Chapter 2


Key issues

2.1        A number of key issues were raised by submitters and witnesses concerning the Freedom of Information Legislation Amendment (Improving Access and Transparency) Bill 2018 (the bill). These issues included:

  • Australian Information Commissioner Act 2010 (AIC Act)
  • the resourcing of the Office of the Australian Information Commissioner (OAIC)
  • the requirement to appoint three separate Commissioners
  • the requirement that Commissioners have legal qualifications
  • Freedom of Information Act 1982 (FOI Act)
  • encouraging a pro-disclosure culture
  • the requirement that information be published within 10 to 14 working days
  • preventing agencies from relying on additional exemption grounds during the course of Information Commissioner reviews
  • allowing for referrals to the Administrative Appeals Tribunal (AAT)
  • exempting Senators and Members from charges under $1000, and
  • the reporting of external legal expenses under the FOI Act and the Archives Act 1983 (Archives Act).

2.2        This chapter will outline the above issues and provide the committee's views and recommendation on the bill.

Australian Information Commissioner Act 2010

Resourcing of the OAIC

2.3        A number of submitters suggested that the reduction of funding to OAIC in 2014–15, in anticipation of its closure, was an area of concern.[1] Witnesses echoed this concern at the hearing, and concluded that the reduced funding had resulted in delays in the FOI system. For example, the Law Institute of Victoria stated:

The overall concerns that the Law Institute of Victoria has with the inefficient and ineffective operation of the FOI system in Australia are mainly due to insufficient resourcing of the Office of the Australian Information Commissioner, and it is our view that this has resulted in considerable delays at the Information Commissioner review stage. The Law Institute of Victoria is also concerned that the government sought to abolish the Office of the Australian Information Commissioner in 2014, and, since that time, has failed to restore the funding levels to the previous levels experienced.[2]

2.4        While the Attorney-General's Department (the department), acknowledged that funding to the OAIC was reduced, it also explained that the OAIC's funding has since been largely restored:

As part of the 2014–15 Budget measure there were expected to be savings of $3.6m per year, reflecting the abolition of FOI and information law functions performed by the OAIC. When the Government decided that the OAIC would continue in its current form, an amount of $2m per year was returned to the OAIC budget from those $3.6m of savings. The $1.6m which was not returned reflected streamlined arrangements that had been put in place by the OAIC to manage its workload, particularly in the area of FOI.[3]

2.5        However, the department recognised that the OAIC experiences 'ongoing stresses' due to an increase in the number of applications made to the OAIC.[4]

2.6        The Information Commissioner and Privacy Commissioner, Ms Angelene Falk, tabled the following statistics:

Table 1: Overview of IC review applications received and finalised

Type 2011-12 2012-13 2013-14 2014-15 2015-16 2016-17 2017-18
IC reviews received 456 507 524 373 510 632 801
IC reviews finalised 253 419 646 482 454 515 610
IC reviews where s 55K decision made 25 89 98 128 80 104 123
IC reviews finalised without s 55K decision being made 238 (90.5%) 330 (78.8%) 548 (84.8%) 354 (73.4%) 374 (82.4%) 411 (79.8%) 487 (79.84%)

2.7        Ms Falk confirmed that in 2017–18, the OAIC received 801 applications for Information Commissioner reviews, which is a 27 per cent increase from the previous financial year.[5] Furthermore, the OAIC had experienced similar increases of requests for Information Commissioner reviews in the last three years.[6] These figures appear to support the department's view that the OAIC experiences 'ongoing stresses' due to the number of applications it receives.

2.8        However, Ms Falk also noted that the number of Information Commissioner reviews finalised in 2017–18, also increased by 18 per cent.[7] Additionally, the table shows that the total number of Information Commissioner reviews finalised in 2017‑18 was the second highest, and that only in 2013–14 were more reviews finalised.

2.9        When asked whether there needed to be more resources at both the early resolution stage, as well as at a later stage, to enable more Information Commissioner reviews to be finalised earlier, Ms Falk stated:

At this point in time, that's not what I'm seeing. I'm seeing that where I need to focus is on working with government to increase the offices resources to increase the capacity at the case-officer level and potentially, the executive level. If that were to be increased and then have a flow-on effect to more Information Commissioner reviews being required of the commissioner and that being something that's not manageable within other functions then that would be something that I would bring to the attention of government.[8]

2.10      Ms Falk went on to say:

...at this time, I consider that it's working in a way that's effective and, should that change, then that would be something that I would bring to the attention of government. The increased work of the OAIC right across all our functions is something that, as I say, we're very closely monitoring. In the three months since my appointment to the commission it has been a key focus of my tenure.[9]

Requiring the appointment of three separate Commissioners

2.11      New subsection 14(5) of the bill would require three separate Commissioners to be appointed under the Act, while new subsection 14(6) would require a vacancy to any of these offices to be filled within three months.

2.12      The Explanatory Memorandum provides a rationale for the proposed change:

While on its face section 14 of the AIC Act makes it clear that there should be three separate commissioners, the functions of the Freedom of Information Commissioner are currently being performed by the Australian Information Commissioner and Privacy Commissioner. Subsection 14(5) removes any doubt and clarifies that there is to be a separate Australian Information Commissioner, Freedom of Information Commissioner and Privacy Commissioner.[10] 

2.13      A number of witnesses agreed that the AIC Act already requires three separate appointments as this was the intention of the Parliament of the day.[11] However, according to the department, 'there is no legal impediment to the appointment of a single person' to the three Commissioner roles.[12] The department went on to explain:

...the department's view is that it is open to the government to appoint only one commissioner. We think that the organisation can't effectively function without an information commissioner, so that one has to be in place. However, we think it would be perfectly open on the construction of the legislation to not have those other two positions filled. The government has decided to fill the privacy commissioner role. I might just contrast that with some other legislative schemes. I mentioned in my opening statement, for example, the Administrative Review Council. Once it falls below a certain number of appointments, it can no longer function. The parliament clearly didn't contemplate that. It contemplated a scheme where it could function with only one, even if it did provide for the establishment of the three.[13]

2.14      A number of submitters were supportive of the proposed amendment, suggesting that the appointment of three separate Commissioners had worked successfully in the past, and noting that a similar model is adopted in state governments as well as overseas jurisdictions.[14] Transparency International Australia stated that it supported this measure, provided the three Commissioners 'are also individually adequately resourced so that they can effectively perform their separate functions.'[15]

2.15      Dr David Solomon AM, Director of the Accountability Round Table, argued that having one person perform three roles was placing too much burden on that individual:

The functions that each of the three have are different. They are complex. The Information Commissioner has additional functions outside or on top of FOI in terms of general information policy and so on, and particularly additional functions under the national action plan and so on. There is more than enough work to have three people separately perform these functions, and requiring one person to do all three is putting a burden on them which really is absolutely unrealistic.[16]

2.16      In contrast, the OAIC and the department did not consider this amendment necessary, noting that 'the OAIC has been operating efficiently with a single person ... since July 2015.'[17] Ms Falk reiterated this view at the hearing:

I consider that, from the perspective of the one-commissioner model, that's functioning effectively at this time, and that's something that I will continue to review and, if necessary, advise government on.[18]

2.17      In support of her view that one individual could effectively perform the functions of three Commissioners, are the figures provided at table 1, and particularly, row 3 of the table (the full table is available above).

Row 3 of table 1: Overview of IC review applications received and finalised

Type 2011-12 2012-13 2013-14 2014-15 2015-16 2016-17 2017-18
IC reviews where s 55K decision made 25 89 98 128 80 104 123

2.18      Ms Falk explained that a 's 55K' decision is a final decision that is made if the alternative dispute resolution or other mechanisms has not resolved the review.[19] Section 55K decisions are decisions that are made by the Information Commissioner and are non‑delegable, and therefore must be made by Ms Falk.[20]

2.19      As noted in chapter 1, Dr James Popple resigned as FOI Commissioner in December 2014 and Professor John McMillan resigned as Information Commissioner in June 2015. Since this time, the OAIC has operated with one individual performing the functions of all three Commissioners. According to the table, the three periods which recorded the highest number of section 55K decisions being completed, were in 2014–15 (128 decisions), 2017–18 (123 decisions) and 2016–17 (104 decisions).

2.20      The committee notes that during all three periods, the OAIC was operating with less than three Commissioners. Based on the figures provided at row 3 of table 1, it is difficult to conclude that the effective operation of OAIC has suffered, due to having one individual performing the roles of three Commissioners.

Legal qualifications

2.21      Most submissions were supportive of the requirement for the Privacy Commissioner and Information Commissioner to hold appropriate legal qualifications when reviewing FOI decisions, and raised concerns that the previous Information Commissioner did not hold such qualifications.[21] For example, the Law Institute of Victoria stated:

The [Law Institute of Victoria] believes that the FOI Commissioner should always have the appropriate legal qualifications to engage in the complex legal decision-making required to perform the functions of the FOI Commissioner. The functions of the FOI Commissioner should not be performed by another statutory officer in order to avoid the requirement that the FOI Commissioner must have appropriate legal qualifications.

The [Law Institute of Victoria] is concerned that the FOI Commissioner's role was vacant in recent years and the functions of the office were performed by the Information Commissioner, Mr Timothy Pilgrim, who does not hold the appropriate legal qualifications.[22]

2.22      Ms McLeod provided some background as to why it was considered necessary for the FOI Commissioner to hold legal qualifications:

I understand the intention in introducing those qualification requirements was to assist in the review process for claims of exemption, so that there was a person with understanding, or the qualifications to understand, the law and its application. So let's just take an area where there are frequent claims of exemptions, like national security, or perhaps public interest immunity, legal professional privilege: they're things that require the person viewing the exemptions to understand how the law works, what the law is and how the law is applied in practice, and to be abreast of developments and authority on those matters. It would appear logical that, even with a very experienced public servant acting in the role, you would need to have that capacity and that ability.[23]

2.23      However, the department did not support this view noting that '[t]here is no evidence that a lack of legal qualifications hindered Mr Pilgrim's effectiveness in making these decisions.'[24] The department explained why it considered the need for the FOI Commissioner to hold legal qualifications unnecessary:

[Information Commissioner] reviews are intended to be a 'simple, practical and cost efficient method of external merit review'. This is consistent with the objects of the FOI Act which is to facilitate public access to information promptly and at the lowest reasonable cost. Requiring the reviewer to have legal qualifications does not align with the informality intended in the review process. Furthermore, the effective operation of the OAIC should not be dependent on a statutory officer holding legal qualifications, as that capability should be resident within the staff of that office as it is with every other agency.[25]

2.24      At the hearing, the department expanded on this point, noting that it is common practice for statutory office holders to draw on the expertise of its staff:

We have statutory office holders all around the Commonwealth who aren't lawyers making decisions that have legal impacts. They do so on the basis that they get advice from their own staff or, if necessary, they get legal advice to support those decisions. In general, that doesn't pose any particular problems. Naturally, we put lawyers in charge of courts because they're making final determinations of the legal rights as between various parties, and that's entirely appropriate. But, in terms of general administration of government, it's rare that you absolutely need a lawyer to make a decision. You just need somebody who is capable of taking into account all the relevant factors, which may include legal factors.[26]

Freedom of Information Act 1982

Encouraging a culture of pro-disclosure

2.25      At the hearing, witnesses expressed concern that the current culture within agencies and government does not encourage the disclosure of information, which was the intention of the FOI Act.

2.26      The Explanatory Memorandum outlines the purpose of the bill:

These amendments are designed to significantly improve the effectiveness of Australia's freedom of information (FOI) laws. Freedom of information provides the lawful means for citizens, the media, and parliamentarians to obtain access to information that ultimately belongs to the public.

These changes are designed to address the considerable dysfunction that has developed in our FOI system which is now characterised by chronic bureaucratic delay and obstruction, unacceptably lengthy review processes and what appears to be an increased preparedness by agencies to incur very large legal expenses to oppose the release of information.[27]

2.27      Mr Asher Hirsch, Dr Yee-Fui Ng, and Dr Maria O'Sullivan commented that the purpose of the FOI legislation is to 'encourage transparency and accountability in government' through the right of citizens to access government documents.[28] Ms Karen Middleton, Reporter for the Saturday Paper explained:

The FOI system is one commitment to the public's right to know. It is a concern if the system gives the veneer of transparency and the veneer of accessibility but the process itself is used as a means to block access.[29]

2.28      In relation to the need for a change in culture, Dr Maria O'Sullivan stated:

I feel that, although this has been done in the legislation, there hasn't been sufficient change in the culture of decision-making, particularly in certain agencies... [T]here really needs to be more of an emphasis on open government, and disclosure of information absolutely has to be the starting point of any FOI decision.[30]

2.29      Mr Michael McKinnon, Journalist and FOI Editor for the Australian Broadcasting Corporation stated:

I can't remember the act working as badly as it does at the moment. Delays, wilful and wrongful exemption claims and a flawed appeals process mean that it's very difficult for journalists to do our job, which is to inform the Australian public accurately and fairly on what governments are doing.[31]

2.30      Mr McKinnon explained the importance of FOI for journalism and accurate reporting:

In the era of so-called fake news, FOI allows us to report accurately and fairly on the government's own documents. Whereby politics can often be a debate between 'he said, she said', it's about where the ultimate truth lies. We can publish documents that are the government's. ... FOI is crucial to what journalists do, because, rather than appealing to the bias or slant on any given issue because of any take or how the reporting occurs, we can simply report accurately and fairly on what the government's own documents say, and the public are in the delightful position of seeing the truth.[32]

2.31      Ms McLeod argued for the need for a 'push scheme' that is 'weighted in favour of disclosure and not endlessly chasing departments to disclose information'.[33]

2.32      Ms Falk explained the action that the OAIC is taking to  promote a 'push scheme' model:

We've also been focusing on the proactive 'push' model of releasing information that is fundamental to the reforms to the FOI Act that occurred in 2010—that is, there is an obligation on government agencies to be proactively publishing information, where that's appropriate. To that end, we've undertaken a survey of the Information Publication Scheme, which is a proactive release model, and the results of that will be provided shortly. We've also worked to provide additional guidance to agencies in terms of facilitating administrative access outside of the FOI Act. And other activities that we have planned in our corporate plan include reviewing the application, or the administration, of the disclosure log provisions, whereby agencies and ministers are required to publish information that they have provided under FOI on their websites within 10 days of providing the information to the applicant. So it is a multifaceted approach to dealing with what is an ever‑increasing workload.[34]

Publishing information within 10 to 14 days

2.33      New subsection 11C(6) would require agencies to publish information released to an applicant between 10 to 14 days after it has been provided to the applicant, rather than the current requirement of 'within 10 working days'. The Explanatory Memorandum states that the timeframe is designed both to facilitate access to that information while also allowing applicants to examine released information before it is made public:

This provision addresses the frequent practice of agencies discouraging journalists from using freedom of information by denying any measure of exclusivity to information that may have been only released after long delays and payment of substantial fees. This subsection will give applicants the opportunity to examine released information before it is released to the public in general.[35] 

2.34      At the hearing, the committee heard from journalists, who expressed their support for this provision. Mr McKinnon explained the importance of this provision, particularly to journalists:

The reason we need 10 days is we get large lumps of information that are released only because they're in the public interest. You've won the public interest battle as soon as those documents have been released, because that's why they're released. What we would like to do, as journalists, is then research the documents appropriately, contact experts in the field, look for other documentation, even talk to politicians about it, and then produce a well-researched, concise, accurate and fair publication. We don't get that opportunity, because there are agencies that will release on the same day. I have had FOI documents coming back to me, and they have been given to other journalists by politicians in order to discourage us from doing FOIs.[36]

2.35      Ms Middleton agreed, suggesting that 'the 10 days should be a minimum.... It disadvantages anyone doing longer term investigative work to have a short time frame.'[37]

2.36      However, the department confirmed that the FOI Guidelines[38] issued by the Information Commissioner already acknowledges how same day publication may adversely affect journalists.[39] Relevantly, the FOI Guidelines state:

A contested issue in the operation of the FOI Act is that of 'same day publication (that is, publication of information on the disclosure log within 24 hours of when it is provided to the FOI applicant). With an eye to lessening dispute about this issue, an agency or minister may consider the following issues when choosing the date of publication in an individual case:

...

  • A practice of same day publication, if widely adopted or practised across government, may discourage journalists from using the FOI Act. This may work against the objects of the FOI Act by discouraging FOI requests from a particular section of the community who are experienced in accessing government information and making it available to the community.[40]

2.37      The department explained why it was preferable that this issue be dealt with in the Guidelines rather than through legislation:

The department considers that dealing with these matters through the FOI Guidelines provides the appropriate degree of flexibility to ensure agencies and Ministers can consider disclosure log publication timing on a case-by-case basis. This will ensure that disclosure log publication timing decisions strike the right balance between the objectives of the FOI Act in promoting access to Government information with the particular interests of journalists or others in receiving exclusive access to documents.[41]

2.38      The OAIC noted that the issue of the timing of the publication of documents was considered by the Hawke Report.[42] The Hawke Report recommended that 'there should be a period of five working days before documents released to an applicant are published on the disclosure log, but considered that it would be preferable for this to be set out in guidelines rather than in the FOI Act.'[43]

2.39      More broadly, the department noted that the proposed provision, as currently drafted, would apply to all applicants and not merely journalists. Consequently, the department argued that the provision could 'frustrate the policy objective of the FOI Act's disclosure log provisions of facilitating broader release of information released to FOI applicants,' as it could result in the slower release of information.[44]

Consistent application of exemptions

2.40      New section 55EA would require a consistent application of exemptions during Information Commissioner reviews, by not allowing an agency or minister to rely on an exemption that was not relied upon in making the Information Commissioner review. The Explantory Memorandum explains the basis for the proposed amendment:

This section seeks to prevent agencies from making submissions to FOI decision reviews that have not been advanced by the agency in its internal decision making, so that they can't change the basis for exemptions half way through a review. In effect, this frequent practice allows agencies and ministers to remake decisions half way through a review, something not normally permitted in merits review processes run in superior jurisdictions and never intended under the FOI Act.[45]

2.41      Most submissions opposed the bill's proposed requirement of requiring a consistent application of exemptions during Information Commissioner reviews. The OAIC explained that the current review process conducted by the Information Commissioner supports its merits review function:

In an [Information Commissioner] review of an access refusal decision, the agency or Minister has the onus of establishing that the reviewable decision is justified and that the Commissioner should give a decision adverse to the review applicant (s 55D(1)). Further, section 55DA requires the decision maker to assist the Commissioner in making her decision, conduct further searches for documents if access has been refused under section 24A (section 54V) and under section 55E an agency or Minister can be required to provide a statement of reasons for the decision if the Commissioner believes no statement has been provided or the statement provided is inadequate.

When making decisions under s 55K, it is open to the Commissioner to vary the decision of the agency or minister by deciding that documents in dispute are exempt under an exemption that is different to the exemption contended by the agency or minister. Accordingly, in order for the Commissioner to undertake a full merits review and reach the correct or preferable decision at the time of making the IC review decision, any relevant exemptions and submissions should continue to be permitted.[46]

2.42      Similarily, the department, Transparency International Australia and the Law Institute of Victoria agreed that the ability to raise additional exemptions ensures the FOI system remains, as the Law Institute of Victoria states, a 'pure form of merits review'.[47] Additionally, Ms Elisa Hesling, representative of the Law Institute of Victoria, raised the following issue with the proposed provision:

There is the potential for locking someone into claiming an exemption—that then may require an organisation, an agency, to only consider that particular point and therefore not look further outside the field, which would be disadvantageous to justice in any event.[48]

2.43      The Department of Home Affairs also raised concerns that to limit agencies' use of exemptions during an Information Commissioner review would  'diminish the quality of the review process and limit the development of case law.'[49]

2.44      In expressing its opposition to the proposed provision, the Law Institute of Victoria provided the following explanation:

  • Not permitting agencies to raise additional exemptions may be contrary to their statutory and ethical duty to properly and fully assist the Information Commissioner during IC reviews.
  • If additional exemptions are raised by agencies, that does not mean that the Information Commissioner necessarily needs to agree that they apply; it just means that they ought to properly be considered if they have been appropriately raised.
  • If additional exemptions were properly available and agencies were precluded from raising them at IC review just because they were not originally raised by the decision-making agency at first instance, that may have the unintended consequences of more agencies seeking review of Information Commissioner decisions from the AAT – a pure merits review body.
  • The effectiveness of the FOI process is enhanced by promoting good communication between agencies and applicants, and formality and technicality in clarifying the documents sought in the FOI request and other aspects of the FOI process. Proposed section 55EA may result in a heightened risk that agencies would take a more rigid approach to drafting statements of reasons by looking for any conceivable exemption claim and including it at the outset, giving the perception that agencies may be seeking to obstruct access to information.
  • If additional exemptions continue to be permitted to be raised by agencies, and if the 120 day time limit for IC reviews is put in place as proposed, the Information Commissioner may be more likely to make an assessment that consideration of the matter, including the additional exemptions, will take the matter beyond 120 days. This will increase the ability of FOI applicants to request that the matter be transferred to the AAT free of charge.[50]

2.45      At the hearing, the Law Institute of Victoria elaborated that by allowing agencies to reconsider exemptions, there may be situations where 'a government body decides that, no, the exemptions don't apply at all and decides to disclose the documents.'[51]

2.46      As an alternative to the proposed amendment, Ms McLeod and Mr Peter Timmins provided the following drafting alternative, with suggested timeframes:

Where an application for review is lodged:

  1. the OAIC is required to notify the agency or minister within (10) days;
  2. the agency is required to respond in writing to provide the OAIC within (14) days of any facts or other relevant considerations on which the decision is based that were not identified in the notice of decision provided to the applicant; and
  3. the OAIC review function is to affirm, vary or set aside the decision based on material provided to the applicant in the notice of decision and to the OAIC within 14 days of lodgement of the application.[52]

Referral to the Administrative Appeals Tribunal

Referral where review will take more than 120 days to finalise

2.47      New sections 55JA would require the Information Commissioner to notify an applicant if a review is likely to take, or has already taken, more than 120 days. In such cases, new section 55JB would then allow the applicant to tranfer their Information Commissioner review to the Administrative Appeals Tribunal (AAT), at no charge to the applicant.

2.48      The OAIC explained that the current process provides sufficient flexibility to allow matters to proceed to the AAT prior to an Information Commissioner review decision being made.[53] Under section 54W(b) of the FOI Act, the Information Commissioner can decline to undertake a review if they believe that the AAT is better placed to consider the review.[54] The OAIC provided the following examples of when the Information Commissioner may determine that it is desirable for the AAT to consider a matter instead of the Information Commissioner:

  • the [Information Commissioner] review is linked to ongoing proceedings before the AAT or a court
  • there is an apparent inconsistency between earlier [Information Commissioner] review decisions and AAT decisions
  • [Information Commissioner] review decision is likely to be taken on appeal to the AAT on a disputed issue of fact, and
  • the FOI request under review is complex or voluminous, resolving the [Information Commissioner] review matter would require a substantial allocation of OAIC resources, and the matter could more appropriately be handled through the procedures of the AAT.[55]

2.49      Regarding the application of section 54W(b) of the FOI Act, Mr McKinnon raised concerns that he has sought to have his matter heard by the AAT under section 54 of the FOI Act, but was not able to:

I've attempted to go to the AAT any number of times, via the Information Commissioner, because I argue, quite simply, that it would be so much quicker, and I'm not allowed to go to the AAT via the Information Commissioner, under section 54. I don't know what the reasons are for not allowing me to go, but I want access to a fair means of appeal on FOI.[56]

2.50      Submitters and witnesses were generally supportive of this provision. The Law Institute of Victoria expressed its support for 'measures which will contribute to addressing substantial delays in the [Information Commissioner] review process for FOI decisions.'[57]

2.51      The Accountability Round Table agreed that applicants' should be informed if their Information Commissioner reivew would take in excess of 120 days for a decision. However, it also noted that applicants 'would be wise to determine whether the [AAT] is likely to hear an application for documentary access more quickly.'[58]

2.52      OpenAustralia Foundation stated that it did not support the provision as it considered the timeframe too long:

The applicant has probably gone through a 30 day initial, 30 day internal review, maybe some consultation, even where the authority is straightforward in their dealings. It's possible for the request to be outstanding for 60+ days when the matter gets to the Information Commissioner (IC)—The IC should be sufficiently funded to be able to make decisions in the normal course of events within 30 days and allow them to be referred to the AAT.[59]

2.53      A number of witnesses were asked what timeframe they considered reasonable to complete an Information Commissioner review. Generally, those witnesses expressed the view that 120 days 'seems a more than adequate time' to complete an Information Commissioner review.[60] As a comparison, Ms Hesling noted that the Victorian legislation requires the Victorian Information Commissioner to make a decision on an FOI review within 30 days of receiving the application.[61] Ms Hesling explained:

That time can be extended by agreement between the FOI applicant and the commissioner as long as that extension is sought within the initial 30 days of the review. At the end of that time, the commissioner is taken to have made a decision whether or not a decision has actually been made, and that then gives the right to refuse to the Victorian Civil and Administrative Tribunal.[62]

2.54      In answers to questions on notice, Dr Solomon provided the following figures in relation to FOI reviews conducted by the Queensland Information Commissioner:[63]

Table 2: Time taken for Queensland Information Commissioner to finalise an FOI review:

Year Median days to finalise review Number of reviews finalised
2015–16 98 407
2016–17 86 413
2017–8 102 595

2.55      In contrast, Ms Falk tabled the following statistics in relation to the time taken for Information Commissioner reviews to be finalised:

Table 3: Overview of IC review finalisation times

Finalised 2011-12 2012-13 2013-14 2014-15 2015-16 2016-17 2017-18
Number finalised within 120 days (percentage of all IC reviews finalised) 100 (39%) 124 (30%) 191 (30%) 165 (34%) 196 (43%) 198 (38%) 235 (39%)
Number finalised within 6 months (percentage of all IC reviews finalised) 145 (57%) 167 (40%) 270 (42%) 247 (51%) 274 (60%) 291 (57%) 285 (47%)
Number finalised within 9 months (percentage of all IC reviews finalised) 203 (80%) 242 (58%) 359 (56%) 301 (62%) 347 (76%) 392 (76%) 418 (69%)
Number finalised within 12 months (percentage of all IC reviews finalised) 232 (92%) 289 (69%) 462 (72%) 343 (71%) 395 (87%) 445 (86%) 513 (84%)
Number finalised over 12 months (percentage of all IC reviews finalised) 21 (8%) 130 (31%) 184 (28%) 139 (29%) 59 (13%) 70 (14%) 97 (16%)
TOTAL Finalised 253 419 646 482 454 515 610

2.56      As indicated in table 1, the OAIC received 801 Information Commissioner review applications in 2017–18. The above table shows that, during this period, the OAIC finalised 235 reviews within 120 days. Under the proposed amendment the reviews not finalised by the OAIC within 120 days would be transferred to the AAT (566 reviews).

2.57      The AAT's 2017–18 Annual Report shows that it received 47 lodgements in its FOI division during this period.[64] Based on the 2017–18 figures, if item 12 of the bill was enacted, the AAT's workload within its FOI division would increase from 47 lodgements to 566 lodgements—a 12-fold increase.

2.58      Ms Falk noted her concerns that the provision would 'transfer the issue from one jurisdiction to the other.'[65] On this point, Ms McLeod stated:

The AAT is another body that is also facing a burgeoning workload and would probably need additional resources to be allocated to take on that extra jurisdiction.[66]

2.59      In answers to questions on notice, the OAIC explained that '[t]he time to progress each IC review and the time it is formally allocated to a case officer varies from case to case depending on the complexity of the matters involved and the outcome sought by the IC review applicant.'[67] Prior to an application for a review being allocated to a case officer, the OAIC will generally conduct preliminary inquiries with an agency or minister, issue a notice to the agency or minister that an IC review has been commenced and request submissions and key documents.[68] The OAIC confirmed that:

At 31 October 2018, the time from receipt to formal allocation for those matters not resolved in the early stages is approximately eight and a half months, noting, as set out above, there are many case management activities undertaken prior to formal allocation and the timeframe between the last case management event to allocation to case officer varies.[69]

Automatic referral to the AAT

2.60      The bill would also allow the applicant (at the normal cost), to by‑pass a review by the Information Commissioner and apply to the AAT to review an FOI decision. Witnesses generally did not support this provision, noting that it would 'significantly increase the workload of the AAT.'[70]

2.61      The department made the following observation:

Any significant workload increase for the AAT resulting from the proposed amendments would adversely affect the AAT's ability to finalise matters. This in turn is likely to lead to longer finalisation timeframes and increased backlogs.[71]

2.62      The department also commented that by-passing the Information Commissioner is 'a very big system change' and that it would want to understand the flow-on effects:

We'd want to think through what that looks like in terms of the AAT load, what it means in terms of potentially decreasing the OAIC's load and what flow-on effects that has in terms of that kind of informal merits-based decision-making.[72]

2.63      Additionally, Ms Falk noted that in 2017–18, the AAT's FOI division finalised 65 per cent of matters within 12 months.[73] The committee notes that if the purpose of the provision is to provide the applicant with early resolution of their matter, it is questionable whether the proposed amendment would achieve this objective, particularly if the AAT received a significant increase in the number of lodgements in its FOI division.

Exempting Senators and Members from charges

2.64      Submitters expressed mixed views with respect to the proposal to not impose a charge on Senators and Members where the work generated was under $1000.

2.65      As background, the department explained that agencies and ministers should interpret the 'lowest reasonable cost' objective broadly, in imposing any charges under the FOI Act.[74] Additionally, the department observed that the FOI Act currently allows flexibility regarding charges, particularly if the release of information is deemed to be in the public interest.[75]

2.66      The OAIC explained that the following principles apply to charges under the FOI Act:

  • A charge must not be used to unnecessarily delay access or discourage an applicant from exercising the right of access conferred by the FOI Act
  • Charges should fairly reflect the work involved in providing access to documents on request
  • Charges are discretionary and should be justified on a case by case basis
  • Agencies should encourage administrative access at no charge, where appropriate
  • Agencies should assist applicants to frame FOI requests
  • Agencies should draw an applicant's attention to opportunities available to the applicant outside the FOI Act to obtain free access to a document or information
  • A decision to impose a charge should be transparent.[76]

2.67      Regarding the specific provision that Senators and Members be exempt from charges where the work generated totals less than $1000, Ms Middleton made the following observation:

...senators and members also have other mechanisms to use to access information, like orders of the Senate, asking for questions on notice and compelling witnesses to public inquiries. Journalists have fewer avenues, so I would say that, if there's going to be an exemption for members and senators, maybe think about an exemption for media as well because we're, in the end, representing the public.[77]

2.68      Dr O'Sullivan noted that exempting certain people from charges could be 'a slippery slope':[78]

I was listening to the previous sessions where there was discussion about giving exemptions about payments to journalists, and then of course you run into the problem of: what about individual citizens, and what about civil society? I haven't really turned my mind extensively to this, but I think you need to bear in mind that if you make it free for certain people then you'll have to expand that circle of people. So I would give a note of caution about doing that.[79]

2.69      Mr Wilson made the following observation:

So the issue to us is more one of looking at the principle of the cost of allowing access to government information and tackling that issue rather than necessarily simply giving this exemption, as it were, for senators and members.[80]

External legal expenses

2.70      The bill proposes to amend the FOI Act to require external legal fees to be reported in agencies' annual reports. Additionally, the bill also proposes to amend the Archives Act to require the National Archives of Australia to include in its annual report the number of applications made to it for access to records in which external legal expenses have been incurred, and provide the particulars of those expenses.

2.71      The OAIC explained that agencies already report their external legal expenses related to FOI, and this data is available online:

Agencies and ministers provide to the OAIC annually the non-staff costs directly attributable to FOI request processing (FOI) and the Information Publication Scheme (IPS). Costs are separately provided for general legal advice costs (this is general legal advice on FOI or IPS matters either from an in-house legal section or external solicitor / legal counsel) and litigation costs (this is the cost of specific litigation in relation to particular FOI requests. It includes solicitor and legal counsel costs and internal agency legal services, if they can be costed.

Summary details of these costs are published in the OAIC annual reports.

The specific data provided by individual agencies about FOI processing and costs are published annually by the OAIC on the website: www.data.gov.au.[81]

2.72      Similarly, the department argued that the provision 'would unnecessary duplicate existing practices around FOI reporting', while also adding an additional regulatory burden on agencies and ministers.[82]

The department considers that these arrangements, along with additional reporting obligations under the [Legal Services Directions], already achieve the transparency in relation to government activities intended to be achieved through this provision. This proposal would simply create additional regulatory burdens on agencies and Ministers to achieve ends which are already achieved through current reporting arrangements.[83]

2.73      In relation to the proposed amendments to the Archives Act, the department explained that the National Archives of Australia's external legal expenditure is already reported publicly on the Archives' website in an aggregated form.[84] Furthermore, the department raised concerns 'about imposing a new reporting obligation applying specifically to the Archives that is inconsistent with whole-of-government arrangements that apply under the [Legal Services Directions].'[85]

Committee view

2.74      The committee is supportive of the broad intent of the bill. That is, 'to introduce measures that make government more transparent and accountable, and assist citizens and the media to access information under the law'[86] and 'to significantly improve the effectiveness of Australia's [FOI] laws.'[87]

2.75      However, underpinning the proposed amendments in the bill, is the contention that the FOI system is experiencing 'chronic bureaucratic delay and obstruction, unacceptably lengthy review processes and what appears to be an increased preparedness by agencies to incur very large legal expenses to oppose the release of information.'[88]  The committee does not agree with this underlying contention.

2.76      Similarly, the committee is of the view that the provisions in the bill do not achieve their stated objectives. The committee's views on the bill's key provisions are set out below.

Resourcing of the OAIC

2.77      A central claim made during this inquiry was that the OAIC has been under‑resourced and consequently overburdened since the government's decision in 2014 to disband the OAIC. The underlying assumption was that this resulted in considerable delays in finalising Information Commissioner reviews.

2.78      The committee acknowledges that funding to the OAIC was reduced in 2014. However, the committee received evidence that the OAIC's funding was largely restored in 2016, with a portion of funding not returned to reflect the streamlined arrangements that had been put in place by the OAIC.[89] Furthermore, the committee notes that when the Information Commissioner and Privacy Commissioner, Ms Angelene Falk, was specifically asked whether additional resourcing would help expedite Information Commissioner reviews, she responded that the OAIC was working effectively, but 'should that change, then that would be something that [she] would bring to the attention of government.'[90]

2.79      The committee notes that the number of Information Commissioner review applications received has increased in the last three financial years. However, the number of Information Commissioner reviews finalised has also increased in this period. According to table 1, in 2017–18, the OAIC finalised 610 Information Commissioner reviews—the second highest number of reviews finalised in a financial year since the OAIC commenced operations. Based on the evidence provided, the committee considers it difficult to conclude that the OAIC is under-resourced.

Requiring the appointment of three separate Commissioners

2.80      In relation to the requirement that three separate Commissioners be appointed, the committee is satisfied that the one-commissioner model is functioning effectively. Additionally, the committee is persuaded by the evidence tabled by Ms Falk, which shows that the three periods which recorded the highest number of section 55K decisions[91] being completed, were during periods when the OAIC was operating with less than three Commissioners. Accordingly, the committee does not consider this provision necessary.

Requiring that Commissioners have legal qualifications

2.81      The committee does not agree that it should be a requirement that Commissioners who review decisions under Part VII of the FOI Act have legal qualifications. The committee shares the view of the department, that it is often not essential for people in senior positions who make decisions that have legal impact to hold legal qualifications, and instead it is common practise for senior officials to draw on the expertise of their staff.

Publication of information within 10 to 14 working days

2.82      The committee notes that the current drafting of this provision would apply to all FOI applicants and not merely journalists. Therefore, the committee is mindful that this provision would result in information being released at a slower rate, which would appear to frustrate the objective of the FOI Act and the disclosure log.

2.83      A number of journalists submitted that the government's publication of information released under FOI sooner than 10 days after its release may be detrimental to public interest journalism. The committee acknowledges these concerns. The committee notes that the issue of early release of information provided to a journalist is considered in the FOI Guidelines, which the Hawke review considered to be the preferable way to deal with this issue. The committee agrees that this issue is best dealt with in FOI Guidelines. Nevertheless, the committee is of the view that there may be an opportunity to consider whether the guidance provided could be clarified and strengthened so that the general release of information does not unduly affect journalists who have received information pursuant to the FOI Act.

Consistent application of exemptions

2.84      Most submitters did not support the proposed amendment to prevent agencies from making additional exemption claims during the course of Information Commissioner reviews. The committee is persuaded by the evidence provided by submitters and witnesses that to do so would diminish the quality of the review process, would not align with a pure form of merits review, and would prevent an agency or minister from making a fresh decision that could otherwise be in favour of releasing of information to the applicant. Consequently, the committee does not support this provision.

Referrals to the AAT

2.85      The committee is sympathetic to the intent of this provision—that is, to provide a mechanism for a review of an FOI decision to be finalised in a shorter timeframe. Based on the figures provided by the OAIC, in 2017–18, it received 801 Information Commissioner review applications, finalised 235 reviews (39 per cent) within 120 days, which would result in at least 566 reviews to be transferred to the AAT, pursuant to item 12 of the bill. Noting that the AAT's FOI division received 47 lodgements in 2017–18, the committee shares the concerns of submitters and witnesses that item 12 of the bill may be transferring an issue to a different jurisdiction.

2.86      The committee is concerned that item 13 of the bill, which would allow applicants to by-pass an Information Commissioner review and apply to have their matter heard in the AAT, would only exacerbate the issue of managing a significant increase in workload. In light of the AAT's recent finalisation rates of 65 per cent of FOI matters finalised within 12 months, and particularly given the likely increase of FOI matters to be considered by the AAT, it appears questionable whether items 12 and 13 of the bill would result in matters being resolved at a faster rate than is currently the case.

Exempting Senators and Members from charges

2.87      The committee agrees with the views expressed by witnesses, that to exempt Senators and Members of charges where the work generated is under $1000, is a 'slippery slope'[92] whereby other groups may equally claim a public interest to also be exempt from these charges. The FOI Act currently allows flexibility regarding charges, particularly if the release of information is deemed to be in the public interest. The committee considers that the FOI Act and FOI Guidelines adequately and appropriately deal with charges, including advice that, where appropriate, agencies should encourage access to information at no charge. Consequently, the committee does not support this provision of the bill.

Reporting of external legal expenses

2.88      Having regard to the additional administrative burden placed on agencies, and the evidence that much of the requirement would duplicate existing reporting mechanisms, the committee does not support item 16 of the bill.

2.89      Similarly, the committee considers that item 1 of the bill largely duplicates existing reporting arrangements with respect to legal expenses incurred by the National Archives of Australia, while also creating a reporting obligation that would be inconsistent with whole of government arrangements that apply under the Legal Services Directions.

2.90      For the reasons outlined above, the committee recommends that the Senate not pass the bill.

Recommendation 1

2.91      The committee recommends that the Senate not pass the bill.

Senator the Hon Ian Macdonald
Chair

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