Commonwealth of Australia Explanatory Memoranda

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FREEDOM OF INFORMATION AMENDMENT (NEW ARRANGEMENTS) BILL 2014

                              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.
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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.




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