House of Representatives

Explanatory Memorandum

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

General Outline

The primary purpose of the Bill is to make major reforms to the Freedom of Information Act 1982 ( FOI Act) to promote a pro-disclosure culture across government and to build a stronger foundation for more openness in government.

These reforms arise from the Government's 2007 election commitments on reform to the FOI Act set out in the policy statement Government information: restoring trust and integrity. The reforms implement a number of the recommendations from the 1995 joint Australian Law Reform Commission and Administrative Review Council Open government report on the FOI Act, as well as other initiatives.

This Bill complements the proposed structural reforms to be implemented by the Australian Information Commissioner Bill 2010. Those measures comprise the establishment of the Office of the Australian Information Commissioner and the new independent statutory positions of Australian Information Commissioner (as head of the Office) and FOI Commissioner. The existing statutory position of Privacy Commissioner will also be established within the Office of the Australian Information Commissioner. In relation to FOI, the Australian Information Commissioner, supported by the FOI Commissioner, will act as an independent monitor for FOI and will be entrusted with a range of functions designed to make the Office of the Australian Information Commissioner both a clearing house for FOI matters and a centre for the promotion of the objects of the FOI Act.

The Freedom of Information Amendment (Reform) Bill contains amendments:

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directed at ensuring that the right of access to documents under the FOI Act is as comprehensive as it can be, limited only where a stronger public interest lies in withholding access to documents;

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to give greater weight to the role that the FOI Act serves in pro-active publication of government information; and

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to improve the request process under the FOI Act.

Schedule 1 of the Bill substitutes a new objects clause into the FOI Act which emphasises the reasons underlying the objects in giving the Australian community access to information held by the Government.

Schedule 2 overhauls Part II of the FOI Act and introduces a new information publication scheme for Commonwealth agencies that are subject to the FOI Act. The new scheme provides a statutory framework for pro-active publication of information by agencies. The purpose of the scheme is to allow the FOI Act to evolve as a legislative framework for giving access to information through agency driven disclosure rather than as a scheme that is primarily reactive to requests for documents.

Schedule 3 implements major changes for access to records under the Archives Act 1983. The open access period is to be brought forward from 30 years to 20 years for most Commonwealth records (other than a Cabinet notebook or a record containing Census information). The open access period for Cabinet notebooks is to be brought forward from 50 to 30 years. This Schedule also implements amendments to the exemption provisions in the FOI Act. A new, single form of public interest test is proposed which is weighted towards disclosure, and this new test is to be applied to additional exemption provisions. Some exemption provisions will be repealed. Part IV of the FOI Act, which contains the exemption provisions, is to be reorganised to group together those provisions which are subject to the proposed public interest test (public interest conditional exemptions) and those which are not (exemptions).

Schedule 4 makes provision for certain key FOI functions of the Information Commissioner (which will also be performed by the FOI Commissioner). The Information Commissioner is to have a function of reviewing FOI decisions made by agencies and Ministers. FOI applicants will be able to apply for Information Commissioner review either directly from a decision at first instance or from an agency decision upon internal review. Both an applicant and an agency or Minister will have a right to apply to the Administrative Appeal Tribunal for review of a decision made by the Information Commissioner.

The Information Commissioner is also to have a function of investigating action taken by agencies under the FOI Act. The Commissioner may investigate action upon complaint or at the Commissioner's own motion. 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 merits review function and the investigation function provide different remedies. If a person is concerned with the correctness of a decision, the mechanism for remedy lies in an application for review. If a person is concerned with delay, or a failure to receive assistance, the mechanism for remedy lies in an investigation upon complaint.

A further measure in Schedule 4 gives the Information Commissioner the power to declare a person to be a vexatious applicant for the purposes of the FOI Act. The Information Commissioner may exercise that power if satisfied that a person's conduct involves an abuse of process (in connection with making applications under the Act) or if a particular request or application is manifestly unreasonable.

Schedule 5 contains proposed amendments that are consequential on the establishment of the Office of the Australian Information Commissioner under the Australian Information Commissioner Bill. These amendments primarily substitute references to the 'Privacy Commissioner' in other legislation with 'Information Commissioner'. All privacy and FOI functions are principally vested in the Information Commissioner under the Australian Information Commissioner Bill. Amendments are also made to the Privacy Act as a consequence of the proposal to bring the Office of the Privacy Commissioner into the Office of the Australian Information Commissioner.

Schedule 6 contains a number of other amendment proposals to improve the operation of the Act. This includes repealing provisions in the Act relating to the imposition of fees, empowering the Information Commissioner to extend time periods for processing requests in certain cases, and enhancing the consultation provision in connection with a provision addressing onerous requests.

A measure is included to extend the scope of the FOI Act to contracted service providers who are delivering services to the community for and on behalf of the Commonwealth. Other amendment proposals will introduce some limitations on access, including for intelligence agency information and a limited exclusion for certain documents of the Department of Defence.

Schedule 7 contains amendment proposals to address transitional issues for the new Office of the Australian Information Commissioner, including for bringing the Office of the Privacy Commissioner into the new Office.