Wednesday, 3 February 2010
Scrutiny of Bills Committee; Report
Ordered that the report be printed.
I seek leave to have the tabling statement incorporated in Hansard.
The statement read as follows—
3 February 2010
- Freedom of Information Amendment (Reform) Bill 2009; and the
- Information Commissioner Bill 2009.
In relation to the Freedom of Information Amendment (Reform) Bill 2009, the Committee has sought the Minister’s clarification about two issues that it considers may make rights, liberties or obligations unduly dependent upon insufficiently defined administrative powers, in breach of the Committee’s second term of reference.
The bill seeks to amend the Freedom of Information Act 1982 to introduce a new regime for access to government information. The bill complements the proposed structural reforms to be implemented by the Information Commissioner Bill 2009 (which include the establishment of the Office of the Information Commissioner and the new independent statutory positions of Information Commissioner and FOI Commissioner).
Proposed new subsection 15(2A) of the Freedom of Information Act 1982, to be inserted by item 25 of Schedule 6, sets out the means for sending a request for access to a document. Proposed new paragraph 15(2A)(a) provides that the request may be delivered ‘to an officer of the [relevant] agency, or a member of the staff of the [relevant] Minister’. A member of staff of the Minister would, in these circumstances, be acting as an agent for the Minister. A member of staff of the Minister is not necessarily a member of the Australian Public Service and in such cases the legal status of the staff member is unclear. The Committee is therefore seeking the Cabinet Secretary’s advice about whether the explanatory memorandum might be amended to provide clarification about the legal status of Ministerial staff.
A similar issue arises from another provision in the Freedom of Information Amendment (Reform) Bill 2009 which has the potential to make a person’s rights, liberties and obligations unduly dependent on insufficiently defined administrative powers. Proposed new sections 24, 24AA and 24AB replace existing section 24 which allows for an access request to be refused if the work involved in processing the request is excessive. Proposed new paragraph 24AB(2)(c) provides that, during a request consultation process, the agency or Minister must give an applicant a written notice which states the name of an officer of the agency or member of staff of the Minister (the ‘contact person’) with whom the applicant may consult during a period.
In these circumstances, a member of the Minister’s staff would again be acting as the Minister’s agent. The Committee notes that the explanatory memorandum does not refer to the specific role of Ministerial staff members in this regard. The Committee is seeking the Cabinet Secretary’s advice about whether the explanatory memorandum might be amended to provide clarification about the legal status of Ministerial staff.
A different issue arises from the related Information Commissioner Bill 2009. Part 4 of the bill provides for the establishment of an Information Advisory Committee (IAC) to assist and advise the Information Commissioner on matters relating to the performance of the Information Commissioner’s functions. Clause 27 provides for the IAC’s establishment (subclause 27(1)), membership (subclause 27(2)), payment of travel allowance (subclause 27(3)), and the non-payment of remuneration or allowances (subclause 27(4)).
There is no provision in the bill for disclosure of interests by IAC members or written directions about the way the IAC is required to carry out its functions. The Committee is concerned that this may make rights, liberties or obligations unduly dependent on insufficiently defined administrative powers. The Committee is therefore seeking the Cabinet Secretary’s advice on whether further guidance for the IAC’s operation might be provided in the bill.
I commend the Committee’s Alert Digest No. 1 of 2010 and First Report of 2010 to the Senate.
by leave—I move:
That the Senate take note of the report.
Question agreed to.