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Strategic use of regulatory action policies: an example in the context of Freedom of Information

Regulatory action policies (including strategies and statements issued by regulators) are a useful tool for regulators to signal the importance of a particular regulatory area to the regulated sector and to the public at large. They can also be used to announce a proposed approach to regulation by the regulator. This can help provide guidance regarding compliance to regulated entities and may drive voluntary compliance. Accordingly, they are an important component of a regulator’s proactive regulatory toolkit.

On 27 February 2018, the Commissioner of the Office of the Australian Information Commissioner (OAIC), Timothy Pilgrim (the Commissioner), mentioned in his opening statement to the Senate Estimates that the OAIC has published a Freedom of Information Act (FOI Act) regulatory action policy[1] (FOI Regulatory Action Policy). The Commissioner stated that the purpose of this policy was to explain his approach to using the Commissioner’s regulatory action powers in the FOI context.

The FOI Regulatory Action Policy seeks to:

  • Support best practice through compliance and influence with a focus on the intentions and objects of the FOI Act
  • Increase compliance through capacity building measures in Government agencies and their representatives (Ministers, Secretaries etc.)
  • Promote an open access culture through all Government instruments (legislation, policy) and deter conduct which is contrary to or inconsistent with the FOI Act
  • Increase awareness in the public about the OAIC role and powers.

These goals send important signals about the OIAC’s objectives and priorities, including driving best practice behaviour, the importance of capacity building and the need to raise public awareness about the OIAC.

The FOI Regulatory Action Policy also sets out six guiding principles, which are used by the Commissioner when exercising regulatory powers:

  • Independence when acting to take action that is impartial and objective
  • Accountability when discharging FOI regulatory action through rights to reviews and appeals, including guaranteeing stakeholders are aware of those rights
  • Proportionality between the situation and conduct concerned and the action required to resolve it
  • Consistency across matters and actions required
  • Timeliness to ensure actions to resolve matters are as prompt as practicable
  • Transparency about how FOI regulatory powers are discharged including: publishing guidance, information about regulatory action and decisions on Commissioner reviews.

These principles provide guidance to regulated entities as well as to the public about the manner in which the OIAC will exercise its powers and the approach it will adopt when responding to non-compliance.

The critical importance of regulatory action policies such as the FOI Regulatory Action Policy becomes apparent when the implications of its absence are considered. The regulated sector and the public would need to speculate about a regulator’s objectives and approach. They may make false assumptions about the regulator’s priorities and likely approach. In this light, the FOI Regulatory Action Policy is to be welcomed as it can only help to enhance regulatory practice by both the regulator and the regulated.

Author
Jock Steel | Lawyer
T +61 2 9291 6262
E jock.steel@maddocks.com.au
  Louisa Beale | Graduate Lawyer
T +61 2 9291 6186
E louisa.beale@maddocks.com.au

[1] The policy is guided by several pieces of legislation. These are: Australian Information Commissioner Act 2010, Freedom of Information Act 1982, Freedom of Information (Charges) Regulations 1982, and Freedom of Information (Miscellaneous Provisions) Regulations 1982.

Regulatory action policies (including strategies and statements issued by regulators) are a useful tool for regulators to signal the importance of a particular regulatory area to the regulated sector and to the public at large. They can also be used to announce a proposed approach to regulation by the regulator. This can help provide guidance regarding compliance to regulated entities and may drive voluntary compliance. Accordingly, they are an important component of a regulator’s proactive regulatory toolkit.

On 27 February 2018, the Commissioner of the Office of the Australian Information Commissioner (OAIC), Timothy Pilgrim (the Commissioner), mentioned in his opening statement to the Senate Estimates that the OAIC has published a Freedom of Information Act (FOI Act) regulatory action policy[1] (FOI Regulatory Action Policy). The Commissioner stated that the purpose of this policy was to explain his approach to using the Commissioner’s regulatory action powers in the FOI context.

The FOI Regulatory Action Policy seeks to:

  • Support best practice through compliance and influence with a focus on the intentions and objects of the FOI Act
  • Increase compliance through capacity building measures in Government agencies and their representatives (Ministers, Secretaries etc.)
  • Promote an open access culture through all Government instruments (legislation, policy) and deter conduct which is contrary to or inconsistent with the FOI Act
  • Increase awareness in the public about the OAIC role and powers.

These goals send important signals about the OIAC’s objectives and priorities, including driving best practice behaviour, the importance of capacity building and the need to raise public awareness about the OIAC.

The FOI Regulatory Action Policy also sets out six guiding principles, which are used by the Commissioner when exercising regulatory powers:

  • Independence when acting to take action that is impartial and objective
  • Accountability when discharging FOI regulatory action through rights to reviews and appeals, including guaranteeing stakeholders are aware of those rights
  • Proportionality between the situation and conduct concerned and the action required to resolve it
  • Consistency across matters and actions required
  • Timeliness to ensure actions to resolve matters are as prompt as practicable
  • Transparency about how FOI regulatory powers are discharged including: publishing guidance, information about regulatory action and decisions on Commissioner reviews.

These principles provide guidance to regulated entities as well as to the public about the manner in which the OIAC will exercise its powers and the approach it will adopt when responding to non-compliance.

The critical importance of regulatory action policies such as the FOI Regulatory Action Policy becomes apparent when the implications of its absence are considered. The regulated sector and the public would need to speculate about a regulator’s objectives and approach. They may make false assumptions about the regulator’s priorities and likely approach. In this light, the FOI Regulatory Action Policy is to be welcomed as it can only help to enhance regulatory practice by both the regulator and the regulated.

Author
Jock Steel | Lawyer
T +61 2 9291 6262
E jock.steel@maddocks.com.au
  Louisa Beale | Graduate Lawyer
T +61 2 9291 6186
E louisa.beale@maddocks.com.au

[1] The policy is guided by several pieces of legislation. These are: Australian Information Commissioner Act 2010, Freedom of Information Act 1982, Freedom of Information (Charges) Regulations 1982, and Freedom of Information (Miscellaneous Provisions) Regulations 1982.