FOI Reform Bill to face opposition in the Senate

The Senate Finance and Public Administration Report on the Freedom of Information Reform (Amendment) Bill and the Information Commissioner Bill tabled in the Senate today suggests the Government has some negotiating ahead to get the legislation passed. Given the current political climate, it's no surprise that while the  report recommends passage of the bills subject to some changes, and Greens Senator Ludlam is generally supportive but raises some other issues, the Coalition Senators' Dissenting Report ( Senators Ryan and Brandis) opposes the FOI bill in its current form. The Government's response is awaited.(Update: AAP reports Minister Ludwig said Labor would now examine the best ways to implement the report's recommendations.)

The six recommendations (see below) in the report pick up on a mix of important  and not so important issues.  A whole raft of other matters of significance have gone through to the keeper. The Committee notes [Chapter 3] the many different issues raised in submissions and evidence, and that there was little consensus on what should be amended. True, but as pointed out here previously most of those interested ran arguments for changes that had been submitted to the Government a year ago and had never received the benefit of discussion, comment or explanation on why if acted upon they wouldn't improve the legislation. So they ran them again, unfortunately with the same result.

At the end of the day, as the Committee notes, those who took an interest think the bills are good and welcome and want the legislation passed in this parliamentary sitting. Many of those ideas that came from outside the inner circle that has largely shaped the reform effort will have to wait for another day.

The discussion [3.22-3.48] of whether the bills "contain measures effective to ensure that the right of access to documents is as comprehensive as it can be" notes some of the weaknesses and gaps raised and enhancements proposed in submissions and evidence, but without much reasoning, concludes everything is basically OK, and recommends the Information Commissioner have a look in due course at whether exclusions of agencies from the scope of the act (such as the parliamentary departments and intelligence agencies) is necessary and appropriate.

The suggestion that retention of application fees and abolition of charges [3.50] would be a better answer to the cost barrier to use of the act than what the Government proposes, gets some support in all three reports. Senator Ludlam says he wants a response on this (mainly relevant to a regulation not yet promulgated) before a vote on the bill.

The onus of proof issue in the AAT gets close attention [3.64] and I think Senators Ryan and Brandis have a point that the Committee's recommendation that onus be removed from the act doesn't seem to solve the problem, seems inappropriate in the FOI context, and begs the question what procedure would be followed. They oppose Recommendation 4. The  report [3.80-3.82] says my concern that an agency right to a second merits review by the AAT could lead to delay tactics, should be assuaged by the requirement for an agency to comply with model litigant provisions (hmm), although the Coalition senators see something to this.

The report [3.90-3.102] gives the proposed Information Commissioner model a tick, but expresses concern [3.104-3.108] about adequate resourcing. 

The recommendations are:

Recommendation 1

3.21 The committee recommends that section 49 of the Administrative Appeals Tribunal Act 1975 be amended to provide that the Information Commissioner is an ex officio member of the Administrative Review Council.

Recommendation 2
3.49 The committee recommends that, if and when established, the Information Commissioner give consideration to whether it is necessary and appropriate for entire agencies and organisations to be exempt from the Commonwealth's freedom of information scheme.

Recommendation 3
3.58 The committee recommends that the government give consideration to the issues raised with respect to fees and charges in this inquiry, and particularly to the feasibility of removing processing charges, while retaining application fees, in the context of drafting regulations.

Recommendation 4
3.79 The committee recommends that proposed section 61, in item 42 of Schedule 4 to Part 1 of the Freedom of Information Amendment (Reform) Bill 2009, which provides that whichever party that appeals a decision of the Information Commissioner bears the onus of proof in the Administrative Appeals Tribunal, as well as any other relevant sections of the Bill and Freedom of Information Act 1982, be amended to remove the concept of an onus of proof from the Act.

Recommendation 5
3.103 The committee recommends that the Freedom of Information Amendment (Reform) Bill 2009 and the Information Commissioner Bill 2009 be amended such that all references to the 'Information Commissioner' are replaced by references to the 'Australian Information Commissioner'.

Recommendation 6
3.111 The committee recommends that, subject to the amendments outlined in Recommendations 4 and 5 being made, the Freedom of Information Amendment (Reform) Bill 2009 and the Information Commissioner Bill 2009 be passed by the Senate as soon as practicable. 

The Dissenting Report is at 41, with some rhetoric before the substance. Senator Ludlam's comments are at 55.