Potential changes to Freedom of Information legislation

The Senate has introduced the Freedom of Information Legislation Amendment (Improving Access and Transparency) Bill 2018 on 22 August 2018. The following day, the Senate referred the provisions of the Bill to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 30 November 2018. The deadline for submissions was 24 September 2018.

A submission made by the Monash University contains the following passages:
examples of the current problems facing the FOI system include… [s]ignificant delays in response times, well over the statutory 30-day time limit, especially in relation to the Department of Immigration…
In 2015–16, only 69.1% of the Department of Immigration and Border Protection’s 19,928 FOI determinations were made within 30 days…

The explanatory memorandum describes the purposes of the Bill as follows:

The purpose of this Bill is to introduce measures that make government more transparent and accountable, and assist citizens and the media to access information under the law.

The Bill amends the Archives Act 1983, the Australian Information Commissioner Act 2010, and the Freedom of Information Act 1982. The Bill reflects amendments that were moved to the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018.

These amendments are designed to significantly improve the effectiveness of Australia’s freedom of information (FOI) laws. Freedom of information provides the lawful means for citizens, the media, and parliamentarians to obtain access to information that ultimately belongs to the public.

These changes are designed to address the considerable dysfunction that has developed in our FOI system which is now characterised by chronic bureaucratic delay and obstruction, unacceptably lengthy review processes and what appears to be an increased preparedness by agencies to incur very large legal expenses to oppose the release of information.

The specific changes include:

– Requiring the government to fill all three offices of the Australian Information Commissioner, the Privacy Commissioner and the Freedom of Information Commissioner.

– Allowing FOI review applicants to elect to have their matter bypass the Information Commissioner, who can take more than a year to make a decision on controversial issues, to the Administrative Appeals Tribunal.

– Granting an FOI applicant the right to switch a review into the AAT, without charge, in the event that the Information Commissioner takes, or indicates he or she will take, more than 120 days to make a decision.

– Preventing agencies from making submissions to FOI decision reviews that have not been advanced by the agency in its internal decision making, so that they can’t switch exemptions half way through a review as often happens now. This would prevent a current practice that, in effect, allows an agency to remake a decision half way through a review, something not normally permitted in merits reviews being run in superior jurisdictions.

– Preventing the Information Commissioner from making FOI decisions if he or she does not hold the legal qualifications required of the FOI Commissioner.

– Preventing Agencies from publishing information released under FOI until at least 10 days after the applicant has received his or her copy of the information.

– Requiring an agency to publish its external legal expenses for each Information Commission or AAT FOI matter that has concluded. This would apply in relation to agency FOI legal expenses and to expenses incurred by the National Archives in respect of applications made for access to information under the Archives Act 1983…


Disclaimer: the above is a mere reproduction of a Bill and its explanatory memorandum. The views expressed in those documents might not reflect the view of the Department, the AAT or the courts. The law or policies might have changed between the writing and reading of this article. The author of this article and Migration Law Updates disclaim any liability for any action (or omission) on their part based on any information provided (or not provided) in this article and are under no obligation to keep the general public nor practitioners informed about the matters discussed in this article or any other matters, or any future changes to any of those matters. It is the responsibility of each practitioner to obtain access to primary sources of law and policy by themselves and to carry out their own research and come to their own conclusions on legislation, case law, policies and more. This article is not intended for the general public.

Sergio Zanotti Stagliorio is a Registered Migration Agent (MARN 1461003). He is the owner of Target Migration in Sydney. He can be reached at sergio@targetmigration.com.au

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