In November 2009, we
reported on the Government's progress with respect to its
reform of the freedom of information regime. As part of its 2007
election policy, the Government announced that it would reform the
FOI landscape with the main objective to promote a pro-disclosure
culture across the Government and building a stronger foundation
for more openness in government. As part of this project, the
Government introduced the Information Commissioner Bill 2010 (IC
Bill) and the Freedom of Information Amendment (Reform) Bill 2010
(FOI Bill) into Parliament last November 2010.
Senate Finance and Public Administration Legislation
On 16 March 2010, the Senate Finance and Public Administration
Legislation Committee (Committee) delivered its
report following its inquiry into the provisions of the FOI Bill
and the IC Bill. The Committee made the following six
recommendations in relation to the Bills:
that the Information Commissioner be made an ex
officio member of the Administrative Review Council
(ARC) so as to be provided with support and
high-level policy input from the ARC
that the Information Commissioner, when established, give
consideration to whether it is necessary and appropriate for entire
agencies and organisations to be exempt from the FOI scheme
that consideration be given to the issues raised with respect
to fees and charges, particularly the feasibility of removing
processing charges for FOI access applications (but retaining
that proposed section 61, in item 42 of Schedule 4 to Part 1 of
the FOI Bill, which provides that whichever party that appeals a
decision of the Information Commissioner bears the onus of proof in
the Administrative Appeals Tribunal (AAT), as well
as any other relevant sections of the FOI Bill and Freedom of
Information Act 1982 (FOI Act), be amended to
remove the concept of an onus of proof from the FOI Act
that the name of the Information Commissioner be changed to the
Australian Information Commissioner to distinguish the office from
information commissioners in other states and internationally,
subject to the amendments to the Bills as suggested in
Recommendations 4 and 5 being made, that the Bills be passed by the
Senate as soon as practicable.
The passage of the Bills through Parliament
The Bills were passed by Parliament on 13 May 2010, following
amendments to both Bills moved by the Government in light of the
Committee's report. These include, among other things, adopting
the recommendation that the name of the Information Commissioner be
changed to the "Australian Information Commissioner", and
making the Australian Information Commissioner a member of the ARC
in the same way that the President of the AAT, the Ombudsman and
the President of the Australian Law Reform Commission are members
of the ARC.
Although not a specific recommendation in the Committee's
report, the Government has also amended the FOI Bill to include a
new section 55DA, which requires the agency or Minister who made a
decision reviewable by the Information Commissioner to use
"best endeavours" to assist the Information Commissioner
to make his or her decision in relation to the Information
Commencement of the new legislation
Following Royal Assent of the Bills, the majority of the
measures (including the establishment of the new Office of the
Australian Information Commissioner) will commence on a day to be
fixed by proclamation, or six months after Royal Assent.
On 26 February 2010, the Government announced the appointment of
Professor John McMillan AO (the current Commonwealth Ombudsman) as
the Information Commissioner Designate.
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