Australia: OAIC to be abolished from 1 January 2015: what are the implications?

The Freedom of Information Amendment (New Arrangements) Bill 2014 (New Arrangements Bill) has been introduced into Parliament. If passed, it will abolish the Office of the Australian Information Commissioner (OAIC) from 1 January 2015.

Functions currently performed by the OAIC will be abolished or shifted to other areas of government. Commonwealth Government agencies should prepare for a renewed emphasis on internal review of FOI decisions. However, guidance developed by the OAIC on the operation of the Freedom of Information Act 1982 (Cth) (FOI Act) will remain important.

The establishment of the OAIC was one of a number of significant reforms to freedom of information laws at the Commonwealth level in 2010. The positions of the Australian Information Commissioner and Freedom of Information Commissioner were established to assist agencies with the implementation of changes to the FOI Act, and, joined by the Privacy Commissioner, to help integrate information management and policy across the Commonwealth Government.

The reforms introduced a new two-tiered system of merits review providing an applicant who had been denied access under the FOI Act to review of that decision, initially by the Information Commissioner, and then to the Administrative Appeals Tribunal (AAT). However, concerns over delays in review decisions were noted in a review of the FOI Act by Allen Hawke in 2013 (The Hawke Review). The Hawke Review concluded that there was insufficient evidence to determine whether the two-tiered model was the most effective and efficient. One of its recommendations was that the review process, along with various other elements of the FOI Act, be subject to a comprehensive review. The Government is yet to respond to the recommendations of the Hawke Review.

The OAIC 2013-14 Annual Report stated that over the last year there had been an over 50% increase in the number of reviews completed and a reduction in the time taken to commence a review from 205 days to 40. In putting forward the New Arrangements Bill however, the Government has stated that "simplifying and streamlining FOI review processes... will improve administrative efficiencies and reduce the burden on FOI applicants".

Under the New Arrangements Bill, applicants denied access to documents under the FOI Act will generally need to seek internal review from the agency involved before applying to the AAT. Decisions relating to access to documents and amendment of personal records will be deemed to have been refused if not made within the allowed time period (generally 30 days). Obligations on the agency to make decisions will continue but applicants will have an option to seek a decision from the AAT. Agencies will no longer be able to seek an extension of time from the Information Commissioner. The only means to extend the processing period for matters considered complex or voluminous, for example, will be by agreement between an agency and the applicant.

Complaints relating to FOI matters, including the charging of fees, will now be made solely to the Commonwealth Ombudsman. The Privacy Commissioner will become an independent statutory officer in the Australian Human Rights Commission. The functions of the Privacy Commissioner under the Privacy Act will therefore remain largely unchanged.

Many of the remaining functions of the Information Commissioner will be shifted to the Attorney-General's Department. Agencies and Ministers will provide the Attorney-General's Department with statistical information to enable the preparation of an annual report on the operation of the FOI Act. The Attorney-General will be responsible for issuing guidelines on the operation of the FOI Act. Determining that certain information is not required to be included in an agency's information publication scheme or would be unreasonable to publish on the disclosure log is also within the Attorney-General's authority.

However, there are also a number of functions of the Information Commissioner that will no longer be carried out. In addition to the extensions of time issue, there will be no power to have a person declared to be a vexatious litigant prior to an AAT application. There will no longer be provision for assisting agencies with their information publication scheme obligations and monitoring and reporting on compliance with that scheme. The operation of the information publication scheme will no longer be reviewed every five years.

The Information Commissioner also provides advice to the Attorney General on Australian Government information management policy and practice. There has been no public indication as to how this central role will be devolved, with various Government Departments, including Department of Finance, currently having important policy and implementation roles.

Under the New Arrangements Bill the OAIC will continue to operate up until 31 December 2014. Any applications for review by the Information Commissioner that are not resolved at that date will be deemed to be applications to the AAT without any application fee payable, and all records and documents relating to the review will be transferred to the AAT.

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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