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A Bill for an Act to amend the law relating to freedom of information, and for other purposes
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 22 Aug 2018
Introduced Senate 22 Aug 2018
Table of contents.

2016‑2017‑2018

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

 

Freedom of Information Legislation Amendment (Improving Access and Transparency) Bill 2018

 

No.      , 2018

 

(Senator Patrick)

 

 

 

A Bill for an Act to amend the law relating to freedom of information, and for other purposes

  

  


Contents

1............ Short title............................................................................................. 1

2............ Commencement................................................................................... 1

3............ Schedules............................................................................................ 2

Schedule 1—Amendments relating to access to information                       3

Part 1—Main amendments                                                                                         3

Archives Act 1983                                                                                                        3

Australian Information Commissioner Act 2010                                                   4

Freedom of Information Act 1982                                                                            5

Part 2—Transitional rules                                                                                          10

 

 


A Bill for an Act to amend the law relating to freedom of information, and for other purposes

The Parliament of Australia enacts:

1  Short title

                   This Act is the Freedom of Information Legislation Amendment (Improving Access and Transparency) Act 2018.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

 

2.  Schedule 1

A single day to be fixed by Proclamation.

However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

 

Note:          This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

             (2)  Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Schedules

                   Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1Amendments relating to access to information

Part 1Main amendments

Archives Act 1983

1  At the end of Division 4 of Part V

Add:

55B  Reporting on external legal expenses

             (1)  The annual report prepared by the Director‑General under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period must:

                     (a)  list each application to the Archives for access to a record in which external legal expenses have been incurred by the Archives; and

                     (b)  provide the particulars of the external legal expenses incurred by the Archives in relation to each of those applications.

             (2)  The particulars published under subsection (1) must include the total external legal expenses incurred by the Archives in relation to each application including, but not limited to, any external legal expenses incurred:

                     (a)  in making an initial decision in relation to an application for access to a record; or

                     (b)  as part of an internal reconsideration of a decision under section 42; or

                     (c)  as part of a review by the Tribunal of a decision of the Archives; or

                     (d)  as part an appeal to the Federal Court of Australia from a decision of the Tribunal.

             (3)  In this section:

external legal expenses includes:

                     (a)  any fees or other expenses charged to the Archives for the provision of legal advice by external legal advisers (including any fees charged by the Australian Government Solicitor (the AGS)); and

                     (b)  any fees or other expenses charged to the Archives by external legal advisers associated with specific litigation in relation to an application (including any fees charged by the AGS).

Note:          Section 55P of the Judiciary Act 1903 provides that the AGS may charge for services.

Australian Information Commissioner Act 2010

2  At the end of section 10

Add:

             (3)  However, the Information Commissioner must not review decisions under Part VII of the Freedom of Information Act 1982 unless he or she holds the qualifications mentioned in subsection 14(3).

3  Subsection 12(2)

Repeal the subsection, substitute:

             (2)  The Privacy Commissioner may also perform the freedom of information functions (except he or she must not review decisions under Part VII of the Freedom of Information Act 1982 unless he or she holds the qualifications mentioned in subsection 14(3)).

4  At the end of section 14

Add:

Separate commissioners to be appointed

             (5)  The same person must not simultaneously hold more than one appointment (including an acting appointment) as an information officer.

Note:          For acting appointments, see section 21.

Information officer positions not to be vacant for more than 3 months

             (6)  The office of an information officer must not be left vacant for more than 3 months.

5  Subsection 21(1) (note)

Omit “Note”, substitute “Note 1”.

6  At the end of subsection 21(1)

Add:

Note 2:       Subsection 14(5) provides that the same person must not simultaneously hold more than one appointment (including an acting appointment) as an information officer.

Note 3:       Subsection 14(6) provides that the office of an information officer must not be left vacant for more than 3 months.

Freedom of Information Act 1982

7  Subsection 4(1)

Insert:

transfer application has the meaning given by subsection 55JB(2).

8  Subsection 11C(6)

Repeal the subsection, substitute:

Time for publication

             (6)  The agency or Minister must comply with this section in the period commencing on the tenth working day after the day the person is given access to the document and concluding on the 14th working day after the day the person is given access to the document.

9  Subsection 29(1)(d)

Omit “subsection (5)”, substitute “subsections (5) and (5A)”.

10  After subsection 29(5)

Insert:

          (5A)  An applicant who is a Senator or a Member of the House of Representatives is entitled to access to the documents without charge unless the work generated by the application involves charges totalling more than $1,000.

11  After section 55E

Insert:

55EA  Procedure in IC review—consistent application of exemptions by decision‑maker

                   Where an agency or Minister who made the relevant IC reviewable decision:

                     (a)  provides assistance to the Information Commissioner under section 55DA; or

                     (b)  is required to provide an adequate statement of reasons under section 55E; or

                     (c)  provides any other information, submission or document to the Information Commissioner as part of an IC review;

                   the agency or Minister must not, in providing the assistance, adequate statement of reasons or other information, rely on any exemptions in Divisions 2 and 3 of Part IV that were not relied upon in making the IC reviewable decision.

12  At the end of Division 6 of Part VII

Add:

55JA  Procedure in IC review—notice requirement if lengthy review

             (1)  The Information Commissioner must, as soon as practicable, notify an IC review applicant if:

                     (a)  he or she considers that it is likely that more than 120 days will elapse between:

                              (i)  the time the relevant IC review application is received by the Information Commissioner; and

                             (ii)  the time that a decision will be made by the Information Commissioner under section 55K; or

                     (b)  120 days has elapsed since the time the relevant IC review application was received by the Information Commissioner.

             (2)  The notice must state that an application to transfer the IC review application to the Tribunal may be made under section 55JB.

55JB  Procedure in IC review—transfer to Tribunal

             (1)  If the Information Commissioner has issued a notice under section 55JA, an IC review applicant may apply to transfer their IC review application to the Tribunal.

             (2)  An application under subsection (1) is to be known as a transfer application.

             (3)  A transfer application must be in writing and must be sent to the Information Commissioner.

             (4)  A transfer application must be made within 28 days after the day on which the notice under section 55JA was given to the IC review applicant.

             (5)  A transfer application is not required to be accompanied by any fee.

             (6)  On receipt of a transfer application the Information Commissioner must:

                     (a)  transfer the IC review application to the Tribunal; and

                     (b)  give the Tribunal any information or documents that relate to the review in the possession, or under the control, of the Information Commissioner; and

                     (c)  notify the IC review applicant in writing that the IC review application has been transferred.

             (7)  An IC review application transferred under subsection (6) is taken to be an application to the Tribunal for a review of the relevant decision made in accordance with the requirements of section 29 of Administrative Appeals Tribunal Act 1975.

             (8)  To avoid doubt, an IC review application transferred to the Tribunal under subsection (6) is not required to be accompanied by any fee.

Note:          Paragraph 29(1)(b) of the Administrative Appeals Tribunal Act 1975 relates to fees for applications to the Tribunal for a review of a decision.

13  Before paragraph 57A(1)(a)

Insert:

                    (aa)  an IC reviewable decision;

14  After subsection 57A(1)

Insert:

          (1A)  To avoid doubt, if an IC review application is transferred to the Tribunal under section 55JB the Tribunal may review the IC reviewable decision to which the IC review application relates.

15  Paragraph 66(1)(a)

Repeal the paragraph, substitute:

                     (a)  a person applies under paragraph 57A(1)(aa) or (a) to the Tribunal for review; and

16  After section 93

Insert:

93AA  Reporting on external legal expenses

             (1)  The annual report prepared by the principal officer of an agency must:

                     (a)  list each request made under section 15 to:

                              (i)  access a document of the agency; or

                             (ii)  access an official document of the agency’s responsible Minister

                            in which external legal expenses have been incurred by the agency; and

                     (b)  provide the particulars of the external legal expenses incurred by the agency in relation to each of those requests.

             (2)  The particulars published under subsection (1) must include the total external legal expenses incurred by the agency in relation to each request including, but not limited to, any external legal expenses incurred:

                     (a)  in making an initial decision in response to the request; or

                     (b)  as part of an internal review; or

                     (c)  as part of an IC review; or

                     (d)  as part of an appeal to the Federal Court of Australia on a question of law under Division 10 of Part VII; or

                     (e)  as part of a review by the Tribunal under Part VIIA; or

                      (f)  as part of an appeal to the Federal Court of Australia from a decision of the Tribunal.

             (3)  In this section:

external legal expenses includes:

                     (a)  any fees or other expenses charged to an agency for the provision of legal advice by external legal advisers (including any fees charged by the Australian Government Solicitor (the AGS)); and

                     (b)  any fees or other expenses charged to an agency by external legal advisers associated with specific litigation in relation to a request (including any fees charged by the AGS).

Note:          Section 55P of the Judiciary Act 1903 provides that the AGS may charge for services.

Part 2Transitional rules

17  Transitional rules

(1)       The Attorney‑General may, by legislative instrument (and subject to subitem (2)), make rules prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to:

                     (a)  the amendments or repeals made by this Act; or

                     (b)  the enactment of this Act.

(2)       To avoid doubt, the rules may not do the following:

                     (a)  create an offence or civil penalty;

                     (b)  provide powers of:

                              (i)  arrest or detention; or

                             (ii)  entry, search or seizure;

                     (c)  impose a tax;

                     (d)  set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;

                     (e)  directly amend the text of this Act.