Chapter 1Introduction
1.1On 28 March 2023, the Senate referred an inquiry into the operation of Commonwealth Freedom of Information (FOI) laws to the Legal and Constitutional Affairs References Committee (committee) for inquiry and report by 7 December 2023.
1.2The committee was required to inquire into the operation of Commonwealth FOI laws, with particular reference to:
(a)the resignation of the Commonwealth Freedom of Information Commissioner and the resulting impacts;
(b)delays in the review of FOI appeals;
(c)resourcing for responding to FOI applications and reviews;
(d)the creation of a statutory time frame for completion of reviews; and
(e)any other related matters.
Conduct of the inquiry
1.3The committee advertised the inquiry on its website and wrote to organisations and individuals inviting submissions by 5 June 2023. The committee received and published 43 submissions, which are listed at Appendix 1.
1.4The committee held the following public hearings:
Sydney, New South Wales on 28 August 2023; and
Canberra, Australian Capital Territory on 29 August 2023.
1.5An in-camera meeting was held in Canberra, Australian Capital Territory on 9November 2023.The only witness appearing was Mr Leo Hardiman PSM KC who held the position of FOI Commissioner for the period of 19 April 2022 to 19May 2023. Mr Hardiman had provided evidence at the public hearing held on 29 August 2023.
1.6It is noted that the Australian Information Commissioner, Ms Angelene Falk, was also provided an opportunity to attend an in-camera hearing but declined.Ms Falk referred to her oral evidence provided during the public hearing on 29August 2023, her response to Questions on Notice taken at the public hearing provided to the Committee on 10 October 2023 and her letter of 8November2023 in response to Mr Hardiman's supplementary statement. For completeness, Ms Falk also noted that the OAIC provided a submission on 28July 2023 and a supplementary submission on 14 November 2023. The committee refers to the invitation provided to Ms Falk for the sake of completeness to demonstrate that the committee has in good faith attempted to provide both Mr Hardiman and Ms Falk with an equal opportunity to provide evidence in camera.
1.7A list of witnesses who appeared at the hearings is at Appendix 2.
Structure of the report
1.8This report comprises five chapters, as follows:
Chapter 1 introduces the inquiry and provides an overview of the conduct of the inquiry;
Chapter 2 outlines the FOI system, including perceptions of its value, legislation underpinning it, key roles within the system, the application and appeal process, reviews into the system, and comparisons with other Australian jurisdictions;
Chapter 3 provides evidence relating to the functioning of the FOI system, including the timeliness of appeal and review processes, cultural and leadership concerns, and changing demands on the system;
Chapter 4 details a number of issues on the administration of the FOI system, including resourcing, the imposition of fees and charges, potential legislative and structural reforms, and the resignation of the former FOICommissioner; and
Chapter 5 provides the committee's views and recommendations on these matters, as well as the committee's view on the resignation of the former FOI Commissioner.
Background to the inquiry
1.9The Freedom of Information Act 1982 (FOI Act) was designed to establish legally enforceable rights of access to information held by government agencies and ministers, except where an overriding public interest requires confidentiality to be maintained.
1.10Subsequent independent reviews of the FOI Act recommended major reforms to the system, including a report in 1987 by the Senate Standing Committee on Legal and Constitutional Affairs. A joint report in 1995 by the Administrative Review Council and the Australian Law Reform Commission recommended, among other reforms, that a new statutory office of Freedom of Information Commissioner (FOI Commissioner) be established to monitor and promote the FOI Act. The Commonwealth Ombudsman conducted reviews of the FOI system in 1999 and 2006, with the latter review also recommending the establishment of an FOI Commissioner (potentially within the Office of the Commonwealth Ombudsman).
1.11Nearly thirty years after the FOI Act was passed, the Australian Information Commissioner Act 2010 (AIC Act) established the independent statutory body of the Office of the Australian Information Commissioner (OAIC), headed by the Australian Information Commissioner and supported by a Privacy Commissioner and an FOI Commissioner. See Chapter 2 for more on the FOI system.
Office holders
1.12On 1 November 2010, Dr James Popple was appointed the inaugural FOICommissioner to coincide with the establishment of the OAIC. Dr Popple held the position until his resignation in December 2014, when the Commonwealth government proposed to disband the OAIC under the Freedomof Information Amendment (New Arrangements) Bill 2014.
1.13On 2 October 2014, in the second reading speech introducing the Freedom of Information Amendment (New Arrangements) Bill 2014, the rationale for the then Commonwealth government's proposal to disband the OAIC was stated as follows:
The bill will streamline arrangements for the exercise of privacy and freedom of information (FOI) functions from 1 January 2015. The Office of the Australian Information Commissioner (OAIC) will be abolished. The Australian Privacy Commissioner will continue to be responsible for functions under the Privacy Act 1988 as an independent statutory office holder within the Australian Human Rights Commission.
The Administrative Appeals Tribunal will have sole responsibility for external merits review of FOI decisions. Mandatory internal review of decisions of FOI decisions before a matter can proceed to the Administrative Appeals Tribunal will ensure access to low-cost and timely review for applicants. The tribunal will receive a funding boost to assist with processing FOI reviews.
The Commonwealth Ombudsman will be responsible for investigating complaints about actions taken by an agency under the Freedom of Information Act 1982 (the FOI Act). The Attorney-General will be responsible for FOI guidelines and collection of statistics on agency and ministerial FOI activity…
The bill will create administrative efficiencies and reduce the burden on FOI applicants by providing that the Administrative Appeals Tribunal is the sole external merits review body. This aligns with other merits review processes across the Australian government.
Under the new arrangements, those applicants who wish to seek review of an FOI decision will first be required to seek internal review. If an applicant is not satisfied with the internal review decision, they may apply for full merits review at the Administrative Appeals Tribunal…
The bill also provides for an Australian Privacy Commissioner, as an independent statutory office holder within the Australian Human Rights Commission. The commissioner will continue to be responsible for the exercise of privacy functions under the Privacy Act and related legislation.
1.14The bill was not passed. Subsequently, the position of FOI Commissioner remained vacant for more than seven years, with the FOI functions exercised by the Information Commissioner. In August 2021, Deputy Commissioner MsElizabeth Hampton was appointed acting FOICommissioner.
1.15On 17 March 2022, Mr Leo Hardiman PSM KC was appointed FOICommissioner for five years, commencing on 19 April 2022.
1.16On 5 March 2023, Mr Hardiman resigned from his position as FOICommissioner, effective 19 May 2023. In announcing his resignation through social media, Mr Hardiman stated that he had been leading the implementation of 'significant changes' in the FOI system to reduce the backlog of appeals and to promote more timely access to government-held information, but was not empowered as FOI Commissioner to implement the further changes he deemed necessary. The full text of Mr Hardiman's resignation announcement is at Figure 1.1, below.
Figure 1.1Mr Hardiman's statement regarding his resignation
Source: Leo Hardiman, 'Statement regarding resignation of my appointment as commonwealth freedom of information commissioner', LinkedIn, 6 March 2023.
Social media post by Mr Leo Hardiman PSM KC, on 6 March 2023, regarding his resignation of appointment as FOI Commissioner.
1.17This inquiry provided an opportunity to take evidence from Mr Hardiman where he could provide further background and details with respect to his resignation decision. See Chapter 4 for further discussion of Mr Hardiman's resignation. The committee's views on his resignation are outlined in Chapter 5.
1.18Ms Toni Pirani was appointed acting FOI Commissioner on 20 May 2023. Commissioner Falk has served as Australian Information Commissioner and Privacy Commissioner since August 2018. On 10 November 2023, Commissioner Falk announced that she had advised the Attorney-General that she was not seeking a third term. Commissioner Falk's term will expire in August 2024.
1.19On 27 November 2023, the Attorney-General announced the appointment of MsElizabeth Tydd as Freedom of Information Commissioner for a five-year term commencing on 19 February 2024 and of Ms Carly Kind as PrivacyCommissioner commencing on 26 February 2024.
1.20With the appointment of Ms Tydd and Ms Kind, there will be three discrete Commissioners holding the positions of Australian Information Commissioner, Privacy Commissioner and FOI Commissioner as originally envisaged under the Australian Information Commissioner Act 2010 (AIC Act).This is sometimes referred to as the 'Three Commissioner Model'.
References
1.21References in this report to Committee Hansard are to the proof (uncorrected) transcript. Page numbers may vary between the proof and the official transcript.
Acknowledgements
1.22The committee thanks those individuals and organisations who made submissions and gave evidence at the public hearings.