Introduction

As those following the FOI reforms in the Commonwealth arena will be aware, the Australian Information Commissioner Act 2010 (Cth) (AIC Act) passed through Parliament on 13 May 2010 and received Royal Assent on 31 May 2010. The Act provides for the establishment of the new Office of the Australian Information Commissioner (OAIC) on and from 1 November 2010.  

The AIC Act is part of a broader package of freedom of information (FOI) reforms that are being implemented at the Commonwealth level to promote a pro-disclosure culture within government agencies. (See our previous Legal Update for the key changes.)

In this Legal Update, we take a closer look at the structure of the OAIC and outline key aspects of its functions and powers.

Structure of the OAIC

The AIC Act establishes the OAIC, which will consist of the ‘information officers’ and the staff of the Office. The ‘information officers’ are:

  • the Information Commissioner (a new statutory office holder)
  • the Freedom of Information Commissioner (a new statutory office holder), and
  • the Privacy Commissioner (an existing statutory office holder previously appointed under the Privacy Act 1988 (Cth) (Privacy Act), who will now be appointed under the AIC Act).

Funding for the OAIC was provided in the 2009-10 Budget and an amount of $19.5 million over four years was allocated in addition to the resources available to the existing Office of the Privacy Commissioner, which will be amalgamated into the OAIC.

  Functions of the OAIC

The primary purpose for creating the OAIC is to allow the functions for independent oversight of the Freedom of Information Act 1982 (FOI Act) and the Privacy Act to be brought together. The division of the OAIC’s functions is as follows:

  • freedom of information functions, which are about giving the Australian community access to information held by the Commonwealth Government in accordance with the FOI Act (and other Acts)
  • privacy functions, which are about protecting the privacy of individuals in accordance with the Privacy Act (and other Acts), and  
  • information commissioner functions, which are strategic functions concerning information management by the Commonwealth Government.

The Information Commissioner will be the head of the OAIC both strategically and administratively and will be able to perform all the functions of the OAIC. The FOI Commissioner, which is also a new position, will mainly perform the FOI functions. For flexibility, the FOI Commissioner will also be able to perform the privacy functions. However, it is intended that the Privacy Commissioner will mainly perform these functions. Similarly, for flexibility, the Privacy Commissioner will also be able to perform the FOI functions.

The Government has already announced the appointment of Professor John McMillan AO as the Information Commissioner Designate. Professor McMillan is responsible for ensuring that the OAIC is fully operational in time for commencement on 1 November 2010. As noted above, the Information Commissioner will be supported by two statutory officers – the Privacy Commissioner and the FOI Commissioner. Timothy Pilgrim was appointed as the Privacy Commissioner for a term of 5 years from 19 July 2010. The FOI Commissioner is yet to be announced. The AIC Act requires that a person appointed as the FOI Commissioner must have legal qualifications.

Freedom of information functions

The Information Commissioner and the FOI Commissioner will share a range of FOI functions, including promoting awareness and understanding of the FOI Act and the objects of that Act and providing information, advice, assistance and training to agencies on the operation of the Act. Other key aspects of the FOI functions are discussed below.

Information publication schemes

Under the changes to the FOI Act, agencies will be required to implement information publication schemes. The Information Commissioner and the FOI Commissioner may provide assistance to agencies to identify and prepare information for the purposes of these schemes and determine how information should be published. The Information Commissioner and the FOI Commissioner will also have the function of reviewing the operation of these schemes in conjunction with agencies, investigating agencies’ compliance and more generally monitoring, investigating and reporting on the operation of information publication schemes.

Public interest guidelines

The Information Commissioner may issue guidelines under the FOI Act, including in relation to when it is contrary to the public interest to give a person access to a document. In working out whether access to a document would, on balance, be contrary to the public interest, a decision-maker must have regard to any such guidelines. The FOI Commissioner may also issue guidelines but must obtain the approval of the Information Commissioner.

Review of FOI decisions

The Information Commissioner and FOI Commissioner will have the function of reviewing FOI decisions made by agencies and Ministers under the FOI Act. FOI applicants will be able to apply for review of an original decision directly or from an agency decision upon internal review. Decisions of the Information Commissioner and FOI Commissioner will be reviewable by the Administrative Appeals Tribunal.

Complaints investigation  

The Information Commissioner and FOI Commissioner can investigate action taken by agencies under the FOI Act and may investigate action upon complaint or at the Commissioner’s own motion. While the Ombudsman may still investigate complaints concerning action under the FOI Act, it is intended that the Information Commissioner and FOI Commissioner will deal with most complaints of this kind. The merits review function and the investigation function provide different remedies. If a person is concerned with the correctness of a decision, the mechanism for remedy lies in an application for review, as outlined above. If a person is concerned with delay or a failure to receive assistance, the mechanism for remedy lies in an investigation upon complaint.

Declaration of vexatious applicants

The Information Commissioner and the FOI Commissioner have the power to declare a person to be a vexatious applicant for the purposes of the FOI Act. This power may be exercised if the Commissioner is satisfied that a person’s conduct involves an abuse of process (in connection with making applications under the FOI Act) or if a particular request or application is manifestly unreasonable.

Review of the AIC Act

The Minister responsible for the AIC Act, currently the Minister for Privacy and Freedom of Information, must undertake a review of the operation of the Act two years after its commencement. The period of two years is intended to allow sufficient time for the effectiveness of the AIC Act to be properly assessed. A report must be completed within six months and a copy tabled in Parliament. Provision has also been made for a similar review of the FOI Act and it is the Government’s intention for both reviews to be undertaken at the same time.