Thursday, 2 October 2014
Freedom of Information Amendment (New Arrangements) Bill 2014; Second Reading
That this bill be now read a second time.
The Freedom of Information Amendment (New Arrangements) Bill 2014 implements the 2014-15 Budget measure, Smaller Government—Privacy and Freedom of Information functions—new arrangements.
The bill will streamline arrangements for the exercise of privacy and freedom of information (FOI) functions from 1 January 2015. The Office of the Australian Information Commissioner (OAIC) will be abolished. The Australian Privacy Commissioner will continue to be responsible for functions under the Privacy Act 1988 as an independent statutory office holder within the Australian Human Rights Commission.
The Administrative Appeals Tribunal will have sole responsibility for external merits review of FOI decisions. Mandatory internal review of decisions of FOI decisions before a matter can proceed to the Administrative Appeals Tribunal will ensure access to low-cost and timely review for applicants. The tribunal will receive a funding boost to assist with processing FOI reviews.
The Commonwealth Ombudsman will be responsible for investigating complaints about actions taken by an agency under the Freedom of Information Act 1982 (the FOI Act). The Attorney-General will be responsible for FOI guidelines and collection of statistics on agency and ministerial FOI activity.
The measures in the bill will save $10.2 million over four years, part of the government's continuing commitment to repair the budget.
Merits review of FOI decisions
The OAIC was established by the former Labor government in 2010 to bring together oversight of privacy protection and access to government information into one agency.
This created an unnecessarily complex system, with multiple levels of external merits review for FOI matters. It also led to duplication in FOI and privacy complaint handling which has contributed to delays in these matters.
The bill will create administrative efficiencies and reduce the burden on FOI applicants by providing that the Administrative Appeals Tribunal is the sole external merits review body. This aligns with other merits review processes across the Australian government.
Under the new arrangements, those applicants who wish to seek review of an FOI decision will first be required to seek internal review. If an applicant is not satisfied with the internal review decision, they may apply for full merits review at the Administrative Appeals Tribunal.
The OAIC will endeavour to finalise as many FOI review applications as possible. However, there will be some reviews that are unable to be finalised before 31 December 2014.
Those applicants whose FOI review applications have not been finalised before 31 December 2014 will not be disadvantaged by the new arrangements. The bill provides for the transfer of applications which have not been finalised to the Administrative Appeals Tribunal. No application or other fee will be payable in relation to transferred applications. This ensures that no applicant who has sought external merits review will be disadvantaged by these changes.
This bill does not affect the legally enforceable right of every person under the FOI Act to request access to documents of an agency or official documents of a minister. Nor does it make any changes to the objects of the FOI Act or the matters that agencies and ministers are required to consider in making decisions on FOI requests.
The bill simply removes an unnecessary and anomalous layer of external merits review for FOI decisions. This will deliver an improved and simplified merits review system for FOI decisions and will realign responsibility and accountability for external merits review of FOI decisions with the process applicable to other government decisions.
Those applicants who wish to make a complaint about an agency's handling of their FOI application will be able to make their complaint directly to the Ombudsman. This removes the current duplication between the OAIC and the Ombudsman in relation to the investigation of these complaints.
Any unresolved complaints which have been made will be transferred to the Ombudsman for completion.
The bill also provides for an Australian Privacy Commissioner, as an independent statutory office holder within the Australian Human Rights Commission. The commissioner will continue to be responsible for the exercise of privacy functions under the Privacy Act and related legislation.
The government is committed to protecting the privacy of all Australians. The current Privacy Commissioner, Mr Timothy Pilgrim, will remain as the Australian Privacy Commissioner, which will mean business as usual for the Australian Privacy Commissioner and his relationships with business.
The commissioner and the staff supporting him will be able to seamlessly continue their measured approach to privacy protection, working cooperatively with private sector organisations and government agencies to achieve a high level of understanding and voluntary compliance.
This approach has assisted business stakeholders to view privacy as an important aspect of commercial regulation and a fundamental part of the economic infrastructure that supports business activities.
We are also committed to reducing the size of government and rationalising government agencies. That is why the independent Australian Privacy Commissioner will be housed within the Australian Human Rights Commission. This arrangement will not impact on the independence of the Australian Privacy Commissioner as he carries out his privacy functions, nor on the Australian Human Rights Commission as it fulfils its important human rights functions. The Australian Privacy Commissioner will not be a member of the commission nor will he subject to its direction.
Separate funding will be appropriated to the Australian Human Rights Commission for its human rights functions and for the Australian Privacy Commissioner's privacy functions. The existing staff of the Office of the Australian Information Commissioner responsible for supporting the Privacy Commissioner will become staff of the AHRC assigned to the commissioner to support him to undertake his functions.
These institutional arrangements will reduce the size of government, streamline the delivery of government services and reduce duplication. It will mean business as usual for privacy and largely restore the system for the management of freedom of information in place before the establishment of the Office of the Australian Information Commissioner on 1 November 2010.
This bill makes it easier for applicants to exercise their rights under privacy and FOI legislation.