16.08.2010
15.99 One option for consideration is whether, given the significant overlap between the FOI Act and the Privacy Act, the two Acts should be consolidated into a single Act. A number of overseas jurisdictions have combined freedom of information and privacy legislation.[115] The ALRC and the ARC considered this option in ALRC 77 but rejected the proposal on the basis that there was insufficient benefit to outweigh the disadvantage in disturbing the existing legislative framework.[116]
15.100 Another option is to consolidate the FOI Act, the Privacy Act and the Archives Act into a single Act. An example of such an Act is the Information Act 2002 (NT). The ALRC and the ARC also considered this option in ALRC 77. The option met with strong opposition from stakeholders, however, and was ultimately rejected. The ALRC and ARC recommended instead that the Privacy Act, FOI Act and Archives Act be amended, where necessary, to provide a cohesive and consistent package of legislation on government records.[117]
15.101 There was little support for combining the Privacy Act, FOI Act and Archives Act in submissions to this Inquiry. Stakeholders noted that the three Acts have different purposes, and considered that the ALRC should focus on the harmonisation of the Acts.[118]
15.102 Despite their many common aspects, each Act has a distinct purpose that is understood by agencies and the public. There is insufficient benefit in combining the two Acts to outweigh the disadvantage in disturbing the current legislative framework. In particular, the fact that the Privacy Act regulates both the public and private sectors detracts from the appeal of a single Act.
15.103 One option that may address the interaction of the three Acts is to clarify the objects of each Act. In Chapter 3, the ALRC recommends that the Privacy Act be amended to include an objects clause. In ALRC 77, the ALRC and the ARC recommended the amendment of the FOI Act’s objects clause and, in ALRC 85, the ALRC proposed an amendment of the Archives Act to include an objects clause.[119]
[115] See, eg, Freedom of Information and Protection of Privacy Act 1990 RSO c F 31 (Ontario) and Freedom of Information and Protection of Privacy Act 1996 RSBC c165 (British Columbia).
[116] Australian Law Reform Commission and Administrative Review Council, Open Government: A Review of the Federal Freedom of Information Act 1982, ALRC 77 (1995), [5.19].
[117] Ibid, [5.6].
[118] Office of the Privacy Commissioner, Submission PR 215, 28 February 2007; National Archives of Australia, Submission PR 199, 20 February 2007; Australian Privacy Foundation, Submission PR 167, 2 February 2007; Confidential, Submission PR 143, 24 January 2007; Public Record Office Victoria, Submission PR 72, 3 January 2007.
[119]Australian Law Reform Commission and Administrative Review Council, Open Government: A Review of the Federal Freedom of Information Act 1982, ALRC 77 (1995), Ch 4 and Rec 1; Australian Law Reform Commission, Australia’s Federal Record: A Review of Archives Act 1983, ALRC 85 (1998), Ch 4 and Rec 1.