EXPLANATORY STATEMENT
Issued by the authority of the Cabinet Secretary
Australian Information Commissioner Act 2010
Proclamation
Subsection 2(1) of the Australian Information Commissioner Act 2010 (the Act) provides that sections 3 to 36 of the Act commence on a day to be fixed by Proclamation. However, if any of the provisions of sections 3 to 36 do not commence within six months of the date the Act receives the royal assent, then those provisions commence on the first day after the end of that six month period. The Act recently received the Royal Assent.
The purpose of the proposed Proclamation is to fix 1 November 2010 as the day on which sections 3 to 36 commence.
The Act establishes a new statutory agency, the Office of the Australian Information Commissioner (OAIC), within the Prime Minister and Cabinet portfolio. The OAIC brings together the functions of information policy, privacy protection and freedom of information into the same agency for the first time to ensure the development of a consistent workable information policy across all Australian Government agencies.
Sections 3 to 36 of the Act contain the substantive provisions of the Act.
Section 5 of the Act establishes the OAIC consisting of the information officers as well as staff engaged under the Public Service Act 1999. The information officers are defined in section 6 of the Act to be the Information Commissioner, the Freedom of Information Commissioner and the Privacy Commissioner. The term ‘information officer’ is used throughout the Act to refer collectively to the commissioners.
Sections 7 to 12 of the Act provide for the functions and powers of the information officers. Sections 13 to 25 of the Act provide for the appointments of the information officers and staffing of the OAIC. Sections 26 to 27A of the Act provide for the establishment of the Information Advisory Committee to assist and advise the Information Commissioner on matters relating to the performance of the information commissioner functions.
Sections 28 to 36 of Act the deal with miscellaneous matters relevant to the operation of the OAIC including the requirements for annual reports, immunity from legal suit and the making of regulations.
Most of the provisions in the complementary Freedom of Information Amendment (Reform) Act 2010 will commence immediately after section 3 of the AIC Act commences. Early advice of the start date of these FOI reforms is necessary to give agencies time to prepare for the reforms. It also enables finalisation of Professor McMillan’s appointment as the Australian Information Commissioner.
The Proclamation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Overview
The Australian Information Commissioner Act 2010 was enacted to address the need for a unified approach to information policy, privacy protection, and freedom of information within the Australian Government. This Act, proclaimed by the authority of the Cabinet Secretary, establishes the Office of the Australian Information Commissioner (OAIC) as a statutory agency within the Prime Minister and Cabinet portfolio. The primary objective of this legislation is to amalgamate the functions of information policy, privacy protection, and freedom of information into a single agency to ensure the development of a consistent and effective information policy across all government agencies. The Act aims to streamline and enhance the coordination of these functions, thereby improving the overall management of information-related matters within the Australian Government. The substantive provisions of the Act, which include the establishment of the OAIC and the roles and responsibilities of its officers, are set to commence on 1 November 2010, as determined by the Proclamation.
Scope and Application
The Australian Information Commissioner Act 2010 establishes the Office of the Australian Information Commissioner (OAIC) within the Prime Minister and Cabinet portfolio, marking a significant consolidation of information policy, privacy protection, and freedom of information functions under one statutory agency. The Act applies to the Information Commissioner, the Freedom of Information Commissioner, and the Privacy Commissioner, who collectively form the information officers responsible for executing the OAIC's mandate. These provisions commence on 1 November 2010, as per the recent proclamation, to ensure the timely implementation of the reforms and allow government agencies adequate preparation time. The Act delineates the functions, powers, and appointment processes for the information officers and also establishes the Information Advisory Committee to provide guidance on information commissioner functions. The Act's jurisdiction encompasses the Commonwealth, with its provisions extending to the creation of regulations under the Legislative Instruments Act 2003. The commencement of certain provisions in the complementary Freedom of Information Amendment (Reform) Act 2010 aligns with the Act's commencement, facilitating a coherent rollout of the reforms.
Key Provisions
Sections 3 to 36 of the Australian Information Commissioner Act 2010 (the Act) establish the Office of the Australian Information Commissioner (OAIC) as a statutory agency under the Prime Minister and Cabinet portfolio, combining information policy, privacy protection, and freedom of information functions for the first time (sections 5, 6). The OAIC is staffed by information officers, defined as the Information Commissioner, the Freedom of Information Commissioner, and the Privacy Commissioner (section 6). The Act details the functions and powers of these officers (sections 7 to 12), their appointments and staffing (sections 13 to 25), and the establishment of the Information Advisory Committee (sections 26 to 27A). Additionally, it addresses miscellaneous operational aspects, such as annual reporting, immunity from legal suits, and the authority to make regulations (sections 28 to 36).
The Act imposes obligations on the OAIC to ensure consistent information policy across Australian Government agencies. It requires the OAIC to establish an Information Advisory Committee to assist the Information Commissioner (section 26). Furthermore, it mandates that the Information Commissioner, the Freedom of Information Commissioner, and the Privacy Commissioner perform their respective functions as outlined in the Act, and that the OAIC submits annual reports (sections 5, 7 to 12, 28). The Act also sets out the process for appointing information officers and staffing the OAIC (sections 13 to 25).
Breaches of the Act may lead to various civil and criminal consequences, although the specific provisions detailing these consequences are not explicitly outlined in the provided excerpt. The maximum penalties for breaches may vary depending on the specific section of the Act being contravened, but these details would need to be examined in the full text of the Act or related legislation. The complementary Freedom of Information Amendment (Reform) Act 2010, which commences after the AIC Act, may also impose additional penalties for non-compliance with its provisions.
The Proclamation, which fixes 1 November 2010 as the commencement date for sections 3 to 36, is a legislative instrument under the Legislative Instruments Act 2003. This timing is crucial to allow agencies to prepare for the reforms and to finalise the appointment of Professor McMillan as the Australian Information Commissioner.