Australia: Freedom Of Information - A Brave New World

Last Updated: 27 November 2009
Article by Ashley Tsacalos

Amidst the debate over the Emissions Trading Scheme, the Government has also taken the opportunity to introduce the next stage of its reforms to freedom of information. Yesterday, the Government introduced the Freedom of Information Amendment (Reform) Bill 2009 (Cth) and the Information Commissioner Bill 2009 (Cth) into the House of Representatives. The aim of both Bills is to promote more disclosure of government information and provide national consistency between FOI and privacy laws.

As part of its 2007 election policy, the Government announced that it would reform the FOI landscape with the principle objects of promoting a pro-disclosure culture across the Government and building a stronger foundation for more openness in government. The reforms are being implemented in two stages:

  • Stage 1 – Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009 (Cth)
  • Stage 2 – Information Commissioner Bill 2009 and Freedom of Information Amendment (Reform) Bill 2009

The Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009 commenced on 7 October 2009 and repealed the power to issue conclusive certificates in the Freedom of Information Act 1982 (Cth) (FOI Act) and the Archives Act 1983 (Cth).

In relation to the second stage, the Government introduced the Information Commissioner Bill 2009 and the Freedom of Information Amendment (Reform) Bill 2009 into Parliament on 26 November 2009. The introduction of the Bills follows the Government's consideration of public submissions on exposure draft legislation.

Information Commissioner Bill 2009

The primary purpose of the Information Commissioner Bill 2009 is to establish three independent statutory office holders and the Office of the Information Commissioner. The Office will comprise:

  • the Information Commissioner (a new statutory office holder)
  • the Freedom of Information (FOI) Commissioner (a new statutory office holder)
  • the Privacy Commissioner (an existing statutory office holder), and
  • staff engaged under the Public Service Act 1999.

The Office of the Information Commissioner will bring together the functions for independent oversight of the FOI Act and the Privacy Act 1988 (the Privacy Act). The functions of the Office will be threefold:

  • the FOI functions - which are about giving the Australian community access to information held by the Government in accordance with the FOI Act
  • the privacy functions - which are about protecting the privacy of individuals in accordance with the Privacy Act and other Acts, and
  • the information commissioner functions - which are strategic functions concerning advice to Government on information management.

The Information Commissioner, which is a new position, will be the head of the Office both strategically and administratively (including for the purposes of the Public Service Act 1999 and the Financial Management and Accountability Act 1997). Provision is made in the Bill to ensure that no duplication arises in carrying out functions between the three Commissioners and to ensure that no disagreement arises in the discharge of those functions. The FOI Commissioner, which is also a new position, will mainly perform the FOI functions. For flexibility, the FOI Commissioner will also be able to perform the privacy functions.

The Privacy Commissioner is an existing position established under the Privacy Act. However, the Privacy Commissioner will be appointed under this Bill. The Privacy Commissioner will mainly perform the privacy functions. For flexibility, the Privacy Commissioner will also be able to perform the FOI functions. It is proposed that the existing Office of the Privacy Commissioner will be amalgamated into the Office of the Information Commissioner.

The Information Commissioner Bill 2009 is complemented by the Freedom of Information Amendment (Reform) Bill 2009, which will amend the FOI Act to establish a number of FOI functions that will be performed by the Information Commissioner (and the FOI Commissioner). These include functions of undertaking a merits review of FOI decisions, undertaking investigations related to action taken by agencies in handling FOI matters (including upon complaint), and promoting the objects of the FOI Act.

The Bill and the Explanatory Memorandum can be found here.

Freedom of Information Amendment (Reform) Bill 2009

The primary purpose of the Bill is to make major reforms to the FOI Act to promote a pro-disclosure culture across government and to build a stronger foundation for more openness in government. This Bill complements the proposed structural reforms to be implemented by the Information Commissioner Bill 2009.

The Freedom of Information Amendment (Reform) Bill 2009 contains amendments:

  • directed at ensuring that the right of access to documents under the FOI Act is as comprehensive as it can be, limited only where a stronger public interest lies in withholding access to documents
  • to give greater weight to the role that the FOI Act serves in pro-active publication of government information, and
  • to improve the request process under the FOI Act.

Schedule 2 overhauls Part II of the FOI Act and introduces a new information publication scheme for Commonwealth agencies that are subject to the FOI Act. The new scheme provides a statutory framework for pro-active publication of information by agencies. The purpose of the scheme is to allow the FOI Act to evolve as a legislative framework for giving access to information through agency driven disclosure rather than as a scheme that is primarily reactive to requests for documents.

Schedule 4 makes provision for certain key FOI functions of the Information Commissioner (which will also be performed by the FOI Commissioner). The Information Commissioner is to have a function of reviewing FOI decisions made by agencies and Ministers. FOI applicants will be able to apply for Information Commissioner review either directly from a decision at first instance or from an agency decision upon internal review. Both an applicant and an agency or Minister will have a right to apply to the Administrative Appeal Tribunal for review of a decision made by the Information Commissioner. The Information Commissioner is also to have a function of investigating action taken by agencies under the FOI Act.

A further measure in Schedule 4 gives the Information Commissioner the power to declare a person to be a vexatious applicant for the purposes of the FOI Act. The Information Commissioner may exercise that power if satisfied that a person's conduct involves an abuse of process (in connection with making applications under the Act) or if a particular request or application is manifestly unreasonable.

The Bill and the Explanatory Memorandum can be found here.

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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