australian Privacy Commissioner to engage consultants to assist in the performance of the Commissioner’s functions. Note there is no provision for appointment of staff as this would be done by the AHRC.[46]

Schedule 3—Abolition of the Office of the Australian Information Commissioner

Part 1 of Schedule 3 repeals the AIC Act, reflecting the abolition of the OAIC. The impacts of this repeal will include the following.

Abolition and transfer of positions

Section 5 of the AIC Act establishes the statutory agency of the Office of the Information Commissioner consisting of:

•       three information officers who are the Information Commissioner, the FOI Commissioner and the Privacy Commissioner and

•       staff of the OAIC engaged under the Public Service Act 1999.

As a result of repeal of the AIC Act, the positions of Information Commissioner and the FOI Commissioner will cease to exist. However there are transitional arrangements that will allow the Privacy Commissioner to move across to the new statutory position of Australian Privacy Commissioner under the AHRC. Transitional arrangements also provide that staff of the OAIC will move to the AHRC (see below under Schedule 4).

Providing advice to the Attorney-General

One of the Information Commissioner functions is the provision of strategic advice to the Attorney-General on Australian Government information management policy and practice more broadly (section 7 of the AIC Act). The transfer of responsibilities announced in the Budget did not provide for such a role.[47] Repeal of the AIC Act will remove this function.

Schedule 4—Transitional

Schedule 4 sets out transitional arrangements providing the new arrangements for FOI review and FOI complaint handling and for the transition to the new arrangements for the Australian Privacy Commissioner.

FOI: transition

The more important transitional arrangements include:

•       unresolved Information Commissioner reviews still open at 31 December 2015 will be transferred to the AAT. All records and documents associated with the review will be transferred to the AAT. No application fees will apply to these transfers (item 2)

•       applications can still be made to the AAT to review decisions by the Information Commissioner made prior to 31 December 2014 (item 3) and

•       incomplete investigations of complaints by the Information Commissioner on commencement day (that is 1 January 2015) will be taken to be complaints to the Ombudsman under the Ombudsman Act and will be transferred to the Ombudsman (item 5).

Note that the OAIC website states that applications for an Information Commissioner review will continue to be received by the OAIC until 31 December 2014:

Recent media reports on the introduction of the Freedom of Information Amendment (New Arrangements) Bill 2014 (the Bill) have incorrectly suggested that the Office of the Australian Information Commissioner (OAIC) has largely ceased undertaking freedom of information (FOI) review work.

The OAIC is operational and active and will remain so until 31 December 2014. Last week, the OAIC issued a statement that sets out how FOI and privacy matters are currently being handled, and what will happen if the Bill is passed.

The OAIC is managing to resolve a high volume of current FOI review cases, so that they are not affected by any transitional arrangements under a new law. In 2014 the OAIC has published to date 101 Information Commissioner review (IC review) decisions. In the 2013-14 reporting year the number of completed IC review decisions jumped by 54% (from 419 to 646), and the time lag in opening new cases reduced from 206 to 40 days.[48]

Australian Privacy Commissioner: transition

Item 7 preserves the appointment of the existing Privacy Commissioner (Timothy Pilgrim).

Items 9 provides that things undertaken but not concluded by the Information Commissioner to do with privacy will continue to be done by the Australian Privacy Commissioner.

Item 10 provides that references to the Information Commissioner to do with privacy in instruments in force will continue to have effect and be read as references to the Australian Privacy Commissioner.

Item 12 provides for the transfer of employees of the OAIC to the AHRC. The employees of the OAIC immediately before 1 January 2015 will be transferred from the OAIC to the AHRC under a determination made by the Australian Public Service Commissioner under section 72 of the Public Service Act. Section 43 of the AHRC Act provides that the staff of the AHRC must be engaged under the Public Service Act. There is provision for continuation of the terms and conditions of employment of OAIC staff.

There is provision for the transfer of records (item 16) the transfer of consultants (item 15).

The Attorney-General will be able to make rules prescribing matters of a transitional nature relating to the amendments or repeals made by this Act if passed (item 22).

Concluding comments

At the time of the 2010 FOI reforms, there was general optimism that the creation of the new role of Information Commissioner, together with the new rules of disclosure and publication, would go some way to improving the culture of FOI and possibly ushering in a new and different phase in public administration.[49]

The resourcing difficulties experienced by the OAIC in its first years of operation are well known, although the Information Commissioner has indicated that many of the problems of backlogs are now resolved. As already noted, John McMillan has recently reported that during the 2013–14 reporting year the number of completed Information Commissioner review decisions jumped by 54 per cent (from 419 to 646), and the time lag in opening new cases reduced from 206 to 40 days.[50]

Three years is a relatively short period in which to measure the success of a new body and disbanding it before allowing time to iron out teething problems and consider alternative ways of operating would seem premature. The Hawke Review to which the Government has yet to respond, found that the 2010 reforms had generally been well received. While raising questions about the current two-tiered FOI merits review process the Review considered it was too early to draw conclusions and preferred that it be ‘re-examined as part of a more comprehensive review of the FOI Act’.[51] Furthermore, as the Hawke Review also noted, the OAIC is not alone. There are funding pressures and increasing workloads on Information Commissioners around the world. Interestingly, and by way of comparison the Victorian Government has recently taken a different approach appointing two Assistant FOI Commissioners to 'further strengthen the work of the FOI Commissioner’ in handling reviews and complaint.[52] 

Whether the changes will, ‘lessen the burden on FOI applicants’ as the Attorney-General argues, is not clear. Media groups, the heaviest users of FOI, are generally in favour of a return to AAT review. However the $870 AAT application fees may deter the ordinary citizen from seeking review of a decision to refuse an FOI request. Also, a return to compulsory internal review prior to seeking AAT review, is likely to have implications on agency resources and timeliness.

The proposal to return to separate privacy and FOI regulation may well be viewed positively by those who argue there is a tension between the right to privacy and the right of access to government information.[53] The Hawke Review noted this potential conflict of interest was raised in some submissions but concluded that the combination of the OAIC functions provides a logical basis for an integrated scheme of information management and policy.[54]

Apart from the issue of merits review there are also other implications in transferring OAIC functions. Questions that Parliament might ask include: will the Ombudsman’s Office and the AHRC be adequately resourced to handle their additional FOI and privacy responsibilities; who will monitor agencies’ compliance with the information publication scheme; will the Attorney-General be an objective arbiter in promoting FOI compliance and will that Department be sufficiently resourced to undertake important administrative functions to do with FOI? Finally, what of the OAIC functions that are not to be transferred? In particular, Parliament should note that one of the more significant Information Commissioner functions is the provision of strategic advice to the Attorney-General on Australian Government information management policy and practice more broadly. Under the Bill this important function will cease.

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[1].              Australian Information Commissioner Act 2010, accessed 23 October 2014.

[2].              Freedom of Information Act 1982, accessed 23 October 2014.

[3].              Privacy Act 1988, accessed 23 October 2014.

[4].              Ombudsman Act 1976, accessed 23 October 2014.

[5].              Australian Human Rights Commission Act 1986, accessed 23 October 2014.

[6].              M Neilsen, ‘Public sector accountability and transparency’, Parliamentary Library briefing book: key issues for the 43rd Parliament, Parliamentary Library, Canberra, 2010, p. 68, accessed 23 October 2014.

[7].              For a more detailed account of the changes see: M Neilsen, Freedom of Information Amendment (Reform) Bill 2009, Bills digest, 115, 2009–10, Parliamentary Library, Canberra, 2010; M Neilsen, Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008, Bills digest, 105, 2008–09, Parliamentary Library, Canberra, 2009 and M Neilsen, Information Commissioner Bill 2009, Bills digest, 114,
2009–10, Parliamentary Library, Canberra, 2010, accessed 23 October 2014.

[8].              Note: while the reforms occurred over 2009 and 2010, the Bills Digest refers to these legislative changes as either the 2010 reforms, the 2010 changes or the 2010 FOI reforms.

[9].              J McMillan, FOI and privacy reform, presentation to a joint seminar of the Commonwealth FOI Practitioners’ Forum and the Privacy Contact Officer Network, Canberra, 26 June 2009, accessed 23 October 2014.

[10].              Six Australian jurisdictions (the Commonwealth, New South Wales, Northern Territory, Queensland, Western Australia and most recently Victoria) have an independent information commissioner with a comprehensive oversight and advocacy role.

[11].              Merits review is where a person or body other than the primary decision-maker reconsiders the facts, law and policy aspects of the decision and determines the correct and preferable decision.

[12].              Australian Government, Review of the Freedom of Information Act 1982 and Australian Information Commissioner Act 2010, prepared by Alan Hawke, [the Hawke Review], Canberra, 2013, p. 28, accessed 23 October 2014.

[13].              The Hawke Review [see footnote 12 above] was a response to the statutory requirement that there be a review of the 2010 reforms two years after implementation.

[14].              Ibid., p. 37.

[15].              National Commission of Audit, Towards responsible government: phase one, February 2014, p. lxii, accessed 19 May 2014. See also: M Coombs, ‘Amalgamation of merit review tribunals’, Budget review 2014–15, Research paper series, 2013–14, Parliamentary Library, Canberra, 2014, p. 117–18, accessed 24 October 2014.

[16].              Australian Government, Budget measures: budget paper no. 2 2014-15, p. 64, accessed 23 October 2014.

[17].              Australian Government, Portfolio budget statements 2013-14: budget related paper no. 1.2: Attorney-General’s Portfolio, p. 471, accessed 23 October 2014.

[18].              Ibid., p. 61.

[19].              Ibid.

[20].              Senate Legal and Constitutional Affairs Legislation Committee, Official committee Hansard, 29 May 2014, p. 53, accessed 23 October 2014.

[21].              At the end of March 2014 the OAIC had 63.3 Full-Time Equivalent (FTE) staff in budget-funded positions. An additional 15.82 FTE staff are funded under Memorandum of Understanding arrangements with other agencies to undertake specific privacy work such as work relating to the eHealth initiative. See: Office of the Australian Information Commissioner (OAIC), ‘Statements: Australian Government’s Budget decision to disband OAIC’, OAIC website, 13 May 2014, accessed 23 October 2014. For questions and discussion regarding staffing see also: Senate Legal and Constitutional Affairs Legislation Committee, Official committee Hansard, op. cit., pp. 50 and 53.

[22].              Although note one difference being that the Office of the Privacy Commissioner was a stand-alone independent statutory agency prior to the 2010 reforms.

[23].              G Brandis (Attorney-General), Streamlined arrangements for external merits review, media release, 13 May 2014, accessed 23 October 2014.

[24].              M Dreyfus (Shadow Attorney-General), Budget 2014: Brandis abolishes Australian Information Commissioner, media release, 14 May 2014, accessed 23 October 2014.

[25].              Senate Legal and Constitutional Affairs Legislation Committee, Official committee Hansard, op. cit., p. 53.

[26].              M McKinnon, ‘Freedom of Information Act amendments set to be blocked in Senate, nation could lose appeal rights’, ABC News (online edition), 3 October 2014, accessed 22 October 2014.

[27].              McKinnon has previously held the same position at the Seven Network and the Australian and has had a long experience in litigating FOI matters including in the well-known High Court case, McKinnon v Secretary, Department of the Treasury (2006) 228 CLR 423, accessed 22 October 2014.

[28].              M Colvin, ‘Concerns about closure of FOI review office’, 2CN PM, transcript, Australian Broadcasting Corporation (ABC), 15 May 2014, accessed 23 October 2014.

[29].              Ibid.

[30].              Ibid.

[31].              AAP and others, Submission to the Review of the Freedom of Information Act 1982 and the Australian Information Commissioner Act 2010, 19 December 2012, accessed 23 October 2014.

[32].              Ibid.

[33].              M Colvin, ‘Concerns about closure of FoI review office’, 2CN PM, transcript, Australian Broadcasting Corporation (ABC), 15 May 2014, accessed 23 October 2014.

[34].              R Mulgan, ‘Information watchdog starved to death’, The Canberra Times, 3 June 2014, p. 1, accessed 23 October 2014.

[35].              Ibid.

[36].              OAIC, ‘Statements: Australian Government’s Budget decision to disband OAIC’, op. cit.

[37].              Ibid.

[38].              OAIC, Annual report 2013–14: 54% more FOI matters resolved, 183% more privacy complaints received, media release, 22 October 2014, accessed 23 October 2014.

[39].              The Statement of Compatibility with Human Rights can be found at page three of the Explanatory Memorandum to the Bill.

[40].              Under Regulation 19 in the Administrative Appeals Tribunal Regulations 1976 (the AAT Regulations), merits review by the AAT of FOI decisions is subject to a fee of $816, most of which would be refunded if the matter were to be resolved in favour of the applicant. There are certain exceptions to these fees in regard to FOI requests and decisions that relate to the matters set out in Schedule 3 of the AAT Regulations. The Administrative Appeals Tribunal website provide further information, accessed 23 October 2014.

[41].              M Neilsen, Freedom of Information Amendment (Reform) Bill 2009, op. cit., p. 31.

[42].              Since the 2010 reforms, agencies covered by the FOI Act are obliged to provide public access to documents and information released under FOI. This is known as an agency’s disclosure log (section 11C).

[43].              Note: the AAT can dismiss an application for similar reasons.

[44].              These include the functions of handling of privacy complaints, undertaking investigations and other regulatory activities, and the provision of guidance and advice on privacy to individuals, organisations and agencies.

[45].              The Information Advisory Committee is established under the AIC Act and therefore would be abolished by the repeal of that Act (Schedule 3, Part 1 of the Bill).

[46].              See new section 43 of the AHRC Act above, and Schedule 4, item 12 of the Bill below.

[47].              OAIC, ‘Statements: Australian Government’s Budget decision to disband OAIC’, op. cit.

[48].              OAIC, OAIC operations and processing times, media release, 8 October 2014, accessed 23 October 2014.

[49].              M Neilsen, Freedom of Information Amendment (Reform) Bill 2009, op cit., p. 38.

[50].              OAIC, OAIC operations and processing times, op. cit.

[51].              Australian Government, Review of the Freedom of Information Act 1982 and Australian Information Commissioner Act 2010 op. cit., p. 37.

[52].              D Napthine, (Victorian Premier), Assistant Freedom of Information Commissioners appointed, media release, 7 October 2014, accessed 22 October 2014.

[53].              C Adams, ‘One office three champions? Structural integration in the office of the Australian Information Commissioner’, Australian Journal of Administrative Law, 21(2), March 2014, pp. 77–97, accessed 23 October 2014.

[54].              The Hawke Review, op. cit., p. 19.