08 Nov 2012

New review into the 2010 FOI reforms and the effectiveness of the Freedom of Information Act 1982

by Avinesh Chand, Zac Chami

Submissions on the review of the freedom of information reforms are due by 7 December, and the report will be complete by 30 April 2013.

The Commonwealth Attorney-General has appointed former senior public servant and diplomat, Dr Allan Hawke, to conduct an independent review of the Freedom of Information Act 1982 (FOI Act) and the Australian Information Commissioner Act 2010.

As required by section 93B of the Freedom of Information Act 1982 and section 33 of the Australian Information Commissioner Act 2010, the review will consider the operation of the two Acts since the commencement of the freedom of information reforms in November 2010.

The FOI review's terms of reference

The terms of reference for the review require Dr Hawke to consider:

  • the impact of the recent reforms to freedom of information laws, including the new structures and processes for review of decisions and investigation of complaints;
  • the effectiveness of the Office of the Australian Information Commissioner;
  • the effectiveness of the two tier system of merits review;
  • the reformulation of the exemptions in the FOI Act including the application of the new public interest test taking into account:
  • the requirement to ensure legitimate protection of sensitive government documents including Cabinet documents;
  • the necessity for the government to continue to obtain frank and fearless advice from agencies and from third parties who deal with government;
  • the range of agencies covered;
  • the role of fees and charges on FOI, taking into account the recommendations of the Information Commissioner's views of the current charging regime; and
  • the desirability of minimising the regulatory and administrative burden, including costs, on government agencies.

What happens next?

Dr Hawke's review is likely to be assisted by the Australian Information Commissioner's report on the FOI Act charges regime. In February this year, the Australian Information Commissioner recommended in a report that the processing and charges regime set out in the FOI Act be overhauled. In particular, the Australian Information Commissioner's recommendations included a modest increase in the processing charges rate, the reintroduction of application fees in certain circumstances and the amendment of the FOI Act to give agencies a discretion to refuse FOI requests which they estimate will take more than 40 hours to process.

The Attorney-General has indicated that a wide range of stakeholders and users of freedom of information laws will be consulted as part of Dr Hawke's review.

The review commences in November, with submissions due by 7 December, and will be complete by 30 April 2013 when a report on the review must be provided to the Attorney-General.

The report will be tabled in Parliament after it has been received by the Attorney-General.

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