Commonwealth of Australia Explanatory Memoranda

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                          HOUSE OF REPRESENTATIVES



     Amendments and New Clauses to be Moved on Behalf of the Government

             (Circulated by authority of the Cabinet Secretary,
                         Senator the Hon Joe Ludwig)

                                AMENDMENTS TO


The primary purpose of the amendments to the Freedom of Information
Amendment (Reform) Bill 2009 is to improve the operation of the Bill by:
    . removing the concept of onus from Information Commissioner review and
      Administrative Appeals Tribunal (AAT) review of FOI decisions;
    . renaming the new statutory position of Information Commissioner the
      'Australian Information Commissioner';
    . correcting an omission in the Bill relating to the time for making an
      application to the AAT when the Information Commissioner declines
      review because it is desirable that the AAT undertake the review; and
    . providing for the Information Commissioner to be appointed as a member
      of the Administrative Review Council.


The amendments have no financial impact.


Amendments (1), (4) and (7)  [onus of proof]
As the Freedom of Information Act 1982 (FOI Act) currently stands, the
respondent in an Administrative Appeals Tribunal (AAT) review of an FOI
decision is always the Minister or the agency whose decision is under
review.  The introduction of Information Commissioner review (IC review)
before AAT review means that the AAT will be reviewing the decision of the
Information Commissioner and not the decision of the agency or Minister.
The Information Commissioner will not be a respondent to AAT review
proceedings and will not be defending his or her decision.  It is for those
reasons that the Bill places the onus on whoever applies for AAT review.
For the purposes of IC review, the Bill places the onus on the agency or
Minister to defend their decision which is analogous to the current
position that applies when the AAT reviews an FOI decision of an agency or

The amendments propose that the concept of onus be removed altogether from
both an IC review and AAT review.  The concept of onus was inserted into
the original FOI Act because of a concern that the FOI applicant does not
have access to documents claimed to be exempt.  However, this justification
does not recognise that the AAT has the power to make a new FOI decision
and that the safeguard for an FOI applicant is that the AAT has the power
to require production of exempt documents in order to make its decision on
whether the document is an exempt document.  A further reason to remove the
concept of onus in FOI review proceedings is that it has an adversarial
context which is more readily acquainted with civil litigation and criminal
prosecutions which involve the exercise of judicial power than with merits
review proceedings.

To complement the removal of onus in an IC review proceeding, amendment (4)
requires an agency or Minister to use their best endeavours to assist the
Information Commissioner to make his or her decision on the FOI review
application.  That measure is consistent with an existing obligation that
applies in AAT review proceedings and reflects the principle that merits
review is an exercise of administrative power and not judicial power.

Amendments (2), (8), (9), (11) to (15), (17) to (19) [Australian
Information Commissioner]
The new statutory position of Information Commissioner would be called the
Australian Information Commissioner to distinguish the Commonwealth
position from the several state and territory information commissioners.
Similar amendments are proposed for the Information Commissioner Bill 2009,
including an amendment that would have the effect that the term
'Information Commissioner' in any Act means the person appointed as the
'Australian Information Commissioner' under clause 14 of that Bill
(amendment (3) to the Information Commissioner Bill 2009).

Amendments (3), (5) and (6)  [time for applying to AAT]
These amendments are intended to correct an omission in the Bill.  The Bill
proposes a new level of external merits review for FOI decisions to be
undertaken by the Information Commissioner (IC review), which is to apply
before a further right of review to the AAT.  An applicant must apply for
IC review before applying to the AAT.  The Bill gives the Information
Commissioner a power to decline to undertake an IC review where the
Commissioner is satisfied that the interests of the administration of the
FOI Act make it desirable that the AAT review the decision (proposed
paragraph 54W(b) (item 34 of Schedule 4)).  This power might be exercised
in limited cases such as where it is clear a matter will be highly

As it currently stands under the Bill, in this case, the FOI applicant or
an affected third party would have 28 days to make an application to the
AAT from the date of the agency or Minister FOI decision.  This does not
allow for the time period to make an application for IC review (60 days for
an FOI applicant and 30 days for an affected third party) which will
precede the right to apply to the AAT.  To correct that omission, these
amendments will have the effect that the 28 day time period applies from
the time the Information Commissioner's decision to decline review is given
to the applicant instead of from notice of the decision by the agency or
Minister.  That is the same timeframe that will apply if a party applies to
the AAT from a review decision made by the Information Commissioner.

Amendment (10)  [typographical error]
This amendment corrects a typographical error in the Bill.

Amendment (16)  [membership of Administrative Review Council]
The Administrative Review Council is established under the Administrative
Appeals Tribunal Act 1975 and has a function of reviewing the effectiveness
of the Commonwealth administrative law system.  The Council consists of the
President of the AAT, the Ombudsman, the President of the Australian Law
Reform Commission and a number of other part time members appointed by the

As the FOI Act forms an important part of the Commonwealth administrative
law system, it is appropriate for the Information Commissioner to be
appointed as a member of the Administrative Review Council in the same way
as the President of the AAT, the Ombudsman and the President of the
Australian Law Reform Commission.

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