Bills Digest no. 115 2009–10
Freedom of Information Amendment (Reform) 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
Concluding comments
Contact officer & copyright details
Passage history
Freedom of Information Amendment (Reform)
Bill 2009
Date introduced: 26 November 2009
House: House
of Representatives
Portfolio: Cabinet Secretary
Commencement: Clauses 1 to 3 of the Bill commence on Royal Assent.
The main amendments are dependent on passage of the Information
Commissioner Act 2010. Schedules 1, 3 (excluding item 15), and
4 to 7 commence immediately after commencement of section 3 of the
Information Commissioner Act.[1] Schedule 2 and item 15 of Schedule 3 (which deal
with the agency publication scheme) commence six months after the
commencement of section 3 of the Information Commissioner Act.
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 purpose of the Freedom of Information Amendment (Reform)
Bill 2009 (the Bill), together with the accompanying Information
Commissioner Bill 2009, is to introduce a new regime for access to
government information.
Background
Freedom of information (FOI), or the statutory right of access
to government documents, is justified on the grounds that it
encourages transparency and political accountability and
discourages corruption and other forms of wrongdoing. At the
federal level, the Freedom of Information Act 1982 (the
FOI Act) formed part of a broader package of administrative law
reforms in the 1970s and 1980s, and was the first national
legislation of its kind to be introduced into a country with a
Westminster-style system of government. In subsequent years,
similar legislation was enacted in all Australian states, the
Australian Capital Territory and the Northern Territory. These FOI
Acts had certain major features in common:
- government is obliged to publish information about its
activities in general, and about whether it holds certain kinds of
documents
- every person has a legal right to obtain access to information
in documentary form, which is in the possession of ministers or
government agencies, subject to the operation of specific
exemptions and exclusions. Exemptions can apply to specified
agencies (for example, ASIO), or to categories of documents (such
as documents dealing with international relations and
security)
- there is a personal privacy dimension, which enables a person
who has gained access to a document held by government that relates
to his or her personal affairs to:
- request that the
document be amended in some respect
- appeal against a
refusal to amend the document, and
- even if the
appeal is unsuccessful, request that an annotation be attached to
accompany the record when it is shown to any person, and
- there is a right of review in relation to most decisions made
under the Acts, both internal review within the agency and further
review by a body external to the decision maker.
While there have been only minor changes to the federal FOI Act
since 1982, there have been a plethora of reviews. The major review
was the
Open Government report by the Australian Law Reform
Commission (ALRC) and the Administrative Review Council (ARC) in
1996.[2] That report
made 106 recommendations, some of the more important being:
- creation of a statutory FOI Commissioner to monitor and improve
the administration of the FOI Act and to provide assistance, advice
and education to applicants and agencies about how to use,
interpret and administer the Act
- revision of the Act’s objects clause to promote a
pro-disclosure interpretation of the Act
- rationalisation of the exemption provisions, and publications
of guidelines, so that information is only withheld where this is
in the public interest, and
- FOI charges should be compatible with the objects of the
Act—a scale of charges should be determined by the FOI
Commissioner, and access to an applicant’s personal
information should be provided free of charge.
The Howard Government did not formally respond to the Open
Government report. However, two private members’ Bills
introduced by Australian Democrats’ Senator Andrew Murray in
2000[3] and 2003
took up several of its key recommendations. These Bills
subsequently lapsed.
On 24 September 2007, the then Attorney-General, Philip Ruddock
MP, announced that the ALRC would again conduct a review of FOI
laws and practice, although with more limited terms of reference
than the 1996 Open Government report. The ALRC was asked
to consider the possible harmonisation of state and federal FOI
laws, and ways of removing the FOI administrative burden on
agencies.[4] That
review was suspended by the current Government. The rationale for
suspension being that a more appropriate course of action is to
review the FOI Act after the Government’s reforms come into
operation.[5]
The Australian Labor Party’s 2007 election
policy document, Government information: restoring trust
and integrity in government information, foreshadowed
significant changes to FOI legislation. It stated that a Labor
Government would abolish conclusive certificates and implement the
recommendations of the Open Government report. It would
appoint a Freedom of Information Commissioner designed to make
review processes more efficient and cheaper. It would also create
an independent statutory Information Commissioner to act as a
whole-of-government clearing house for complaints, oversight,
advice and reporting for FOI and privacy matters.[6]
Part of that election commitment relating to the abolition of
conclusive certificates, was implemented through the Freedom of
Information (Removal of Conclusive Certificates and Other Measures)
Act 2009.[7]
The removal of conclusive certificates was, however, a
relatively minor and straightforward part of the bigger picture of
FOI reform.
The release of the more substantial reforms, addressing the
Government’s main FOI election objectives, occurred on 24
March 2009 when the then Cabinet Secretary and Special Minister of
State, Senator John Faulkner released the draft Information
Commissioner Bill 2009 and the draft Freedom of Information
Amendment (Reform) Bill 2009 for public consultation. Shortly after
the release the Minister also wrote to departmental secretaries and
agency heads explaining the reforms and asking for agency support
in adopting a pro-disclosure culture. The letter stated:
These [FOI] reforms focus on:
- 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;
- giving greater weight to the role that the FOI Act serves in
the
pro-active publication of government information; and
- introducing structural reforms, including creating a new Office
of the Information Commissioner, designed to provide a platform for
system wide information policy development across government.
The proposed objects for the FOI Act […]
provide a clear statement of the Government’s goals for a
revitalised FOI Act. The new objects clause makes clear the
reasons why giving access to information in the possession of the
Government is important to good governance. Significantly,
the reform proposals also include a new framework for the
pro-active publication of information by agencies through
information publication schemes.
These reforms, although important, will not
deliver the openness and transparency so essential to
accountability and to a robust democracy, unless FOI
decision-makers embrace the disposition towards disclosure which
informs the FOI Act reforms.
In anticipation of these reforms, the
Government is asking secretaries and agency heads to take a lead
role in facilitating the Government’s policy objective of
enhancing a culture of disclosure across agencies. This includes
making it clear to FOI decision makers in your department or agency
that the starting point for considering FOI requests should be a
presumption in favour of giving access to documents.[8]
The period of public consultation on the exposure draft Bills
concluded on 15 May 2009 and on 26 November, some six months later,
the Rudd Government introduced the Bills into Parliament. The
Government also released a table detailing the changes between
these Bills and the exposure drafts.[9]
The changes proposed in this Bill and the accompanying
Information Commissioner Bill 2009 coincide with FOI review in a
number of States and are seen as part of a significant shift
towards more effective ‘second generation’ FOI laws.
Tasmania, Queensland and NSW have enacted new legislation,[10] although to
date, only the Queensland legislation is in force. This new State
legislation shifts the emphasis from reactive release of
information in response to applications towards proactive release
of information. The two federal FOI Bills follows the State models
in many respects.
This Bill, together with the Information Commissioner Bill has
been referred to the Senate Finance and Public Administration
Committee for inquiry and report by 16 March 2010 (the Senate
inquiry). Details are at:
http://www.aph.gov.au/senate/committee/fapa_ctte/foi_ic/index.htm
Submissions to the Senate inquiry are referred to throughout
this Bills Digest.
The Explanatory Memorandum states that the amendments in this
Bill will have minimal financial impact on Government revenue.
[11] However
an amount of $19.5 million over four years has been allocated for
the establishment and funding for the Office of the Information
Commissioner. In addition, the resources for the existing Office of
the Privacy Commissioner will be transferred to the Office of the
Information Commissioner.[12]
This Bill and the Information Commissioner Bill have generally
been well received and supported, with many submissions to the
Senate inquiry agreeing that the package contains an important set
of reforms which address many of the key deficiencies in the
current FOI Act and its administration.
For example the submission from Australia’s Right
to Know[13] states it supports the significant FOI reforms and is
confident they will significantly improve the Australian
public’s access to Government information.[14]
The Australian Law Reform Commission also
supports the bulk of the provisions of both Bills. In its view, the
amendments represent a very positive step toward open and
accountable government, and substantially implement the
recommendations of the Open Government report.[15]
The Commonwealth Ombudsman, Professor John
McMillan, states that the changes such as the new objects clause,
the creation of the independent statutory Office of Information
Commissioner, together with the new information publication scheme
will shift the ground rules for information disclosure and
publication. Professor McMillan believes ‘we are about to
enter a new and different phase in public
administration’.[16]
The Press Council states that it is gratified
to see that the Bill contains a number of positive aspects that
foster greater access to information. Its submission praises the
objects clause, and notes that the introduction of an information
publication scheme, the new public interest test to be applied in
regard to exemptions, plus the repeal of some of the categories of
exemptions are welcome changes. It also notes that other changes
that advance the cause of FOI include:
- that private sector providers of services to the Commonwealth
will come within the scope of the legislation[17]
- that applicants are no longer required to apply for internal
review of their application prior to applying for external review
and can seek review after 30 days’ deemed refusal, and
- that the public interest test makes it an irrelevant
consideration that any person may misinterpret or not understand
the document.
Other submissions also welcomed these specific
reforms.
However, despite this generally positive reaction, a number of
submissions from FOI advocates have also questioned some aspects of
the Bill and suggest that in some areas the reforms do not go far
enough.
Some of the more common concerns relate to the exemptions and
exclusions and these are referred to below. Further comment on
specific provisions is included in the Main Provisions section of
the Digest. Comment on the new Information Commissioner role is
provided in the Bills Digest for the Information Commissioner Bill
2009.
In 1996, the Open Government report concluded that
‘the exemption provisions [in the FOI Act] are unclear, open
to misuse by agencies and, because of their prominence, tend to
overwhelm the purpose of the Act’.[18]
The Bill makes significant amendments relating to
the access and exemption provisions of the FOI Act. For example,
the Bill makes it clear that the starting point for considering FOI
requests is the general rule that documents should be disclosed
unless they are (i) exempt documents or (ii) conditionally exempt
documents and it is contrary to the public interest for the
documents to be disclosed. Other important changes to this part of
the FOI Act included in the Bill are the introduction of a list of
public interest factors favouring disclosure, the repeal of three
exemption categories, and the recasting of a number of blanket
exemptions as conditional exemptions.[19]
The New South Wales Council of Civil Liberties
(CCL) and other submissions suggest that ideally the public
interest test should be applied to all exemptions in the Bill. CCL
states:
Incorporating a single overarching public
interest test into all exemptions would provide greater clarity,
and foster a rethinking by government agencies about the tension
between the public interest in disclosure and the concerns that are
reflected in exemptions.
It is true that in some cases it is obvious
that the public interest supports exemptions. But it should not be
thought that this justifies making the exemptions absolute. For
making all exemptions subject to an overarching public interest
test delivers a symbolic benefit, making it clear that the key
issue is not whether an exemption applies, but where the balance of
public interest lies. To use a popular phrase, it sends a
message.[20]
Professor Moira Paterson, Law Faculty, Monash
University, comments that redesign of the exemption regime has a
number of very positive features, although it arguably does not go
far enough to address issues that inhibit the FOI Act’s
potential to make government agencies more accountable for their
activities. In relation to the absolute exemption for Cabinet
documents, Professor Paterson (and others) suggest that this
exemption provision should be subject to some form of public
interest test (as is the case in the United Kingdom and New
Zealand) which serves to ensure that documents are not withheld for
longer than necessary to protect the mechanism of collective
responsibility.[21]
Failing that, she suggests it would be appropriate to include a
time limit of 10 years as is currently used in other FOI
legislation. In Paterson’s view, the de facto time limit of
20 years (resulting from the proposed changes to the open access
period in the Archives Act 1983) is excessively
long.[22]
In addition to exempt documents, there are also some agencies
that are currently exempt from the FOI Act entirely (for example
ASIO and ASIS) and other agencies that are exempt in relation to
some material (for example, Telstra is exempt in respect of
documents relating to commercial activities).[23]
The list of exempt agencies (as set out in Schedule 2 of the FOI
Act) remains essentially untouched by the Bills and indeed has been
slightly expanded.[24] Many submissions argued that these Schedule 2 agencies
should be pared back in some way.
For example CCL submits that agencies currently
listed in the Schedule should be required to explain why their
exclusion is warranted, and why conditional exemptions and the
public interest test would not protect documents which should be
kept confidential.[25]
The ALRC submission notes that the Open
Government report had recommended that the intelligence
agencies should remain in Schedule 2 but that all other agencies
listed should be required to demonstrate to the Attorney-General
within 12 months that they merited exclusions from the operation of
the Act. The ALRC states that it is not aware that this
happened.[26]
Professor Moira Paterson agrees that Schedule 2
exclusions need reform:
I would argue as a matter of principle that it
is preferable to redraft or expand exemption provisions to provide
appropriate exemption for documents that need to be withheld from
access rather than excluding specific bodies from the Act either
totally or in relation to specified documents.
Removing a body entirely from coverage under
the Act has the consequence that all aspects of its activities are
removed from public scrutiny irrespective of whether or not their
disclosure is likely to cause harm.
The exclusion of bodies based on national
security concerns has assumed greater significance in light of the
recent increases in the powers of security bodies post September 11
and the attendant importance of ensuring accountability for their
activities. […] Increases in the surveillance powers of
security and law enforcement bodies add to the imbalance in power
between citizens and their governments and it is therefore
especially important that such bodies are subject to scrutiny to
ensure that they are not abusing their powers.[27]
The ALRC and other submissions also question
why parliamentary departments have not been brought within the
scope of the FOI Act. As the ALRC notes, the Open
Government report recommended that parliamentary departments
should be brought within the scope of the FOI Act on the basis that
documents that warrant protection would be adequately protected by
the exemption provisions (for example section 46, parliamentary
privilege).[28]
The ALRC also notes that the Open
Government report recommended that the secrecy provisions
exemption[29] be
removed and that this has not happened. [30]
The Bill, unlike the exposure draft, proposes that documents
containing trade secrets or commercially valuable information
should be unconditionally exempt, that is, not subject to the
public interest test (proposed section
47).[31]
Many submissions were critical of this change. For example,
Nigel Waters from the Cyberspace Law and
Policy Centre states that while a case could perhaps be
made for a very strictly defined category of trade secrets, the
other concept of ‘commercially valuable information’ is
far too imprecise to be the grounds for a blanket exemption, and
invites abuse both by commercial entities mentioned in government
documents and by agencies seeking excuses not to release requested
information.[32]
The submission continues:
The prevalence of outsourcing and of
private-public partnerships means that ‘commercially valuable
information’ will routinely be included in government
documents which should, for accountability reasons, be at least
potentially accessible. The qualification in s. 47 that the
commercial value of the information would have to ‘be, or
could reasonably be expected to be, destroyed or diminished if the
information were disclosed’ is an insufficient protection
against inappropriate application. By definition, the value of any
commercial information may be diminished by exposure – that
in itself should not be grounds for unconditional
exemption.[33]
The Law Council also argues that an absolute
exemption may go too far. It points to Queensland and NSW FOI
models and recommends that the Bill should require that documents
which reveal trade secrets and/or valuable commercial information
should not be released unless it can be shown that, on balance, it
is in the public interest to disclose the relevant documents or
information.[34]
Item 1 repeals and replaces the objects clause
in the FOI Act. The new objects clause (proposed subsection
3(1)) states that the objects of the Act are to give the
Australian community access to information held by the Commonwealth
Government by:
- requiring agencies to publish the information, and
- providing for a right of access to documents.
The rationale for this access is:
- to promote representative democracy by:
- increasing public
participation in government processes with a view to promoting
better-informed decision-making, and
- increasing
scrutiny, discussion, comment and review of government activity,
and
- to increase recognition that government information is to be
managed for public purposes and is a national resource
(proposed subsections 3(2) and
3(3)).
Access to government information under the FOI
Act is to continue to be provided promptly and at the lowest
reasonable cost (proposed subsection 3(4)).
Proposed section 3A confirms the
existing situation that the Act does not limit or prevent
disclosure of government information and documents. In other words,
an agency may disclose information without a request under the FOI
Act, including information which would be exempt under the
Act.[35] This
provision replaces existing section 14 which is
repealed by item 2.
Item 3 of Schedule 2 to the Bill repeals and
replaces Part II of the FOI Act and introduces a
new information publication scheme for Commonwealth agencies that
are subject to the FOI Act.
Proposed section 8 sets out the information
that must be published. Each agency must prepare and publish a plan
showing how it proposes to implement its publication scheme
(proposed subsection 8(1) and paragraph
8(2)(a)). Like the existing scheme, an agency must publish
a range of information, including details of the structure and
functions of the agency and information contained in annual
reports. There are also new types of information that must be
published. For example, details of statutory appointments must be
published (other than APS employees) (paragraph
8(2)(d)), operational information[36] of an agency must be published
(paragraph 8(2)(j)), and agencies are required to
publish information in documents to which access is routinely given
through FOI requests (paragraph 8(2)(g)). This
last requirement is qualified, so that publishing is not required
if it is considered unreasonable to publish any of the
following:
- personal information about any individual
- information about the business or professional affairs of any
person, or
- any other information of a kind determined by the
Information Commissioner through a legislative instrument.
In relation to these qualifications, the
Government’s stated rationale is:
Around 85-90 percent of
FOI requests made annually relate to requests for access to
personal information. In many cases the applicant will be given
access to their own personal or business information but that
information would not be released to third parties. An applicant
may also receive access to another person’s personal or
business information because that person consents to disclosure to
the applicant. These are examples where it will normally be
unreasonable to publish the information even though the information
is in a class that is regularly disclosed. A discretionary power is
given to the Information Commissioner to exclude other classes of
information from this aspect of the publication scheme requirements
if it would be unreasonable to publish the information.[37]
Proposed section 8D sets out how
and to whom information must be published. There is a new
requirement for agencies to publish information on their websites,
by either making the information available for downloading, by
providing links to other websites, or by providing details on the
website of how the information may be obtained (proposed
subsection 8D(3)). Charges can only be imposed where the
information is not directly accessible by downloading it from the
agency’s website (or another website) and the charge is to
reimburse the agency for specific reproduction or incidental costs
(proposed subsection 8D(4)). A note reiterates
that documents made available through individual FOI requests (with
some exceptions) [38] must then be made available to the general public
through the agency’s website.
The new Information Commissioner is to have a role in assisting
agencies with their publishing obligations (proposed
section 8E) and also in reviewing and monitoring
agencies’ compliance with the information publication scheme
(proposed section 8F). Agencies and the
Information Commissioner must work together to review the operation
of the scheme from time to time and at least every five years.
Proposed section 9A requires agencies to have
regard to the objects of the Act and to Information Commissioner
guidelines in meeting their publishing obligations.
The Archives Act 1983 has been drafted to dovetail with
the FOI Act. Like the FOI Act, it contains detailed exemption
provisions, and rights to seek review by the Administrative Appeals
Tribunal (AAT).[39]
Under the Archives Act 1983, the National Archives of
Australia is responsible for providing that all Commonwealth
records, other than exempt records, are to be made available to the
public when they are in the open access period. Records other than
Cabinet notebooks are in the open access period when a period of 30
years has elapsed since they came into existence. The open access
period for Cabinet notebooks is 50 years after they came into
existence. Part 1 of Schedule 3 of the Bill
proposes changes to these time frames.
Item 2 repeals and replaces subsection
3(7) substituting a new definition for when a record is in
the ‘open access period’. It is set out in table form
and its effect is that the open access period is brought from 30
years to 20 years for most Commonwealth records after a 10 year
transition period commencing from 1 January 2011 and ending 31
December 2020.
Item 3 repeals and replaces subsection
22A(1) substituting a new definition for when a record
that is a Cabinet notebook is in the ‘open access
period’. The effect is to bring forward the open access
period for Cabinet notebooks from 50 years to 30 years after a 10
year transition period commencing from 1 January 2011 and ending 31
December 2020.
Items 4 to 6 are consequential
amendments to the proposal to bring forward the open access period
for most records from 30 years to 20 years. For example,
item 4 amends paragraph 26(1)(a)
so that it is an offence to alter a record that has been in
existence for more than 15 years (instead of 25 years). The
reduction by 10 years is consistent with the proposal to bring
forward the open access period by 10 years at item 2.
Under the Archives Act 1983, the types of records that
can be exempt are numerous and are set out in section 33. They
include, for example, information or matters communicated in
confidence by a foreign government to the Commonwealth Government,
and disclosure would constitute a breach of that confidence
(paragraph 33(1)(b)). Item 35
repeals and replaces this paragraph so that where a foreign entity
advises that the document is still confidential, the decision-maker
(the Archives) must be satisfied that a reasonable basis exists for
maintaining the confidence of the information in order to invoke
the exemption.
Part 2 of Schedule 3 makes
amendments relating to the access and exemption provisions of the
FOI Act. The amendments include:
- a new single form of public interest test which is weighted
towards disclosure
- the new public interest test is to be applied to additional
exemption provisions, specifically the economy, research and
personal information exemptions and in part to the business affairs
exemption
- repeal of three exemption categories—Executive Council
documents, documents arising out of companies securities
legislation, and documents relating to the conduct by an agency of
industrial relations, and
- re-organisation of Part IV of the FOI Act into two categories:
exemptions and conditional exemptions. The conditional exemptions
are subject to a public interest test, other exemptions are
not.
Item 14 inserts proposed sections 11A
and 11B and is a key amendment.
Proposed section 11A sets out the rule that
where a valid request for a document has been made and the relevant
charges have been paid, an agency or Minister must give access to
the document except if the document is an exempt document.
Proposed subsections 11A(1) to 11A(4) essentially
replicate the existing rule in section 18 (which is to be repealed
by item 16). However proposed subsection
11(5) is new and introduces a single form of public
interest test that applies to ‘conditional exemptions’.
It provides that an agency or Minister must give the person access
to the document if it is conditionally exempt at a particular time
unless access to the document at that time would, on balance, be
contrary to the public interest.
Proposed section 11B sets out the public
interest test to be applied to conditionally exempt documents.
Factors favouring access include whether the document
would:
- promote the objects of the Act
- inform debate on matters of public importance
- promote effective oversight of public expenditure, or
- allow a person to access his or her own personal
information (proposed subsection
11B(3)).
Factors that must not to be taken into account
include:
- whether access to the document would result in embarrassment to
the Commonwealth Government, or cause a loss of confidence to the
Government
- access to the document could result in any person[40] misinterpreting or
misunderstanding the document
- the author of the document is or was of high seniority in the
agency to which the request for access is made, or
- access to the document could result in confusion or unnecessary
debate (proposed subsection
11B(4)).
Both lists are non-exhaustive, meaning other
relevant factors may be considered (proposed
subsection 11B(2)).
In working out whether access to any document
would on balance be contrary to the public interest, an agency or
Minister must have regard to any Information Commissioner
guidelines (proposed subsection
11B(5)). The Information Commissioner will have power to
issue guidelines under proposed section 93A
(item 57, Schedule 4).
The Bill does not list factors which would favour
not giving access for the purposes of the public interest test.
However, as the Explanatory Memorandum explains, some public
interest conditional exemptions include criteria which require a
finding of harm, such as disclosure would, or could reasonably be
expected to, cause damage to certain interests, or would have a
substantial adverse effect on certain interests, or would or could
reasonably be expected to, prejudice certain interests. Where a
decision-maker is satisfied that an initial harm threshold is met,
that finding will be a factor against giving access to a
document.[41]
Item 15 inserts proposed section
11C. It requires an agency or Minister to publish
information which has been disclosed in response to an FOI request,
within 10 working days from when a person is given access to the
document. The requirement does not apply when the information that
is given to a person is:
- personal information about any person, if it would be
unreasonable to publish the information
- information about the business, commercial, financial or
professional affairs of any person, if it would be unreasonable to
publish the information, or
- other information of a kind determined by the Information
Commissioner if it would be unreasonable to publish the
information.
These limitations on publication align with the
limitations that apply under the information publication
scheme.[42]There is
an additional limitation (proposed paragraph
11C(d)) which recognises that in some cases it will not be
reasonably practicable to publish because of the extent to which
personal or business information has been deleted (whether because
of the resource implications or because the end result may not hold
sufficient public interest).[43] The charges and web publication
requirements are similar to those under the publication scheme. The
provision will also commence at the same time as the Part II
publication scheme—six months after commencement of the
Information Commissioner Act.
Item 18 amends section 25, which deals with the
right to neither confirm nor deny the existence or non-existence of
certain documents that would be exempt. Such a right currently
exists in relation to documents affecting national security,
defence or international relations and documents affecting
relations with States. Item 18 amends
section 25 with the effect that this right would
no longer exist in relation to exempt documents affecting relations
with States.[44]
Items 19 and 20 insert
proposed paragraph 26(1)(aa) imposing an
additional notice requirement when refusing an FOI request. If
access to a conditionally exempt document is to be refused the
written notice of the decision must include the public interest
factors taken into account in making the decision to refuse access.
These items implement recommendation 39 of the Open
Government report.
Under the FOI Act there are a number of circumstances where
consultations with third parties are required to occur before the
release of documents. In particular, State Governments, commercial
organisations and private individuals must be consulted where their
interests may be affected by the release of documents (sections
26A, 27 and 27A). Item 21 repeals and replaces
these sections in the following ways:
- proposed section 26A (consultation
requirements regarding documents likely to affect
Commonwealth-State relations) and proposed section
27A (consultation requirements regarding documents
affecting a third party’s personal affairs) are to be
redrafted to make them consistent with the new terminology of
conditional exemption and the single public interest test. The
substance of the provisions is not changed, and
- proposed section 27 (dealing with consultation
requirements relating to documents affecting a third party’s
business affairs) is modified more substantially. It provides that
consultation with relevant third parties is required where it
appears to the agency or Minister that the business might
reasonably wish to argue that the document is exempt under the
that the trade secrets exemption or conditionally exempt under
business affairs exemption. In contrast, the wording of existing
section 27 makes consultation with third parties almost
mandatory.[45]
Proposed subsection 27(3) provides a
non-exhaustive list of matters to be considered in deciding whether
to consult. These qualifications already exist in section 27A in
relation to consultation where a third party’s personal
affairs might be affected.
Part IV of the FOI Act sets out the exemption provisions and is
amended by items 22 to 33 of
Schedule 3 of the Bill.
Item 22 inserts a new Division
1 into Part IV of the FOI Act containing proposed
sections 31A and 31B.
Proposed section 31A contains a table providing
a summary on how the FOI Act applies to documents that are exempt,
conditionally exempt or contain exempt matter under the Act.
Proposed section 31B defines when a document is
‘exempt’ for the purposes of Part IV of the FOI Act. A
document is ‘exempt’ if:
- it is an exempt document under Division 2, or
- it is conditionally exempt under Division 3, and access to the
document would, on balance, be contrary to the public interest for
the purposes of subsection 11A(5).
Items 24 to 33 rearrange the
exemptions in Part IV so that exemptions not subject to
the proposed single public interest test are grouped together into
Division 2 exemptions, and exemptions that are subject to
the test are grouped together into Division 3 public interest
conditional exemptions. These items also repeal a small number of
exemptions and increase the number of conditional exemptions that
are subject to the public interest test.
Section 33A, containing the exemption for
documents affecting relations with States is repealed (item
26) and becomes proposed section 47B
(item 33). It is a conditional public interest
exemption and so fits within Division 3.
Item 26 also repeals section
35, the Executive Council documents exemption. This
exemption is not replaced in the Bill, the justification
for repeal being that Executive Council documents that warrant
exemption can be withheld under other exemption provisions such as
the exemption for personal privacy or the exemption for
international relations.[46]
The exemption for documents arising out of companies and
security legislation found in existing section 47 is repealed
(item 32). There is no replacement
provision.[47]
The exemption addressed in section 39
(documents affecting financial or property interests of the
Commonwealth) is repealed and reintroduced in proposed
section 47D (item 33) in Division 3. It
remains subject to a public interest test.
Section 40 (documents concerning certain
operations of agencies) is repealed by item 27 and
becomes proposed section 47E (item
33). It is a conditional public interest exemption so fits
within Division 3. It is also modified slightly in that one ground
for exemption is removed, namely where disclosure would, or could
reasonably be expected to have a substantial adverse effect on the
conduct by or on behalf of the Commonwealth or an agency of
industrial relations. The rationale for this removal is that other
exemptions would be available if protection from disclosure is
needed.[48]
Section 41, containing an exemption for
documents affecting personal privacy, is also repealed by
item 27. It is reintroduced as proposed
section 47F (item 33) and is modified to
become a conditional public interest exemption within Division 3.
Proposed subsection 47F(2) provides a
non-exhaustive list of matters to be considered before
disclosure.
Section 43A, the exemption for documents
relating to research which can be claimed by the Commonwealth
Scientific and Industrial Research Organisation and the Australian
National University in certain circumstances, is repealed by
item 29. It becomes proposed section 47H
(item 33) and is modified to become a conditional
exemption subject to the public interest test.
Section 36, containing the internal working
documents exemption, is repealed (item 26) and
becomes proposed section 47C (item
33). It is a conditional public interest exemption so fits
within Division 3. It is also renamed the deliberative processes
exemption.
The exemption for documents affecting the economy (existing
section 44) is repealed and reinserted as
proposed section 47J in Division 3 (item
33). It is modified to be made a conditional exemption
subject to the public interest test and the wording is also
updated. A document is conditionally exempt under this provision if
its disclosure under the Act would, or could be reasonably expected
to, have a substantial adverse effect on Australia’s economy
by:
- influencing a decision or action of a person or entity, or
- giving a person (or class of persons) an undue benefit or
detriment in relation to his or her business by providing premature
knowledge of proposed or possible action or inaction of a person or
entity.
Item 28 amends the exemption for documents
covered by legal professional privilege contained in section 42.
Proposed subsection 42(2) introduces a new
qualification and has the effect of confirming that the legal
professional privilege exemption is not available if privilege has
been waived.[49]
Existing section 43 contains an exemption for:
- documents that would disclose trade secrets or any other
information having a commercial value that would be, or could
reasonably be expected to be, destroyed or diminished if the
information were disclosed, or
- documents related to business affairs.
Item 29 repeals section 43.
These exemptions are retained but split into two new and different
provisions namely:
- proposed section 47G (item 33) which retains
the exemption for documents dealing with business affairs. The
business affairs exemption becomes a conditional exemption subject
to the public interest test, and
- proposed section 47 (item 32)
which retains the exemption for documents that would disclose trade
secrets or commercially valuable information. These would be
blanket exemptions not subject to the public interest test and
therefore are slotted into Division 2.
Note that the trade secrets and commercially
valuable information exemptions were to be conditional
exemptions in the exposure draft Bill. The Government states that
the variation implements a suggestion made in submissions on the
draft Bill,[50]
although some submissions to the current Senate Committee inquiry
query this change. Professor Moira Paterson, for example, states
there are very good reasons for retaining the original version in
the draft model Bill and she rejects the argument that trade
secrets always warrant protection from disclosure even where there
are strong public interest factors favouring their
disclosure.[51]
Professor Paterson provides examples to indicate that the blanket
exemption could have the effect of potentially operating to protect
information of a trivial character in circumstances where the
agency has an interest in non-disclosure.[52] The Law Council also notes that while
it had recommended change to this provision, it is concerned that
it has become a blanket exemption.[53]
Item 26 also repeals and replaces
section 34, the Cabinet documents exemption
provision. The new exemption remains as a blanket exemption but is
narrower in scope due to the introduction of a dominant purpose
test. Proposed section 34 will apply the exemption
to:
- Cabinet submissions or submissions that are proposed for
submission to Cabinet but are never submitted (subparagraph
34(1)(a))
- official records of Cabinet (subparagraph
34(1)(b))
- a document that is a briefing prepared for a Minister on a
Cabinet submission (proposed paragraph 34(1)(c)),
and
- a document that is a draft of a Cabinet submission, official
record of the Cabinet or a briefing prepared for a Minister on a
Cabinet submission (proposed paragraph
34(1)(d)).
However, A Cabinet submission will only be exempt if it was
brought into existence for the dominant purpose of
submission to the Cabinet for its consideration. A briefing
will only be exempt if it was brought into existence for the
dominant purpose of briefing a Minister on a Cabinet
submission. Proposed subsection 34(4) further
clarifies this limitation by stating that a document is not an
exempt document because it is attached to a Cabinet submission,
briefing or document containing information that would reveal a
Cabinet deliberation or decision.
Other parts of the Cabinet exemption provision remain the same
as in the present exemption. For example, copies or extracts of
exempt documents will be exempt (proposed subsection
34(2)), official publications of decisions of Cabinet (eg
media releases) will not be exempt (proposed subsection
34(5)) and purely factual information will not be exempt
unless disclosure of the information would reveal an undisclosed
Cabinet deliberation or decision (proposed subsection
34(6)).
Schedule 4 amends the FOI Act and inserts new
provisions dealing with review of decisions. Amongst other things
it:
- amends the provisions dealing with internal agency review and
reorganises them into a separate new Part VI
- introduces a new layer of external merits review to be
undertaken by the Information Commissioner (new Part
VII)
- makes internal agency review optional, meaning internal review
will not be a pre-requisite to external review by the Information
Commissioner
- reorganises the provisions dealing with AAT review into a
new Part VIIA, and
- gives the Information Commissioner the function of
investigating actions by an agency relating to the handling of FOI
matters under the Act (new Part VIIB).
Item 34 introduces new terms to describe the
types of decisions that are subject to review. These terms are
relied on in the provisions dealing with internal review,
Information Commission review and AAT review.
Proposed section 53A defines an
‘access refusal decision’ and is concerned
with the review rights for applicants whose FOI requests have been
refused. The types of decisions that can be reviewed are
essentially the same as in the existing provisions,[54] including for example,
decisions refusing to give access, decisions to give only partial
access and decisions refusing to amend or annotate records of
personal information in accordance section 48 applications.
Proposed section 53B defines an
‘access grant decision’ and is concerned with
the review rights for certain third parties affected by a decision
to give access to a document.[55] ‘Access grant decisions’ are
decisions where there is a right of review by a State concerning a
decision to give access to State-related information; right of
review by a person or organisation concerning a decision to give
access to business information; and right of review by a person
concerning a decision to give access to personal information.
Section 54, the existing provision dealing with internal agency
review, is repealed (item 34). The replacement
provisions (proposed sections 54 to
54E) are reworded and re-organised but have
substantially the same effect with some modifications to take
account of the new role for the Information Commissioner in
reviewing decisions and dealing with complaints.
Proposed section 54 allows applicants to apply
for agency review of access refusal decisions. Proposed
section 54A allows affected third parties to apply for
agency review of access grant decisions.
Other aspects of the new internal review provisions include:
- no internal review applications can be made for decisions made
by a Minister or made personally by a principal officer of an
agency (proposed subsections 54(1) and
54A(1))
- proposed section 54B deals with the
application for review— the requirement to pay an application
fee for internal review is not preserved.
- a decision on an internal review is to be made within 30 days
after the application was received by an agency (proposed
subsection 54C(3))
- an agency is deemed to have affirmed the original decision if
the agency has not given notice of a decision on an internal review
application within 30 days of receiving the application
(proposed section 54D). A deemed affirmation
decision means that an applicant may directly make an application
for Information Commissioner review (proposed section
54Y)
- the Information Commissioner is given discretionary power to
extend the period for making an internal review decision, upon
application from an agency (proposed subsections 54D(3) to
(5)), and
- in contrast to the existing provisions, an applicant does not
have to apply for internal review before applying for external
review by the Information Commissioner— the stated rationale
being that agencies should be encouraged to make the best decision
at first instance.[56]
Existing section 56 which deals with
applications to the AAT regarding delayed decisions and
section 57 which deals with complaints to the
Ombudsman are both repealed by item 34. The repeal
is a consequence of the proposal to give the Information
Commissioner the functions of reviewing FOI decisions and
investigating complaints about the handling of FOI
requests.[57]
Proposed Part VII, also inserted by
item 34, sets up the process for enabling review
of decisions by the Information Commissioner.
Proposed section 54L establishes the right for
an applicant (who has requested access to a document) to apply to
the Information Commissioner for review in respect of the
access refusal decisions listed in proposed subsection
54L(2). Information Commissioner review is generally
available for all decisions that are currently amenable to AAT
review under subsection 55(1) of the FOI Act.
In contrast to the existing Act, an applicant is not required to
apply to an agency for internal review before making an application
for review by the Information Commissioner
(proposed paragraph 54L(2)(a))
Optional internal review was inserted following submissions made on
the exposure draft Bill.[58] Submissions to the Senate inquiry have commented
favourably on this change.
Proposed section 54M establishes the right for
certain third parties (who are affected by a decision to give
access to a document) to apply for Information Commissioner review.
The access grant decisions which are amenable to Information
Commissioner review listed in proposed subsection
54M(2) are the same decisions that are presently subject
to AAT review.[59] Internal review is not a pre-requisite for
Information Commissioner review.
Proposed section 54N sets out the content
required for Information Commissioner review applications. Amongst
other things, the applicant is required to include a copy of the
decision made by an agency or Minister (proposed subsection
54N(1)), and the Office of the Information Commissioner is
to provide assistance to an applicant to prepare a valid
application (proposed subsection
54N(3)).
Proposed section 54P requires an agency or
Minister to notify affected third parties if an FOI applicant seeks
review of a decision to refuse access to the third party
information. However, an agency or Minister is not required to
notify the affected third party if the Information Commissioner
orders that it is not appropriate to do so in the circumstances.
Proposed section 54Q sets out these circumstances,
which include prejudicing the conduct of a criminal
investigation.
Proposed section 54S deals with the time
periods within which an application must be made for Information
Commissioner review—60 days from the time of receiving notice
of a decision to refuse an FOI request; or in the case of affected
third parties, 30 days from the date of the decision or 30 days of
receiving notice that an agency or Minister proposes to give access
to a document containing information related to the third
party.
Proposed section 54T gives the Information
Commissioner discretionary power to extend the time for making an
application for Information Commissioner review if the Commissioner
is satisfied that it is reasonable to do so in all the
circumstances.
Proposed sections 54U to 54Y
deal with the decision to undertake a review. Under
proposed section 54W, the Information Commissioner
has a discretion not to undertake a review or not to continue a
review, in certain limited circumstances, namely where the
application is misconceived or vexatious; the review applicant is
uncooperative or cannot be contacted; where the Information
Commissioner is satisfied the reviewable decision should be
reviewed by the AAT; or where the applicant fails to comply with a
direction of the Information Commissioner (proposed
paragraphs 54W(a) to 54W(c)).
Proposed sections 54Z to 55J
deal with Information Commissioner review procedures.
Proposed section 55 is a central provision and
establishes that the Information Commissioner may review a decision
by considering the documents or other material lodged without
holding a hearing; may conduct a review in whatever way considered
appropriate (for example dispute resolution processes); and is to
use as little formality and technicality as possible. While a
hearing is not required, one can be conducted and the parties to a
review can also request one (proposed section
55B). It is intended that most applications will be
determined on the papers (without a hearing).[60] Parties to proceedings are
the review applicant, the principal officer of the agency or the
Minister, and affected third parties, including those third parties
who have special approval from the Commissioner under
proposed subsection 55A(3). A party may be
represented by another person at a hearing (for example, a legal
representative) (proposed section 55C).
The effect of proposed section 55F is that the
Information Commissioner has discretion to resolve an application,
in whole or in part, by giving effect to terms reached in agreement
between the parties.
Under proposed section 55H, the Information
Commissioner may at any time during a review refer a question of
law to the Federal Court for determination.
Proposed sections 55K to 55Q
deal with the decision-making powers of the Information
Commissioner. Proposed section 55K establishes the
power for the Information Commissioner to determine review
applications—the Commissioner can make a fresh decision,
affirm the decision or vary the decision of the agency or
Minister. These are full merits review powers and are similar
to the powers of the AAT under subsection 43(1) of the
Administrative Appeals Tribunal Act 1975 (AAT Act).
Proposed section 55L provides that upon finding
a document to be exempt, the Information Commissioner has no power
to order that access be given to the exempt material. A similar
restriction is placed on the AAT under existing subsection 58(2) of
the FOI Act. The stated rationale for this provision is that it
would defeat the purpose of the exemption rules if the Information
Commissioner could order that access be given notwithstanding that
a document is found to be exempt.[61] This is in contrast to subsection 18(2) of the
FOI Act that enables the original decision-maker to release a
document found to be exempt.
The Law Council considers that there is no reason why an
independent merits review tribunal of considerable experience
should not possess all the powers and functions of the original
decision-maker in reviewing FOI matters:
It is a fundamental principle of proper and
effective merits review generally that the reviewing authority be
empowered to stand in the shoes of the decision maker [Shi v
Migration Agents Registration Authority (2008) 235 CLR 286].
[62]
Proposed sections 55R to 55Z
set out the Information Commission’s information gathering
powers in relation to a review. These are similar to the
existing powers of the AAT in FOI review proceedings. They include
the power to compulsorily require production of information and
documents (proposed section 55R) and the power to
require persons to appear and answer questions (proposed
section 55W). Failure to comply is an offence subject to a
maximum penalty of 6 months’ imprisonment.[63]
Proposed section 55T gives the Information
Commissioner a power to require production of a document claimed to
be exempt for the purposes of determining whether the document is
exempt. In the case of a national security or Cabinet exemption
claim, the Commissioner can only require production of the document
if not satisfied on affidavit or other evidence that the document
is exempt (proposed section 55U).[64]
Proposed sections 55ZA to 55ZD
relate to the giving of evidence by the Inspector-General of
Intelligence and Security (the Inspector-General) in proceedings
involving review of a decision relating to a national security
exemption. Before making a determination that a document is not
exempt the Information Commissioner would be required to
request the Inspector-General to appear personally and give
evidence on the possible damage that would or could reasonably be
expected to be caused should such an exempt document be released
(proposed subsection 55ZB(2)). The
Inspector-General must comply with such requests unless of the
opinion that he/she is not appropriately qualified to give such
evidence (proposed section 55ZC). The Information
Commissioner is not bound by any opinion of the Inspector-General
(proposed subsection 55ZB(4)).[65]
Proposed sections 56 and 56A
deal with appeal rights to the Federal Court. Parties to a review
may appeal to the Federal Court on a question of law from a
decision of the Information Commissioner.
Proposed Part VIIA deals with review of FOI
decisions by the AAT. The existing provisions are re-organised (and
in some cases redrafted) to take account of the proposal to
interpose Information Commissioner review before AAT review. In
most other respects, AAT review powers and procedures are not
altered.
Proposed section 57A establishes a right of
review to the AAT, the effect being that the AAT may review any
decision that is amenable to review by the Information
Commissioner. Review would involve a full reconsideration of the
Information Commissioner decision in a merits review. The person
who applies for review (either the applicant, the agency or the
Minister) has the onus of establishing that the Information
Commissioner made the wrong decision (item 42,
proposed subsection 61(1)).
Some submissions to the Senate inquiry are critical of this
reversal of the existing onus of proof and note that this is
contrary to existing provisions and also contrary to the exposure
draft bill. Australia’s Right to Know argues
this is contrary to the new objects of the Act centred on giving
the Australian community access to information held by the
government:
[…]A new central principle of the FOI
regime is that government documents are presumed to be available to
the public unless good reason is shown to the contrary.
In light of this, agencies should be required
to justify and prove the reasons for secrecy by withholding
release. They should be required to provide the evidence relevant
to their claims.
It should not be the responsibility of an
applicant to disprove a refusal to release particularly when the
applicant is faced with the expert, government-funded legal teams
typically used in that jurisdiction on appeals.[66]
Item 49 inserts Part VIIB into
the FOI Act which deals with investigations by and complaints to
the Information Commissioner and the Ombudsman. Division
2 sets out the system for investigations by the
Information Commissioner.
The effect of proposed subsection 69(1) is to
give the Information Commissioner the power to investigate
complaints about an action taken by an agency in the performance of
functions, or the exercise of powers, under the FOI Act. The
Information Commissioner may also at his/her own initiative
undertake such investigations (proposed subsection
69(2).
Proposed section 73 gives the Information
Commissioner a discretionary power not to investigate, or not to
continue to investigate, a complaint in certain circumstances, for
example where there are other more suitable avenues of
action;[67] where
the complaint is frivolous or vexatious; where there has been
insufficient time for the relevant agency to address the complaint;
or where the complainant does not have sufficient interest in the
matter. Proposed section 74 permits the
Information Commissioner to transfer a complaint to the Ombudsman
in certain circumstances, for example where the complaint is about
the way in which the Information Commissioner has dealt with an
Information Commissioner review. Note also that while the powers of
the Ombudsman in dealing with FOI complaints are specifically
preserved (proposed section 89F), the Explanatory
Memorandum states that the intention is that most complaints will
be dealt with by the Information Commissioner rather than the
Ombudsman.[68]
Proposed sections 76 to 85
deal with investigation procedures. Many of the provisions
replicate the investigation procedures for FOI review, for example
the power to compulsorily require production of information and
documents (proposed section 79), the power to
require persons to appear and answer questions (proposed
section 82), and the power to require production of exempt
documents (proposed section 81). In addition,
proposed section 77 empowers persons authorised by
the Information Commissioner (and authorised officers) to enter
premises occupied by an agency (or a contracted service provider in
certain circumstances) for the purposes of an investigation. The
power is conditional upon the consent of the relevant authority who
in most cases would be the principal officer of the agency
(proposed subsection 77(3) and section
78).
Upon completing an investigation, the Information Commissioner
is required by proposed section 86 to notify the
agency of the outcome of the investigation and the
Commissioner’s recommendations (if any). The Commissioner
must also give a copy of the notice to the complainant.
If the Information Commissioner makes an investigation
recommendation (within the meaning of proposed section 88), the
Commissioner may subsequently report to the Minister
responsible for the agency, and to the Minister responsible for the
FOI Act, if the Commissioner is not satisfied that the agency has
taken adequate action to implement the recommendation
(proposed section 89A). The Minister responsible
for the FOI Act is required to table a report of this kind before
each House of the Parliament (proposed subsection
89A(5)).
Proposed section 89E provides immunity to a
complainant from civil proceedings, provided that the person made
the complaint under proposed section 70 in good
faith.
Item 50 inserts proposed sections
89K to 89N which deal with vexatious
applicants. Under proposed section 89K, the
Information Commissioner may by written instrument declare a person
to be a vexatious applicant, either upon the Commissioner’s
own motion or upon application by an agency or Minister.
Proposed section 89L sets out the grounds on which
a declaration may be made, including where the person has
repeatedly engaged in access actions that involve an abuse of
process. Before making a declaration, the Information Commissioner
is required to give the person an opportunity to make submissions
(proposed subsection 89L(3)) and a person who is
declared vexatious may apply to the AAT for review of that decision
(proposed section 89N).
Proposed section 90 extends the immunity given
to officers and Ministers from certain civil actions.
Immunity would extend to cover:
- discretionary disclosure outside the FOI Act
- disclosure of exempt documents, and
- disclosures made in relation to the information publication
scheme
where these disclosures are made in good faith (proposed
subsection 90(1)).
Item 56 repeals existing section 92 and
substitutes a new section 92 that extends the
immunity given to officers and Ministers from criminal
offences. Immunity would extend to cover:
- discretionary disclosure outside the FOI Act
- disclosure of exempt documents, and
- disclosures made in relation to the information publication
scheme
where these disclosures are made in good faith (proposed
subsection 92(1)).
Submissions to the Senate Committee inquiry welcomed these
amendments. Professor Moira Paterson stated that it is long overdue
aspect of reform which removes an important disincentive to the
provision of informal access and the exercise of discretion which
resides in FOI officers to provide access to documents which may be
technically exempt in circumstances where disclosure is unlikely to
result in any harm.[69]
Proposed section 93A (item 57)
gives the Information Commissioner a discretionary power of issuing
guidelines for the purposes of the FOI Act and agencies. Persons
(including Ministers) exercising powers or functions under the Act
must have regard to any such guidelines.
Proposed section 93B (item 57)
requires a Minister to cause a review to be undertaken of the
operation of the FOI Act two years after the commencement of the
reform measures in the Bill. There is also provision for similar
review of the Information Commissioner Act at clause 33 of the Bill
for that Act.
Most of the items in Schedule 5 are amendments
consequential on the establishment of the Office of the Information
Commissioner and, the proposal to bring the Privacy Commissioner
and the Office of the Privacy Commissioner into the Office of the
Information Commissioner. Many items remove references to the
Privacy Commissioner in existing legislation and substitute
references to the Information Commissioner (for example
items 3–9, 20–26, 46–53,
57–63, and 64–69).
Several submissions to the Senate inquiry are critical of this
change arguing that it is both unnecessary and unhelpful.[70]
Item 54 repeals Division 1 of Part IV of the
Privacy Act 1988, which establishes the Office of the
Privacy Commissioner. This Division would become redundant in light
of the proposal to bring the Office of the Privacy Commissioner
into the Office of the Information Commissioner and to appoint the
Privacy Commissioner under the proposed Information Commissioner
Act.
Item 56 repeals other sections of the
Privacy Act 1988 dealing with the non-disclosure of
private information, preparation of an annual report and a
delegation power. These sections relate to the operation of
the Office of the Privacy Commissioner and will become redundant in
light of the new arrangements under the proposed Information
Commissioner Act.
Item 19 of
Schedule 6 inserts proposed section 6C into the
FOI Act. Proposed subsection 6C(2) requires an
agency to take contractual measures to ensure it receives a
document held by a contracted service provider (or subcontractor)
relating to the performance of the Commonwealth contract when the
agency receives an FOI request. Its effect is to extend the scope
of the FOI Act so that requests for access may be made for
documents held by contracted service providers (and subcontractors)
delivering services for or on behalf of an agency to persons in the
community.
Related to this provision is item 33, which
repeals and replaces section 24A. It currently
deals with requests that may be refused on the grounds that
documents cannot be found or do not exist. The new provision is
expanded to enable an agency or Minister to refuse a request if all
reasonable steps have been taken to obtain a relevant document in
exercise of a contractual right and the document has not been
received by the agency from the contracted service provider (or
subcontractor).
Amendments relating to Commonwealth contracts apply only to
those contracts entered into at or after the commencement of these
provisions (item 40).
Professor Moira Paterson comments that this is
a positive feature of the Bill, given the extent of outsourcing of
government functions, including the provision of core government
services and facilities such as welfare services.[71] However she suggests that the
Bill should go further to provide added incentives (such as
informing the Information Commissioner) where the agency has failed
to implement the required contractual measures or where it is
unable to recover a document from a contractor despite taking
reasonable steps to do so.[72]
Item 30 inserts new provisions relating to the
extensions of processing periods for FOI requests. Proposed
section 15AA permits an agency or Minister to extend the
initial period for making a decision by 30 days if the written
agreement of the applicant is obtained. The Information
Commissioner must be notified of such an extension.
Proposed section 15AB relates to large or complex
FOI requests and would allow an agency or Minister to apply to the
Information Commission for a further extension beyond this
additional 30 days.[73] The effect of proposed section 15AC is
that an agency or Minister is deemed to have refused access to a
document if the agency or Minister has not given notice of a
request for access within 30 days of receiving the request (or the
agreed extended period). A deemed refusal decision means that an
applicant may directly make an application for Information
Commissioner review. Proposed subsections
15AC(4)-15AC(6) give the Information Commissioner a
discretionary power to extend the period for making a decision on
an FOI request upon application from the agency or Minister. The
Information Commissioner may also impose conditions on such an
extension.
Existing section 24 permits an access request to be refused if
the work involved in processing the request would substantially and
unreasonably divert the resources of an agency, or would
substantially and unreasonably interfere with the performance of a
Minister’s agency. Item 32 repeals
section 24 and replaces it with proposed
sections 24, 24AA and 24AB. The new
provisions have the same scope as existing section 24 but are
extended so that multiple requests seeking access to the same or
substantially the same documents may also be refused on the grounds
of diverting resources or interfering with performance
(proposed subsection 24(2)). The proposed
amendments also enhance the consultation scheme so that onerous
requests may be narrowed (proposed section
24AB).
Items 17, 24, 34 and 35 of
Schedule 6 make amendments removing references to application fees.
Application fees are proposed to be abolished for all applications
under the FOI Act (other than for applications to the AAT).
Item 37 removes words from existing
section 94 (the regulation-making power) which
limit the ability for regulations to be made that vary charges
according to whether the applicant is in a particular class. This
is in line with the Government’s announcement that the first
five hours of decision-making time for journalists and not-for
profit community groups would be free of charge.[74]
Items 20 and 21 deal with
exemptions for documents produced by exempt agencies and propose
two new exemptions. As noted above,[75] subsection 7(1) and Part II of
Schedule 2 provide that certain agencies (that is ASIS, ASIO, the
Auditor-General, the Aboriginal Land Councils and Land Trusts etc)
are exempt from the operation of the FOI Act. A further exclusion
is provided in subsections 7(2A) and 7(2B) which provide that
agencies and Ministers in possession of documents originating with
or received from ASIS, ASIO, the Office of National Assessments,
the Defence Intelligence Organisation, the Defence Signals
Directorate or the Inspector-General of Intelligence and Security
are exempt in respect of those documents. Items 20
and 21 extend the exemption to cover documents
that contain a summary or extract of such documents.
Related to these amendments is item 38, which
provides that Department of Defence is be excluded from the
operation of the FOI Act for documents in respect of its
collection, reporting or analysis of operational intelligence and
special access programs under which a foreign government provides
restricted access to technologies. Item 21 would
extend this exemption so that agencies and Ministers in possession
of such documents or summaries or extracts of such documents) would
also be excluded.
The Public Interest Advocacy Centre (PIAC) opposes these
amendments for the same reasons that it strongly opposed the
related reforms, introduced only last year that excluded all
‘intelligence agency’ documents in the hands of the
Minister.[76] The
Bills Digest for the Freedom of Information (Removal of Conclusive
Certificates and Other Measures) Bill 2008 quotes PIAC:
The Public Interest Advocacy Centre (PIAC)
considers that entirely excluding a new category of documents, not
presently excluded from the operation of the FOI Act, is contrary
to the principle of open and transparent government and winds back,
in relation to defence and security documents, the advances of this
principle made by the abolition of conclusive certificates. PIAC
argues the proposed amendments fail to leave open any avenue to
distinguish between documents the disclosure of which might pose a
genuine threat to security or to the national interest, and those
that merely have the potential to embarrass an agency, or the
government of the day. The submission continues:
The Haneef case and subsequent visa revocation
turning as they did on inconsistencies between reports and threat
assessments issued by the Australian Security and Intelligence
Organisation (ASIO) and the Australian Federal Police respectively,
and the extent of awareness at Ministerial level of those
inconsistencies, demonstrate the importance of retaining a
potential avenue for disclosure of such documents under the FOI
Act.[77]
Schedule 7 contains amendments to address
transitional issues for the new Office of the Information
Commissioner, including bringing the Office of the Privacy
Commissioner into the new Office.
Concluding comments
Both this Bill and the accompanying Information Commissioner
Bill 2009 have generally been well received and supported, with
many key FOI advocates agreeing that the package contains an
important set of reforms which address many of the key deficiencies
in the current FOI Act and its administration. As Professor
Paterson states, provided they are accompanied by a pro-disclosure
cultural shift within agencies, the reforms have the potential to
substantially invigorate the Act’s operation and better
enable it to achieve its democratic objectives.[78]
However, there is also argument that in a number of areas the
reforms do not go far enough. A common theme in submissions to the
Senate inquiry is that while the Bill repeals a small number of
exemptions, it retains an almost entirely untouched list of
excluded agencies and documents held by certain agencies listed in
Schedule 2 to the FOI Act.
The two Bills are not the end of the story. In relation to two
key aspects of the FOI Act, namely access to and amendment of
one’s own personal information and the imposition of
processing charges for FOI requests, the Government has promised
further reform.[79]
Some argue that leaving these two key aspects out of this round,
may undermine the ‘sea change’ that the reforms are
intended to create.[80]
Despite these reservations, the reforms are substantial. There
is general optimism that the creation of the new role of
Information Commissioner, together with the new rules of disclosure
and publication, will go some way to improving the culture of FOI
and possibly ushering in a new and different phase in public
administration.[81]
For those not completely satisfied with the Bills, they too seem
keen that the two Bills progress. As noted at the outset, despite a
plethora of reviews, there have been only minor changes to the FOI
Act since 1982. There is, therefore, a sense that this opportunity
should not be lost—that it is important to hasten to ensure
these reforms are implemented before the completion of this
Parliament.
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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