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
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
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
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 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.
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