Commonwealth of Australia Explanatory Memoranda

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FREEDOM OF INFORMATION AMENDMENT (REFORM) BILL 2010

                               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.