Bills Digest no. 114 2009–10
Information Commissioner Bill 2009
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Contact officer & copyright details
Passage history
Information Commissioner Bill
2009
Date introduced: 26 November 2009
House: House
of Representatives
Portfolio: Cabinet Secretary
Commencement: Clauses 1 and 2 commence on Royal Assent. Clauses 3
to 36 commence either 6 months after Royal Assent or earlier by
Proclamation.
Links: The
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
The primary purpose of the
Information Commissioner Bill 2009 (the Bill) is to create two new
independent statutory office holders, the Information Commissioner
and the Freedom of Information Commissioner. It also makes
provision for the Privacy Commissioner, currently appointed under
the Privacy Act 1988, to be appointed under the proposed
Information Commissioner Act.
For background, the reader is referred to the Background section
of the Bills Digest for the Freedom of Information Amendment
(Reform) Bill 2009. [1]
This Bill, together with the Freedom of Information Amendment
(Reform) Bill 2009 (the FOI Reform Bill), has been referred to the
Senate Finance and Public Administration Committee for inquiry and
report by 16 March 2010 (the Senate inquiry). Details of the
inquiry are at:
http://www.aph.gov.au/senate/committee/fapa_ctte/foi_ic/info.htm
Submissions to the Senate inquiry are referred to both in this
Bills Digest and the Digest for the FOI Reform Bill.
The Explanatory Memorandum states that funding for the Office of
the Information Commissioner was provided in the 2009–10
Budget. An amount of $19.5 million over four years is
additional to resources for the existing Office of the Privacy
Commissioner, which will be transferred to the Office of the
Information Commissioner.[2]
In general, submissions to the Senate inquiry welcomed the
creation of the new role of Information Commissioner. As
Professor Moira Paterson states, there has long
been a need for an oversight body which can play an active role in
publicising the FOI Act’s existence, monitor compliance with
its provisions and initiate actions to remedy factors which inhibit
its effective operation.[3]
Nigel Waters from the Cyberspace Law
and Policy Centre also welcomes the creation of the Office
of the Information Commissioner and states he has no difficulty in
principle with the Information Commissioner having overall
responsibility for both privacy and FOI. He notes that this is a
model which appears to work satisfactorily in the United Kingdom
and some Canadian provinces and the one which has now been adopted
in Queensland.[4]
However, several submissions commented on the drafting of the
Bill, suggesting the relationship between the Information, FOI and
Privacy Commissioners is not clearly set out. The Law
Council argues that each Commissioner should have a
discrete role, functions and responsibilities:
A regime where the Information Commissioner can
duplicate the functions of the FOI and Privacy Commissioners and
where the FOI and Privacy Commissioners can duplicate each
other’s functions, despite each office holder being required
to possess specialised qualifications and skills is not
appropriate.[5]
Professor Paterson, commenting on the drafting
of the Bill, suggests that while the powers to be exercised
independently by the Privacy and FOI Commissioners are nominally
conferred on the Information Commissioner, in fact the offices of
the FOI Commissioner and Privacy Commissioner are each independent
statutory offices. This appears to be assured by paragraphs
11(5)(a) and 12(5)(a)[6] of the Bill. Professor Paterson does, however,
acknowledge that the drafting of these provisions is likely to
create confusion in the minds of the public, especially in relation
to the Privacy Act 1988. That Act is to be amended so that
references to the Privacy Commissioner are replaced with references
to the Information Commissioner.[7]
Nigel Waters also questions the drafting of
these provisions suggesting that subclause 12(4) requiring
Information Commissioner approval for specified actions under
privacy functions appears inconsistent with subclause 12(5) which
suggests that the Privacy Commissioner or FOI Commissioner
exercising all privacy functions must use their own
judgement.
The Commonwealth Ombudsman, Professor John
McMillan, while not commenting on the actual drafting of the Bill,
does have a view about the relationship between the three
Commissioners. He says a major challenge for the new Office of the
Information Commissioner, headed by three commissioners and
administering both the Privacy and FOI Acts will be to grapple with
that tension and imbalance that currently favours privacy
protection. Nevertheless, he is optimistic about the reforms,
noting that a major shortcoming of the current federal FOI scheme
is that it lacks an FOI champion who is independent of government,
has a dedicated role and powers, adequate funding and a secure
power-base. Professor McMillan, like many FOI advocates, is hopeful
that the creation of the Office of Information Commissioner heralds
a major shift. Combined with the reforms in the accompanying FOI
Bill he believes there will be a new and different phase in public
administration.[8]
Clause 5 establishes the Office of the
Information Commissioner. It is to consist of:
- three information officers who are the Information
Commissioner, the Freedom of Information Commissioner (FOI
Commissioner) and the Privacy Commissioner, and
- staff of the Office of the Information Commissioner engaged
under the Public Service Act 1999.
Subclause 5(3) states that the
Office is a statutory agency for the purposes of the Public
Service Act 1999 and the Information Commissioner is
designated as head of the agency.
Clauses 7 to 12 set out the
powers and functions of the three information officers.
The Information Commissioner functions are:
- to report to the Minister on government policy and practices
regarding:
- the collection,
use, disclosure, management, administration, storage or
accessibility of information held by the Government, and
- the systems or
proposed systems for these activities, and
- any other function conferred by legislation beyond the privacy
and the FOI functions (clause 7).
The Information Commissioner has power to perform these
functions and also FOI functions and privacy functions
(clause 10).
The FOI functions are defined in clause 8
as:
- promoting awareness and understanding of the Freedom of
Information Act 1982 (FOI Act) and its objects
- assisting agencies in their information publishing schemes and
reporting on these schemes
- assisting and advising on FOI training programs
- collecting FOI statistics for inclusion in the annual
reports
- monitoring, investigating and reporting on compliance by
agencies with the FOI Act
- reviewing FOI decisions under Part VII of the FOI
Act[9]
- undertaking investigations under Part VIIB of the FOI
Act[10]
- issuing FOI guidelines
- making reports and recommendations to the Minister about
proposals for legislative change and administrative action,
and
- any other function conferred on the Information Commissioner by
the FOI Act or other legislation.
The privacy functions are defined in clause 9
and essentially cover all privacy-related functions currently
undertaken by the Privacy Commissioner. Subclause
9(2) provides a non-exhaustive list of legislation
containing provisions that include privacy functions including the
Privacy Act 1988, Crimes Act 1914,
Data‑matching Program (Assistance and Tax) Act 1990,
National Health Act 1953 and the Telecommunications Act
1997.
The FOI Commissioner has power to perform FOI functions and may
also perform privacy functions (subclauses 11(1)
and (2)). However, the Explanatory Memorandum
states that it is intended that that the FOI Commissioner will
mainly perform FOI functions.[11]
Some FOI actions may only be taken by the FOI Commissioner with
the approval of the Information Commissioner. These include the
issuing of FOI guidelines and the making of recommendations to the
Minister regarding FOI legislative and administrative changes
(subclause 11(4)).
Proposed subsection 11(5) sets out the
relationship between the FOI Commissioner and Information
Commission when performing functions and exercising power. It
clarifies that when the FOI Commissioner performs a function or
exercises a power expressed by an Act are to be conferred on the
Information Commissioner, the FOI Commissioner must perform the
function or exercise the power ‘upon his or her own belief or
state of mind’ even though the function or power is taken to
have been performed or exercised by the Information Commissioner.
The Explanatory Memorandum states this provision is consistent with
other Commonwealth legislation (for example, the Commissioner and
Second Commissioners of Taxation under the Taxation
Administration Act 1953).[12]
The Privacy Commissioner has privacy functions and may also
perform FOI functions (subclause 12(5)). However,
the Explanatory Memorandum states that it is intended that that the
Privacy Commissioner will mainly perform privacy functions.[13]
Some actions may only be taken by the Privacy Commissioner with
the approval of the Information Commissioner. For example,
- issuing the Code of Conduct
- approving a privacy code
- the preparation, and publication of guidelines
- reporting to the Minster regarding legislative change or
administrative action, and
- the making of a determination for the purposes of paragraph
28A(1)(d) of the Privacy Act 1988 (subclause
12(4)).
Proposed subsection 12(5) sets out the
relationship between the Privacy Commissioner and Information
Commissioner when performing functions and exercising power. It
clarifies that when the Privacy Commissioner performs a function or
exercises a power expressed by an Act as being conferred on the
Information Commissioner, the Privacy Commissioner must do it upon
his or her own belief or state of mind even though the function or
power is taken to have been performed or exercised by the
Information Commissioner. The Explanatory Memorandum states this
provision is consistent with other Commonwealth legislation (for
example, the Commissioner and Second Commissioners of Taxation
under the Taxation Administration Act 1953).[14]
All three information officers are to be appointed by the
Governor-General by written instrument for a period not exceeding
five years. All are eligible for re-appointment (clauses
14 and 15).
Under subclause 14(3) it is a requirement for
the FOI Commissioner (but not the other two Commissioners) to have
a university degree or an educational qualification of a similar
standing, after studies in the field of law. The Explanatory
Memorandum states the rationale for this legal qualification
requirement is that performance of the FOI review function could be
enhanced from the possession of legal knowledge because of the need
to routinely apply precedents and to interpret legislative
provisions in the FOI Act in order to make review decisions. The
Information Commissioner and Privacy Commissioner are not required
to have such a qualification, as in practice most reviews will be
performed by the FOI Commissioner.[15] The Law Council argues there is an
anomaly in that the same requirement is not necessary for the
Privacy Commissioner when performing the freedom of information
functions.[16]
Remuneration and leave entitlements are to be determined by the
Remuneration Tribunal (clauses 17 and
18).
Clause 20 sets out the reasons why appointments
could be terminated. The reasons are to do with bankruptcy, absence
without leave, undertaking outside work without permission, and
failure to disclose potential conflicts of interest according to
clause 22.
The Minister may appoint a person to act as an information
officer for a period of up to 12 months in certain cases
(clause 21).
Clause 23 provides that the staff of the Office
of the Information Commissioner must be engaged under the
Public Service Act 1999. The Information Commissioner may
also engage consultants, however functions or powers that cannot be
delegated to staff cannot be performed or exercised by a consultant
(clause 24).
Under clause 25 the Information Commissioner
may delegate all or any functions to staff of the Office of the
Information Commissioner, apart from the functions listed in
paragraphs 25(a) to 25(l).
Functions that cannot be delegated include:
- reporting to the Minister
- preparing the annual report
- issuing FOI and privacy guidelines
- making a decision on an Information Commissioner review or
correcting errors in such a review
- using the discretion not to investigate a complaint regarding
FOI
- issuing implementation notices and reports following an
investigation regarding FOI, and
- making determinations for the purposes of section 52 of the
Privacy Act 1988.
Clause 27 establishes the
Information Advisory Committee to assist and advise the Information
Commissioner in the performance of the Information Commissioner
functions. The Committee is to consist of the Information
Commissioner as Chair; senior officers of agencies nominated by the
Minister (the Cabinet Secretary) in consultation with other
relevant Ministers; and such other persons as the Cabinet Secretary
thinks fit, and who in the Minister’s opinion hold suitable
qualifications or experience. There is no remuneration for these
positions other than travelling allowance.
Clause 30 requires the Information Commissioner
to prepare an annual report to be given to the Minister and tabled
in Parliament. The report will replace the existing annual report
on the operation of the FOI Act and the annual report prepared by
the Privacy Commissioner. The FOI matters and the privacy
matters that must be included in the Information
Commissioner’s annual report are set out in clauses
31 and 32 respectively.
Clause 33 requires a review to be undertaken of
the proposed Act two years after commencement. There is provision
for review of the FOI Act along similar lines at proposed section
93B of the FOI (Reform) Bill.
There are also standard provisions that provide for:
- the making of regulations (clause 36)
- penalties for the unauthorised use, and disclosure of
information (clause 29)
- protection from legal proceedings for the three information
officers and persons acting under their direction or authority
(clause 35).
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277 2438.
Mary Anne Neilsen
23 February 2010
Bills Digest Service
Parliamentary Library
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