Save Search

Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Freedom of Information Amendment (Reform) Bill 2010

Bill home page  


Download WordDownload Word


Download PDFDownload PDF

2008-2009-2010

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

FREEDOM OF INFORMATION AMENDMENT (REFORM) BILL 2009

 

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

Amendments and New Clauses to be Moved on Behalf of the Government

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Cabinet Secretary,

Senator the Hon Joe Ludwig)

 



AMENDMENTS TO

FREEDOM OF INFORMATION AMENDMENT (REFORM) BILL 2009

 

OUTLINE

 

The primary purpose of the amendments to the Freedom of Information Amendment (Reform) Bill 2009 is to implement two recommendations of the Senate Finance and Public Administration Legislation Committee’s report and to correct two omissions identified in the Bill.  The amendments will:

  • correct an omission to ensure that an affected third party can seek review of a decision not to claim an exemption on the ground that a document would disclose a trade secret or other commercially valuable information;
  • rename the new statutory position of Information Commissioner as the ‘Australian Information Commissioner’ to distinguish that position from state and territory information commissioners (which will implement a Senate Committee recommendation);
  • correct an omission relating to the time for making an application to the Administrative Appeals Tribunal (AAT) when the Information Commissioner declines review because it is desirable that the AAT undertake the review;
  • place the onus of establishing that a decision is justified on an agency or Minister when an FOI applicant applies for review of an FOI decision to the AAT (instead of on the FOI applicant);
  • require an agency or Minister to use their best endeavours to assist the Information Commissioner to make a decision on an FOI review application; and
  • provide for the Information Commissioner to be appointed as a member of the Administrative Review Council (which will implement a Senate Committee recommendation).

 

FINANCIAL IMPACT STATEMENT

 

The amendments have no financial impact.

 



NOTES ON AMENDMENTS

 

Amendments (1 and 2)  [ access grant decisions ]

These amendments ensure that an affected third party can seek review of a decision not to claim an exemption on the ground that a document would disclose a trade secret or other commercially valuable information, in addition to a decision not to claim that a document is exempt for the purposes of the public interest conditional business affairs exemption.  The amendments correct an oversight in the Bill which omits the former ground.  An affected third party can seek review of a decision of that kind under the existing FOI Act.

 

Amendments (3), (9), (10), (12) to (16), (18) to (20) [Australian Information Commissioner]

These amendments change the title of the new statutory position of Information Commissioner to the Australian Information Commissioner to distinguish the Commonwealth position from the several state and territory information commissioners.  The new Office will be called the Office of the Australian Information Commissioner.  Similar amendments are proposed for the Information Commissioner Bill 2009, including an amendment that would have the effect that the term ‘Information Commissioner’ in any Act means the person appointed as the ‘Australian Information Commissioner’ under clause 14 of that Bill (amendment (3) to the Information Commissioner Bill 2009).

 

Amendments (4), (6) and (7)   [time for applying to AAT]

These amendments are intended to correct an omission in the Bill.  The Bill proposes a new level of external merits review for FOI decisions to be undertaken by the Information Commissioner (IC review), which is to apply before a further right of review to the AAT.  An applicant must apply for IC review before applying to the AAT.  The Bill gives the Information Commissioner a power to decline to undertake an IC review where the Commissioner is satisfied that the interests of the administration of the FOI Act make it desirable that the AAT review the decision (proposed paragraph 54W(b) (item 34 of Schedule 4)).

 

As it currently stands under the Bill, in this case, the FOI applicant or an affected third party would have 28 days to make an application to the AAT from the date of the agency or Minister FOI decision.  This does not allow for the time period to make an application for IC review (60 days for an FOI applicant and 30 days for an affected third party) which will precede the right to apply to the AAT.  To correct that omission, these amendments will have the effect that the 28 day time period applies from the time the Information Commissioner’s decision to decline review is given to the applicant instead of from notice of the decision by the agency or Minister.  That is the same timeframe that will apply if a party applies to the AAT from a review decision made by the Information Commissioner.

 

Amendment (5)  [agency or Minister to assist Information Commissioner]

This amendment will apply to an IC review and requires an agency or Minister to use their best endeavours to assist the Information Commissioner to make his or her decision on the FOI review application.  The measure is consistent with an existing obligation that applies in AAT review proceedings generally, including upon undertaking review of FOI decisions (see subsection 33(1AA) of the Administrative Appeals Tribunal Act 1975 ).

 

The obligation to assist is intended to ensure that an agency or Minister is not overly adversarial in an FOI review proceeding.  It is consistent with the pre-existing obligation on the Commonwealth and its agencies to act as model litigants.  The obligation requires the Commonwealth and its agencies to act with complete propriety, fairly and in accordance with the highest professional standards as a party to proceedings, including tribunal proceedings. 

 

Amendment (8)  [onus of proof]

Amendment (8) proposes that, in AAT proceedings to review an FOI decision, the agency or Minister to whom the access request was made, or to whom the application for amendment or annotation of personal records was made, will have the onus of establishing that a decision

should be given that is adverse to the FOI applicant.  The agency or Minister will have that onus when:

 

(i)      the agency or Minister seeks review of a decision made by the Information Commissioner (for example that access should be given to a document because an exemption does not apply) - in this case the AAT will review a decision of the Information Commissioner (see proposed new paragraph 61(1)(a));

 

(ii)     the FOI applicant seeks review of a decision made by the Information Commissioner (for example affirming that an exemption applies to a document and that access may be refused) - in this case the AAT will review a decision of the Information Commissioner (see proposed new paragraph 61(1)(b)); and

 

(iii)    the FOI applicant applies to the Information Commissioner for review of an agency or Minister decision and the Information Commissioner declines review on the ground that it is desirable that the AAT undertake review under proposed new paragraph 54W(b) - in this case the AAT will review a decision of the agency or Minister (see proposed new paragraph 61(1)(b)).

 

The FOI applicant will not bear an onus in either IC review or AAT review.  In an IC review, an agency or Minister is given the onus of establishing that a decision they made is justified under proposed new section 55D (item 34, Schedule 4).

 

No change is made by this amendment to the position as it applies to an affected third party (proposed new subsection 61(2)).

 

Amendment (11)  [typographical error]

This amendment corrects a typographical error in the Bill.

 

Amendment (17)  [membership of Administrative Review Council]

The Administrative Review Council is established under the Administrative Appeals Tribunal Act 1975 and has a function of reviewing the effectiveness of the Commonwealth administrative law system.  The Council consists of the President of the AAT, the Ombudsman, the President of the Australian Law Reform Commission and a number of other part time members appointed by the Governor-General. 

 

As the FOI Act forms an important part of the Commonwealth administrative law system, it is appropriate for the Information Commissioner to be appointed as a member of the Administrative Review Council in the same way as the President of the AAT, the Ombudsman and the President of the Australian Law Reform Commission.