The issues raised during the inquiry focused mainly on the merits of the
proposed changes to FOI review; the other roles performed by the OAIC which
would be lost or moved under the Bill; and the workability of the new
arrangements proposed for the Privacy Commissioner role. Many also advocated
the need for a more comprehensive review of the FOI regime.
External Review of FOI decisions
Differing views were offered to the committee regarding the advisability
of removing Information Commissioner (IC) review of FOI decisions, and
replacing it with external review only by the Administrative Appeals Tribunal
(AAT), following mandatory internal review.
Many submitters, such as Ms Megan Carter of Information Consultants Pty
Ltd, argued that '[w]orldwide, the Information Commissioner model is
acknowledged as the preferred method of dealing with external reviews of FOI
matters', because it enables the IC to develop deep specialist knowledge in FOI
and therefore take a more consistent approach to decision-making, as well as
offering greater accessibility and affordability to applicants, and more
flexibility in the methods used to resolve disputes.
Some were not opposed to the change in review arrangements. Australia's
Right to Know, a coalition of major media organisations, argued that from its
members' perspective, the right to appeal directly to the AAT was a positive
move, as OAIC review had proven far too lengthy and its non-adversarial model
also had the potential to deny natural justice to applicants.
Timely processing of appeals
The problem of delay in processing appeals through the OAIC was not
disputed in the evidence given to the committee, but most submitters argued
that this did not justify abandoning the process.
Many expressed the view that the delays experienced in OAIC processing
of cases arose at least in part from inadequate resourcing. Mr Peter Timmins
believed the OAIC had been 'set up to fail' by being under-resourced from the
Mr John Wood agreed, and added that this situation was exploited by government
agencies which responded 'less than diligently' to FOI requests in the
knowledge that redress would be long delayed.
One submitter suggested that introducing a small fee for OAIC review would be
likely to lower the volume of requests and should be considered as an
alternative to removing it altogether.
In evidence to the committee the Information Commissioner, Professor
John McMillan, acknowledged that:
A major criticism of the OAIC has been on the delay in IC
reviews. It is an issue of which we have been acutely aware from the beginning
of the commission. It is an issue on which we forecast, from the very
beginning, that the settings in the FOI Act possibly needed alteration. We
predicted from the outset that delays would occur, and we have made many
proposals along the way in public submissions about amendments that were needed
to the FOI Act, to make it a less complex and more efficient system.
But, most importantly, we have taken those criticisms on
board and constantly trialled new approaches for quicker resolution of
disputes. Also, we have concentrated on building up a body of principle and
case law in guidelines and in decisions, which does lead to a much more
efficient resolution of disputes nowadays.
The OAIC provided the committee with statistics demonstrating its
improved performance in the timely resolution of FOI reviews: most recently, in 2013-14 the number of completed IC review decisions jumped by 54
per cent (from 419 to 646), and the time lag in actioning new cases reduced
from 206 to 40 days.
The committee did not receive evidence
indicating that AAT review would necessarily be faster than review by the OAIC.
On the contrary, FOI Commissioner Dr James Popple advised the committee that comparison
of the FOI reviews dealt with since 2010 revealed that the AAT had taken almost
exactly the same average time as the OAIC to resolve FOI cases.
Moreover, submitters observed that the promise
of faster processing did not account for the time that would be taken by the
prerequisite internal review under the new system. A few, including the
OAIC, pointed out that removal of the power previously vested in the IC to
declare an applicant vexatious may have additional impact upon the processing
and review burden on agencies.
Accessibility of AAT review
Many submissions raised concern about the fact that application for
external review of FOI decisions through the AAT incurs a fee of $861, plus
additional costs to applicants for legal advice and representation, in contrast
to the present first-stage IC review, which is fee-free and does not require
legal counsel. Submitters saw this as compromising the accessibility of FOI
review to ordinary citizens.
Ms Megan Carter commented that when fees for AAT review of FOI decisions
were first introduced in Australia in 1986, the number of applications
plummeted, and there were few cases involving individuals or personal matters.
The IC advised the committee that prior to 2010 the AAT had received around 130
review applications per year, but after the OAIC was established applications
for OAIC review quickly reached 550 per year. While there may be various
reasons for this, Professor McMillan believed that the absence of fees was
'certainly an element' and that the re-imposition of fees would be likely to
result in fewer appeals.
The Public Interest Advocacy Centre (PIAC) expressed concern that in
addition to the burden of application fees, most individual applicants would
not have the kind of legal representation that government agencies were able to
retain, resulting in an 'imbalance that will happen in the litigious process'.
Professor Julian Disney further emphasised that monetary costs were not the
only factor affecting the accessibility of the AAT to applicants:
That is only one of the deterrents to ordinary people. A
major one is formality and an unintended intimidatory impact not only of the
environment but of being up against government. Often that is of much greater
significance than the out-of-pocket costs. There is also the cost of taking
time off work...There are a lot of other deterrents.
Several submitters including Australia's Right to Know and the Press
Council of Australia believed that allowing direct appeal to the AAT as an
option, while retaining the right to IC review for those applicants who wished
it, may be a better option than the removal of OAIC review altogether.
The OAIC itself indicated that there were various models used in other
jurisdictions, including allowing applicants a choice of forum, which could be
Should the reformed review process go ahead, several witnesses proposed
that the relevant AAT fees should be revised to ensure greater accessibility to
applicants, particularly individuals and those seeking information in the
Speaking on the Bill in the House of Representatives, Mr Paul Fletcher
MP advised that:
While it is true that the application fee to the [AAT] is
$861, there is a reduced fee of $100 in the case of hardship. In certain
specified cases there is no fee payable at all, and those include FOI reviews
about Commonwealth workers compensation, family assistance, social security
payments and veterans' entitlements. I also remind the House that consistent
with other matters in the [AAT], successful FOI applicants will receive a
refund of $761 of the full $861 fee.
Addressing the committee, the Attorney-General's Department emphasised
the 'flexible, innovative, alternative dispute resolution procedures' adopted
by the AAT, and its recent record of around 80 per cent of cases resolved by
consent and conciliation.
It also drew attention to the requirement for prior internal review by
agencies, which it said would provide a 'free and effective form of merits
Other functions of the OAIC
Much evidence given to the committee pointed out that the role of the
OAIC was broader than just the review function, and expressed concern about the
impact of abolishing the OAIC on the other roles fulfilled by the Office.
In general terms, FOI advocates regarded it as essential to have an 'FOI
champion' at arms' length from government control, and noted that independent
FOI Commissioners were a feature of FOI regimes in comparable jurisdictions
such as the United Kingdom and Canada, as well as several Australian states.
One submitter spoke of a 'global trend' toward the establishment of Information
Commissions and/or Commissioners, while another spoke of the model as 'accepted
best practice...around the world'.
Queensland Integrity Commissioner and former South Australian Ombudsman,
Mr Richard Bingham, highlighted the OAIC's ability to take an integrated
approach to privacy, FOI and broader information management issues, and its
work in assisting other Australian jurisdictions in that regard, and lamented
that this would be lost under the new arrangements proposed by the Bill.
Professor Julian Disney emphasised the importance of both independence
and specialist expertise in the difficult context of FOI, where competing
interests must be carefully balanced and consistent principles exercised in
He further endorsed the value of the OAIC beyond the complaint handling role:
'I think in many regulatory systems it is actually the standards work – the
setting of standards and the monitoring of standards – which is more important
in its impact down the track than dealing with individual complaints'.
Functions to be exercised by the
Attorney-General: a conflict of interest?
Many submitters believed that the transfer of a number of FOI-related
functions and powers from an independent statutory authority to the Executive
branch of government was inappropriate and created a potential conflict of
Associate Professor Moira Paterson of Monash University said that
historically, oversight of the FOI Act by the Attorney-General's Department had
not featured the same 'active championship and enforcement' of FOI as that now
shown by the OAIC.
The Open Australia Foundation referred to 'gaming of the system' undertaken by some
agencies, underlining the need for an independent monitor of FOI compliance,
and further claimed that among agencies, the Attorney-General's Department was
'not modelling best practice in this area'.
Academic Bruce Baer Arnold went further, expressing scepticism 'that executives
within the Attorney-General's department will demonstrate a sustained and
vigorous enthusiasm for transparency'.
PIAC and others expressed particular concern about the assumption of
determinative powers by the Attorney-General, such as to exempt documents from
disclosure under FOI. Ms Sophie Farthing of PIAC noted that the new
arrangements would allow the Attorney to define categories of information that
were 'unreasonable' to publish, including information sought from his own
department: 'there is a conflict with changing an office which is independent
in issuing this kind of regulation and guidance about how the FOI Act should
operate to someone who is subject to the Act himself'.
The Public Law and Policy Research Unit at the University of Adelaide agreed,
adding the observation that the department would 'both be implementing the
[FOI] framework and providing a report on how well this has been achieved'.
Professor Disney described the placement of promotion, monitoring and guidance
roles within the Attorney-General's Department as 'utterly inappropriate'.
In its evidence, the Attorney-General's Department assured the committee
that production of guidance and guidelines to government agencies would 'remain
the same' under the department's administration as it had been under the OAIC,
and that there would be no conflict with the department's decision-making role.
The department further noted that the Bill provided for the transfer of staff
from the OAIC to the department, ensuring that expertise would be brought in to
discharge the functions formerly performed by the OAIC.
Functions to be discontinued
Submitters further raised concern that some OAIC functions would be
discontinued upon the abolition of the Office. These included assistance to
agencies and review of their compliance with the information publication scheme,
FOI training of agencies, the ability to institute own-motion investigations,
dealing with vexatious applicants, and more general promotion of open
government and proactive disclosure.
Mr Peter Timmins summed up the concerns of many submitters:
Independent advice and guidance, leadership, advocacy and
public awareness and assistance functions that included responding to thousands
of phone and written inquiries each year seem destined to disappear.
Associate Professor Paterson emphasised the need for an 'FOI champion'
to monitor compliance and promote FOI more generally:
given that the success of FOI requires fundamental cultural
change and because a culture of transparency is fundamentally difficult to
maintain in the face of governments' natural aversion to detailed scrutiny of
Guardian Australia claimed that since the abolition of the OAIC was
announced, the incidence of agencies breaching time limits had already
Mr Timmins, among others, expressed particular alarm that the functions
of the OAIC in promoting increased proactive publication of government
information would be discontinued.
Speaking on behalf of the Open Australia Foundation, Mr Timmins told the committee
we still have a long way to go in terms of the journey
towards more open, transparent and accountable government. And to lose the
independent monitor, advocate and champion of the Act at this stage of the game
is a giant step backwards.
In response, the Attorney-General's Department told the committee that
'any suggestion that the merit of the system is being disbanded is probably not
right'. The department sought to assure the committee that it would take up the
task of promoting a pro-disclosure culture across government, and that other
core functions performed by the OAIC would continue, albeit within different
Arrangements for the Australian
The AHRC raised concerns with the committee about the arrangements proposed
in the Bill for the Australian Privacy Commissioner to be established as an
independent statutory body within the AHRC:
The Bill proposes that the Australian Privacy Commissioner
should sit within the AHRC but not be a member of the [AHRC]. The staff assigned
to the Commissioner will be staff of the AHRC but under the exclusive direction
of the Privacy Commissioner. These provisions will not work as a matter of law
as the Accountable Authority for the purpose of the Public Governance,
Performance and Accountability Act (PGPA) remains the President of the
It is also proposed that the Privacy Commissioner should have
the same status as a staff member for the purpose of the PGPA. While all the
other Commissioners within the AHRC report through the President to the
Attorney-General, the Australian Privacy Commissioner would report directly to
...the model proposed by the Bill fails to understand the legal
obligations under the PGPA and the Australian Human Rights Commission Act and,
with the best will in the world, creates potential for conflict. There are
confusing lines of authority both in financial and staffing respects.
At the committee's public hearing, AHRC President Professor Gillian
Triggs described the proposed arrangements as placing the Australian Privacy
Commissioner 'in a separate bubble' within the AHRC:
If this Bill is passed, we will continue to do what we are
doing in the [AHRC] but we will have this bubble in the middle of it where you
have a Privacy Commissioner with staff I will allocate to him notionally, but
the curious phenomenon under the bill is that those staff would not, under any
circumstances, be accountable to the commission. That is simply unworkable
because of the way in which the financial requirements are and in relation to
all sorts of staffing matters and other legislation.
The AHRC proposed that these problems could be resolved by amending the
legislation to reflect one of three alternative models: the creation of the
Australian Privacy Commissioner as a separate Commonwealth entity (which could
still receive corporate support from AHRC), the appointment of the Commissioner
as a member of the AHRC in the same way as the other AHRC Commissioners, or an
amendment to the Bill specifying that the Australian Privacy Commissioner would
be empowered to direct staff only 'in compliance with his statutory functions',
while in other respects the position would be subject to usual AHRC governance
The Privacy Commissioner, Mr Timothy Pilgrim, agreed with the AHRC that
'the Bill creates a model that is not suited to achieving the objectives of the
[Privacy Act] in the most efficient way'. He stated that historical experience,
under which the Privacy Commissioner had been part of the (then) Human Rights and
Equal Opportunity Commission prior to 2000, had not proven to be effective, and
that the 'significantly different regulatory focus' of the Privacy
Commissioner's role made it a poor fit for the AHRC.
The Australian Privacy Foundation expressed a similar view, and believed that
moving the Commissioner (back) into the AHRC risked 'repeating the mistakes of
the original regime, and leaving the Commissioner with an even lower profile,
and influence, than s/he [previously] had'.
Mr Pilgrim advocated for the return to a stand-alone statutory Office of
the Privacy Commissioner, as had existed from 2000-2010. He observed that
arrangements already in place between OAIC and AHRC for sharing corporate
services such as human resources, finance and IT could continue for the office
of an independent Privacy Commissioner, mitigating against any additional costs.
The Attorney-General's Department advised the committee that the
relationship proposed in the Bill between the Australian Privacy Commissioner
and the AHRC was not dissimilar to other models already in existence, citing
the Classification Board as an example. The department stated that it was not
unprecedented that office holders held statutory functions while not
controlling their own finances and staffing.
The department added that parliament would provide guidance on the appropriate
resourcing for the Australian Privacy Commissioner's functions, in the form of
budget appropriations, and that the Attorney-General as portfolio minister
would be able to resolve any difficulties which may arise between the AHRC
President and the Australian Privacy Commissioner with regard to the exercise
of their respective statutory responsibilities.
Several submitters queried the government's assertion that the reforms
made by the Bill would result in savings of $10.2 million over four years. In
particular, many pointed out that the additional costs to agencies of mandatory
internal review had not been taken into account.
In addition, attention was drawn to projected increased costs of AAT review not
only to individual applicants, but to government agencies and the AAT itself.
Many were unconvinced that savings at the level of $2.5 million per
year, even if realised, were significant enough to justify the losses to public
accountability and open government which they believed would result from
abolition of the OAIC. Professor Julian Disney expressed the view that
'achieving small government at the expense of good, efficient and open
government seems rather contradictory'.
The argument for comprehensive FOI
The committee's attention was drawn by many to the fact that the Hawke
Review, submitted in July 2013, had commented positively on the OAIC, but also
made a large number of recommendations to improve the operation of the FOI
process, and recommended that these be considered further in a comprehensive
review of FOI. Many submitters queried the government's decision to proceed
with the measures in the Bill in advance of completing its consideration of the
Hawke review, and without any broader review or consultation.
Mr Edward Santow of PIAC spoke strongly about this issue:
There has been no public case made in any detail at all for
what can only be described as radical changes to our FOI law. Indeed, the FOI
law was overhauled as recently as 2010. Very little public consultation has
taken place in respect of the Bill's proposals and the government is yet to
respond to the recommendations in the statutory review that took place last
year under Dr Allan Hawke. If the government is minded to make major changes to
FOI law and practice we would urge the government first to undertake a full
public consultation that also takes into account the recommendations of the
many reviews since the Australian Law Reform Commission's review in 1995.
Megan Carter commented: 'it seems that the proposed solution is to throw
the baby out with the bathwater, rather than undertake a thorough review to
assess the best solution'.
Submitters were not all in agreement with the Hawke Review's findings, but were
consistent in urging the government to facilitate a comprehensive review of the
FOI Act and its operation, in preference to making piecemeal changes.
In debate on the Bill in the House of Representatives, the government
advised that it was 'carefully considering' the recommendations of the Hawke
review and would respond in due course.
Navigation: Previous Page | Contents | Next Page