Freedom of Information Amendments Bill: What was New is Old Again?

Friday 3 October 2014 @ 10.05 a.m. | IP & Media | Legal Research

Yesterday (2 October 2014), the Federal Government through the Minister for Immigration and Border Protection introduced into the House of Representatives the Freedom of Information Amendment (New Arrangements) Bill 2014 (Cth), a measure which in some ways contradicts its name as it essentially undoes changes to freedom of information (FOI) bought about by the former Labor government through its Australian Information Commissioner Act 2010 (Cth), abolishes the position of Information Commissioner and reinstates the situation existing prior to the enactment of the 2010 legislation (see our post Freedom of Information Report Tabled, for more on the operation and nature of the previous legislation).

More on What the Proposed Law Does

The Minister's second reading speech in the House indicates that the purpose of the Bill is to implement new arrangements to deliver privacy and FOI functions as outlined in the 2014-15 Federal Budget. The Bill is a measure falling in the governments aims of achieving "Smaller Government" by reducing duplication and cost. To this end, the Bill introduced by the Minister proposes to repeal the Australian Information Commissioner Act 2010 (Cth) (the AIC Act) and amend the Freedom of Information Act 1982 (Cth) (the FOI Act), the Privacy Act 1988 (Cth), the Ombudsman Act 1976 (Cth) and various other legislation to reflect the "new arrangements" for privacy and FOI which essentially re-instate the pre 2010 position.

Key aspects of the Bill are:

  • the abolition of the Office of the Australian Information Commissioner (OAIC);
  •  provision for an Australian Privacy Commissioner to be responsible for the exercise of privacy functions under the Privacy Act 1988 and related legislation as an independent statutory office holder within the Australian Human Rights Commission;
  • provision that external merits review will only be available at the Administrative Appeals Tribunal (AAT);
  • provision 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
  • provision for the Ombudsman to be responsible for investigating actions taken by an agency under the FOI Act, that is, FOI complaints.

In his second reading speech the Minister indicated the proposed law's administrative and economic values as being that:

"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".

Suggested Adverse Outcomes of the Bill

One matter already being criticised is that the Bill provides "no relief or waivers" for the $800 filing fee to make applications to the AAT. The effect of this is being reported as creation of a substantial cost barrier to those seeking review of a government decision.

In line with the previous criticism is the point that the AAT is a more formal review process, involving a more prolonged court-like processes, again likely to discourage would be applicants.

Finally, an additional step will be added for applicants as they will be forced to seek in most cases an internal review of decisions before taking their case to the AAT.

Comment and Reaction to the Bill

As The Guardian reports today,  both Labor and the Greens are expected to oppose the Bill having raised objection to the proposal when it was first raised in the context of the Budget. The concerns of Labor and the Greens are that the measure would “.  .  . shut the door on open government”.

As already indicated above, the OAIC was created by the former Federal Labor government as a part of its freedom of information reforms in 2009-2010 with the primary role of being an “information champion” that would promote open government and protect the personal information of Australians.

Labors leader in the Senate, Senator Joe Ludwig is reported as previously having said placing the OAIC role in the Attorney General’s Department was "extremely concerning" saying also:

"The OAIC operates at arms length from the government and is often called on to review government decisions . . . Handing over freedom of information to the attorney general would signal the death knell of open and accountable government,  .  .  . This would be like putting Dracula in charge of the blood bank, . . .”

What's Next

While it is not known whether the government will have the numbers it needs to enact the Bill, even if the Bill is delayed or fails to pass The Guardian reports that ". . . the OAIC has been allocated no budget funding, and . . . it has largely ceased operations this week".

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