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Tuesday, March 23, 2010

Government response to Senate Committee

The Government's response to the Senate committee report on the Freedom of Information reform bills has been released, with circulation of Supplementary Explanatory memoranda. With regard to the major issue of contention, as far as the Committee was concerned, the change of onus in the Tribunal to the party that seeks review, the Government proposes removal of the concept of onus altogether from both Information Commissioner and AAT review.  Minor issues are conceded such as the designation of  the Commissioner as Australian Information Commissioner and an appointment for the office holder to the Administrative Review Council. Two errors and oversights in the legislation are addressed.

Whether the onus issue proposal is enough to get this across the line in the Senate remains to be seen. The Committee wanted the status quo retained- with onus in the AAT on the agency or Minister.(Correction:I had a "moment" here-the Committee recommended removal of onus in the AAT. The Dissenting report dismissed the idea.) I'm struggling to see how removal of onus might work in practice in the interests of achieving the object of the Act-it seems entirely dependent on the Commissioner or the Tribunal holding the agency fully to what the law will state is an obligation to use best endeavours to assist in reaching the correct decision. Nothing has been said publicly about the other issue in the report suggesting another look at fees and charges, or concerns raised in the opposition Dissenting report or by The Greens Senator Ludlam.

On the main bone of contention the FOI bill the Supplementary Explanatory Memorandum states:
The amendments propose that the concept of onus be removed altogether from both an IC review and AAT review. The concept of onus was inserted into the original FOI Act because of a concern that the FOI applicant does not have access to documents claimed to be exempt. However, this justification does not recognise that the AAT has the power to make a new FOI decision and that the safeguard for an FOI applicant is that the AAT has the power to require production of exempt documents in order to make its decision on whether the document is an exempt document. A further reason to remove the concept of onus in FOI review proceedings is that it has an adversarial context which is more readily acquainted with civil litigation and criminal prosecutions which involve the exercise of judicial power than with merits review proceedings.

To complement the removal of onus in an IC review proceeding, amendment (4) 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. That measure is consistent with an existing obligation that applies in AAT review proceedings and reflects the principle that merits review is an exercise of administrative power and not judicial power.
The changes to the Information Commissioner Bill, as outlined in the Supplementary Explanatory Memorandum are also minor.

Parliament resumes in May.


  1. Peter. I was initially attracted to the dissenting view in the Senate committee report that s61 of the 1982 FoI Act be preserved so that the onus would usually fall on the agency asserting exemption. I can also see the point in the Government’s response that the AAT performs a function of the executive arm and not a function of the judicial arm and on that basis the concept of onus of proof appears awkward in the context of a merits review.

    I am not, however, convinced that the Government's proposed obligation of the agency to assist the AAT and for that matter the Office of the Australian Information Commissioner on a 'best endeavours' basis goes far enough to promote the object of a pro-disclosure culture. The best that a pre-pro-disclosure agency can do may not be adequate.

    So, on that basis, would it be possible for statute to require that the agency asserting exemption produce all relevant documents, supporting argument and assistance needed for the AAT or OAIC to conduct a review of the primary decision?

    John Larocque

  2. Peter Timmins7:21 am

    John, I have heard the Law Council and Australia's Right to Know were involved in discussions with the Government that led to the revised position.In effect while onus is removed, the usual rules require the agency to carry an evidentiary burden,which would seem to cover the points you raise,even though not spelled out in the act.