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Thursday, May 14, 2015

FOI gets a run in debate on Tribunal Amalgamations bill; Senator Ludwig rides a hobby horse

Freedom of Information cropped up in debate in Parliament this week quite apart from mutterings in the corridors about the revelation in the Budget papers that the government in providing some funding for 2015-16 stands by its intention to proceed with the Freedom of Information Amendment (New Arrangements) Bill that would abolish the Office of Australian Information Commissioner.

Both houses passed the Tribunal Amalgamations Bill 2014. The bill's primary purpose is to merge the Social Security Appeals Tribunal, Migration Review Tribunal and Refugee Review Tribunal into the Administrative Appeals Tribunal. As a result of a Labor amendment the AAT as newly constituted will include a Freedom of Information Division.

And In a somewhat surprising choice of priorities given the FOI issues on the table or that
should be on the table, former minister now Labor back bencher Senator Joe Ludwig introduced a private members bill, the Freedom of Information Amendment (Requests and Reasons) Bill 2015. 

The bill would require government agencies and Ministers to publish online the exact wording of freedom of information requests and the statement of reasons for the decision to allow or refuse release, and require information in released documents to be available for downloading from the web. 

(Comment: Interesting, but not the top of my wishlist of reforms that parliament might consider. And if Senator Brandis who since October has baulked at bringing the bill to abolish the OAIC on for a vote in the Senate in light of its likely defeat, you have to wonder whether the combined forces of Labor, The Greens and the cross-bench might do him, the commissioners and staff and the rest of us a favour by moving the bill, voting it down and turning attention to ensuring executive government adequately funds the office that oversights parliament's FOI reforms of 2010. Whether Senator Ludwig's bill gets attention beyond the Second Reading speech remains to be seen.)

Australian Information Commissioner 
The bill to abolish the OAIC did come in for comment in debate on the tribunal bill in the Senate on Tuesday before the budget presentation that night and in the House on Wednesday, with Labor on both occasions affirming its opposition.

Senator Jacinta Collins said Labor moved the AAT FOI division amendment
to deal with the fallout from the government's Freedom of Information Amendment (New Arrangements) Bill 2014, which would abolish the Office of the Australian Information Commissioner and make the AAT the first port of call for those seeking independent review of FOI decisions. We oppose that bill and the crossbench opposes the bill. The government has been unable to explain, in the face of its failure to pass the ill-fated measure from last year's budget, how it will proceed. If the government is happy to undertake now that it will withdraw its freedom of information bill, the need for this amendment will fall way. But whilst the government persists with that bill this amendment is necessary. If the AAT is to be the main jurisdiction for handling FOI appeals, we must support the AAT to develop sufficient expertise, experience and specialisation in handling those matters. This amendment would go some way towards achieving that, though we are clear that the best case scenario is the withdrawal of the freedom of information bill itself
 Senator Brandis responded
The government is happy to support this amendment. We think it is not strictly necessary. What it does is establish in addition to the six core divisions of the tribunal an additional division dealing with Freedom of Information Act matters. Senator Collins refers to the government's proposal to abolish the Office of the Australian Information Commissioner. Although this is perhaps not the place to have that debate, can I respond to the observation you have made, Senator Collins, by pointing out the anomaly in the existing law that, unlike almost every other area of merits review, there was a double level of merits review in relation to FOI matters. If the government's other legislation would be passed, there would be a single level of merits review, and that merits review would be conducted by the AAT. You propose that there be an FOI division. We would have thought that that could be perfectly well accommodated within the general division of the AAT. Nevertheless, rather than have a fight about it, if you are of the view that there should be an FOI division, as well as the other six divisions, of the AAT, we are happy to support your proposal."
(Comment: As the Attorney General said this was not the place for the wider debate. But yes, the FOI merits review functions could do with some rethinking, something that shouldn't be left to those in the Attorney General's Department. However any changes that might be warranted could be achieved without removing from the scene entirely the independent monitor, champion and advocate for more open, transparent government; abolishing the non-litigious free external merits FOI review process, and moving this function exclusively to lawyers' territory at the AAT where the application fee for those who do not qualify for a concession is $861 at present and to rise in line with the CPI from 1 July; fracturing the synergies established only four years ago between FOI, privacy and broader policy on information management in the digital age; and placing the attorney general in the position of government wide influence on access decisions through the power to issue guidelines in the stead of the independent commissioner.)

In the House of Representatives on Wednesday Shadow Attorney General Dreyfus said:
Members will be aware that the government's Freedom of Information (New Arrangements) Bill 2014, presently in the Senate, would confer responsibility for determining disputes about FOI applications in the first instance on the AAT. At present, the specialist body the Office of the Australian Information Commissioner fulfils that role. We oppose that bill. It is nothing less than an attack on the FOI system, and the government has, thankfully, not been unable to pass it through the Senate. Embarrassingly, in the recent budget the government has been forced to reallocate funding to the Office of the Information Commissioner a year after announcing that office's abolition. Nonetheless, we want to take this opportunity to ensure that the AAT is better able to handle FOI disputes whether the government's FOI bill passes or not. Accordingly, we moved in the Senate to amend the bill to create a specialist division of the AAT to deal with FOI matters.
(Thanks Open Australia for the Hansard links.)

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