Title Freedom of Information Legislation Amendment (Improving Access and Transparency) Bill 2018
Database Explanatory Memoranda
Date 31-08-2020 11:11 AM
Source Senate
System Id legislation/ems/s1142_ems_6ab16212-a81e-45c0-91cd-8d0095bca254


Freedom of Information Legislation Amendment (Improving Access and Transparency) Bill 2018

 

 

 

 

2016-2017-2018

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

FREEDOM OF INFORMATION LEGISLATION AMENDMENT (IMPROVING ACCESS AND TRANSPARENCY) BILL 2018

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

(Circulated by authority of Senator Patrick)

 

 

 

 

 

 

 

 

 

 

 

 

 

FREEDOM OF INFORMATION LEGISLATION AMENDMENT (IMPROVING ACCESS AND TRANSPARENCY) BILL 2018

 

OUTLINE

 

The purpose of this Bill is to introduce measures that make government more transparent and accountable, and assist citizens and the media to access information under the law. 

 

The Bill amends the Archives Act 1983, the Australian Information Commissioner Act 2010, and the Freedom of Information Act 1982. The Bill reflects amendments that were moved to the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018.

 

These amendments are designed to significantly improve the effectiveness of Australia’s freedom of information (FOI) laws. Freedom of information provides the lawful means for citizens, the media, and parliamentarians to obtain access to information that ultimately belongs to the public.

 

These changes are designed to address the considerable dysfunction that has developed in our FOI system which is now characterised by chronic bureaucratic delay and obstruction, unacceptably lengthy review processes and what appears to be an increased preparedness by agencies to incur very large legal expenses to oppose the release of information.

 

The specific changes include:

·      Requiring the government to fill all three offices of the Australian Information Commissioner, the Privacy Commissioner and the Freedom of Information Commissioner.

·      Allowing FOI review applicants to elect to have their matter bypass the Information Commissioner, who can take more than a year to make a decision on controversial issues, to the Administrative Appeals Tribunal.

·      Granting an FOI applicant the right to switch a review into the AAT, without charge, in the event that the Information Commissioner takes, or indicates he or she will take, more than 120 days to make a decision.

·      Preventing agencies from making submissions to FOI decision reviews that have not been advanced by the agency in its internal decision making, so that they can’t switch exemptions half way through a review as often happens now. This would prevent a current practice that, in effect, allows an agency to remake a decision half way through a review, something not normally permitted in merits reviews being run in superior jurisdictions.

·      Preventing the Information Commissioner from making FOI decisions if he or she does not hold the legal qualifications required of the FOI Commissioner.

·      Preventing Agencies from publishing information released under FOI until at least 10 days after the applicant has received his or her copy of the information.

·      Requiring an agency to publish its external legal expenses for each Information Commission or AAT FOI matter that has concluded. This would apply in relation to agency FOI legal expenses and to expenses incurred by the National Archives in respect of applications made for access to information under the Archives Act 1983

 

This is a comprehensive array of reforms that reflect the practical experience of journalists, researchers and members of Parliament seeking information under freedom of information laws.

 

The passage of this Bill will significantly improve access to government information and with that improve scrutiny of the accountability of government to the Parliament. 

 

 

NOTES ON CLAUSES

 

Clause 1: Short Title

 

1.         This clause is a formal provision and specifies that the short title of the Act may be cited as the Freedom of Information Legislation Amendment (Improving Access and Transparency) Act 2018. 

 

Clause 2: Commencement

 

2.         This clause provides that sections 1 to 3 of the Act commence on the day the Act receives the Royal Assent, and that the amendments in Schedule 1 to the Act commence either on a day to be fixed by proclamation, or on the day after the end of the 6 month period beginning on the day of the Royal Assent.

 

Clause 3: Schedules

 

3.         This clause states that each Act specified in a Schedule to this Act is amended or repealed as is set out in the applicable items in the Schedule. Any other item in a Schedule to this Act has effect according to its terms.

 

Schedule 1 – Amendments

 

Part 1—Main amendments

 

Archives Act 1983

 

Item 1

 

4.         Item 1 inserts section 55B – Reporting on legal expenses.

 

5.                  Section 55B improves transparency in the administration of the Archives Act 1983 (Archives Act) by requiring reporting of the particulars of external legal expenses incurred by the Archives in relation to applications for access to records.

 

6.                  The particulars must be published in the annual report prepared by the Director‑General under section 46 of the Public Governance, Performance and Accountability Act 2013 and must include external legal expenses incurred by the Archives in relation to each application. The particulars published must include external legal expenses incurred:

·                     in making an initial decision in relation to an application for access to a record; and

·                     as part of an internal reconsideration of a decision under section 42 of the Archives Act; and

·                     as part of a review by the Administrative Appeals Tribunal of a decision by the Archives; and

·                     as part of an appeal to the Federal Court of Australia from a decision of the Administrative Appeals Tribunal.

 

7.                  External legal expenses are defined by new subsection 55B(3) to include:

 

·                    any fees or other expenses charged to the Archives for the provision of legal advice by external legal advisers, including any fees charged by the Australian Government Solicitor (AGS); and

·                    any fees or other expenses charged to the Archives by external legal advisers associated with specific litigation in relation to an application (including any fees charged by the AGS).

 

Australian Information Commissioner Act 2010

 

Item 2

 

8.                  Item 2 inserts new subsection 10(3) into the Australian Information Commissioner Act 2010 (AIC Act), which ensures that the Information Commissioner must not review decisions under Part VII of the Freedom of Information Act 1982 (FOI Act) unless they hold the qualifications mentioned in subsection 14(3). Currently, the qualifications are a degree from a university, or an educational qualification of a similar standing, after studies in the field of law.

 

Item 3

 

9.                  Item 3 repeals existing subsection 12(2) of the AIC Act and substitutes a new subsection that makes clear that the Privacy Commissioner may perform freedom of information functions but that they must not review decisions under Part VII of the FOI Act unless they also hold the qualifications referred to in subsection 14(3).

 

Item 4

 

10.              Item 4 adds two new subsections to the AIC Act. Subsection 14(5) clarifies that separate commissioners must be appointed under that Act. While on its face section 14 of the AIC Act makes it clear that there should be three separate commissioners, the functions of the Freedom of Information Commissioner are currently being performed by the Australian Information Commissioner and Privacy Commissioner. Subsection 14(5) removes any doubt and clarifies that there is to be a separate Australian Information Commissioner, Freedom of Information Commissioner and Privacy Commissioner. 

 

11.              Subsection 14(6) has been included to ensure that in the event of one of these offices becoming vacant the vacancy is filled within 3 months.

 

Items 5 and 6

 

12.              Subsection 21 of the AIC Act provides for acting appointments to the position of Information Commissioner. Items 5 and 6 add two notes after subsection 21(1) that refer to the new requirements provided for in subsections 14(5) and 14(6).

 

Freedom of Information Act 1982

 

Item 7

 

13.              Item 7 inserts a definition of transfer application into subsection 4(1) of the FOI Act. The definition transfer application has the meaning given by subsection 55JB(2) of the FOI Act.

 

Item 8

 

14.              Item 8 replaces existing subsection 11C(6) with a new subsection that provides that an agency or Minister must publish information released to an applicant within the period commencing on the tenth working day after the day the person is given access to the document and concluding on the 14th working day after the day the person is given access to the document. As a consequence freedom of information applicants will have a period of at least ten and not more than fourteen days before information released to them will be made available to the public generally.

 

15.              This provision addresses the frequent practice of agencies discouraging journalists from using freedom of information by denying any measure of exclusivity to information that may have been only released after long delays and payment of substantial fees. This subsection will give applicants the opportunity to examine released information before it is released to the public in general. 

 

Item 9

 

16.              This item amends paragraph 29(1)(d) by omitting “subsection 5” and substituting “subsections (5) and (5A)”. This amendment will require that information about matters that an agency or Minister must take into account under subsections (5) and (5A) in deciding whether or not to reduce, or not impose, a charge must be included in a written notice provided to an applicant where an applicant is liable to pay a charge for a request for access to a document or the provision of access to a document.

 

Item 10

 

17.              This item inserts a new subsection 29(5A) that promotes the use of freedom of information  requests by Senators and Members of the House of Representatives by entitling them to access to documents without charge unless the work generated by an access application involves charges totalling more than $1000. This provision will support greater transparency of public administration through parliamentary scrutiny of agencies and provide the public with information that is published following the release of information to Senators and MPs.

 

18.              The provision is based on Regulation 6 the South Australian Freedom of Information (Fees and Charges) Regulations 2003 which allows for a Member of Parliament to apply for access without charge if the fees and charges for the work generated are less than $1000.  

 

Item 11

 

19.              Section 55EA is a new section that requires the consistent application of exemptions by decision makers in the context of a review by the Information Commissioner. This section seeks to prevent agencies from making submissions to FOI decision reviews that have not been advanced by the agency in its internal decision making, so that they can’t change the basis for exemptions half way through a review. In effect, this frequent practice allows agencies and ministers to remake decisions half way through a review, something not normally permitted in merits review processes run in superior jurisdictions and never intended under the FOI Act.

 

20.              New section 55EA provides that, where an agency or Minister who has made a relevant IC (Information Commissioner) reviewable decision:

·                    provides assistance to the Information Commissioner under section 55DA (Decision‑maker must assist Information Commissioner); or

·                    is required to provide an adequate statement of reasons under section 55E (where no statement, or an inadequate statement, has previously been provided to the person who made the request); or

·                    provides any other information, submission or document to the Information Commissioner as part of an IC review;

the agency or Minister must not rely on any exemptions in Divisions 2 and 3 of Part IV of the FOI Act that were not relied upon in making the IC reviewable decision.

Item 12

21.              Section 55JA is a new section that requires the Information Commissioner to notify an IC review applicant if is likely that more than 120 days will elapse before the Information Commissioner makes a decision on the review under section 55K, or that 120 days has elapsed since the time the relevant IC review application was received by the Information Commissioner. The Information Commissioner’s notice must state that an application to transfer the IC review application to the Tribunal may be made under section 55JB.

22.              Section 55JB is a new section allows a review applicant to apply to transfer their review application to the Administrative Appeals Tribunal if the Information Commissioner has issued a notice under section 55JA, using a “transfer application”. Subsections (2) and (3) provide that a transfer application must be made in writing and sent to the Information Commissioner within 28 days after the day on which the notice under section 55JA was given to the IC review applicant. Subsection (5) provides that a transfer application is not required to be accompanied by any fee.

23.              Subsection 55JB(6) provides that on receipt of a transfer application the Information Commissioner must transfer the IC review application to the Tribunal; and give the Tribunal any information or documents that relate to the review in the possession, or under the control, of the Information Commissioner. The Information Commissioner must further notify the IC review applicant in writing that the IC review application has been transferred.

24.              Subsection 55JB(7) provides that an IC review application transferred under subsection (6) is taken to be an application to the Tribunal for a review of the relevant decision made in accordance with the requirements of section 29 of Administrative Appeals Tribunal Act 1975. To avoid doubt, Subsection (8) provides that an IC review application transferred under subsection (6) is not required to be accompanied by any fee.

Item 13

25.              Item 13 amends section 57A to add a new category of decision that may be appealed in the AAT – an IC reviewable decision. “IC reviewable decision” is defined in section 54K of the FOI Act and covers:

·                    an access refusal decision;

·                    a decision made by an agency on internal review of an access refusal decision;

·                    a decision refusing to allow a further period for making an application for internal review of an access refusal decision (under section 54B);

·                    an access grant decision; and

·                    a decision made by an agency on internal review of an access grant decision.

26.              This amendment would allow an applicant to apply to the AAT for review of any IC reviewable decision without first going through the Information Commissioner review process. An applicant taking this option would pay the usual fee for an application to the AAT.

Item 14

27.              Subsection 57A(1) of the FOI Act defines which Tribunal decisions are reviewable. Item 14 inserts a new subsection 57A(1A) to remove any doubt that if an IC review application is transferred to the Tribunal under section 55JB the Tribunal may review the IC reviewable decision to which the IC review application relates.

Item 15

28.              This amendment is consequential on the amendment in item 15. New paragraph 66(1)(a) would give the AAT the discretion to make a recommendation to the responsible Minister that the Commonwealth pay the costs of an applicant who applied directly to the AAT for review under new paragraph 57A(1)(aa).

Item 16

29.              Item 16 inserts a new section 93AA on reporting by agencies on external legal expenses relating to freedom of information requests. 

30.              Subsection 93AA(1) requires that the annual report prepared by the principal officer of an agency must list each request made under section 15 of the FOI Act to access a document of the agency; or access an official document of the agency’s responsible Minister, in which external legal expenses have been incurred by the agency. The annual report must include the particulars of those external legal expenses in relation to each request.

31.              Subsection 93AA(2) sets out the particulars that must be provided in relation to the total external legal expenses incurred by the agency in relation to each request.  Subsection 93AA(3) provides that external legal expenses include: (a) any fees or other expenses charged to an agency for the provision of legal advice by external legal advisers (including any fees charged by the Australian Government Solicitor (the AGS)); and (b) any fees or other expenses charged to an agency by external legal advisers associated with specific litigation in relation to a request (including any fees charged by the AGS).

Part 2—Transitional rules

Item 17

32.              Subitem 17(1) would allow the Attorney-General to make disallowable legislative instruments (transitional rules) to cover transitional matters such as how applications currently on foot are to be dealt with. Subitem 17(2) confirms that certain significant matters (such as the creation of an offence or civil penalty) may not be included in the transitional rules.

 

Statement of Compatibility with Human Rights

 

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

 

Freedom of Information Legislation Amendment (Improving Access and Transparency) Bill 2018

 

This Bill is compatible with 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

 

The purpose of this Bill is to introduce measures that make government more transparent and accountable, and assist the role of citizens and the media in accessing information under the law. 

 

Human rights implications

 

While the Bill does not directly engage any of the applicable rights or freedoms as it deals with measures to improve access to government information, it works to make government more transparent and accountable, and thus more respectful of human rights and the democratic role of citizens. 

 

Conclusion

 

This Bill is compatible with human rights as it does not raise any human rights issues.

 

 

Senator Patrick