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Friday, August 24, 2018

Amid the hubbub, an FOI reform bill introduced from the crossbench goes to committee

Its been quite a week so you're excused if you missed the introduction into the Senate of the Freedom of Information Legislation (Improving Access and Transparency) Bill 2018 by Senator Rex Patrick  (Centre Alliance).

The senator is among the few who take a serious interest in transparency and accountability, evident in his time as a staffer to former senator Nick Xenophon, and in his own stead since he replaced Xenophon in November last year.

Introduction of the bill took one minute of the senate's time but it won't automatically sink without trace. It has been referred to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 30 November 2018. Thus the opportunity to draw attention and advocate for action from those in government who since the election in 2013 have settled for words if pressed on the subject.

While well short of the changes that would be expected if Australia embarked on developing information access laws fit for the 21st century, an OGP commitment on which the government has remained silent about what is under consideration since August 2017, Senator Patrick's bill is a welcome attempt to identify high order priorities for improvement.

Specific changes proposed include:
  • Requiring the government to fill all three offices of the Australian Information Commissioner, the Privacy Commissioner and the Freedom of Information Commissione
  • Allowing FOI review applicants to elect to have their matter bypass the Information Commissioner, who can take more than a year to make a decision on controversial issues, to the Administrative Appeals Tribunal.
  • Granting an FOI applicant the right to switch a review into the AAT, without charge, in the event that the Information Commissioner takes, or indicates he or she will take, more than 120 days to make a decision.
  • Preventing agencies from making submissions to FOI decision reviews that have not been advanced by the agency in its internal decision making, so that they can't switch exemptions half way through a review as often happens now. This would prevent a current practice that, in effect, this allows an agency to remake decision half way through a review, something not normally permitted in merits reviews being run in superior jurisdictions.  
  • Preventing the Information Commissioner from making FOI decisions if he or she does not hold the legal qualifications required of the FOI Commissioner (as happens now). 
  • Preventing agencies from publishing information released under FOI until at least 10 days after the applicant has received his or her copy of the information. 
  • Promoting the use of freedom of information requests by Senators and Members of the House of Representatives by entitling them to access to documents without charge unless the work generated by an access application involves charges totalling more than $1000
  • Requiring an agency to publish its external legal expenses for each Information Commission or AAT FOI matter that has concluded. This would apply in relation to agency FOI legal expenses and to expenses incurred by the National Archives in respect of applications made for access to information under the Archives Act 1983.
 The reasons for referral/principal issues for consideration by the committee are:
"Impact and benefits
Affect on OAIC resources/processes
Possible submissions or evidence from:
OAIC/Attorney/Law Council/Media Organisations
Accountability Roundtable."

Specific mention of The Accountability Roundtable is an acknowledgement of the tireless work of the former Chair Tim Smith QC in drawing attention to the Abbott and Turnbull governments' move away from the legislated model of three commissioners to exercise the functions of the OAIC and to downscale resources available for FOI and information policy.

Senator Patrick's second reading speech (incorporated in Hansard but not read):

 

The purpose of this Bill, the Freedom of Information Legislation Amendment (Improving Access and Transparency) Bill 2018 is to introduce measures that make government more transparent and accountable, and assist citizens and the media to access information under the law.

The Bill amends the Archives Act 1983, the Australian Information Commissioner Act 2010, and the Freedom of Information Act 1982. The Bill reflects amendments that were moved to the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018.

These amendments are designed to significantly improve the effectiveness of Australia's freedom of information (FOI) laws. Freedom of information provides the lawful means for citizens, the media, and parliamentarians to obtain access to information that ultimately belongs to the public.

These changes are designed to address the considerable dysfunction that has developed in our FOI system which is now characterised by chronic bureaucratic delay and obstruction, unacceptably lengthy review processes and what appears to be an increased preparedness by agencies to incur very large legal expenses to oppose the release of information.

The Bill also seeks to restore the Office of the Australian Information Commissioner (OAIC) with the appointment of three independent Commissioners as was the intention of the Parliament.
As Senators will be aware, the Australian Information Commissioner Act 2010 (AIC Act) establishes three independent statutory officers; the Information Commissioner, the FOI Commissioner and Privacy Commissioner.

Currently, the Information Commissioner, Mr Timothy Pilgrim, is also acting as the Privacy Commissioner while the FOI Commissioner's role is vacant because Mr Pilgrim does not hold the appropriate legal qualifications.  (Comment: Senator Patrick may have been sitting on this speech for months-Mr Pilgrim retired in March 2018.)

Soon after the passage of the AIC Act, Professor John McMillan was appointed as Australian Information Commissioner, Dr James Popple was appointed FOI Commissioner and Mr Pilgrim was appointed Privacy Commissioner. All were appointed for five-year terms.

However in 2014, the Abbott Government introduced a Bill which sought to abolish the Office of the Australian Information Commissioner. This Bill was rejected by the Senate and after the prorogation of the 44th Parliament, the Turnbull Government decided to keep the office open. However, the vacancies made by the departure of Professor McMillian and Mr Popple were never filled.

Mr Pilgrim performed all three Commissioner roles and was charged with the additional task of implementing the 'Open Government Partnership' which the Turnbull Government committed itself to. However he could not fill the FOI Commissioner's role because he did not have the necessary legal qualifications required by the AIC Act.

Instead he made FOI decisions through a loophole in the legislation that permits the Information Commissioner, a position that does not require legal qualification, to make such decisions.
Following Mr Pilgrim's departure in March this year, the three hats of the OAIC have been worn by Ms Angelene Falk who as Information Commissioner and Privacy Commissioner also leads the agency's freedom of information function.

The Government has advertised the position, making it clear that it intends to continue the practice of having a single Commissioner perform all three functions.

It is hard to credit the Government with a very deep commitment to freedom of information while it leaves the office of the Australian Information Commissioner hamstrung in this way.
The specific changes contained in this Bill include:

Requiring the government to fill all three offices of the Australian Information Commissioner, the Privacy Commissioner and the Freedom of Information Commissioner.
 
Allowing FOI review applicants to elect to have their matter bypass the Information Commissioner, who can take more than a year to make a decision on controversial issues, to the Administrative Appeals Tribunal.
 
Granting an FOI applicant the right to switch a review into the AAT, without charge, in the event that the Information Commissioner takes, or indicates he or she will take, more than 120 days to make a decision.
 
Preventing agencies from making submissions to FOI decision reviews that have not been advanced by the agency in its internal decision making, so that they can't switch exemptions half way through a review as often happens now. This would prevent a current practice that, in effect, this allows an agency to remake decision half way through a review, something not normally permitted in merits reviews being run in superior jurisdictions.
 
Preventing the Information Commissioner from making FOI decisions if he or she does not hold the legal qualifications required of the FOI Commissioner (as happens now).
 
Preventing agencies from publishing information released under FOI until at least 10 days after the applicant has received his or her copy of the information.
 
Requiring an agency to publish its external legal expenses for each Information Commission or AAT FOI matter that has concluded. This would apply in relation to agency FOI legal expenses and to expenses incurred by the National Archives in respect of applications made for access to information under the Archives Act 1983.
This is a comprehensive array of reforms that reflect the practical experience of constituents, journalists, researchers and members of Parliament seeking information under Freedom of Information.
The passage of this Bill will significantly improve access to government information and with that improve scrutiny of the accountability of government to the Parliament.
Freedom of Information is an absolutely vital part of efforts to ensure that the executive government is accountable to the Parliament and the people.
As a Senator, and previously as a staffer working for former Senator Xenophon, I have found FOI enormously valuable, if at times equally frustrating.
It is a pity that more Senators and Members do not take advantage of our FOI laws, flawed as they may be. I would urge them to do so, both in Opposition and in Government, and urge them to look positively at the reforms proposed here.

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