25 November 2014


The Senate Legal and Constitutional_Affairs has released its report [PDF] on the deeply flawed Freedom of Information Amendment (New Arrangements) Bill 2014 (Cth).
That Bill is meant to "implement the new arrangements for privacy and FOI functions announced by the Government in the 2014 Budget", amending various Acts in order to:
  • abolish the positions of Freedom of Information Commissioner and Australian Information Commissioner, and the OAIC; 
  • create an independent statutory office of Australian Privacy Commissioner within the Australian Human Rights Commission (AHRC); 
  • remove the current two-stage process for review of FOI decisions, with external merits review to be available only from the AAT, following mandatory internal review; 
  • make the Attorney-General responsible for FOI guidelines, collection of FOI statistics and annual reporting on the FOI Act, in place of the Information Commissioner; and 
  • make the Commonwealth Ombudsman solely responsible for investigating complaints about FOI administration. 
The Committee comments that
In his second reading speech on the Bill, Senator Richard Colbeck said the new arrangements set out in the Bill would not affect the legally enforceable right of every person to access official documents under the FOI Act, nor change the substantive criteria governing agencies' and ministers' decisions on FOI requests. The Bill would, however:
reduce the size of government, streamline the delivery of government services and reduce duplication. It will mean business as usual for privacy and largely restore the system for the management of freedom of information in place before the establishment of the [OAIC] on 1 November 2010.
The Bill makes it easier for applicants to exercise their rights under privacy and FOI legislation.
He would say that, of course, wouldn't he.

The Coalition Senators commented
Functions to be exercised by the Attorney-General: a conflict of interest?
Many submitters believed that the transfer of a number of FOI-related functions and powers from an independent statutory authority to the Executive branch of government was inappropriate and created a potential conflict of interest.
Associate Professor Moira Paterson of Monash University said that historically, oversight of the FOI Act by the Attorney-General's Department had not featured the same 'active championship and enforcement' of FOI as that now shown by the OAIC. The Open Australia Foundation referred to 'gaming of the system' undertaken by some agencies, underlining the need for an independent monitor of FOI compliance, and further claimed that among agencies, the Attorney-General's Department was 'not modelling best practice in this area'. Academic Bruce Baer Arnold went further, expressing scepticism 'that executives within the Attorney- General's department will demonstrate a sustained and vigorous enthusiasm for transparency'.
PIAC and others expressed particular concern about the assumption of determinative powers by the Attorney-General, such as to exempt documents from disclosure under FOI. Ms Sophie Farthing of PIAC noted that the new arrangements would allow the Attorney to define categories of information that were 'unreasonable' to publish, including information sought from his own department: 'there is a conflict with changing an office which is independent in issuing this kind of regulation and guidance about how the FOI Act should operate to someone who is subject to the Act himself'. The Public Law and Policy Research Unit at the University of Adelaide agreed, adding the observation that the department would 'both be implementing the [FOI] framework and providing a report on how well this has been achieved'. Professor Disney described the placement of promotion, monitoring and guidance roles within the Attorney-General's Department as 'utterly inappropriate'.
In its evidence, the Attorney-General's Department assured the committee that production of guidance and guidelines to government agencies would 'remain the same' under the department's administration as it had been under the OAIC, and that there would be no conflict with the department's decision-making role. The department further noted that the Bill provided for the transfer of staff from the OAIC to the department, ensuring that expertise would be brought in to discharge the functions formerly performed by the OAIC.
Arrangements for the Australian Privacy Commissioner
The AHRC raised concerns with the committee about the arrangements proposed in the Bill for the Australian Privacy Commissioner to be established as an independent statutory body within the AHRC:
The Bill proposes that the Australian Privacy Commissioner should sit within the AHRC but not be a member of the [AHRC]. The staff assigned to the Commissioner will be staff of the AHRC but under the exclusive direction of the Privacy Commissioner. These provisions will not work as a matter of law as the Accountable Authority for the purpose of the Public Governance, Performance and Accountability Act (PGPA) remains the President of the AHRC. It is also proposed that the Privacy Commissioner should have the same status as a staff member for the purpose of the PGPA. While all the other Commissioners within the AHRC report through the President to the Attorney-General, the Australian Privacy Commissioner would report directly to the Attorney-General. …the model proposed by the Bill fails to understand the legal obligations under the PGPA and the Australian Human Rights Commission Act and, with the best will in the world, creates potential for conflict. There are confusing lines of authority both in financial and staffing respects.
At the committee's public hearing, AHRC President Professor Gillian Triggs described the proposed arrangements as placing the Australian Privacy Commissioner 'in a separate bubble' within the AHRC:
If this Bill is passed, we will continue to do what we are doing in the [AHRC] but we will have this bubble in the middle of it where you have a Privacy Commissioner with staff I will allocate to him notionally, but the curious phenomenon under the bill is that those staff would not, under any circumstances, be accountable to the commission. That is simply unworkable because of the way in which the financial requirements are and in relation to all sorts of staffing matters and other legislation.
The AHRC proposed that these problems could be resolved by amending the legislation to reflect one of three alternative models: the creation of the Australian Privacy Commissioner as a separate Commonwealth entity (which could still receive corporate support from AHRC), the appointment of the Commissioner as a member of the AHRC in the same way as the other AHRC Commissioners, or an amendment to the Bill specifying that the Australian Privacy Commissioner would be empowered to direct staff only 'in compliance with his statutory functions', while in other respects the position would be subject to usual AHRC governance processes.
The Privacy Commissioner, Mr Timothy Pilgrim, agreed with the AHRC that 'the Bill creates a model that is not suited to achieving the objectives of the [Privacy Act] in the most efficient way'. He stated that historical experience, under which the Privacy Commissioner had been part of the (then) Human Rights and Equal Opportunity Commission prior to 2000, had not proven to be effective, and that the 'significantly different regulatory focus' of the Privacy Commissioner's role made it a poor fit for the AHRC. The Australian Privacy Foundation expressed a similar view, and believed that moving the Commissioner (back) into the AHRC risked 'repeating the mistakes of the original regime, and leaving the Commissioner with an even lower profile, and influence, than s/he [previously] had'.
Mr Pilgrim advocated for the return to a stand-alone statutory Office of the Privacy Commissioner, as had existed from 2000-2010. He observed that arrangements already in place between OAIC and AHRC for sharing corporate services such as human resources, finance and IT could continue for the office of an independent Privacy Commissioner, mitigating against any additional costs.
The Attorney-General's Department advised the committee that the relationship proposed in the Bill between the Australian Privacy Commissioner and the AHRC was not dissimilar to other models already in existence, citing the Classification Board as an example. The department stated that it was not unprecedented that office holders held statutory functions while not controlling their own finances and staffing. The department added that parliament would provide guidance on the appropriate resourcing for the Australian Privacy Commissioner's functions, in the form of budget appropriations, and that the Attorney-General as portfolio minister would be able to resolve any difficulties which may arise between the AHRC President and the Australian Privacy Commissioner with regard to the exercise of their respective statutory responsibilities.
Projected Savings
Several submitters queried the government's assertion that the reforms made by the Bill would result in savings of $10.2 million over four years. In particular, many pointed out that the additional costs to agencies of mandatory internal review had not been taken into account.46 In addition, attention was drawn to projected increased costs of AAT review not only to individual applicants, but to government agencies and the AAT itself.
Many were unconvinced that savings at the level of $2.5 million per year, even if realised, were significant enough to justify the losses to public accountability and open government which they believed would result from abolition of the OAIC. Professor Julian Disney expressed the view that 'achieving small government at the expense of good, efficient and open government seems rather contradictory'.
The argument for comprehensive FOI review
The committee's attention was drawn by many to the fact that the Hawke Review, submitted in July 2013, had commented positively on the OAIC, but also made a large number of recommendations to improve the operation of the FOI process, and recommended that these be considered further in a comprehensive review of FOI. Many submitters queried the government's decision to proceed with the measures in the Bill in advance of completing its consideration of the Hawke review, and without any broader review or consultation.
Mr Edward Santow of PIAC spoke strongly about this issue: There has been no public case made in any detail at all for what can only be described as radical changes to our FOI law. Indeed, the FOI law was overhauled as recently as 2010. Very little public consultation has taken place in respect of the Bill's proposals and the government is yet to respond to the recommendations in the statutory review that took place last year under Dr Allan Hawke. If the government is minded to make major changes to FOI law and practice we would urge the government first to undertake a full public consultation that also takes into account the recommendations of the many reviews since the Australian Law Reform Commission's review in 1995.
In response the Coalition Senators state - 
The committee notes that the objectives pursued by the Bill are fundamental to the government's core policy objectives of realising Budget savings, and creating smaller and more efficient government.
The committee has carefully considered the concerns raised by the AHRC in relation to the proposed arrangements for the Australian Privacy Commissioner. The committee recognises the need expressed by the AHRC to ensure that it is able to meet appropriate standards of governance, accountability and practicality in relation to the management of its finances and staff. The committee also acknowledges the perspective of the Privacy Commissioner on the particular requirements of that role, and his preference for maintaining the independence of the office.
The committee notes the advice provided by the Attorney-General's Department that the type of arrangement proposed for the Australian Privacy Commissioner is not unprecedented, and that the department is satisfied that it will not compromise the ability of the AHRC President to comply with her legislative responsibilities.
The committee takes the view that the amendment to the Bill proposed by the AHRC is warranted, in as much as it is a relatively small change but one which would give comfort to the AHRC, and may assist all involved, in ensuring that lines of governance and accountability are clear and workable.
 Its recommendations are that  -
R1 - item 3 of Schedule 2 of the Bill be amended to provide, under the proposed new section 43A(3) of the Australian Human Rights Commission Act 1986, that a member of staff of the AHRC made available to the Australian Privacy Commissioner is subject to the directions of the Commissioner 'in compliance with the Commissioner's statutory functions'.
R2 - the government as soon as possible respond to the Hawke Review, and conduct a consultation process as recommended in the Hawke Review.
R3 - subject to Recommendations 1 and 2, the Bill be passed.
The ALP Senators offered a less anaemic analysis, stating -
Freedom of information laws are essential to Australia's democracy because they give the Australian public and media access to information about what the government elected by the Australian people is doing in their name. Labor has long championed strong and effective freedom of information in Australia. In 2009-10 the Labor government made the most substantial reforms to Australia's FOI regime since its establishment in 1982, following extensive public consultation and with widespread support.
This reform, with the introduction of the Office of the Australian Information Commissioner (OAIC) at its heart, is now being dismantled by the Abbott government with no mandate, no consultation and no justification. The government's claim that the Bill does not affect the substantive rights of citizens, civil society and the press under FOI is simply not true. Its argument that it reduces the burden on applicants is, as Professor Richard Mulgan of the Australian National University described it, 'deceitful sophistry'.
The Bill is an attack on Australia's FOI regime, and on the work the former Labor Government did to revitalise that regime and bring it into line with international best-practice. It is an attack on transparent and accountable government. Labor Senators cannot support it.
No savings
The Bill is not, as the Committee’s majority report claims, a savings measure. As has been noted, even the small cuts achieved by this Bill may be illusory. The costs to agencies of mandatory internal review have not been accounted for.
Moreover, as almost every submission to this inquiry pointed out, a portion of the proposed 'savings' are in fact nothing but cost-shifting to applicants, who will now have to pursue an expensive formal appeal process instead of a free and accessible one.
No review
This Bill would abolish all independent merits review of FOI decisions short of a full adversarial FOI challenge in the Administrative Appeals Tribunal (AAT). As has been noted by numerous submissions to the Committee, AAT review is inaccessible to most ordinary FOI applicants. While review by the OAIC is free-of-charge, applicants face a filing fee of over $800 simply to commence an appeal in the AAT. While the OAIC conducts its own investigation, an appeal to the AAT involves an adversarial process and many applicants would require legal assistance or representation. As a bespoke FOI watchdog, the OAIC has developed a specialist knowledge and institutional memory that a generalist administrative tribunal will find difficult to match.
The AAT and the OAIC are in no sense interchangeable means of review. As Associate Professor Moira Paterson of Monash University argued, 'the genuine availability of an independent review mechanism is fundamental both to the effective operation of the legislation and public confidence in it'. Limiting review to those with the resources and legal knowledge or advice to go to the AAT will not only limit the accessibility of the FOI scheme to applicants, but may also affect the behaviour of government agencies, which 'need to know that their decisions are subject to independent oversight if they are to continue to take their FOI obligations seriously'.
Even Australia's Right to Know, the only submitter which overtly supported the move to direct review by the AAT, acknowledged that the situation of the media organisations which it represents was different to that of private individuals, and encouraged the consideration of a model which would retain the role of an information commissioner for those applicants who would benefit from it.
No consultation
Labor engaged in extensive consultation on its proposed changes to FOI laws in 2009-10, resulting in a new FOI infrastructure that was well-considered and enjoyed broad support. In stark contrast, the government did not conduct any review or consultation prior to announcing the Budget measure this Bill implements.
As noted in the committee's report, the recent review of FOI led by Dr Allan Hawke AC found that the establishment of the OAIC had been 'a very valuable and positive development'. Hawke concluded that the new FOI system was largely working as intended, and that any further reform should only proceed after more comprehensive review. The Government has ignored the good work done by the Hawke review, and has not undertaken any serious analysis of its own on the operation of the FOI scheme or of the OAIC. It is simply unacceptable for the Government to proceed with the complete overhaul of the FOI system without a thorough review and proper consultation.
The management of FOI and related information policy through an independent national body is best practice, and follows a global trend in comparable jurisdictions. The creation of such a body at federal level was advocated as long ago as 1995, in the Open Government Report of the Australian Law Reform Commission and Administrative Review Council. The OAIC was the centrepiece of the revitalisation and reform of FOI successfully brought about under the former Labor government. The continued existence of the OAIC received overwhelming support in submissions to this inquiry.
Labor senators accept that there have been complaints about long timelines for IC processing of FOI reviews, but notes the observation of FOI experts that these have been caused largely by the inadequacy of resources provided to the OAIC. Any delays in the OAIC review process should be dealt with by reviewing and if necessary increasing the resourcing of that office, not abolishing it. The OAIC and other FOI experts also noted that various suggestions had been made to improve the efficiency of OAIC processes. The OAIC has worked on its own volition to dramatically reduce its review timelines, as demonstrated in its most recent annual reporting. The Government has made no attempt to grapple with real solutions to perceived problems with the operation of the OAIC. Rather, its approach has been, as one submitter put it, to throw the baby out with the bathwater.
Under the arrangements proposed in the Bill, oversight of FOI – a system designed to hold executive government to account – will now be led by a core government department. This is a clear conflict of interest. Liberty Victoria observed that open government 'is now to be sacrificed to the very entities in whose interests the limitation of access to governmental information will, from time to time, be prevalent.'
In evidence to the committee, Information Commissioner Professor John McMillan observed that:
open government is ultimately more a matter of culture than precise legal rules, and that culture requires constant pressure. Even when one achieves a far more open and transparent system, the default system within any organisation is for greater confidentiality, greater information control, which some regard as greater secrecy. So, whatever system is in place for information oversight with a view to greater transparency, it requires constant pressure across government to ensure that the messages for transparency are heard and properly implemented…any achievement in the area of transparent government will be a temporary achievement unless there is constant pressure for greater transparency.
Labor senators believe that the OAIC must be retained. The agency has a key role to play in ensuring the transparency of our governance, and the government's proposed rearrangement is an opportunistic attack on an institution which enjoys broad support and has achieved demonstrated success. It is telling that the Abbott government, a government already known for secrecy and opaqueness, is the only voice calling for the abolition of the OAIC. If the government were truly committed to a credible FOI regime and accountable government, it would investigate measures to strengthen, not destroy, the best-practice body at its heart.
The ALP recommendations are that - 
R1   the Bill not be passed.
R2  the government immediately restore necessary funding to the Office of the Australian Information Commissioner to allow it to continue its work.
R3  the government commission a review of the operation of the OAIC, including its resourcing.
The  dissenting report by the Australian Greens commented -
Freedom of Information laws provide the public with important and necessary access to information held by governments and government departments.
The primary goal of any Freedom of Information regime should be to prioritise accessibility and transparency.
Freedom of Information laws provide the public, media organisations and journalists with a critical pathway to accessing information that otherwise would not be able to be accessed.
Of the 32 submissions received by the committee, not a single one supports the proposed changes outlined in the Bill, highlighting the importance placed by the community on an accessible and transparent Freedom of Information regime and widespread concern about this Bill.
Key issues
One of the key arguments raised by the government in support of the Bill has been the delays experienced in the processing of cases by the Office of the Australian Information Commissioner (OAIC). The government has argued that this highlights inadequacies in the organisation and thus it should be abolished.
However, a number of witnesses argued that the delays associated with the OAIC processing cases were the result of underfunding from both Labor and Coalition governments. Mr Peter Timmins argued the OAIC had been 'set up to fail' by being under-resourced from its establishment.
Mr John Wood argued:
The reforms of 2010 promised much, but the failure to provide necessary resources to the Office of the Australian Information Commissioner, led to the failure of those reforms. In addition, departments and agencies read into the failure to provide these resources, an "approval" to respond less than diligently to requests in the knowledge that either complainants would become exhausted pursuing their request, or it would be held up, in review, within the OAIC for a long, long time.
The majority committee report notes that the committee did not receive evidence indicating that AAT review would necessarily be faster than review by the OAIC. On the contrary, FOI Commissioner Dr James Popple advised the committee that comparison of the FOI reviews dealt with since 2010 revealed that the AAT had taken almost exactly the same average time as the OAIC to resolve FOI cases.
Mr Timmins in evidence to the inquiry stated:
I think the argument we are going to save $10 million over four years has some large question marks about it, to put it mildly. Some of the reasons I have raised in my submission include: the costs to individuals, the cost to the AAT; the cost to agencies for mandatory internal reviews, which has not been costed anywhere...
Other concerns raised included the high level of fees required to be paid in order to apply for an external review of decisions through the AAT.
As noted in the Majority Committee report, the Public Interest Advocacy Centre (PIAC) expressed concern that in addition to the burden of application fees, most individual applicants would not have the kind of legal representation that government agencies were able to retain, resulting in an 'imbalance that will happen in the litigious process'.
Professor Julian Disney also emphasised other factors that may affect accessibility to the AAT including the formality and intimidator impact of the AAT process and environment.
The Guardian also noted other issues with the proposed AAT process, commenting:
The $800 AAT filing fee is just the start of the potential costs to the requester in getting his or her application in front of the first reviewer who is genuinely independent of the agency which may have an interest in keeping the requested information secret and therefore in overstating the exemptions. OAIC reviews could be conducted on the papers, whereas AAT reviews will often involve hearings. The Committee will be aware that a tribunal must give procedural fairness to an unrepresented applicant, and that such hearings impose burdens on all parties and on the tribunal. Generally, they are not as efficient as proceedings in which all parties are represented by experienced practitioners.
Concerns were also raised around potential conflicts of interest relating to the exercise of functions by the Attorney-General’s department.
As noted in the majority committee report, the Open Australia Foundation referred to 'gaming of the system' undertaken by some agencies, underlining the need for an independent monitor of FOI compliance, and further claimed that among agencies, the Attorney-General's Department was 'not modelling best practice in this area'. Academic Bruce Baer Arnold went further, expressing scepticism 'that executives within the Attorney- General's department will demonstrate a sustained and vigorous enthusiasm for transparency'.
As noted in the majority committee report, PIAC noted that the new arrangements would allow the Attorney to define categories of information that were 'unreasonable' to publish, including information sought from his own department: 'there is a conflict with changing an office which is independent in issuing this kind of regulation and guidance about how the FOI Act should operate to someone who is subject to the Act himself'.
The Privacy Commissioner, Mr Timothy Pilgrim, stated that 'the Bill creates a model that is not suited to achieving the objectives of the [Privacy Act] in the most efficient way'. 
It is important to note that the Hawke Review did not recommend what is currently being proposed by the Government and in fact commented positively on the OAIC. It made a number of recommendations to improve the functions and operations of Australia’s FOI regime – none of which are being pursued by this Government.
The Hawke Review further called for a more comprehensive review of FOI laws and systems, something that has been pre-empted by the current Bill. 1.20 It is clear from the overwhelming evidence presented to the committee that the approach to FOI as proposed in the Bill would not improve accessibility and transparency, and in fact would create substantial barriers impacting the public’s right to know.
The Greens recommendations are that - 
R1 the Bill not be passed.
R2  the government establish a comprehensive review into Freedom of Information as recommended by the Hawke Review.