Chapter 1

Chapter 1


1.1        On 2 October 2014, the Hon Scott Morrison MP, Minister for Immigration and Border Protection, introduced the Freedom of Information Amendment (New Arrangements) Bill 2014 (the Bill) into the House of Representatives.[1] Following debate, and agreement to two amendments proposed by the government, the Bill was passed by the House on 28 October 2014.[2]

1.2        On 30 October 2014, pursuant to a report of the Selection of Bills Committee, the Senate referred the provisions of the Bill to the Legal and Constitutional Affairs Legislation Committee (the committee) for inquiry and report by 25 November 2014.[3] The Bill was introduced into the Senate the same day.[4]

Conduct of the inquiry

1.3        In accordance with usual practice the committee wrote to 49 people and organisations, inviting submissions by 6 November 2014. Details of the inquiry were also made available through the media and on the committee's website (

1.4        The committee received 32 submissions, which are listed at Appendix 1.  The committee thanks those individuals and organisations who made submissions to the inquiry.  The committee held a public hearing on 10 November 2014 in Sydney.  The witnesses who appeared at the hearing are listed at Appendix 2. Additional information received by the committee following the hearing is listed at Appendix 3.

Background to the Bill

1.5        Freedom of information (FOI) is the statutory regime facilitating the right of citizens to access government documents, in order to encourage transparency and accountability in government, and combat corruption and wrongdoing. Australia was one of the first countries to adopt specific FOI laws in the 1970s and 1980s. However, with the passage of time there was a growing view that Australia's FOI laws were inadequate, and that the system was not working as intended.[5]

1.6        In 2009 and 2010, the then Labor government introduced a package of reforms intended to address perceived inadequacies in the FOI regime, and create a stronger culture of openness in government. A major element of the changes was the establishment in 2010 of a new statutory agency, the Office of the Australian Information Commissioner (OAIC). The OAIC incorporated the pre-existing Privacy Commissioner role and placed alongside it two new statutory positions, a Freedom of Information Commissioner (FOI Commissioner) and an Information Commissioner (IC). The OAIC was given comprehensive oversight powers and functions with respect to privacy, FOI and information issues across Australian government agencies.

1.7        The 2010 changes established a two-tiered system for external review of FOI decisions, the first by the IC with a right of appeal, if a party was not satisfied, to the Administrative Appeals Tribunal (AAT). The first-tier review by the IC did not require prior internal review or legal counsel, and there were no application fees. These factors contributed to a rapid increase in review applications, and the OAIC became beset by significant time delays and backlogs in processing FOI reviews.[6]

1.8        On 29 October 2012, former public servant Dr Allan Hawke AC was commissioned by the Labor government to review the operation of the FOI Act and the Australian Information Commissioner Act 2010 'and the extent to which those Acts and related laws continue to provide an effective framework for access to government information'.[7] The 'Hawke Review', submitted to the government on 1 July 2013, concluded that the 2009-10 reforms were operating as intended and had been generally well-received.[8] The Hawke Review considered that 'the establishment of the OAIC has been a very valuable and positive development in oversight and promotion of the FOI Act', while recognising concerns about 'lengthy and consistent delays in the OAIC's decision-making and complaint investigation processes'.[9] It recommended a range of legislative and administrative changes to streamline FOI procedures, reduce complexity and increase capacity to manage FOI workload both by agencies and the OAIC.

1.9        With regard to the reformed system for merits review of FOI decisions, the Hawke Review found that there was insufficient evidence, two and a half years into its operation, to make a decision on whether the model was the best one, and recommended that this be the subject of further examination as part of a comprehensive review of the FOI Act.[10]

1.10      In the 2014 Federal Budget, the government introduced a measure entitled 'Smaller Government – Privacy and Freedom of Information functions – new arrangements'. The government stated that this measure would achieve savings of $10.2 million over four years, primarily by abolishing the OAIC and moving its functions to other bodies.[11]

1.11      Explaining the Budget measure, the Attorney-General said that it was 'in line with the Coalition's commitment to streamline government and reduce duplication to deliver efficient, effective government'. The Attorney stated that:

The complex and multilevel merits review system for FOI matters has contributed to significant processing delays. Simplifying and streamlining FOI review processes by transferring these functions from the OAIC to the AAT will improve administrative efficiencies and reduce the burden on FOI applicants.[12]

Purpose of the Bill

1.12      The purpose of the Bill is to implement the new arrangements for privacy and FOI functions announced by the government in the 2014 Budget. The Bill amends various Acts in order to:

1.13      In his second reading speech on the Bill, Senator Richard Colbeck said the new arrangements set out in the Bill would not affect the legally enforceable right of every person to access official documents under the FOI Act, nor change the substantive criteria governing agencies' and ministers' decisions on FOI requests.  The Bill would, however:

reduce the size of government, streamline the delivery of government services and reduce duplication. It will mean business as usual for privacy and largely restore the system for the management of freedom of information in place before the establishment of the [OAIC] on 1 November 2010.

The Bill makes it easier for applicants to exercise their rights under privacy and FOI legislation.[14]

Key provisions of the Bill

1.14      The Bill repeals the Australian Information Commissioner Act 2010 (AIC Act), and amends the Freedom of Information Act 1982 (FOI Act), the Ombudsman Act 1976 and other Acts. The Bill contains four schedules.

1.15      Schedule 1 amends the FOI Act and other legislation to provide for FOI functions to be undertaken by others upon the abolition of the OAIC. The amendments to the FOI Act include the following:

1.16      Schedule 1 also amends the Ombudsman Act 1976 which provides for the Ombudsman to refer complaints about processing of requests under the FOI Act or the Privacy Act 1988 (the Privacy Act) to the IC where appropriate. The relevant provisions are amended such that the Ombudsman will be solely responsible for FOI complaints, while complaints relating to the Privacy Act may be referred to the Australian Privacy Commissioner.

1.17      Schedule 2 amends the Australian Human Rights Commission Act 1986 (AHRC Act) and the Privacy Act, to provide for an independent statutory office of Australian Privacy Commissioner within the AHRC, responsible for exercising privacy functions under the Privacy Act or other Commonwealth laws. Key amendments to the AHRC Act include the following:

1.18      The key amendment to the Privacy Act contained in Schedule 2 is Item 11, inserting new Division 1, which provides for the appointment and functioning of the Australian Privacy Commissioner outside the framework of the OAIC. The Commissioner is to be appointed by the Governor-General for a 5-year term (as previously), and is in most respects accountable directly to the Governor-General or the minister, rather than the President of the AHRC, although the Commissioner is designated an 'official' of the AHRC for the purposes of finance law under the PGPA Act. The Commissioner may delegate certain functions to staff of the AHRC.

1.19      Item 14 of Schedule 2 repeals Part VII of the Privacy Act, abolishing the Privacy Advisory Committee. (The repeal of the AIC Act under Schedule 3 will also abolish the Information Advisory Committee.)

1.20      Schedule 3 repeals the AIC Act in its entirety, and makes consequential amendments to other legislation, effectively abolishing the IC, FOI Commissioner, and the OAIC. (The Privacy Commissioner is also removed, but is replaced by the Australian Privacy Commissioner under the new provisions in Schedule 2.)

1.21      Under clause 2 of the Bill, its substantive provisions will take effect on 1 January 2015. Schedule 4 sets out transitional arrangements, including the following:

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