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Wednesday, November 12, 2014

FOI review rights won't disappear if New Arrangements bill doesn't pass.

Paul Farrell writing in The Guardian on the Senate Legal and Constitutional Affairs Legislation Committee public hearing on the Freedom of information Amendment (New Arrangements) Bill reported that the ABC’s freedom of information editor, Michael McKinnon, appearing on behalf of the media coalition Australia's Right to Know, had raised significant concerns that if the bill did not pass applicants would be left without any review options, due to the closure of the OAIC. The OAIC is funded only to 31 December. “Unhappily and reluctantly we support some form of bill getting through in order to create a review process,” he said.

Farrell did not report that both Australian Information Commissioner Professor McMillan and First Assistant Secretary of the Attorney General's Department Matt Minogue in later evidence assured the committee it was not correct that review options would disappear.

Professor McMillan:
"Just on that, I might intervene to correct some confusion on the point of discussion in the last panel session on what will happen after 31 December if this bill is not passed. If the pill (sic) is not passed the OAIC will still continue to exist. It will not have a budgetary allocation, but the OAIC will still exist. The three commissioners each have appointments that extend beyond 31 December. The FOI commissioner and myself, for example, have appointments that continue until 30 October next year. There is of course a legal duty on government, under our constitutive act read with the Remuneration Tribunal Act, to ensure that we are paid at salary while we are still in office. There are practical questions, obviously, about the administrative support that would be needed to discharge functions if the normal budgetary allocation has expired but the legal reality is that the commission still exists, the commissioners still continue in office and the functions conferred upon them by the various acts are still relevantly conferred and are exercisable.....
At the end of the day, one simple option is for the person occupying the position of FOI Commissioner or Information Commissioner or Privacy Commissioner to refer all matters to either the ombudsman or the AAT. The short answer is that appeal rights will not be lost if the legislation does not go through. There are still legal avenues, legal realities, that will ensure that matters can be resolved."

Matt Minogue:
"Certainly. In terms of the key issues that have been raised in the questioning this afternoon, the concern is that, come 1 December (sic) if the bill is not passed applicants would be left with no appeal mechanism at all. That is not the case. You would be rightly be horrified if that were an unintended error, but that is not the case. I think the answer provided by the OAIC commissioners was appropriate there. If the legislation is not passed the commission continues. Yes, there will be practical considerations that government will have to undertake in negotiation with the commission about how to resolve those practicalities, but it is not the case that there will not be any appeal mechanism for applicants.

CHAIR: As I heard Mr Pilgrim, he said they will still do it but they will not be getting paid and would not have any staff—if the bill passes.

Mr Minogue : If the bill passes the external merits review mechanism is the AAT, as outlined in the provisions of the bill.

CHAIR: What someone was telling us was that to go to the AAT you had to have an authority from the commission, and if the commission no longer existed how could anyone go.

Senator JACINTA COLLINS: If the bill did not pass.

Mr Minogue : That is right. If the bill did not pass the concern was that there would be this disjunct between the formal requirement to go to the OAIC, but no OAIC there to be gone through. That is not the case, as I think Professor McMillan outlined. That threshold concern will not materialise. Yes, there will be practical considerations about how that function is continued, given that since the announcement of the government's decision the work has been on implementing the government's decision, not unsurprisingly. So the resources available to the commission will be less than they are today, and government will have to consider that at the time. But I think it would be appropriate to put to ministers, rather than officials, what would happen if the bill does not pass."

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