Australian Government Pulls Bill to Abolish Commissioner

2 December 2014

By Peter Timmins
The author writes the Australian website Open and Shut, from which this article is reprinted.

It’s Over!

The Freedom of Information Amendment (New Arrangements) Bill isn’t listed in Senate Order of Business(pdf) for 3 December.

Despite the fact it continues to appear (at No 9) in the Notice Paper I have it on good authority that the government won’t bring the bill on for debate today or tomorrow, the last sitting days of the year. It sits there with a number of other bills that the government knows can’t pass this senate, at this time anyhow.

As the week unfolded, Senator Abetz Leader of the Government in the Senate in discussions with Senator Leonhjelm and perhaps others was told the FOI amendment bill was not supported by the crossbenches.

My information was that in addition to Senator Leonhjelm, Senators Day,  Xenophon, Madigan and Lambie stood with Labor and the Greens in opposing the bill, that Senators Lazarus and Wang probably were opposed, and maybe even Senator Muir, making five, seven or eight additional votes against when the government needed six crossbench votes for to get the legislation through.

Thanks to all out there who were stirred into action by this government attempt to take the open transparent and accountable government cause backwards, big time. The Twittersphere was amazing to this relative newcomer at least.

I’m hoping you stay with it as Australia needs a public voice to safeguard against backsliding like this and to push, pull and drag the cause along in the right direction.

To international supporters who watched anxiously while Australia toyed with a world first, whew!

There’s plenty of scope to improve the FOI system – all the government needs to do is start the dialogue. As part of that overdue national action plan required of members of the Open Government partnership for example? If they don’t we should.

More immediately, Attorney General Brandis and his department will have turned to the next challenge, how to keep the Office of Australian Information Commissioner functioning after 31 December when the budget allocation runs out.

Three weeks ago Matt Minogue, First Assistant Secretary told the Senate committee:

“if the legislation is not passed the commission continues. Yes, there will be practical considerations that government will have to undertake in negotiation with the commission about how to resolve those practicalities, but it is not the case that there will not be any appeal mechanism for applicants.

Australian Information Commissioner Professor McMillan said:

There are practical questions, obviously, about the administrative support that would be needed to discharge functions if the normal budgetary allocation has expired but the legal reality is that the commission still exists, the commissioners still continue in office and the functions conferred upon them by the various acts are still relevantly conferred and are exercisable…..
At the end of the day, one simple option is for the person occupying the position of FOI Commissioner or Information Commissioner or Privacy Commissioner to refer all matters to either the ombudsman or the AAT. The short answer is that appeal rights will not be lost if the legislation does not go through. There are still legal avenues, legal realities, that will ensure that matters can be resolved.” 

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