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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

 

 

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by authority of the Attorney-General,

Senator the Honourable George Brandis QC)

                                                                                                        



 



FREEDOM OF INFORMATION AMENDMENT

(NEW ARRANGEMENTS) Bill 2014

GENERAL OUTLINE

1.                 This Bill repeals the Australian Information Commissioner Act 2010 and amends the Freedom of Information Act 1982 (the FOI Act), the Privacy Act 1988 and the Ombudsman Act 1976 and other Acts to implement the 2014-2015 Budget measure , Smaller Government - Privacy and Freedom of Information functions - new arrangements .

2.                 The amendments in the Bill will abolish the Office of the Australian Information Commissioner (OAIC) and streamline arrangements for the exercise of privacy and freedom of information (FOI) functions by providing for:

·          an Australian Privacy Commissioner, to be responsible for the exercise of privacy functions under the Privacy Act and related legislation, as an independent statutory office holder within the Australian Human Rights Commission

·          the Administrative Appeals Tribunal (AAT) to have sole jurisdiction for external merits review of FOI decisions

·          compulsory internal review of FOI decisions (where available) before a matter can proceed to the AAT

·          the Attorney-General to be responsible for FOI guidelines, collection of FOI statistics and the annual report on the operation of the FOI Act, and

·          the Ombudsman to have sole responsibility for the investigation of FOI complaints.

3.                 The Bill will largely restore the system for the management of privacy and FOI issues that was in operation before the establishment of the OAIC on 1 November 2010.

4.                 Bringing together oversight of privacy and FOI into one agency has created an unnecessarily complex system which caused processing delays in FOI and privacy matters. Simplifying FOI review processes by removing a level of external merits review will improve efficiencies and reduce the burden on FOI applicants. Streamlining arrangements for investigation of FOI complaints and for privacy regulation will also reduce complexity and make it easier for applicants to exercise their rights under FOI or privacy legislation. The abolition of the OAIC also furthers the government’s commitment to smaller government.

FINANCIAL IMPACT

5.                 Establishing new arrangements to deliver privacy and FOI functions will achieve savings of $10.2 million over four years.



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Freedom of Information Amendment (New Arrangements) Bill 2014

6.                 This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

7.                 The purpose of the Bill is to implement the new arrangements to deliver privacy and freedom of information (FOI) functions as outlined in the 2014-15 Budget measure, Smaller Government - Privacy and Freedom of Information functions - new arrangements .

8.                 The Bill repeals the Australian Information Commissioner Act 2010 and amends the Freedom of Information Act 1982 (the FOI Act), the Privacy Act 1988 , the Ombudsman Act 1976 and other Acts to reflect the new arrangements for privacy and freedom of information (FOI). The Bill will:

·          abolish the Office of the Australian Information Commissioner (OAIC)

·          provide for an Australian Privacy Commissioner to be responsible for the exercise of privacy functions under the Privacy Act and related legislation as an independent statutory office holder within the Australian Human Rights Commission

·          provide that external merits review will only be available at the Administrative Appeals Tribunal (AAT)

·          provide for the Attorney-General to be responsible for FOI guidelines, collection of FOI statistics and the annual report on the operation of the FOI Act, and

·          provide for the Ombudsman to be responsible for investigating actions taken by an agency under the FOI Act (FOI complaints).

9.                 The new arrangements will increase the efficiency of FOI and privacy processing, reduce confusion and minimise the cost burden for applicants and agencies. It will also reduce the size of government by reducing the number of Commonwealth agencies.

Human rights implications

10.             The Bill engages the following rights:

·          the right to an effective remedy - Article 2 of the International Covenant on Civil and Political Rights (ICCPR) ; and

·          the protection against arbitrary interference with privacy - Article 17 of the ICCPR.

 

The right to an effective remedy

11.             Article 2(3) of the ICCPR provides that:

Each State Party to the present Covenant undertakes:

a)       To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

b)       To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

c)       To ensure that the competent authorities shall enforce such remedies when granted.

12.               Under the new arrangements, those applicants who wish to seek review of the initial FOI decision will be able to seek internal review of the decision. Where a party is not satisfied with the internal review decision, there is a further right of review to the AAT. Internal review is not available where the decision was made by the Minister or the agency head. In these cases there is a direct right of review to the AAT. There is a further right of appeal to the Federal Court of Australia on a question of law from a decision of the AAT and the AAT is also able to refer a question of law to the Federal Court during a review.

13.               Those applicants who wish to make a complaint about agency processing under the FOI Act will be able to make their complaint directly to the Ombudsman, who will take over the OAIC’s role of investigating FOI complaints.

14.               The remedies available in privacy matters will be substantially the same. The Australian Privacy Commissioner will continue to exercise all the privacy functions previously undertaken by the OAIC, including dealing with complaints about acts or practices that may be an interference of privacy of the individual. Those applicants who wish to make a complaint about agency processing under the Privacy Act will be able to make their complaint directly to the Ombudsman.

15.               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.

16.               The availability of internal review, external merits review by the AAT, further appeals to the courts on a question of law, access to judicial review and a right to complain to the Ombudsman ensure that there is comprehensive access to an effective remedy for FOI matters.

Protection against arbitrary interference with privacy

17.               Article 17 of the ICCPR provides that:

No one shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation, and that everyone has the right to the protection of the law against such interference or attacks.

18.               The Bill promotes the right to protection against arbitrary interference with privacy. Setting up a separate agency solely responsible for privacy regulation will improve the availability of effective remedies for privacy matters as this will reduce delays, complexities and inefficiencies in the current system where privacy and FOI regulation are administered by the same agency.

Conclusion

19.               The Bill advances the protection of human rights by improving the administration of privacy and FOI regulation in a transparent, accountable framework. The Bill does not limit the right of an individual to have their privacy protected or access effective remedies in privacy or FOI matters. It merely streamlines the procedures around such protection and access and enhances the overall integrity of privacy and FOI functions.

20.               The Bill will not disproportionately affect any particular group.

21.               The Bill is compatible with human rights because it advances the protection of human rights.



NOTES ON CLAUSES

Preliminary

List of abbreviations used

AAT                            Administrative Appeals Tribunal

AAT Act                     Administrative Appeals Tribunal Act 1975

AHRC                         Australian Human Rights Commission

AHRC Act                   Australian Human Rights Commission Act 1986

AIC                             Australian Information Commissioner

AIC Act                      Australian Information Commissioner Act 2010

FOI Act                      Freedom of Information Act 1982

IC review                     Information Commissioner review - a review of an Information Commissioner reviewable decision undertaken by the Information Commissioner under Part VII of the FOI Act

OAIC                           Office of the Australian Information Commissioner

PGPA Act                   Public Governance, Performance and Accountability Act 2013

Clause 1 - Short title

1.                    This clause provides for the Act, once passed, to be cited as the Freedom of Information Amendment (New Arrangements) Act 2014 .

Clause 2 - Commencement

2.                    This clause provides for the commencement of each provision in the Bill, as set out in the table. Item 1 in the table provides that sections 1 to 3 which concern the formal aspects of the Bill, as well as anything in the Bill not elsewhere covered by the table, will commence on the day on which the Bill receives Royal Assent.

3.                    Item 2 in the table provides for Schedules 1 to 4 of the Bill to commence on 1 January 2015. This is the announced date for the Budget measure Smaller Government - Privacy and Freedom of Information functions - new arrangements .

Clause 3 - Schedules

4.                    This clause provides for each Act specified in a Schedule to the Bill to be amended in accordance with the items set out in the relevant Schedule.

 



 

Schedule 1 Amendments relating to freedom of information

5.                    Schedule 1 contains amendments to the FOI Act, and consequential amendments to the Inspector-General of Intelligence and Security Act 1986 and the Ombudsman Act 1976 , to provide for FOI functions to be undertaken other agencies following the abolition of the OAIC.  

Freedom of Information Act 1982

Items 1 to 8: Subsection 4(1)

6.                    Items 1 to 8 repeal or amend the definitions in subsection 4(1) of the FOI Act resulting from the proposed repeal of the AIC Act and of functions performed by the Information Commissioner under the FOI Act.

Item 9: Section 7A

7.                    Item 9 amends section 7A of the FOI Act which provides a guide to agency obligations under the information publication scheme. The amendments reflect that Division 3 of Part II of the FOI Act is repealed by item 15 of Schedule 1 to the Bill.

Items 10 and 11: Subparagraph 8(2)(g)(iii) and subsection 8(3)

8.                    Items 10 and 11 amend subparagraph 8(2)(g)(iii) and subsection 8(3) of the FOI Act which provide for the Information Commissioner to determine that certain information is not required to be included in an agency’s information publication scheme. The amendments remove references to the Information Commissioner and substitute references to the Attorney-General.

Items 12, 13, 16, 17 and 20: Section 8 (note 2), section 8D (note 1), paragraph 9A(b), subsection 11B(5) and subsection 15(5A)

9.                    Items 12, 13, 16, 17 and 20 omit references to the Information Commissioner in connection with guidelines issued under section 93A of the FOI Act consequential to item 53, which amends section 93A to provide that the Attorney-General, rather than the Information Commissioner, may issue guidelines.

Items 14 and 15: Section 8E and Division 3 of Part II

10.                Section 8E of the FOI Act provides for the Information Commissioner to assist agencies to publish information in accordance with the information publication scheme. Division 3 of Part II of the FOI Act provides for the Information Commissioner to review agency compliance with the scheme. Items 14 and 15 repeal these provisions as, following the abolition of the OAIC, these functions will not continue.  

Items 18 and 19: Paragraph 11C(1)(c) and subsection 11C(2)

11.                Items 18 and 19 amend section 11C of the FOI Act to replace references to the Information Commissioner with the Attorney-General, as the Attorney-General will have the power to make a determination about matters that would be unreasonable for an agency to publish on the disclosure log.

12.                Only one determination made by the Information Commissioner is in force, the Disclosure Log Determination No. 2013-1 (Exempt Documents) . [1] Item 22 of Schedule 4 preserves the operation of this determination.

Item 21: Section 15AA

13.                Item 21 repeals the requirement for an agency or Minister to notify the Information Commissioner when agreement is reached with an applicant to extend the initial processing period.

Item 22: Section 15AB

14.                Item 22 repeals section 15AB of the FOI Act which allows the Information Commissioner to extend the request processing period in relation to matters considered complex or voluminous. Under the new arrangements, the only means to extend the processing period is by agreement between an agency or Minister and the applicant.

Items 23, 24 and 25: paragraph 15AC(1)(a), subsection 15AC(2) and subsections 15AC(3) to (9)

15.                Items 23, 24 and 25 amend section 15AC of the FOI Act which provides that where a decision on a request for access is not made within the processing time period of 30 days, the request is deemed to have been refused. Where there is a deemed refusal, the decision is deemed to have been made by the principal officer of the agency or the Minister (subsection 15AC(3)) and the applicant is entitled to seek review by the AAT (see item 36 which inserts new section 57A that provides for AAT review).

16.                Where a decision is deemed to have been made under section 15AC, the agency or Minister to whom the request for access was made continues to have an obligation to make a decision on the request . The purpose of deeming the request to be refused is not to remove this obligation, but to give an applicant an avenue to pursue the matter through an external review body.

17.                Item 23 amends paragraph 15AC(1)(a) to make the terms consistent with other provisions in the part that discuss a request for access.

18.                Items 24 and 25 amend those parts of section 15AC which provide the Information Commissioner with the power to allow further time to process a request when an initial decision period has expired. Following the abolition of the OAIC, these functions will not continue.

Items 26 and 27: Subparagraph 26(1)(c)(ii) and paragraph 26(1)(c)

19.                Items 26 and 27 amend section 26 of the FOI Act which provides for the reasons for a decision to be given to the applicant, including information about review rights. Item 26 substitutes the Ombudsman, in place of the Information Commissioner, as the relevant complaint body to be notified to the applicant in a decision notice under the section. Item 27 omits IC review as an available review option in a decision notice.

Item 28: Subsections 26A(4), 26AA(4), 27(7) and 27A(6) (note 1)

20.                This item omits references to the Information Commissioner contained in notes to the provisions in the FOI Act governing third party consultation.

Items 29, 30 and 31: Paragraph 29(9)(b) and subsections 29(9) and 31(2) (note)

21.                These items amend sections 29 and 31 of the FOI Act in relation to decisions about charges. Item 29 substitutes the Ombudsman, in place of the Information Commissioner, as the relevant complaint body to be notified to the applicant in a decision notice under that section. Items 30 and 31 omit references to IC review as an available review option.

Item 32: Subsections 51DA(2) to (8)

22.                Item 32 amends section 51DA of the FOI Act which provides that where a decision on a request for amendment or annotation of personal records (under section 48 of the FOI Act) is not made within the processing time period of 30 days, the request is deemed to have been refused. Where there is a deemed refusal, the decision is deemed to have been made by the principal officer of the agency or the Minister (subsection 51DA(2)) and the applicant is entitled to seek review by the AAT (see item 36 which inserts new section 57A that provides for AAT review).

23.                Where a decision is deemed to have been made under section 51DA, the agency or Minister to whom the request for amendment or annotation was made continues to have an obligation to make a decision on the request . The purpose of deeming the request to be refused is not to remove this obligation, but to give an applicant an avenue to pursue the matter through an external review body.

24.                Item 32 also amends those parts of section 51DA which provide the Information Commissioner with the power to allow further time to process an amendment or annotation request when an initial decision period has expired. Following the abolition of the OAIC, these functions will not continue.

Item 33: Section 52

25.                Item 33 amends the guide to Part VI of the FOI Act in section 52 consequential to the repeal of Part VII of the Act.

Item 34: Subsections 54D(2) to (8)

26.                Item 34 amends section 54D which provides that where a decision on an application for internal review (under sections 54 and 54A) is not made within the processing time period of 30 days, the original decision is deemed to have been affirmed. Where there is a deemed affirmation, the decision is deemed to have been made by the principal officer of the agency (subsection 54D(2)) and the applicant is entitled to seek review by the AAT (see item 36 which inserts new section 57A that provides for AAT review).



 

27.                Where a decision is deemed to have been affirmed under section 54D, the agency to which the request for internal review was made continues to have an obligation to make a decision on the request . The purpose of deeming the request to be affirmed is not to remove this obligation, but to give an applicant an avenue to pursue the matter through an external review body.

28.                Item 34 also amends those parts of section 54D which provide the Information Commissioner with the power to allow further time to process an internal review when an initial decision period has expired. Following the abolition of the OAIC, these functions will not continue.

Item 35: Part VII

29.                Item 35 repeals Part VII of the FOI Act, ‘Review by the Information Commissioner’. Following the abolition of the OAIC, the AAT will be the sole body responsible for external merits review of FOI decisions.

Item 36: Section 57A

30.                Item 36 substitutes a new section 57A of the FOI Act to set out the FOI decisions about which applicants will be able to seek review by the AAT.

31.                In general, applicants will not be able to seek review by the AAT unless they have first sought internal review of the decision under Part VI of the FOI Act and a decision has been made in relation to the internal review under section 54C (paragraph 57A(d)).

32.                Internal review is not available where an access refusal decision or an access grant decision is made personally by the principal officer of an agency or the Minister. Paragraphs 57A(a) and (b) provide that applicants will be able to seek AAT review of these decisions.

33.                An access refusal decision is defined in section 53A of the FOI Act. An access grant decision is defined in section 53B.

34.                Paragraph 57A(c) provides for AAT review of an agency decision refusing to allow a further period for an application for internal review. Section 54B provides that an application for internal review must be made within 30 days or such further period as the agency allows.

35.                Paragraph 57A(d) provides for AAT review of an agency decision made on internal review. This is likely to be the most common decision of which AAT review will be sought.

36.                Paragraph 57A(e) provides for AAT review where there is a deemed affirmation of the original decision under section 54D.

Items 37 and 38: Paragraph 58AA(2)(b) and subsection 60AA(1)

37.                Items 37 and 38 amend sections 58AA and 60AA of the FOI Act which deal with the powers of the AAT in reviewing FOI decisions. The items remove references to functions of the Information Commissioner consequential to the abolition of the OAIC.



 

Item 39: Subsection 61(1)

38.                Item 39 substitutes new subsection 61(1) of the FOI Act which sets out the onus of proof when an applicant applies to the AAT for review of an FOI decision. Existing paragraph 61(1)(a), which deals with an agency or Minister applying for a review of an Information Commissioner decision, is no longer necessary. The effect of existing paragraph 61(1)(b), which deals with an applicant applying for AAT review, is maintained.

Item 40: Subsection 61A

39.                Item 40 repeals section 61A of the FOI Act. This section relates to AAT reviews of decisions by the Information Commissioner and provides that responsibility for preparing information required by the AAT is placed on the applicant or respondent agency rather than the Information Commissioner. This provision is no longer necessary.  

Item 41: Paragraph 66(1)(a)

40.                Item 41 makes a consequential amendment to paragraph 66(1)(a) of the FOI Act removing the reference to the Information Commissioner and IC review.

Items 42, 44, 45 and 46: Part VIIB (heading), Division 3 of Part VIIB (heading), section 89F and paragraph 89J(2)(b)

41.                These items amend Part VIIB consequential on the Ombudsman being the relevant complaint handling body instead of the Information Commissioner (as repealed by item 43 below).

Item 43: Divisions 1 and 2 of Part VIIB

42.                Item 43 repeals Divisions 1 and 2 of Part VIIB of the FOI Act, which provide the Information Commissioner with complaint investigation powers. The Ombudsman will be solely responsible for investigating complaints about FOI processing instead of the Information Commissioner, following the abolition of the OAIC. The Ombudsman’s powers are set out in the Ombudsman Act 1976 ( as amended by items 57 to 59 below).

Item 47: Division 1 of Part VIII

43.                Item 47 repeals Division 1 of Part VIII of the FOI Act which provides for the Information Commissioner to declare a person to be a vexatious applicant. Following the abolition of the OAIC this function will not continue. Where an application is made to the AAT for a review of an FOI decision, section 42B of the AAT Act provides that the AAT can dismiss the application if it is satisfied that it is frivolous or vexatious.

Item 48: Division 2 of Part VIII (heading)

44.                Item 48 repeals the heading ‘Division 2 of Part VIII’ consequential to the only other Division in Part VIII (Division 1) being repealed by item 47 above.

Item 49: Section 89P

45.                Item 49 repeals section 89P of the FOI Act, which requires the Information Commissioner to ensure OAIC staff have appropriate security clearances. This provision will no longer be necessary following the abolition of the OAIC.

Item 50: After section 92

46.                Item 50 inserts new section 92A of the FOI Act which provides for the Attorney-General to prepare a report on the operation of the Act each financial year and sets out the matters that must be reported. This ensures that the annual reporting requirements in section 30 of the AIC Act in relation to FOI matters will continue. The Attorney-General will be responsible for reporting on the FOI Act instead of the Information Commissioner. 

Items 51 and 52: Section 93 (heading) and subsection 93(2)

47.                Items 51 and 52 amend section 93 of the FOI Act to require agencies to provide information to the Attorney-General to enable the annual report to be compiled by the Attorney-General instead of the Information Commissioner.

Item 53: Subsections 93A(1) and (2)

48.                Item 53 replaces references to the Information Commissioner being responsible for issuing guidelines under the FOI Act with references to the Attorney-General.

Inspector-General of Intelligence and Security Act 1986

Items 54 to 55: Subsection 34(1AA), paragraph 34(5)(a), paragraphs 34(5)(bb) and (ca)

49.                These items amend the Inspector-General of Intelligence and Security Act 1986 to remove references to Part VII of the FOI Act (repealed by item 35 above).

Ombudsman Act 1976

Items 57 to 59: Subparagraph 6C(1)(a)(i), paragraph 6C(1)(b) and subsection 6C(4)

50.                Section 6C of the Ombudsman Act 1976 provides for complaints to the Ombudsman about agency processing under the Privacy Act or under the FOI Act to be referred to Information Commissioner where it is more appropriate for the Information Commissioner to deal with the complaint. Items 57 to 59 amend section 6C of the Ombudsman Act to remove references to Part VIIB of the FOI Act, which provides for FOI complaints to be considered by the Information Commissioner, as the Ombudsman will responsible for these complaints following the abolition of the OAIC.

51.                Section 6C of the Ombudsman Act is consequentially amended by items 54 to 61 of Schedule 3 substituting references to the ‘Information Commissioner’ with references to the ‘Australian Privacy Commissioner’.

52.                These amendments will provide for the Ombudsman to transfer complaints about agency processing under the Privacy Act to the Australian Privacy Commissioner where it is more appropriate for the Commissioner to deal with the complaint.

Schedule 2 Australian Privacy Commissioner

53.                Schedule 2 contains amendments to the Australian Human Rights Commission Act 1986 and Privacy Act 1988 to provide for the Australian Privacy Commissioner as an independent statutory officer in the Australian Human Rights Commission (AHRC). The Australian Privacy Commissioner will be responsible for the exercise of privacy functions under the Privacy Act or another law of the Commonwealth. The AHRC will provide such assistance as is necessary for the Australian Privacy Commissioner to perform his or her functions.

Australian Human Rights Commission Act 1986

Items 1 and 2: Subsection 43(1) and paragaraph 43(2)(a)

54.                This item amends subsection 43(1) of the AHRC Act to provide that the staff ‘of’ the AHRC (rather than staff ‘necessary to assist’ the AHRC) are persons engaged under the Public Service Act 1999 . This clarifies that some staff of the AHRC will be assisting the Australian Privacy Commissioner rather than the AHRC.  Item 2 makes a consequential amendment to paragraph 43(2)(a) of the AHRC Act to refer to employees ‘of ‘the AHRC instead of ‘employees assisting the President’.

Item 3: Section 43A

55.                This item repeals section 43A of the AHRC Act and inserts a new section 43A. Current section 43A provides that the AHRC may make administrative services available to the Information Commissioner. The new section 43A reflects the new arrangements and ensures that funds appropriated to the AHRC for the privacy functions of the Australian Privacy Commissioner under section 27 of the Privacy Act (which outlines the Commissioner’s functions) are made available for that purpose.

56.                The new section requires the provision of ‘such assistance … as is necessary to enable the Commissioner to perform the functions’. The assistance that will be necessary for the purposes of this section is to be determined by reference to the funds appropriated for the privacy functions.

57.                New subsection 43A(2) provides two specific examples of assistance the AHRC may provide to the Australian Privacy Commissioner, namely members of staff and administrative services available. This does not limit the generality of the requirement for the AHRC to provide such assistance as is necessary.

58.                New subsection 43A(3) provides that a member of the AHRC who is made available to the Australian Privacy Commissioner under this section is subject to directions of the Commissioner in the relation to the performance of the Commissioner’s functions, and is not subject to directions of the Commission. This provision supports the independence of the Australian Privacy Commissioner from the rest of the Commission.

Item 4: Subsection 44A(4)

59.                This item amends section 44A of the AHRC Act, which deals with money payable to the AHRC. The item defines ‘purposes of the AHRC’ to include the functions of the Australian Privacy Commissioner under section 27 of the Privacy Act. This ensures that the money appropriated to the AHRC will be available for the exercise of privacy functions as well as the existing functions of the AHRC.

Items 5 and 6: After paragraph 44B(1)(a) and at the end of paragraph 44B(1)(b)

60.                These items amend section 44B of the AHRC Act which deals with the application of money by the AHRC. Item 5 inserts new paragraph 44B(1)(aa) to provide that the money of the AHRC may also be applied in payment of the costs incurred by the Australian Privacy Commissioner. Item 6 amends paragraph 44B(1)(b) to ensure that money of the AHRC may also be used to pay the Australian Privacy Commissioner’s remuneration and allowances.

Item 7: After section 45

61.                This item inserts new section 45A of the AHRC Act which provides that for the purposes of the Public Governance, Performance and Accountability Act 2013 (PGPA Act), the purposes of the AHRC include the functions of the Australian Privacy Commissioner conferred under section 27 of the Privacy Act. This ensures appropriate accountability for the functions of the Australian Privacy Commissioner within the PGPA Act framework.

Privacy Act 1988

Items 8-10: Subsection 6(1)

62.                Items 1 to 3 insert and amend definitions in the Privacy Act to define a number of terms associated with the appointment of the Australian Privacy Commissioner under new Division 1 of Part IV of the Privacy Act and the provision of assistance to the Commissioner by the AHRC.

Item 11: Part IV (heading)

63.                This item repeals the current heading to Part IV of the Privacy Act (which currently deals with the functions of the Information Commissioner) and replaces it with a reference to the Australian Privacy Commissioner, while also inserting new Division 1 which contains provisions for appointment of the Australian Privacy Commissioner and related matters.

Part IV Australian Privacy Commissioner

New Division 1 —Australian Privacy Commissioner

New section 26X Australian Privacy Commissioner

64.                New section 26X of the Privacy Act provides for there to be an Australian Privacy Commissioner.

New section 26XA Appointment of Commissioner

65.                New section 26XA of the Privacy Act provide for the appointment of the Australian Privacy Commissioner. The Commissioner is to be appointed by the Governor-General on a full-time basis and may hold office for a period up to 5 years. The Commissioner may be reappointed.

66.                Item 7 of Schedule 4 provides that if there is a Privacy Commissioner immediately before commencement, that person is taken to be the Australian Privacy Commissioner on commencement.

New section 26XB Acting appointment

67.                New section 26XB of the Privacy Act provides for the Minister to appoint a person to act as Commissioner during vacancy or absences.

New section 26XC Remuneration and allowances

68.                New section 26XCof the Privacy Act provides for the Remuneration Tribunal to determine the remuneration for the Commissioner. This section also allows for the regulations to prescribe remuneration if no Remuneration Tribunal determination is in operation and to prescribe allowances.

New section 26XD Leave of absence

69.                New section 26XD of the Privacy Act deals with leave entitlements of the Commissioner.

New section 26XE Outside work

70.                New section 26XE of the Privacy Act requires the Minister’s approval before the Commissioner may engage in paid work outside the duties of his or her office.

New section 26XF Disclosure of interests

71.                New section 26XF of the Privacy Act requires the Commissioner to disclose to the Minister all interests that conflict with or could conflict with the performance of the Commissioner’s functions.

72.                New subsection 26XF (2) notes that subsection 26X(1) applies in addition to section 29 of PGPA Act which deals with disclosure of interests does not apply to the Commissioner.

73.                New subsections 26XF(3) and (4) provide that a disclosure by the Commissioner under section 29 of the PGPA Act must be to the Minister and that this requirement is in addition to any rules made for the purposes of section 29. These provisions replace the PGPA Act requirement for an official to disclose relevant interests to the accountable authority, in this case the President of the AHRC. The requirement for the Commissioner to disclose to the Minister rather than the President further support the independence of the Privacy Commissioner. 

74.                New section 26XI which deals with termination of appointment of the Commissioner, includes a failure to comply with new subsection 26XF and section 29 of the PGPA Act as ground of termination.

New section 26XG Other terms and conditions

75.                New section 26XG of the Privacy Act provides that the Commissioner holds office on other terms and conditions, if any, determined by the Governor-General.

New section 26XH Resignation

76.                New section 26XH of the Privacy Act deals with the resignation of the Commissioner and allows the Commissioner to resign by giving the Governor-General a written resignation.  

New section 26XI Termination of appointment

77.                New section 26XI of the Privacy Act deals with the termination of appointment of the Commissioner. This is a standard provision for statutory appointments.

New section 26XJ Commissioner may engage consultants

78.                New section 26XJof the Privacy Act permits the Commissioner to engage consultants to assist in the performance of the Commissioner’s functions.

New section 26XK Delegation by Commissioner

79.                New subsection 26XK(1) of the Privacy Act allows the Commissioner to delegate, in writing, functions and powers to a member of staff of the AHRC other than the power to issue rules under section 17 of the Privacy Act or the power to make determinations under section 52 of the Privacy Act. It is appropriate that these two powers be reserved to the Commissioner personally.

80.                New subsection 26XK(2) allows the Commissioner to delegate functions or powers in relation to Part V of the Privacy Act to the staff of the Ombudsman. Part V deals with complaints and investigations of acts or practices that may be an interference with privacy. The Commissioner’s determination making power under section 52 is not able to be delegated. This provision would allow the Commissioner to delegate the obligation to investigate a complaint to the Ombudsman where there is a conflict or potential conflict of interest.

81.                The matters delegated and the level of the decision-maker would be specified in any instrument of delegation.

New section 26XL Annual report

82.                New section 26XL of the Privacy Act provides for the Commissioner to prepare an annual report on the performance of the Commissioner’s functions under section 27 of the Privacy Act.  

New section 26XM Application of finance law

83.                New section 26XM of the Privacy Act provides that for the purposes of the finance law under the PGPA Act, the Commissioner is an official of the AHRC. This ensures that the Commissioner is subject to the duties on ‘officials’ set out in the PGPA Act.

Item 12: Paragraph 36(4)(a)

84.                This item substitutes paragraph 36(4)(a) of the Privacy Act to refer to AHRC staff members, being those employees of AHRC who have been made available to the Commissioner (see the new definition inserted by item 1). This ensures that these staff members are obliged to provide appropriate assistance to a person who wishes to make a complaint to the Commissioner and requires assistance to formulate the complaint.

Item 13: Paragraph 36(4)(b)

85.                This item removes an incorrect reference to section 99 of the Privacy Act (which has been repealed) and inserts the correct reference to the new provision (section 26XP) that allows for powers to be delegated to staff of the Ombudsman.

Item 14: Part VII

86.                This item repeals Part VII of the Privacy Act which provides for the Privacy Advisory Committee. As part of the new streamlined arrangements for FOI and privacy regulation, the government has decided to abolish this Committee and the Information Advisory Committee. This is consistent with the government’s policy to reduce the size of government and the view that portfolio departments should undertake policy work.

Item 15: After section 95C

87.                This item inserts new sections 95D and 95E of the Privacy Act.

New section 95D Offence of unauthorised dealing with information

88.                New section 95D of the Privacy Act provides an offence for the unauthorised dealing with information. This item ensures that appropriate offence provisions will apply to information acquired under the Privacy Act. This maintains the effect of the offence provisions in subsections 29(1) and (2) of the AIC Act which is to be repealed.  

Section 95E Limit on disclosure of information to court etc.

89.                New section 95E of the Privacy Act prohibits the disclosure of information to courts except as is necessary for the purposes of the Privacy Act. This ensures that there is an appropriate exception for disclosure to the court for the purposes of the Privacy Act. This maintains the effect of the offence provisions in subsection 29(3) of the AIC Act which is to be repealed.



 

Schedule 3 Abolishing the Office of Australian Information Commissioner

90.                Part 1 of Schedule 3 repeals the Australian Information Commissioner Act 2010 .

91.                Part 2 of Schedule 3 contains consequential amendments in other legislation to substitute references to the ‘Information Commissioner’ with the ‘Australian Privacy Commissioner’, references to ‘AIC Act’ with references to the ‘Privacy Act’ or otherwise delete references to the AIC Act.

Part 1 Repeals

Australian Information Commissioner Act 2010

Item 1: The whole of the Act

92.                This item repeals the Australian Information Commissioner Act 2010 as the OAIC has been abolished.

Part 2 Consequential amendments

Administrative Appeals Tribunal Act 1975

Item 2: Paragraph 49(1)(ca)

93.                This item repeals paragraph 49(1)(ca) of the Administrative Appeals Tribunal Act 1975 , which provides that the Information Commissioner is a member of the Administrative Review Council.

Items 3-22 and 24-104

94.                These items make consequential amendments to the following legislation:

·          Anti-Money Laundering and Counter-Terrorism Financing Act 2006

·          Australian Citizenship Act 2007

·          Australian Human Rights Commission Act 1986

·          Child Care Act 1972

·          Crimes Act 1914

·          Data-matching Program (Assistance and Tax) Act 1990

·          Environment Protection and Biodiversity Conservation Act 1999

·          Fair Work Act 2009

·          Fisheries Management Act 1991

·          Healthcare Identifiers Act 2010

·          Migration Act 1958

·          National Health Act 1953

·          National Health and Medical Research Council Act 1992

·          National Health Reform Act 2011

·          Ombudsman Act 1976

·          Personally Controlled Electronic Health Records Act 2012

·          Student Identifiers Act 2014

·          Telecommunications Act 1997

·          Telecommunications (Interception and Access) Act 1979 , and

·          Torres Strait Fisheries Act 1984.

Crimes Act 1914

Item 23: Subsection 85ZZG(1)

95.                This item inserts references to new section 95D of the Privacy Act 1988 (which provides for the offence of unauthorised dealing with information) and new section 95E of the Privacy Act (which provides for limits to disclosure of information to courts and others) into subsection 85ZZG(1) of the Crimes Act 1914 (which concerns the application of the Privacy Act to complaints to the Australian Privacy Commissioner about pardons, quashed convictions and spent convictions).

 

Schedule 4 —Application, saving and transitional provisions

96.                Schedule 4 sets out transitional arrangements for the new review and complaint arrangements under the FOI Act and for the transition to the new arrangements for the ongoing exercise of privacy functions by the Australian Privacy Commissioner.

Part 1 Definitions

Item 1: Definitions

97.                Item 1 defines a number of terms used throughout Schedule 4. The term ‘commencement day’ is defined to mean the day on which item 1 commences, which under clause 2 of the Bill is 1 January 2015.

98.                Under subsection 11B(2) of the Acts Interpretation Act 1901 , a term that is defined in an Act that is being amended by an amending Act has the same meaning in the amending Act. This means, for example, that ‘Australian Privacy Commissioner’ has the same meaning as the term proposed to be inserted into the Privacy Act and ‘Tribunal’ has the same meaning as it is currently does in the FOI Act.  

Part 2 Transition to the new review and complaints arrangements

Item 2: Pending IC review applications

99.                Item 2 deals with unresolved IC review applications. This item applies where an IC review application has been made and the application has not been finalised by the Information Commissioner, either by exercising the discretion not to review an application under section 54W of the FOI Act or by making a written decision under section 55K of the FOI Act.

100.            Subitem 2(2) provides that on the commencement day the IC review application will be deemed to have been made to the AAT for review of the IC reviewable decision.

101.            Subitem 2(3)(a) provides that Divisions 3 to 7 of Part VIIA of the FOI Act, which provide for the powers and procedures of the AAT in reviewing FOI decisions, will apply to a deemed application. Subitem 2(3)(b) provides that the AAT Act and regulations will apply to a deemed application. The provisions relating to the payment of application fees and other fees will not apply to IC review applications deemed to have been made to the AAT under subitem 2(2). This ensures that an applicant will not be required to pay an application fee in relation to a review application which has been transferred to the AAT on abolition of the OAIC.

102.            Subitem 2(4) provides authority for records or documents relating to IC reviews to be transferred to the AAT.  



 

Item 3: Review by the Tribunal of certain pre-commencement decisions

103.            Item 3 preserves the right of applicants to apply to the AAT for a review of a decision by the Information Commissioner before commencement. Where the Information Commissioner makes a written decision under section 55K of the FOI Act, or declines to review an FOI decision under paragraph 54W(b) of the FOI Act on the basis that it would be desirable for the AAT to consider the matter, existing section 57A of the FOI Act provides for the applicant to make an application to the AAT for review of these decisions.

104.            Subitem 3(2) preserves the operation of section 57A despite its repeal by item 36 of Schedule 1 so that it continues to apply so that applicants may still exercise their right to seek review of these decisions by the AAT.

105.            Subitem 3(3) provides that Divisions 3 to 7 of Part VIIA of the FOI Act, which provide for the powers and procedures of the AAT in reviewing FOI decisions, will continue to apply to an application made to the AAT under subitem 3(2).

Item 4: Appeals to the Federal Court of Australia on questions of law from certain pre-commencement decisions

106.            This item preserves the right for IC review applicants to appeal to the Federal Court, if they wish to do so, on a question of law from a decision of the Information Commissioner under section 55K of the FOI Act made before commencement, despite the repeal of that section by item 35 of Schedule 1.

Item 5: Incomplete investigations of complaints by the Information Commissioner

107.            Item 5 deals with unresolved complaint investigations. This item applies where a person has made a complaint to the Information Commissioner under section 70 of the FOI Act and the complaint has not been finalised.

108.            Subitem 5(2) provides that on the commencement day these complaints will be taken to be complaints made to the Ombudsman.

Item 6: Saving of protection from civil proceedings etc. provisions

109.            This item preserves the protection from civil proceedings in relation to actions done in good faith for the purposes of an IC review or investigation of a complaint under the FOI Act (sections 55Z and 85). It also preserves the protection from civil liability because a complaint was made under section 70 of the FOI Act (section 89E).



 

Part 3 Transition to the Australian Privacy Commissioner

Item 7: Appointment of the Australian Privacy Commissioner

110.            This item preserves the appointment of the Privacy Commissioner. It provides that if a person is holding the office of Privacy Commissioner immediately before the commencement day, that person is taken to be the Australian Privacy Commissioner appointed under new section 26XA of the Privacy Act for the balance of that person’s appointment and on the same terms and conditions.

Item 8: Things done by, or in relation to, the Information Commissioner

111.            This item deems anything done by, or in relation to, the Information Commissioner for a privacy purpose to have been done by, or in relation to, the Australian Privacy Commissioner for a privacy purpose.

112.            Subitem 8(2) provides for the Minister to determine that certain specified things are not covered by subitem 8(1).

113.            Subitem 8(3) provides that a determination made under subitem 8(2) is not a legislative instrument. This provision is merely declaratory of the law (to assist readers) and is not an exemption from the Legislative Instruments Act 2003 .  

Item 9: Things started but not finished by the Information Commissioner

114.            This item ensures that things being undertaken, but not concluded, by the Information Commissioner for a privacy purpose can continue to be done by the Australian Privacy Commissioner.

115.            Subitem 9(3) provides for the Minister to determine that certain specified things are not covered by this item.

116.            Subitem 9(4) provides that a determination made under subitem 9(3) is not a legislative instrument. This provision is merely declaratory of the law (to assist readers) and is not an exemption from the Legislative Instruments Act 2003 .  

Item 10: References to the Information Commissioner etc. in instruments

117.            This item provides for instruments in force before the commencement day that were made for a privacy purpose, and which contain a reference to the Information Commissioner, Privacy Commissioner or OAIC, to continue to have effect after commencement, and for those references to be read as references to the Australian Privacy Commissioner.

118.            Subitem 10(3) provides for the Minister to make a determination that the item does not apply in relation to a specified instrument.

119.            Subitem 10(4) provides that such a determination is not a legislative instrument. The provision is merely declaratory of the law (to assist readers) and is not an exemption from the Legislative Instruments Act 2003 .



 

Item 11: Substitution of Information Commissioner as a party to pending proceedings

120.            This item deals with pending privacy proceedings in courts or tribunals where the Information Commissioner was a party and provides that the Australian Privacy Commissioner is substituted as a party on and after the commencement day.

Item 12: Employees of the Australian Human Rights Commission

121.            This item provides for the transfer of employees of the OAIC to the AHRC. The employees of the OAIC immediately before the commencement day will be transferred from the OAIC to the AHRC under a determination made by the Australian Public Service Commissioner under section 72 of the Public Service Act. Section 43 of the AHRC Act provides that the staff of the AHRC must be engaged under the Public Service Act.

122.            Subitem 12(2) provides for the transferring employees covered by an enterprise agreement to continue their employment on the same terms and conditions as covered by that agreement until the President of the AHRC negotiates a new enterprise agreement.  

123.            Subitem 12(3) provides for the continuation of terms and conditions of employees covered by a determination made under subsection 24(1) of the Public Service Act as if that determination had been made by the President of the AHRC.

124.            Subitems 12(4) and (5) ensure that any new employees of the AHRC employed after the transition time can be employed under the same enterprise agreement as the transferring employees by providing that the President of the AHRC can make a determination that the new employee is covered by that enterprise agreement (subitem 12(5)(d)). In addition, it provides that, as for transferring employees, the new employees would remain covered by that existing enterprise agreement only until a new enterprise agreement is negotiated.

125.            Subitem 12(6) provides for the President of the AHRC to delegate the power under subitem 12(5)(d) where necessary, including to the Australian Privacy Commissioner.

126.            Subitem 12(7) provides that a determination under subitem 12(5)(d) is not a legislative instrument. The provision is merely declaratory of the law (to assist readers) and is not an exemption from the Legislative Instruments Act 2003 .

Item 13: Separate agreements relating to employment

127.            This item provides that if the designated enterprise agreement covers the Commonwealth under either or both of subitems 12(2) and 12(5), the Fair Work Act 2009 and the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 have effect as if the designated agreement, insofar as it is covered by the item, and the designated agreement, insofar as it is not covered by the item, are two separate agreements.  



 

Item 14: Application of the Safety, Rehabilitation and Compensation Act 1988

128.            This item provides that if, before the commencement day, an OAIC employee suffered an injury resulting in an incapacity for work or an impairment, and that employee is not subsequently engaged by another agency, the AHRC is the responsible agency for the purposes of the Safety, Rehabilitation and Compensation Act 1988 in relation to that employee after the commencement day.

Item 15: Engagement of consultants

129.            This item provides for consultants engaged under the AIC Act before the commencement day to continue to be engaged as consultants under new section 26XO of the Privacy Act.

Item 16: Transfer of records to the Australian Privacy Commissioner

130.            This item provides for records in the possession of the Information Commissioner or the staff of the OAIC that relate to a privacy purpose to be transferred to the Australian Privacy Commissioner.

Item 17: Unauthorised dealing with information

131.            This item preserves the operation of section 29 of the AIC Act, which concerns unauthorised dealing with information, in relation to information acquired before the commencement day.

Part 4 Other matters

Item 18: Extension of time under section 15AA of the FOI Act

132.            This item preserves extensions of time notified under section 15AA of the FOI Act before the commencement day.

Item 19: Saving of extensions of time under section 15AB of the FOI Act

133.            This item preserves the operation of extensions of time given by the Information Commissioner under section 15AB of the FOI Act before the commencement day.

Item 20: Saving of further time allowed under section 15AC or 51DA of the FOI Act

134.            This item preserves the operation of further time allowed by the Information Commissioner under section 15AC or 51DA of the FOI Act before the commencement day.

Item 21: Saving of determination

135.            This item provides that a determination made under subsection 11C(2) of the FOI Act continues in force as if it had been made under that subsection as amended by Schedule 1.

136.            The only determination continued in force by this item is the Disclosure Log Determination No. 2013-1 (Exempt Documents).



 

Item 22: Rules may prescribe matters of a transitional nature

137.            This item provides that the Attorney-General may make rules prescribing matters of a transitional nature relating to the amendments or repeals made by this Act. This includes rules in relation to the transfer of APS employees from the OAIC to the AHRC and rules for the transfer of the assets or liabilities of the OAIC.

138.            Any such rules would be legislative instruments under the Legislative Instruments Act 2003 .

 




[1] http://www.comlaw.gov.au/Details/F2013L01798