Australia: Commonwealth Freedom of Information Reforms Moving

Public Law Report
Last Updated: 1 July 2010
Article by Ashley Tsacalos

As part of its 2007 election policy, the Government announced that it would reform the FOI landscape with the main objectives being to promote a pro-disclosure culture across the Government and build 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.

Senate Finance and Public Administration Legislation Committee

On 16 March 2010, the S enate Finance and P ublic Administration L egislation 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:

  1. 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
  2. that the Information Commissioner, when appointed, give consideration to whether it is necessary and appropriate for entire agencies and organisations to be exempt from the FOI scheme
  3. 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 application fees)
  4. that proposed section 61 in item 42 of Schedule 4 to P art 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
  5. 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, and
  6. subject to the amendments to the Bills as suggested in Recommendations 4 and 5 being made, that the Bills be passed by the S enate 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 L aw 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 Commissioner's review.

Commencement of the new legislation

On 26 February 2010, the Government announced the appointment of Professor John McMillan AO (the current Commonwealth Ombudsman) as the Information Commissioner Designate.

On 31 May 2010, the Bills received Royal Assent and are now the Australian Information Commissioner Act 2010 (AIC Act) and the Freedom of Information Amendment (Reform) Act 2010 (FOI Reform Act) respectively. The AIC Act will commence on 1 November 2010 and Professor McMillan's appointment as the Australian Information Commissioner will also commence on that date.

Some provisions of the FOI Reform Act which are complementary to the AIC Act will also commence on 1 November 2010. However, measures such as the new Information Publication Scheme and the requirement for agencies to publish information where access has been given under P art III of the FOI Act will commence on 1 May 2011. Other changes to bring forward the "open access periods" for Cabinet note books and other records will begin on 1 January 2011 and will be phased in over a 10 year period.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Ashley Tsacalos
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