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Freedom of Information Amendment (New Arrangements) Bill 2014

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2013-2014

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

house of representatives

 

 

 

 

FREEDOM OF INFORMATION AMENDMENT (NEW ARRANGEMENTS)

BILL 2014

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

 

Amendments to be Moved on Behalf of the Government

 

 

 

 

(Circulated by authority of the

Attorney-General, Senator the Honourable George Brandis QC)

 



 

AMENDMENTS TO THE FREEDOM OF INFORMATION AMENDMENT (NEW ARRANGEMENTS) BILL 2014

General outline

1.                   The Freedom of Information (New Arrangements) Bill 2014 was introduced into the House of Representatives on 2 October 2014. Among other matters, it establishes an Australian Privacy Commissioner (Commissioner) as an independent statutory office in the Australian Human Rights Commission (AHRC). The proposed amendments to the Bill clarify the arrangements between the Commissioner and the AHRC.

Financial impact statement

2.                   The amendments to the Bill do not have a financial impact.

NOTES ON CLAUSES

Clauses 1 and 2 - Schedule 2, item 3

1.                   These clauses amend item 3 of Schedule 2 to the Bill, which inserts new section 43A into the Australian Human Rights Commission Act 1986 (AHRC Act). That new section currently provides that the AHRC must provide such assistance to the Commissioner as is necessary to enable the Commissioner to perform the functions set out in section 27 of the Privacy Act 1988 .

2.                   Clauses 1 and 2 amend proposed new subsection 43A(1) to provide that the AHRC may , rather than must , provide assistance to the Commissioner to perform the privacy functions. This amendment removes any perception that the AHRC is directed in how it allocates its appropriation.

3.                   However, the reference in new subsection 43A(1) to the provision of ‘such assistance … as is necessary to enable the Commissioner to perform the functions’ makes clear the expectation that the AHRC will make the funds expressly appropriated for the privacy functions, including staff employed with those funds, available to the Commissioner for the performance of his or her statutory functions. This would similarly apply to other funds provided for the privacy functions, such as under a memorandum of understanding with another government agency or a contract with a private sector organisation.

4.                   Proposed new subsection 43A(3), to also be inserted by item 3 of Schedule 2 to the Bill, provides that a member of the staff of the AHRC who is made available to the Commissioner under this section is subject to directions of the Commissioner in the relation to the performance of the Commissioner’s functions. No amendments are proposed to this subsection, although further clarification on how these arrangements will work follows.

5.                   The subsection only enables the Commissioner to issue directions to staff members which have been made available to assist in the performance of the Commissioner’s statutory functions, and only in relation to the performance of those functions. It is appropriate the Commissioner issue directions in these circumstances as these functions are the responsibility of the Commissioner, rather than the AHRC. This provision supports the independence of the Australian Privacy Commissioner from the rest of the AHRC.

 

6.                   For all other matters relating to a person’s engagement as a member of the staff of the AHRC, the person would remain subject to the directions of the President, as the accountable authority of the AHRC for the purposes of the Public Governance, Performance and Accountability Act 2013 .