Stop press—legislation recently introduced into Parliament

1.62       The law in this Report is current to 11 November 2009. Following this date, three significant bills were introduced into Parliament—two proposed amendments to the FOI Act and one concerning taxation secrecy provisions.

1.63       The Freedom of Information Amendment (Reform) Bill 2009 (Cth) and the Information Commissioner Bill 2009 (Cth) were introduced in Parliament on 26 November 2009. The Bills closely reflect exposure drafts, released for public comment in March 2009, which have been quoted extensively by the ALRC in this Report.[26] As noted in Chapters 2 and 16, these reforms aim to promote a pro-disclosure culture across the Australian Government including the rationalisation of exemptions to the right of access, mandating the proactive publication of certain information, and establishing the Office of the Information Commissioner as an independent monitor in relation to FOI. There appear to be few significant changes from the Exposure Draft Bills. The most notable difference for the purpose of this Inquiry is the removal of the proposed public interest test for the exemption for trade secrets or other information of commercial value that would be destroyed or diminished by disclosure.[27]

1.64       On 30 November 2009, the Senate referred the Freedom of Information (Reform) Bill and Information Commissioner Bill to the Senate Finance and Public Administration Committee for inquiry and report.[28] Issues for consideration include:

  • whether the measures in the Bills will ensure that the right of access is as comprehensive as it can be;

  • whether the improvements to the process for requesting access are efficient and could be further improved;

  • whether the measures will assist in the creation of a pro-disclosure culture in the Australian Government and what further measures may be appropriate; and

  • assessment of the functions, powers and resources of the Information Commissioner.

1.65       On 19 November 2009, the Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009 was introduced into the House of Representatives. The Bill proposes to consolidate the secrecy and disclosure provisions that are currently scattered across 18 different pieces of taxation legislation into a single comprehensive framework within the Taxation Administration Act 1953 (Cth).

1.66       Prior to the introduction of this Bill, the Treasury released a Discussion Paper for the Review of Taxation Secrecy and Disclosure Provisions which canvassed issues in relation to the consistency and application of secrecy and disclosure provisions in Australia’s taxation laws.[29] In March 2009, the Assistant Treasurer and Minister for Competition Policy and Consumer Affairs, the Hon Chris Bowen MP, released for public consultation an exposure draft of this Bill and accompanying Explanatory Material.[30] The ALRC has referred to the Draft Bill and Explanatory Material throughout this Report. While there have been some changes in the form of some provisions, there does not appear to be a significant difference between the content of the Exposure Draft Bill and the Bill introduced into Parliament.

[2]           Australian Parliament—House of Representatives Standing Committee on Legal and Constitutional Affairs, Whistleblower Protection: A Comprehensive Scheme for the Commonwealth Public Sector (2009), Rec 1.

[3]           Ibid, ix.

[26]         Exposure Draft, Freedom of Information Amendment (Reform) Bill 2009 (Cth); Exposure Draft, Information Commissioner Bill 2009 (Cth).

[27]         Freedom of Information Amendment (Reform) Bill 2009 (Cth) sch 3 pt 2 inserting new s 47. Other information about business affairs will continue to be subject to a public interest test: ibid sch 3 pt 2 inserting new s 47G.

[28]         The Senate Committee is due to report on 16 March 2010.

[29]         The Treasury, Discussion Paper for the Review of Taxation Secrecy and Disclosure Provisions (2006).

[30]         Exposure Draft, Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009 (Cth); Explanatory Material, Exposure Draft, Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009 (Cth).