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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
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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:
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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.
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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
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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.
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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
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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.
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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
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