Editors --- "Freedom of Information" [2010] AdminRw 14; (2010) 59 Admin Review 68

• Admin law watch
• Law reform
• Current law reform initiatives are furthering policies of open, accountable and transparent government through improved access to government information and greater participation in government by citizens. Improving access to justice and social inclusion are both policies that also have strong support across governments and are being reflected in a range of new laws and administrative processes.
• Freedom of information
• Commonwealth
• New South Wales

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Admin law watch

This section provides information about recent developments in the area of administrative law.

Law reform

Current law reform initiatives are furthering policies of open, accountable and transparent government through improved access to government information and greater participation in government by citizens. Improving access to justice and social inclusion are both policies that also have strong support across governments and are being reflected in a range of new laws and administrative processes.
Freedom of information

Commonwealth

The Australian Government is reforming the Freedom of Information Act 1982 with the principal objective of promoting a culture of disclosure throughout government. The reforms are being implemented in two stages. In the first stage the Government introduced legislation to repeal the power to issue conclusive certificates under the FOI Act and the Archives Act 1983. The Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009 came into force on 7 October 2009. In his second reading speech on the Bill, the Cabinet Secretary advised the Parliament:

The measures in this Bill deliver on the Government’s election commitment to abolish conclusive certificates. They also establish a fair balance between ensuring appropriate safeguards are in place in the review process with respect to sensitive information, while at the same time ensuring full independent merits review of agencies’ decisions on FOI.

The second stage of the reforms is made up of a broader package of changes. The Government introduced the Information Commissioner Bill 2009 and the Freedom of Information Amendment (Reform) Bill 2009 into the parliament on 26 November 2009, following public consultation on exposure drafts of these Bills earlier in the year. The Information Commissioner Bill will establish the office of the Information Commissioner, which will bring together the independent oversight functions for privacy protection (principally regulated by the Privacy Act 1988) and for access to government information (as regulated by the FOI Act). For this purpose, the Bill creates two new independent statutory positions—Information Commissioner and Freedom of Information Commissioner. It also makes provision for the appointment of the Privacy Commissioner in this legislation instead of under the Privacy Act. On 26 February 2010 the Government announced the appointment of Prof. John McMillan AO as the Information Commissioner Designate.

Proposals in the Freedom of Information Amendment (Reform) Bill are drawn in part from the findings of the 1995 joint Australian Law Reform Commission and Administrative Review Council Open Government report. The report’s main findings have been updated and supplemented by other measures aimed at delivering better access to government information.

In addition to the structural reforms, among the significant changes envisaged for the FOI Act are the proposed agency information publication scheme and a change to the period for which the FOI Act will govern access to government information. The proposed information publication scheme establishes a legislative framework for agencies to be proactive in the publication of government information. It is intended that the scheme will change the focus of the FOI Act from one that is now largely reactive to requests being made for access to documents. The Bill will amend the Archives Act to bring forward the open access period for all records (other than Cabinet note books and census information) from 30 years to 20 years. This means the FOI Act will govern access for 20 years instead of 30 years. The open access period for Cabinet note books is to be brought forward from 50 years to 30 years.

The Information Commissioner will be able to carry out full merits reviews of FOI decisions made by agencies and ministers, most applications probably being determined on the papers. The commissioner will also take over the bulk of the role of the Ombudsman in relation to investigating complaints about handling of FOI requests. The Ombudsman will still have the capacity to investigate FOI complaints where it would be more appropriate or effective for the Ombudsman to do so—for example, if an FOI complaint forms part of a wider grievance relating to agency action or if the complaint concerns actions by the office of the Information Commissioner.

The Bill also allows for a stronger distinction between the remedy of a merits review function (if a person is concerned about the correctness of an FOI decision) and a complaints investigation function (if a person is concerned about procedural matters such as delay or a failure to receive assistance). At present, if a person makes a complaint to the Ombudsman about an FOI application they cannot make an application to the Administrative Appeals Tribunal for review of the decision. That limitation will be removed by the Bill, with the intention that a person’s grievance is handled under the appropriate function.

The Senate Standing Committee on Finance and Public Administration reported on the Bills on 16 March 2010. On 17 March 2010 the Government circulated amendments it intended to move to the Information Commissioner Bill and the Freedom of Information Amendment (Reform) Bill. Both Bills passed through the Parliament on 13 May 2010.

Further information about the FOI reforms is available from the Department of the Prime Minister and Cabinet’s website—www.dpmc.gov.au/consultation/foi_reform/index.cfm.

New South Wales

In February 2009 the New South Wales Ombudsman released a special report on the state’s FOI regime. Opening up Government made 88 recommendations, the first of which was that ‘the government should continue to actively encourage and require greater proactive disclosure of information by agencies’. An integral part of the Government’s response to the Ombudsman’s report is the overhaul of the state’s FOI regime. The New South Wales Parliament has passed three new Acts, which were assented to on 26 June 2009:

• the Government Information (Public Access) Act 2009

• the Government Information (Information Commissioner) Act 2009

• the Government Information (Public Access) (Consequential Amendments and Repeal) Act 2009.

It is expected that the new regime will become fully operational in 2010. Until it does, the current New South Wales Freedom of Information Act 1989 applies.

Acting Information Commissioner Maureen Tangney has begun setting up the new office of the Information Commissioner. The Government intends to have a permanent office holder appointed by the time the new legislation comes into force. The Joint Parliamentary Committee on the Office of the Ombudsman and the Police Integrity Commission has accepted the

Attorney-General’s recommendation for the appointment of Deirdre O’Donnell as New South Wales’ inaugural Information Commissioner.

Further information can be obtained from www.dpc.nsw.gov.au/prem/foi_reform_-_open_government_information and www.informationcommissioner.nsw.gov.au.