House of Representatives

Explanatory Memorandum

Circulated By Authority of the Cabinet Secretary, Senator the Hon Joe Ludwig

Schedule 4 - Information Commissioner amendments

Part 1 - Main amendments, FOI Act

Items 1 to 20 - subsection 4(1)

These items amend the interpretation provision of the FOI Act to insert definitions in connection with proposals relating to the review of FOI decisions and investigation of complaints relating to the handling of FOI requests. The proposed amendments are substantially signposts to other provisions which define the various proposed terms.

Items 21 and 22 - section 12

Subsections 12(2) to (4) are repealed because they are transitional in nature and their operation is spent. Subsection 12(2) provides that there is no right to access a document that became a document of an agency or an official document of a Minister more than 5 years before 1 December 1982 (commencement of the FOI Act). Documents of this age would now be in the open access period under the Archives Act.

Item 23 - subsection 21(3)

The repeal of this provision arises as a consequence of the proposal to introduce Information Commissioner review. The effect of subsection 21(3) is that a decision to defer access to a document on the ground in paragraph 21(1)(d) is not subject to review by the AAT. If paragraph 21(1)(d) applies it is because a Minister considers the document is of such general public interest that the Parliament should first be informed of its contents, in which case the document must be tabled in Parliament within 5 sitting days of either House of the Parliament. The effect of subsection 21(3) is preserved by proposed paragraph 53A(d) (item 34).

Item 24 - subparagraph 26(1)(c)(ii)

This is a consequential amendment arising from the proposal to give the Information Commissioner the function of investigating complaints concerning the handling of FOI requests under proposed Part VIIB (item 49).

Item 25 - paragraph 26(1)(c)

This provision clarifies that the notice of a decision to refuse access to a document must include information concerning the applicant's rights with respect to internal review and Information Commissioner review.

Item 26 - paragraph 29(9)(b)

This is a consequential amendment arising from the proposal to give the Information Commissioner the function of investigating complaints concerning the handling of FOI requests under proposed Part VIIB (item 49).

Item 27 - subsection 29(9)

This provision clarifies that the notice of a decision to reject a contention from the applicant that a charge should be reduced or not imposed must include information concerning the applicant's rights with respect to internal review and Information Commissioner review.

Item 28 - section 31

Section 31 is amended as a consequence of the proposal to give the Information Commissioner a function of undertaking review of FOI decisions. Section 31 has also been redrafted to improve readability. The purpose of section 31 is to suspend the period for making a decision on an access request pending payment of a charge that has been notified to the applicant (or an outcome on any review of the decision to impose a charge).

Item 29 - after section 51D

The effect of proposed section 51DA is that an agency or Minister is deemed to have refused to amend or annotate a record of personal information if the agency or Minister has not given notice of a decision on an application for amendment or annotation (made under section 48) within 30 days of receiving the request.

Under proposed subsection 51DA(2), the deemed refusal is taken to be a decision made personally by the principal officer of the agency or the Minister on the last day of the decision period and notice is taken to have been given to the applicant on that same day. A consequence of a deemed refusal decision is that an applicant may directly make an application for Information Commissioner review (as an access refusal decision under proposed paragraph 54L(2)(a) - an 'access refusal decision' is defined in proposed section 53A to include a decision to refuse to annotate or amend a record). This provision is similar to the effect of existing subsection 56(1A) of the FOI Act.

The effect of proposed subsections 51DA(3)-(5) is that the Information Commissioner is given a discretionary power to extend the period for making an initial decision on an application. The rationale underlying this provision is that the extension may avoid the need for an applicant to lodge an application for Information Commissioner review. The Information Commissioner may extend the period for such a period considered to be appropriate and may also impose conditions. A condition may be that the agency or Minister must give notice of the extended time to the applicant.

If the Information Commissioner allows an extension, the effect of proposed subsection 51DA(6) is that a decision is not deemed to have been refused (providing the agency or Minister makes a decision within the extended time period and complies with any condition). However, if the agency or Minister does not comply, then the effect of proposed subsection 51DA(7) is that a deemed refusal decision is taken to apply. Additionally, under proposed subsection 51DA(8), the Information Commissioner does not have the power to allow a further extension of time to make an initial decision. In this case, it would be open to the applicant to make an application for Information Commissioner review.

Item 30 - Part VI (heading)

The provisions dealing with internal review of decisions on an access request made by an agency or Minister will be dealt with in a separate Part VI. (Under the existing Act Part VI covers both internal review and review by the AAT.)

Item 31 - before section 53

This item inserts a guide to proposed Part VI (internal review of decisions) which is intended to aid readability. The guide notes that a decision made personally by a principal officer of an agency or by a Minister is not subject to internal review. This is the case under existing section 54 of the FOI Act.

Item 32 - section 53

Item 32 is a consequential amendment arising from the proposal to separate the different forms of review into individual Parts under the Act. It ensures that the interpretation provision applies to all forms of review.

Item 33 - section 53

This item is a consequential amendment arising from the proposal to limit the operation of section 25 of the FOI Act so that it does not apply to a document that is exempt under the Commonwealth-State relations exemption (existing section 33A and proposed section 47B under the Bill) (see item 18 Schedule 3). The reference to the existing Executive Council exemption (section 35) is removed as a consequence of the proposal to repeal that exemption (see item 26 Schedule 3).

Item 34 - sections 54 to 57

This item addresses the main (new) provisions for internal review and inserts Part VII which gives the Information Commissioner the function of undertaking external merits review of FOI decisions.

Section 54 (internal review) is repealed but its effect is preserved by the provisions inserted in this item. The requirement to pay an application fee for internal review is not preserved as it is a proposal in the Bill to repeal all application fees (other than for AAT review).

Section 55 (applications to the AAT) is repealed as a consequence of the proposal to introduce Information Commissioner review. The right of application to the AAT is retained in new section 57A.

Section 56 (applications to Tribunal where decision delayed) is repealed as a consequence of the proposal to introduce Information Commissioner review. Subsection 56(2) has the effect that if an applicant makes a complaint to the Ombudsman concerning a failure to make a decision within the required decision period, an applicant cannot make an application for review to the AAT (on the basis that it is a deemed refusal) until the Ombudsman has informed the applicant of the result of the investigation. This provision is not preserved in the Bill. Under measures in the Bill, the Information Commissioner is to be given the function of investigating complaints about the handling of FOI requests and the function of undertaking review of FOI decisions. These functions provide different remedies. A complaint about handling, such as delay, could be investigated concurrently with an IC review of a decision on a request (including a deemed refusal decision).

The provisions in subsections 56(3) and (4), which essentially permit the Ombudsman to give a certificate that has the effect of deeming a decision to have been made refusing access to a document, are not preserved in the Bill on the basis that they have limited or no utility. The power is dependent on a person making a complaint before the expiration of the period for making an initial decision and a finding by the Ombudsman of unreasonable delay notwithstanding that the initial period for making a decision has not expired.

Section 57 (complaints to Ombudsman) is repealed as a consequence of the proposal to give the Information Commissioner a function of investigating complaints about the handling of FOI requests (item 49).

Part VI - Internal review provisions

Proposed section 53A defines an 'access refusal decision'. Proposed section 53B defines an 'access grant decision'. The former is concerned with the review rights for applicants. The latter is concerned with the review rights of certain third parties affected by a decision to give access to a document. These terms are also used in connection with Information Commissioner review and AAT review. Decisions of this kind are amenable to internal review by virtue of proposed section 54 (internal review access refusal decision) and proposed section 54A (internal review access grant decision). These provisions establish the right for an applicant to apply for internal review of those decisions. The Bill does not change the existing rule that no internal review application can be made for a decision made by a Minister or made personally by a principal officer of an agency.

An applicant does not have to apply for internal review before applying for external review by the Information Commissioner (proposed paragraphs 54L(2)(a) and 54M(2)(a) provide that an access refusal decision and an access grant decision (respectively) are decisions that may be reviewed by the Information Commissioner). Under the existing Act, while internal review is optional where a third party seeks to challenge a decision to give access to a document, it is not optional where access has been refused to a document. In the latter case, under the existing Act, an applicant is required to apply for internal review in respect of a decision of an agency (other than a decision made personally by a principal officer of an agency) before applying to the AAT. By making internal review optional, agencies should be encouraged to make the best decision at first instance.

The 'access refusal decisions' in proposed section 53A replicate the decisions which are subject to internal review in existing subsection 54(1). Existing paragraph 54(1)(e) (a decision under section 30A relating to remission of an application fee) is not repeated in proposed section 53A as a consequence of the proposal in the Bill to repeal all application fees (other than for AAT review).

The 'access grant decisions' in proposed section 53B replicate the decisions which are subject to internal review under existing subsections 54(1C) (right of review to a State concerning a decision to give access to State related information), 54(1D) (right of review to a person or organisation concerning a decision to give access to business information) and 54(1E) (right of review to a person concerning a decision to give access to personal information). Proposed section 53C defines who is an affected third party for the purposes of making a request for internal review on an access grant decision under proposed section 54A.

Proposed section 54B preserves the effect of existing subsections 54(1A), 54(1B) and 54(1G).

Proposed subsection 54C(2) preserves the requirement under existing subsection 54(2) that a decision maker who is not the original decision must undertake an internal review.

Proposed subsection 54C(3) requires a decision on an internal review to be made within 30 days after the application was received by an agency. The existing provision does not express a time period for making an internal review decision. However, a 30 day period is implied by existing subsection 55(3) which permits an applicant to make an application to the AAT if a decision on internal review is not made within 30 days.

The effect of proposed section 54D is that an agency is deemed to have affirmed the original decision if the agency has not given notice of a decision on an internal review application (made under proposed section 54B) within 30 days of receiving the application.

Under proposed subsection 54D(2), the deemed affirmation of the original decision is taken to be a decision made personally by the principal officer of the agency on the last day of the decision period, and notice is taken to have been given to the applicant on that same day. A consequence of a deemed affirmation decision is that an applicant may directly make an application for Information Commissioner review (as an access refusal decision under proposed paragraph 54L(2)(a) or as an access grant decision under proposed paragraph 54M(2)(a)). This provision is similar to the effect of existing subsection 55(3) of the FOI Act.

The effect of proposed subsections 54D(3) to (5) is that the Information Commissioner is given discretionary power to extend the period for making an internal review decision, upon application from an agency. The rationale underlying this provision is that the extension may avoid the need for an applicant to lodge an application for Information Commissioner review. The Information Commissioner may extend the period for such a period considered to be appropriate and may also impose conditions. A condition may be that the agency or Minister must give notice of the extended time to the applicant.

If the Information Commissioner allows an extension, the effect of proposed subsection 54D(6) is that a decision is not deemed to have been affirmed (providing the agency makes a decision within the extended time period and complies with any condition). However, if the agency does not comply, then the effect of proposed subsection 54D(7) is that a deemed affirmation decision is taken to apply. Additionally, under proposed subsection 54D(8), the Information Commissioner does not have the power to allow a further extension of time to make an internal review decision. In this case, it would be open to the applicant to make an application for Information Commissioner review.

Proposed section 54E preserves the effect of existing subsection 54(3).

Part VII - Review by Information Commissioner

Proposed section 54F is a guide to proposed Part VII (review by Information Commissioner) which is intended to aid readability.

Proposed sections 54G to 54K define key concepts and terms for the purposes of Part VII.

Proposed section 54L establishes the right for an applicant (who has requested access to a document) to apply for Information Commissioner review in respect of those decisions listed in proposed subsection 54L(2) (access refusal decisions). All the decisions which are amenable to AAT review under existing subsection 55(1) of the FOI Act, with the exception of paragraph 55(1)(e), are made amenable to Information Commissioner review. Existing paragraph 55(1)(e) (a decision under section 30A relating to remission of an application fee) is not preserved as a consequence of the proposal in the Bill to repeal all application fees (other than for AAT review).

In variation to the existing Act, an applicant is not required to apply to an agency for internal review before making an application for review by the Information Commissioner. The effect of paragraph 54L(2)(a) is that an applicant may apply for Information Commissioner review in respect of an access refusal decision without applying for internal review.

Proposed section 54M establishes the right for certain third parties (who are affected by a decision to give access to a document) to apply for Information Commissioner review in respect of those decisions listed in proposed subsection 54M(2). The access grant decisions which are amenable to Information Commissioner review are the same decisions that are presently subject to AAT review (existing sections 58F, 59 and 59A which are proposed for repeal by item 40). Proposed paragraph 54M(2)(a) makes an 'access grant decision' (a decision of the kind in proposed section 53B) directly subject to Information Commissioner review. This preserves the existing policy that internal review is not a pre-requisite to AAT review for an access grant decision.

Proposed section 54N deals with the requirements for making an application for Information Commissioner review. Under subsection 54N(1), an application must include a copy of the decision (made by the agency or Minister) which is the subject of the review application. This will enable the Information Commissioner to readily identify the agency or Minister who is the respondent party and the matters in dispute. If a person does not receive a copy of a decision but proposed section 15AC (item 30 of Schedule 6) deems notice of a decision to have been given, a person making an application for Information Commissioner review may do so without including a copy of the decision. Under proposed subsection 54N(2), an applicant may also add particulars of the basis on which the applicant disputes the decision.

The purpose of subsection 54N(3) is to require the Office of the Australian Information Commissioner to provide assistance to an applicant to prepare a valid application.

Proposed section 54P (which requires an agency or Minister to notify affected third parties if an FOI applicant seeks review of a decision to refuse access to the third party information) preserves a notice requirement under existing subsections 58F(3) (State documents), 59(3) (business affairs documents) and 59A(3) (personal information documents). The notice is important because the third party may not have been aware of the request for access, particularly if the agency or Minister did not contemplate disclosing the document. (The requirement for third party consultation only arises if an agency or Minister is considering giving access to a document containing information relevant to the third party.)

Under proposed subsection 54P(3), an agency or Minister is required to give a copy of the notice given to the third party to the Information Commissioner. An affected third party becomes a party to the review application under proposed section 55A.

Proposed section 54Q qualifies the obligation to give notice to an affected third party under proposed section 54P (and replicates the same qualifying effect under existing subsections 59(3), 59(4), 59A(3) and 59A(4) of the FOI Act). The Information Commissioner is given a discretionary power to order that an agency or Minister does not need to give notice to an affected third party of an Information Commissioner review application if it would not be appropriate to do so in the circumstances. An example of when it may not be appropriate to give notice would be when a document includes information about a person under criminal investigation. An agency or Minister will need to apply to the Information Commissioner for an order to be excused from the requirement to give notice under proposed subsection 54Q(2). Proposed subsection 54Q(3) sets out the matters that the Information Commissioner must have regard to for the purposes of determining whether to make an order to excuse the requirement to give notice.

Proposed section 54R permits an applicant to withdraw an application for review at any time before the Information Commissioner makes a decision. A withdrawn application is taken never to have been made.

Proposed section 54S deals with the time periods within which an application must be made for Information Commissioner review. Under subsection 54S(1), an applicant who is seeking review of a decision to refuse access to a document must make the application within 60 days of receiving notice of a decision of the kind listed in subsection 54L(2). (An 'access refusal decision' applies to the decisions listed in proposed section 53A.) This time period is the same period that an FOI applicant has to make an application for AAT review under existing subsection 55(4) of the FOI Act.

Under proposed subsection 54S(2), an applicant who is an affected third party must make an application for Information Commissioner review within 30 days of receiving notice of a decision on an internal review application, or if the applicant has not applied for internal review, within 30 days of receiving notice (that an agency or Minister proposes to give access to a document containing information related to the third party) under sections 26A, 27 or 27A. This time period is the same period that an affected third party has to make an application for AAT review under existing subsections 58F(2A) (State documents), 59(2A) (business affairs documents) and 59A(2A) (personal information documents).

Proposed section 54T gives the Information Commissioner discretionary power to extend the time for making an application for Information Commissioner review if the Commissioner is satisfied that it is reasonable in all the circumstances to do so. This provision is similar to the provisions made in subsections 29(7) to 29(10) of the AAT Act.

Proposed section 54U clarifies that the provisions in Division 5 have application to part of an Information Commissioner review application (as well as a whole application).

Proposed section 54V gives the Information Commissioner discretionary power to make preliminary inquiries for the purpose of determining whether or not to undertake a review. This power could be used, for example, to clarify that the decision in question is a decision which the Information Commissioner has power to review.

Proposed section 54W gives the Information Commissioner discretion not to undertake a review, or not to continue a review, in certain limited circumstances. The matters listed in paragraphs 54W(a) and 54W(c) are concerned with circumstances where the review applicant is uncooperative or cannot be contacted or the application is misconceived or vexatious. Under proposed paragraph 54W(b), the Information Commissioner may decide not to undertake a review if satisfied that the interests of the administration of the FOI Act make it desirable that the decision be reviewed by the AAT. One of the reasons for retaining a right of review to the AAT is that, as an experienced review body, the AAT can properly deal with highly contested applications. This provision enables the Information Commissioner to decline to undertake a review if satisfied it would be more appropriate and efficient for the application to be made directly to the AAT. It is intended that the Information Commissioner would undertake most review applications.

If the Information Commissioner determines not to undertake a review under section 54W, the applicant cannot make an application to the AAT for review of the decision not to undertake, or not to continue, the review. (Proposed section 57A sets out those decisions which are reviewable by the AAT.)

Under proposed 54X, if the Information Commissioner decides not to undertake a review, the Commissioner must give the review parties written notice of the decision. In the case of a decision under paragraph 54W(b) that it would be desirable for the AAT to undertake the review, the notice must state that the applicant may make an application to the AAT for review.

When an agency or Minister does not make a decision in the required time, the effect of the deeming provisions under proposed sections 15AC and 51DA (deemed refusal for initial requests) and proposed section 54D (deemed affirmation of original decision for purposes of an internal review) is that an application may be made for Information Commissioner review. The effect of proposed section 54Y is that the Information Commissioner is required to review an actual decision made by an agency or Minister which has been made after an application has been lodged for Information Commissioner review.

The notice requirement in proposed section 54Z ensures that the agency or Minister who made the decision is given notice that an application has been made for review by the Information Commissioner. In a case where a third party is seeking review of a decision to grant access to a document containing information concerning them, this notice requirement ensures that the FOI applicant (the person seeking access) is notified of the review application.

Proposed section 55 establishes the general procedural provisions that will apply in an Information Commissioner review. It is intended that Information Commissioner review will provide a simple, expedient and cost efficient system for external merits review. To achieve this, the Information Commissioner is authorised to conduct a review in whatever way considered appropriate (proposed subsection 55(2)) and to use as little formality and technicality as possible (subsection 55(4)).

It is intended that most applications will be determined on the papers (without a hearing), which is effected through proposed subsection 55(1).

To enhance the Information Commissioner's ability to quickly resolve applications, under proposed paragraph 55(2)(b), the Information Commissioner will be able to use any technique that is appropriate to facilitate resolution, including techniques used in alternative dispute resolution processes. The ability to make preliminary inquiries, particularly to agencies concerning a decision made by the agency, may enhance the prospect of resolution through agreement without the need for formal decision by the Information Commissioner.

Proposed paragraph 55(2)(c) allows a person to participate in a review by any means of communication. This is consistent with the intention that Information Commissioner review be conducted with as little formality as possible. If a hearing is held, it will allow a person to participate by telephone, thereby assisting accessibility.

Proposed paragraph 55(2)(d) allows the Information Commissioner to obtain any information from any person, and to make any inquiries, that he or she considers appropriate. This is also consistent with the intention that Information Commissioner review be conducted with as little formality as possible. For example, it would allow the Information Commissioner to make early inquiries to an agency and to request information about the agency's decision. Such inquiries may facilitate the Information Commissioner forming a preliminary view about the merit of a decision. The Information Commissioner also has compulsory information gathering powers under proposed section 55R.

Proposed paragraph 55(2)(e) allows the Information Commissioner to give written directions (like orders) relating to the conduct of review proceedings both in relation to reviews generally and particular reviews. For example, in the context of a particular review, a direction could be made to prohibit or restrict the publication of certain evidence if the Information Commissioner is satisfied that the evidence should be kept confidential. In the context of reviews generally, the Information Commissioner could require a decision maker to lodge certain information for the purpose of the review proceedings.

Proposed subsection 55(3) clarifies that a direction given under paragraph 55(2)(e) is not a legislative instrument for the purposes of the Legislative Instruments Act 2003. The provision is merely declaratory of the law (to assist readers) and is not an exemption from the Legislative Instruments Act 2003.

The effect of subsection 55(5) is that hearings, if held, must be conducted in public unless the Information Commissioner is satisfied reasons exist to hold the hearing, or part of a hearing, in private. A similar rule applies in AAT proceedings under section 35 of the AAT Act (hearings to be in public except in special circumstances).

Proposed section 55A defines the review parties for the purposes of an Information Commissioner review. In general, for a decision that is a decision to refuse access to a document the review parties will be the FOI applicant (an 'IC review applicant' under paragraph (a)) and the principal officer of the agency or the Minister who makes the decision. If the documents in contention contain information relating to an affected third party, that third party will also be a party to the review application.

For a decision that is a decision to grant access to a document, the review parties will be the affected third party who is opposing disclosure of the document (an 'IC review applicant' under paragraph (a)) and the principal officer of the agency or the Minister to whom the request was made.

The effect of proposed paragraph 55A(1)(d) and subsections 55A(2) and 55A(3) is that the Information Commissioner has a discretionary power to join a person whose interests are affected as a party to a review application, upon that person's application to the Commissioner. An example would be the FOI applicant who is seeking to be a party to an application made by a third party who is contesting an access grant decision. Another example would be a person who is not given notice of a review application because of the operation of proposed section 54Q (with the consequence that the person is not made a party under paragraph 55A(1)(c)) and, upon inquiring into the application, the Information Commissioner is subsequently not satisfied that the information concerning that person is exempt.

Proposed section 55B enables a party to apply to the Information Commissioner at any time (before a decision is made under proposed section 55K) for a hearing. The Information Commissioner has discretion to allow the application. The intention is that hearings would not be commonplace as they can increase contestability and prolong resolution.

Proposed section 55C clarifies that a party may be represented by another person at a hearing. This would include a legal representative.

Proposed section 55D reproduces the effect of existing section 61 of the FOI Act.

Proposed section 55DA requires an agency or Minister to use their best endeavours to assist the Information Commissioner to make his or her decision on the FOI review application. The measure is consistent with an existing obligation that applies in AAT review proceedings generally, including upon undertaking review of FOI decisions (see subsection 33(1AA) of the AAT Act). The obligation to assist is intended to ensure that an agency or Minister is not unduly adversarial in an FOI review proceeding. It is consistent with the pre-existing obligation on the Commonwealth and its agencies to act as model litigants. The obligation requires the Commonwealth and its agencies to act with complete propriety, fairly and in accordance with the highest professional standards as a party to proceedings, including tribunal proceedings.

Proposed section 55E empowers the Information Commissioner to request reasons for a decision from an agency or Minister who made a decision if the Commissioner believes the reasons given are inadequate or if no reasons have been provided (contrary to the requirement under existing section 26).

The effect of proposed section 55F is that the Information Commissioner has discretion to make a decision to resolve an application, in whole or in part, by giving effect to terms reached in agreement between the parties. Before making the decision, the Information Commissioner needs to be satisfied that the terms of the agreement would be within the powers of the Information Commissioner and that all parties have agreed to the terms.

The effect of proposed section 55G is that the Information Commissioner must deal with a decision that has been varied by an agency or Minister after an application has been made for Information Commissioner review as though it is the decision for review. The provision only applies to decisions that essentially benefit the applicant. Because of the intervention of the Information Commissioner, upon a review application being made, an agency or Minister may decide to vary their decision in a manner that favours the applicant. This decision may not necessarily be with the agreement of the applicant for the purposes of proposed section 55F, and may arise because of the intervention of the Information Commissioner.

Under proposed section 55H the Information Commissioner may refer a question of law at any time during a review to the Federal Court for determination. The effect of proposed subsection 55H(5) is that the Information Commissioner is bound to act consistently with the Federal Court's decision on the referred question. The power is intended to ensure that the Information Commissioner makes decisions which are correct in law and can make a decision to finally resolve a matter. The AAT has a similar power under section 45 of the AAT Act.

Proposed section 55J is a complementary provision for the purposes of proposed section 55H.

Proposed section 55K establishes the power for the Information Commissioner to determine review applications. This power would be exercised in a case where there has been no consensual agreement under proposed section 55F. The effect of proposed subsections 55K(1) to 55K(3) is that the Information Commissioner can make a fresh decision which replaces the decision of the agency or Minister, affirms the decision of the agency or Minister, or varies the decision of the agency or Minister. These are full merits review powers and are similar to the powers of the AAT under subsection 43(1) of the AAT Act. The Information Commissioner must give written reasons of the decision to all the parties to the review and must publish the decision in a manner that makes it publicly available. Proposed subsection 55K(5) ensures that the decision does not include any matter that has been found to be exempt.

The effect of proposed subsection 55L is that, upon finding a document to be exempt, the Information Commissioner has no power to order that access be given to the exempt material. This includes a document which has been found to be exempt because an exemption under proposed Division 2 of Part IV applies, or it is conditionally exempt under a provision in proposed Division 3 of Part IV and access to the document is contrary to the public interest, or it is a document to which existing section 7 applies. The underlying premise for this provision is that it would defeat the purpose of the exemption rules if the Information Commissioner could order that access be given notwithstanding that a document is found to be exempt. A similar restriction is placed on the AAT under existing subsection 58(2) of the FOI Act.

Proposed section 55M imposes a limitation on the power of the Information Commissioner to require amendment to be made to certain records. The provision is related to the right established in Part V of the FOI Act for a person to apply for amendment or annotation of a record of personal information that is incorrect and that is used by an agency for administrative purposes. This provision is intended to replicate the effect of existing subsection 55(6) of the FOI Act which imposes a similar limitation on the AAT (which is being replaced by proposed section 58AA at item 36).

Proposed sections 55N and 55P provide for the enforcement of a decision by the Information Commissioner. Section 55N requires an agency or Minister to comply with a decision made under proposed section 55K. If an agency or Minister fails to comply with a decision, under proposed section 55P, the Information Commissioner or review applicant may make an application to the Federal Court for an order directing the principal officer of the agency or the Minster to comply. Such an application can only be made after the time for making a review application to the AAT (which may be made by an agency or Minister) has expired. (The time for making an application for AAT review is 28 days under subsection 29(2) of the AAT Act.) A similar enforcement regime is made to enforce determinations of the Privacy Commissioner under section 58 and section 62 of the Privacy Act.

Proposed section 55Q gives the Information Commissioner a discretionary power to correct obvious errors in a decision at the Commissioner's own initiative or upon application by a review party.

Proposed section 55R gives the Information Commissioner the power to compulsorily require production of information and documents. It is an offence to fail to comply with a production notice issued by the Information Commissioner. The power is necessary to ensure that the Information Commissioner can obtain the material necessary for resolving a review application. It is similarly an offence to fail to comply with a summons to produce issued by the AAT (see sections 40 and 61 of the AAT Act).

Proposed section 55S is a complementary provision to the power given under proposed section 55R.

Proposed section 55T gives the Information Commissioner a discretionary power to require the principal officer of an agency or a Minister to produce a document claimed to be exempt. That power does not apply to documents subject to a national security or Cabinet exemption claim which are covered by proposed section 55U. As the Information Commissioner is to have full merits review powers, it is necessary for the Commissioner to examine the documents to determine whether the correct decision has been made. Upon being satisfied that the document is exempt, the Information Commissioner must return the documents to the agency or Minister. The effect of proposed subsection 55T(5) is that no person other than the Information Commissioner or a member of the staff of the Office of the Australian Information Commissioner may have access to a document that is exempt. (Under proposed section 89P the Information Commissioner must take all reasonable steps to ensure members of staff are given appropriate security clearances.) A similar production power applies to AAT proceedings under existing section 64 of the AAT Act.

Proposed section 55U gives the Information Commissioner a discretionary power to require the principal officer of an agency or a Minister to produce a document claimed to be exempt under the national security exemption (existing section 33) or Cabinet section (section 34), but only if the Commissioner is first not satisfied on affidavit or other evidence that the document is exempt. This provision replicates the effect of section 58E of the FOI Act which applies to AAT review proceedings. The measure is intended to protect against the unnecessary disclosure of sensitive information.

The power given to the Information Commissioner under proposed section 55V to order an agency or Minister to undertake further searches of documents, replicates the effect of the powers given to the AAT under existing subsections 55(5) and 55(5A) of the FOI Act (to become section 58A at item 36 of this Schedule).

Proposed section 55W gives the Information Commissioner the power to compulsorily require a person to attend to answer questions for the purposes of a review. It is an offence to fail to comply with a notice issued by the Information Commissioner for this purpose. The power is necessary to ensure that the Information Commissioner can obtain the information necessary for resolving a review application. It is similarly an offence to fail to comply with a summons to appear to give evidence in AAT proceedings (see sections 40 and 61 of the AAT Act).

Proposed section 55X empowers the Information Commissioner to require a person who appears before the Commissioner, pursuant to a notice under section 55W, to take an oath or affirmation that the answer the person will give will be true. It is intended that the offence would apply if the person refuses to take the oath or affirmation or if the person knowingly gives false answers.

Proposed section 55Y preserves a claim for legal professional privilege in respect of information or a document produced to the Information Commissioner in connection with a review by the Information Commissioner.

Proposed section 55Z provides immunity to a person from civil proceedings and criminal or civil penalty if the person gives information, produces a document or answers a question in good faith for the purposes of an Information Commissioner review. The immunity applies even if the person has not provided the material pursuant to a compulsory process. The Information Commissioner may obtain information under proposed paragraph 55(2)(d) which would depend on a person agreeing to give the information without a compulsory notice.

Proposed sections 55ZA to 55ZD replicate the effect of section 60A of the FOI Act which applies to AAT review proceedings. The purpose of this proposed amendment is to assist the Information Commissioner through the provision of expert advice from the Inspector-General of Intelligence and Security (which would be independent to agency evidence) to determine the damage that could result from disclosure of a document which is claimed to be exempt under the national security exemption (existing section 33).

Proposed section 56 gives a review party a right to appeal to the Federal Court on a question of law from a decision of the Information Commissioner. A similar right is given to a party to an AAT proceeding under section 44 of the AAT Act. A party may make an application to the Federal Court instead of making an application to the AAT (which involves a full reconsideration of the decision by the Information Commissioner in a merits review) because, for example, the party believes the Information Commissioner interpreted and applied the provisions of the FOI Act incorrectly. If the Federal Court remits a decision to the Information Commissioner for reconsideration, it would be open to a party to apply to the AAT for review of the decision made by the Information Commissioner (on consideration of the remitted matter).

Proposed section 56A is a complementary provision to proposed section 56. Similar provision is made in respect of Federal Court proceedings arising from an appeal from an AAT decision under section 44 of the AAT Act.

Proposed section 57 is a guide to review by the AAT and is intended to assist readability.

Proposed subsection 57A(1) establishes a right of review to the AAT from an Information Commissioner decision made under proposed section 55K or as a result of a decision made by the Information Commissioner under proposed paragraph 54W(b) not to undertake a review on the basis that it is desirable that the AAT undertakes the review. The effect of this provision is that the AAT may review any decision that is amenable to review by the Information Commissioner. Under subsection 29(2) of the AAT Act, an application to the AAT must be made within 28 days of the Information Commissioner making the decision.

Under proposed subsection 57A(2), if the Information Commissioner declines to undertake a review on the basis that it is desirable that the AAT undertakes the review, the 28 day time period applies from the time the Information Commissioner's decision to decline review is given to the applicant.

Item 35 - subsection 58(7)

Item 35 repeals subsection 58(7). The effect of that provision is not repeated in the Bill as its operation is spent. This item is consequential to the amendment proposed at item 22 of this Schedule.

Item 36 - after section 58

Proposed section 58A replicates the effect of existing subsections 55(5) and 55(5A) of the FOI Act. (Section 55 is repealed by item 34 of this Schedule.)

Proposed section 58AA replicates the effect of existing subsection 55(6) of the FOI Act. (Section 55 is repealed by item 34 of this Schedule.) The provision is related to the right established in Part V of the FOI Act for a person to apply for amendment or annotation of a record of personal information that is incorrect and has been or is being used by an agency for administrative purposes. Provision for similar IC powers are at item 34, proposed new section 55M.

Item 37 - before section 58B

Item 37 inserts a title and is an aid to readability.

Item 38 - subsection 58B(1)

This item amends subsection 58B(1) of the FOI Act. It is a minor drafting change.

Item 39 -section 58D

Item 39 is concerned with the special constitution requirements for the purposes of subsection 58B(1) of the FOI Act. The special constitution requirement applies when an exemption is claimed under existing section 33 (national security related documents) or (new) section 34 (Cabinet documents). The item addresses an existing gap in the different types of membership that may arise in a three presidential member panel.

Item 40 - sections 58F, 59 and 59A

These provisions are repealed but the effect of these provisions is preserved by proposed section 54M which provides a right of review for an affected third party to the Information Commissioner on an 'access grant decision' (item 34 of this Schedule).

Item 41 - section 60

An application to the AAT is an application for review of the decision made by the Information Commissioner (unless the Information Commissioner decides under proposed paragraph 54W(b) not to undertake a review on the basis that it is desirable for the AAT to undertake external merits review at first instance). The applicant has the onus of establishing that the Information Commissioner did not make the correct decision. The Information Commissioner will not defend his or her decision and is not a party to the proceedings in the AAT. The parties to an AAT review application are:

•

proposed paragraph 60(3)(a) - the person who applies to the AAT from an Information Commissioner decision made under proposed section 55K because they were a party to that review application (or as a consequence of a decision by the Information Commissioner not to undertake a review under proposed paragraph 54W(b));

•

proposed paragraph 60(3)(b) - the person who made the request under section 15 (for access to documents) or section 48 (for amendment or annotation of a personal record). If the agency or the Minister is the applicant for review under paragraph (a), this provision ensures the original FOI applicant is a party to the AAT proceedings;

•

proposed paragraph 60(3)(c) - the principal officer of the agency or the Minister to whom the request was made. If the original FOI applicant is the applicant for review under paragraph (a), this provision ensures the agency or Minister is a party to the AAT proceedings;

•

proposed paragraph 60(3)(d) - any other person who is made a party to the proceeding by the AAT under subsection 30(1A) of the AAT Act. Under that provision the AAT has a discretionary power to join a person whose interests are affected by the decision.

Proposed section 60AA requires an agency or Minister to notify affected third parties if an FOI applicant seeks AAT review of a decision to refuse access to the third party information. This replicates the notice requirement under proposed section 54P (which applies if an application is made for Information Commissioner review). The provision preserves the notice requirement under existing subsections 58F(3) (State documents), 59(3) (business affairs documents) and 59A(3) (personal information documents). An affected third party may apply to become a party to the AAT review application under proposed paragraph 60(3)(d).

Proposed section 60AB preserves the effect of subsections 59(3), 59(4), 59A(3) and 59A(4). The effect of proposed section 60AB is that the AAT has discretion to order that an agency or Minister does not need to give notice to an affected third party of an AAT review application if it would not be appropriate to do so in the circumstances. An example of when it may not be appropriate to give notice would be when a document includes information about a person under criminal investigation. An agency or Minister will need to apply to the AAT for an order to be excused from the requirement to give notice under proposed subsection 60AB(2). Proposed subsection 60AB(3) sets out the matters that the AAT must have regard to for the purposes of determining whether to make an order to excuse the requirement to give notice.

Item 42 - section 61

Under proposed subsection 61(1), in AAT proceedings to review an FOI decision, the agency or Minister to whom the access request was made, or to whom the application for amendment or annotation of personal records was made, will have the onus of establishing that a decision should be given that is adverse to the FOI applicant. The agency or Minister will have that onus when:

(i)

the agency or Minister seeks review of a decision made by the Information Commissioner (for example that access should be given to a document because an exemption does not apply) - in this case the AAT will review a decision of the Information Commissioner (see proposed new paragraph 61(1)(a));

(ii)

the FOI applicant seeks review of a decision made by the Information Commissioner (for example affirming that an exemption applies to a document and that access may be refused) - in this case the AAT will review a decision of the Information Commissioner (see proposed new paragraph 61(1)(b)); and

(iii)

the FOI applicant applies to the Information Commissioner for review of an agency or Minister decision and the Information Commissioner declines review on the ground that it is desirable that the AAT undertake review under proposed new paragraph 54W(b) - in this case the AAT will review a decision of the agency or Minister (see proposed new paragraph 61(1)(b)).

The FOI applicant will not bear an onus in either IC review or AAT review. In an IC review, an agency or Minister is given the onus of establishing that a decision they made is justified under proposed new section 55D (item 34, Schedule 4).

Proposed subsection 61(2) is intended to preserve the effect of existing subsection 61(2). An affected third party will be given the onus of establishing in an AAT review that a decision should be given adverse to the FOI applicant when the third party:

(i)

applies to the AAT for review of a decision by the Information Commissioner affirming a decision by an agency or Minister to give access to a document; and

(ii)

applies to the Information Commissioner for review of an agency or Minister decision to give access to a document and the Commissioner declines review on the ground that it is desirable that the AAT undertake review under proposed new paragraph 54W(b).

Proposed section 61A modifies various provisions in the AAT Act as a consequence of the proposal to interpose Information Commissioner review before AAT review.

Item 43 - before section 63

Item 43 inserts a title and is an aid to readability.

Item 44 - before section 66

Item 44 inserts a title and is an aid to readability.

Item 45 - paragraph 66(1)(a)

This item updates a reference and is consequential in nature.

Item 46 - subsections 66(1) and (3)

Existing section 66 of the FOI Act permits the AAT to make a recommendation to the Attorney-General that the costs of an applicant be paid by the Commonwealth. To reflect changes that have occurred to the provision of Commonwealth legal services, the effect of this proposed amendment is that the AAT may make a recommendation to the Minister responsible for an agency instead of to the Attorney-General.

Item 47 - before section 67

Item 47 inserts a title and is an aid to readability.

Item 48 - paragraph 67(1)(a)

Item 48 updates a reference and is consequential in nature.

Item 49

Item 49 inserts Part VIIB into the FOI Act which gives the Information Commissioner a function of investigating actions by an agency relating to the handling of FOI matters under the Act.

Proposed section 68 is a guide to the investigation function of the Information Commissioner and is intended to assist with readability.

The effect of proposed sections 69 and 70 is to give the Information Commissioner the function of investigating complaints about an action taken by an agency in the performance of functions, or the exercise of powers, under the FOI Act. A complainant is required to make a complaint in writing and to identify the agency against whom the complaint is made. The Information Commissioner is required to investigate a complaint that is made, subject to other provisions in Division 2. Proposed section 73 gives the Information Commissioner a discretionary power not to investigate a complaint in certain circumstances. Proposed section 74 permits the Information Commissioner to transfer a complaint to the Ombudsman in certain circumstances.

Under proposed subsection 69(2), the Information Commissioner has discretion to undertake an own motion investigation into action undertaken by an agency in the performance of functions, or the exercise of powers, under the FOI Act.

Like the investigation function of the Ombudsman, the Information Commissioner is not authorised to investigate action taken by a Minister.

Proposed section 71 clarifies that the provisions in Subdivision C of Division 2, Part VIIB have application to part of a complaint (as well as the whole complaint).

Proposed section 72 gives the Information Commissioner discretionary power to make preliminary inquiries for the purpose of determining whether or not to investigate a complaint. This power could be used, for example, to determine if the complaint relates to an action under the FOI Act.

Proposed section 73 gives the Information Commissioner discretion not to investigate, or not to continue to investigate, a complaint in certain circumstances. Proposed paragraph 73(b) recognises that the Information Commissioner's function of undertaking a review offers a discrete remedy for grievances relating to reviewable FOI decisions. If the proper remedy is for a person to seek review of the merits of an FOI decision, it is intended that the Information Commissioner would not investigate the matter under Part VIIB. The investigation of actions under Part VIIB is intended to deal with the manner in which FOI requests are handled and procedural compliance matters. Paragraph 73(c) applies a similar principle to paragraph 73(b). Similar to the Ombudsman, the Information Commissioner may decide not to investigate a complaint until an agency has had the opportunity to address a complaint or, if the Commissioner is satisfied that the agency has adequately addressed the complaint (proposed paragraph 73(d)). Other grounds listed in proposed section 73 are similar to the discretionary grounds applicable to the Ombudsman (see section 6 of the Ombudsman Act). If the Information Commissioner decides not to investigate a complaint, the Commissioner is required to give a written notice (with reasons) to the applicant and agency (proposed section 75).

Proposed section 74 deals with the relationship between the Information Commissioner's investigation function and the Ombudsman's investigation function. While the Ombudsman may still investigate complaints concerning action under the FOI Act, it is intended that the Information Commissioner will deal with most complaints of this kind. The Ombudsman will have capacity to investigate FOI complaints where the Ombudsman could more effectively or appropriately deal with a complaint. An example of where it may be more effective for the Ombudsman to handle an FOI complaint is where the complaint forms one aspect of a wider grievance concerning agency action. An example of where it may be more appropriate for the Ombudsman to handle an FOI complaint is where the complaint relates to action by the Information Commissioner in dealing with an FOI request. Proposed subsection 74(2) provides for the Information Commissioner to consult with the Ombudsman to ensure no overlap arises. Proposed subsection 74(3) requires the Information Commissioner to transfer a complaint to the Ombudsman upon deciding not to investigate a complaint following consultation with the Ombudsman. A complementary provision is made for the purposes of the Ombudsman Act (item 60, proposed section 6C of the Ombudsman Act).

Proposed subsection 75(1) is a procedural measure requiring the Information Commissioner to notify the respondent agency where it proposes to investigate a complaint. Similarly, under proposed subsections 75(2) to 75(4), the Commissioner is required to give written notice (with reasons) to the complainant or respondent agency if deciding not to investigate (or continue to investigate) a complaint.

Proposed subsection 76(1) establishes a general rule applying to the conduct of an investigation. The requirement for an investigation to be conducted in private (subject to other provisions in the Act) is consistent with the manner in which the Ombudsman is required to undertake investigations (see subsection 8(2) of the Ombudsman Act).

Proposed subsection 76(2) gives the Information Commissioner discretionary power to obtain information from an agency officer, and make any inquiry, relevant to an investigation. This provision is supplemented by compulsory powers under proposed sections 79 (production of information and documents) and 82 (notice to appear to answer questions).

Proposed section 77 empowers persons authorised by the Information Commissioner to enter premises occupied by an agency (or a contracted service provider in certain circumstances) for the purposes of an investigation. In some cases it may be necessary for the Information Commissioner to be satisfied that proper searches have been conducted for the purposes of answering an access request, or it may simply be more convenient for an inspection of documents to occur on agency premises. The power is conditional upon the principal officer of an agency consenting to entry or, in the case of a contracted service provider, the person in charge consenting.

For the purposes of proposed section 77, ministerial approval is required before entering a place identified under proposed subsection 78(1). That requirement is consistent with a rule that applies for entry to premises by the Ombudsman in connection with the Ombudsman's investigation function (see subsection 14(2) of the Ombudsman Act). Similarly, the power under proposed subsections 78(3) and 78(4) for the Attorney-General to prohibit entry to a place by declaration (if satisfied an investigation may prejudice the security or defence of the Commonwealth) is consistent with a provision that applies in connection with the Ombudsman's investigation function (see subsection 14(3) of the Ombudsman Act).

Proposed section 79 gives the Information Commissioner the power to compulsorily require production of information and documents in connection with an investigation. It is an offence to fail to comply with a production notice issued by the Information Commissioner. The power is necessary to ensure that the Information Commissioner can obtain the material relevant to an investigation. It is similarly an offence to fail to comply with a notice to produce issued by the Ombudsman (see section 36 of the Ombudsman Act).

Proposed section 80 is a complementary provision to the power given under proposed section 79.

The effect of proposed section 81 is to give the Information Commissioner the same power to require production of exempt documents as applies under the Commissioner's review function. The same limitations that apply in the exercise of this power under the review function, including in relation to national security and cabinet documents, will also apply to the investigation function. For example, returning exempt documents and ensuring that they are not disclosed other than to staff of the Office of the Australian Information Commissioner in the course of performing their duties.

Proposed section 82 gives the Information Commissioner the power to compulsorily require a person to attend to answer questions for the purposes of an investigation. It is an offence to fail to comply with a notice issued by the Information Commissioner for this purpose. The power is necessary to ensure that the Information Commissioner can obtain the information necessary to conduct an investigation. It is similarly an offence to fail to comply with a notice to appear issued by the Ombudsman (see section 36 of the Ombudsman Act).

Proposed section 83 empowers the Information Commissioner to require a person who appears before the Commissioner, pursuant to a notice under section 82, to take an oath or affirmation that the answer the person will give will be true. It is an offence to fail to comply with this requirement. It is intended that the offence would apply if the person refuses to take the oath or affirmation or if the person knowingly gives false answers.

Proposed section 84 preserves a claim for legal professional privilege in respect of information or a document produced to the Information Commissioner in connection with an investigation by the Information Commissioner.

Proposed section 85 provides immunity to a person from civil proceedings and from criminal or civil penalty if the person gives information, produces a document or answers a question in good faith for the purposes of an investigation. The protection applies even if the person has not provided the material pursuant to a compulsory process. The Information Commissioner may obtain information under proposed subsection 76(2) which would depend on a person agreeing to give the information without a compulsory notice.

Upon completing an investigation, the Information Commissioner is required by proposed section 86 to notify the agency of the outcome of the investigation, and the complainant. (There will be no complainant if the Information Commissioner is undertaking an own motion investigation.) The agency is authorised to make any comments back to the Information Commissioner about the notice. However, under proposed section 89C, the notice must not include exempt matter. Similarly to the Ombudsman, the Information Commissioner has recommendatory powers in respect of his or her investigation function. The investigation may not lead in all cases to the Information Commissioner making formal recommendations. In this case, the notice would address the matters in proposed section 87 (the investigation results). In some cases, intervention by the Information Commissioner may lead to action by the agency that satisfactorily removes the reason for the complaint. In other cases, a suggestion or opinion by the Information Commissioner may be the appropriate outcome.

If the Information Commissioner makes an investigation recommendation (within the meaning of proposed section 88), the Commissioner may subsequently report to the Minister responsible for the agency, and to the Minister responsible for the FOI Act, if the Commissioner is not satisfied that the agency has taken action that is adequate and appropriate in the circumstances to implement the recommendation (proposed section 89A). The Minister responsible for the FOI Act is required to table a report of this kind before each House of the Parliament (under proposed subsection 89A(5)).

As a pre-condition to taking action to table a report for the purposes of section 89A, under proposed section 89, the Information Commissioner is required to issue a notice to the respondent agency requesting particulars of any action proposed to address an investigation recommendation. It is intended that the Information Commissioner would only take action to report to Ministers if the Commissioner considers the agency has not taken action that is adequate and appropriate to implement a recommendation.

Proposed section 89B prescribes the matters that must be addressed in a report to Ministers for the purposes of section 89A. Under proposed section 89C, a report must not include exempt matter.

Proposed section 89D imposes a limitation on the power of the Information Commissioner to recommend that amendment be made to certain records. The provision is related to the right established in Part V of the FOI Act for a person to apply for amendment or annotation of a record of personal information that is incorrect and that is used by an agency for administrative purposes. This provision is intended to replicate an existing limitation that applies to the Ombudsman in connection with an investigation related to action under the FOI Act (see existing section 57(6) of the FOI Act which is to be replaced by proposed section 89J in this item).

Proposed section 89E provides immunity to a complainant from civil proceedings, provided that the person has made the complaint under proposed section 70 in good faith.

The purpose of proposed section 89F is to preserve the jurisdiction of the Ombudsman to undertake investigations related to the FOI Act. It is intended that most complaints about handling requests under the FOI Act will be dealt with by the Information Commissioner (see proposed section 74 above).

Proposed section 89G introduces the same restriction to a report prepared by the Ombudsman in connection with an investigation relating to action by an agency under the FOI Act (that the report must not contain exempt matter) as is proposed to apply to a report (and notice) prepared by the Information Commissioner (see proposed section 89C).

Proposed section 89H preserves the effect of existing subsection 57(5) of the FOI Act.

Proposed section 89J preserves the effect of existing subsection 57(6) of the FOI Act. (Existing section 57 is repealed by item 34 of this Schedule.) The provision is related to the right established in Part V of the FOI Act for a person to apply for amendment or annotation of a record of personal information that is incorrect and that is used by an agency for administrative purposes. The same limitation is proposed to apply to an investigation by the Information Commissioner under proposed 89D in this item.

Item 50 - before section 91

Proposed section 89K gives the Information Commissioner discretionary power to declare a person to be a vexatious applicant, upon the Commissioner's own motion or upon application by an agency or Minister. One of the reasons that the Open government report made no recommendation to amend the FOI Act to include a power for a person to be declared a vexatious applicant was a potential for agencies to invoke the power merely because the person was perceived as a nuisance (at paragraph 7.18). Under this measure, the power is exercised by the Information Commissioner who is an independent statutory office holder. If an agency or Minister makes an application to the Information Commissioner the effect of proposed subsection 89K(3) is that the agency or Minister bears the onus of establishing that the Commissioner should make the declaration.

Proposed section 89L establishes the grounds upon which the Information Commissioner needs to be satisfied in order to declare a person to be a vexatious applicant. The power is exercisable in relation to an 'access action' by the applicant. An access action relates to rights provided under the Act to make a request or an application for review (other than an application for review to the AAT). Before making a declaration, the Information Commissioner is required to give the person an opportunity to make submissions.

Under proposed section 89M, the Information Commissioner may make a declaration subject to terms and conditions. Under proposed subsection 89M(2), a declaration may have the effect that an agency or Minister may refuse to deal with an access request or an application from the person declared vexatious unless the request or application is made with the permission of the Information Commissioner.

Under proposed section 89N, a person who is declared vexatious may apply to the AAT for review of that decision. The Information Commissioner would be the respondent party to the application.

Proposed section 89P requires the Information Commissioner to ensure that staff of the Office hold appropriate security clearances (in accordance with the Australian Government Protective Security Manual). This measure recognises that staff may handle classified material in the course of performing duties under the FOI Act.

Proposed section 90 extends the immunity given to officers, Ministers, agencies and the Commonwealth from certain civil actions in existing section 91 of the FOI Act. That provision provides protection where access is 'required' to be given under the Act. It does not cover discretionary disclosure outside the FOI Act or disclosure of exempt documents. Proposed section 90 extends the scope of the immunity to disclosures of that kind made in good faith (in addition to disclosures required to be made under the Act). The provision is also amended to cover the proposed publication requirements under the Act (namely, the information publication scheme in Part II and under proposed section 11C (Part III)), in addition to access requests. This proposal implements a recommendation of the Open government report.

Item 51 - subsection 91(1)

This item is a consequential amendment to the proposal to insert section 90 in item 50.

Item 52 - subsection 91(1A)

This item is a consequential amendment to the proposal to insert section 90 in item 50.

Item 53 - paragraph 91(1C)(a)

This item is consequential to item 21 in Schedule 3 (section 26A has been redrafted to improve readability).

Item 54 - paragraph 91(1C)(b)

This item is consequential to item 21 in Schedule 3 (and takes account of the redrafting of section 27).

Item 55 - paragraph 91(1C)(c)

This item is consequential to item 21 in Schedule 3 (and takes account of the redrafting of section 27A).

Item 56 - section 92

Item 56 repeals existing section 92 and substitutes a new provision that extends the immunity given to officers and Ministers from criminal offences. Existing section 92 provides protection where access is 'required' to be given under the Act. It does not cover discretionary disclosure outside the FOI Act or disclosure of exempt documents. Proposed section 92 extends the scope of the immunity to disclosures of that kind made in good faith (in addition to disclosures required to be made under the Act). The provision is also amended to cover the proposed publication requirements under the Act (namely, the information publication scheme in Part II and under proposed section 11C (Part III)), in addition to access requests.

Item 57 - section 93

Existing section 93 of the Act is proposed for repeal because the preparation of an annual report on the operation of the FOI Act is proposed as a function of the Information Commissioner under clause 30 of the Australian Information Commissioner Bill.

Proposed section 93, which requires agencies and Ministers to furnish information for the purposes of the annual report under clause 30 of the Australian Information Commissioner Bill, is intended to replicate the obligation under existing subsection 93(2) of the FOI Act. The information that must be provided is set out in clause 31 of the Australian Information Commissioner Bill.

Proposed section 93A gives the Information Commissioner a discretionary power of issuing guidelines for the purposes of the FOI Act. The reference to guidelines addressing certain matters under proposed subsection 93A(2) is not intended to limit the power of the Information Commissioner to issue guidelines on other aspects of the operation or administration of the FOI Act. An agency or Minister must have regard to any guidelines issued by the Information Commissioner (that is to consider the guidelines). It is not intended that the guidelines have binding effect.

Proposed subsection 93A(3) provides that guidelines are not legislative instruments. The provision is merely declaratory of the law (to assist readers) and is not an exemption from the Legislative Instruments Act 2003.

Proposed section 93B requires the Minister responsible for the FOI Act to cause a Government review to be undertaken of the operation of the Act two years after the commencement of this provision. The period of two years should allow sufficient time for the effectiveness of the Act (as changed by the reform bills) to be assessed. The report must be completed within six months and a copy of the report is to be tabled in the Parliament. Provision is also made in the Australian Information Commissioner Bill at clause 33 for review of that legislation when enacted. It is the Government's intention for both reviews to be undertaken at the same time.

Part 2 - Other amendments - Ombudsman Act 1976

Item 59 - subsections 6(4A) to (4C)

Item 59, which repeals subsections 6(4A) to 6(4C), is a consequential amendment arising from the amendment at item 60.

Item 60 - after section 6B

The amendments to the Ombudsman Act relate to the proposal to give the Information Commissioner a function of investigating action taken by agencies under the FOI Act. While the Ombudsman may still investigate complaints concerning action under the FOI Act, it is intended that the Information Commissioner will deal with most complaints of this kind. The Ombudsman will have capacity to investigate FOI complaints where the Ombudsman could more effectively or appropriately deal with a complaint (for example, where the FOI complaint forms one aspect of a wider grievance concerning agency action or relates to action by the Information Commissioner in dealing with an FOI request). Proposed subsection 6C(2) provides for the Ombudsman to consult with the Information Commissioner to ensure no duplicity arises. Proposed subsection 6C(3) requires the Ombudsman to transfer a complaint to the Information Commissioner upon deciding not to investigate a complaint following consultation with the Information Commissioner. Complementary provision is made in relation to the Information Commissioner (item 49, proposed section 74 of the FOI Act).

Item 61 - subsection 19(4)

This item addresses a reference error in subsection 19(4) of the Ombudsman Act.

Item 62 - subparagraph 19R(3)(b)(iii)

Item 62 is a consequential amendment arising from item 59.

Item 63 - subsection 19R(4) (table item 4, column 2)

Item 63 is a consequential amendment arising from item 59.

Item 64 - subsection 35(6A)

This item is a consequential amendment arising from item 59.

Part 3 - Application and transitional provisions

Item 65 - application Part 1

Subitem (1) of item 65 provides that the amendments made in Part 1 of Schedule 4 apply in relation to requests for access made under section 15 of the FOI Act and applications made under section 48 of the FOI Act that are received at or after the commencement of those items.

Subitem (2) of item 65 provides that the amendments proposed to section 66 of the FOI Act (power for the AAT to make a recommendation that costs be paid) apply to applications to the AAT made at or after the commencement of items 44 and 46.

Subitem (3) of item 65 relates to the proposed investigation function and means that the Information Commissioner may investigate action taken by an agency for the purposes of the FOI Act whether the action occurred before, at or after the commencement of the amendments made by item 49.

The effect of subitem (4) is that the proposed amendments to extend the immunity to officers and Ministers for certain civil proceedings and for criminal liability apply to actions involving the publication of a document, or giving access to a document, at or after the commencement of those items.

Item 66 - application Part 2

The amendments to the Ombudsman Act made by Part 2 of Schedule 4 apply to a complaint made to the Ombudsman (in relation to action by an agency for the purposes of the FOI Act) at or after the commencement of those amendments.

Item 67 - savings - complaints on foot continue under old law

This item establishes that a complaint made to the Ombudsman before the commencement of the amendments in Part 2 is to continue to be dealt with under the Ombudsman Act if the Ombudsman had not informed the complainant of the result of the investigation under section 12 of the Ombudsman Act.