Freedom of Information Amendment (Reform) Act 2010
1 Short title...........................................................................................1 2 Commencement.................................................................................2 3 Schedule(s)........................................................................................3
Schedule 1—Objects 4 Freedom of Information Act 1982 4 Schedule 2—Publication of information 6 Freedom of Information Act 1982 6 Schedule 3—Exemptions 14 Part 1—Open access period amendments 14 Archives Act 1983 14 Part 2—Main exemption amendments 17 Freedom of Information Act 1982 17 Part 3—Other exemption amendments 43 Archives Act 1983 43 Privacy Act 1988 44 Part 4—Application provisions 45 Schedule 4—Information Commissioner amendments 46 Part 1—Main amendments 46 Freedom of Information Act 1982 46 Part 2—Other amendments 121 Ombudsman Act 1976 121 Part 3—Application and transitional provisions 123
Schedule 5—Amendments consequential on the establishment of the Office of the Australian Information Commissioner 125 Anti-Money Laundering and Counter-Terrorism Financing Act 2006 125 Australian Citizenship Act 2007 125 Australian Human Rights Commission Act 1986 125 Aviation Legislation Amendment (2008 Measures No. 2) Act 2009 126
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
Child Care Act 1972 126 Crimes Act 1914 126 Data-matching Program (Assistance and Tax) Act 1990 128 Environment Protection and Biodiversity Conservation Act 1999 129 Fair Work Act 2009 130 Fisheries Management Act 1991 130 Migration Act 1958 130 National Health Act 1953 130 National Health and Medical Research Council Act 1992 131 Privacy Act 1988 132 Telecommunications Act 1997 132 Telecommunications (Interception and Access) Act 1979 134 Torres Strait Fisheries Act 1984 134 Schedule 6—Other amendments 135 Part 1—Amendments to the Freedom of Information Act 1982 135 Freedom of Information Act 1982 135 Part 2—Application provisions 150 Part 3—Amendment of other Acts 151 Administrative Appeals Tribunal Act 1975 151 Australian Crime Commission Act 2002 151 Environment Protection and Biodiversity Conservation Act 1999 151 Inspector-General of Intelligence and Security Act 1986 153 Schedule 7—Privacy Commissioner transition 154 Part 1—Preliminary 154 Part 2—Office holders, staff and consultants 155 Part 3—Things done by, or in relation to, the Privacy Commissioner 158 Part 4—Investigations 161 Part 5—Written instruments and reporting requirements 163 Part 6—Legal and other proceedings 165
Part 7—Miscellaneous
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
An Act to amend the law relating to access to information, and for related purposes
[Assented to 31 May 2010]
This Act may be cited as the Freedom of Information Amendment (Reform) Act 2010.
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information | |||
---|---|---|---|
Column 1 | Column 2 | Column 3 | |
Provision(s) | Commencement | Date/Details | |
1. Sections 1 to 3 and anything in this Act not | The day this Act receives the Royal Assent. | 31 May 2010 | |
elsewhere covered | |||
by this table | |||
2. Schedule 1 | Immediately after the commencement of section 3 of the Australian Information | 1 November 2010 | |
Commissioner Act 2010. | |||
However, if section 3 of the Australian Information Commissioner Act 2010 does | |||
not commence, the provision(s) do not commence at all. |
3. Schedule 2 | The day after the end of the period of 6 months beginning on the day section 3 of the Australian Information Commissioner Act | 1 May 2011 |
2010 commences. | ||
However, if section 3 of the Australian Information Commissioner Act 2010 does | ||
not commence, the provision(s) do not commence at all. | ||
4. Schedule 3, items 1 to 14 | Immediately after the commencement of section 3 of the Australian Information | 1 November 2010 |
Commissioner Act 2010. | ||
However, if section 3 of the Australian Information Commissioner Act 2010 does | ||
not commence, the provision(s) do not commence at all. | ||
5. Schedule 3, item 15 | The day after the end of the period of 6 months beginning on the day section 3 of the Australian Information Commissioner Act 2010 commences. | 1 May 2011 |
Commencement information
Column 1 | Column 2 | Column 3 |
Provision(s) | Commencement | Date/Details |
However, if section 3 of the Australian Information Commissioner Act 2010 does | ||
not commence, the provision(s) do not commence at all. | ||
6. Schedule 3, items 16 to 40 | Immediately after the commencement of section 3 of the Australian Information | 1 November 2010 |
Commissioner Act 2010. | ||
However, if section 3 of the Australian Information Commissioner Act 2010 does | ||
not commence, the provision(s) do not commence at all. | ||
7. Schedules 4 to 7 | Immediately after the commencement of section 3 of the Australian Information Commissioner Act 2010. However, if section 3 of the Australian Information Commissioner Act 2010 does not commence, the provision(s) do not commence at all. | 1 November 2010 |
Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
1 Section 3
Repeal the section, substitute:
Scope
(1) This section applies if a Minister, or an officer of an agency, has the power to publish, or give access to, information or a document (including an exempt document) apart from under this Act.
Publication and access powers not limited
(2) The Parliament does not intend, by this Act, to limit that power, or to prevent or discourage the exercise of that power:
2 Section 14
Repeal the section.
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
1 Subsection 4(1)
Insert: operational information has the meaning given by section 8A.
2 Subsection 4(9)
Omit “of this Act (other than sections 8 and 93)”.
3 Part II
Repeal the Part, substitute:
This Part establishes an information publication scheme for agencies.
Each agency must publish a plan showing how it proposes to implement this Part.
An agency must publish a range of information including information about what the agency does and the way it does it, as well as information dealt with or used in the course of its operations, some of which is called operational information.
In addition, an agency may publish other information held by the agency.
Information published by an agency must be kept accurate, up-to-date and complete.
An agency is not required to publish exempt matter. An agency is also not required to publish information if prohibited by another enactment.
The information (or details of how to access the information) must be published on a website. If there is a charge for accessing the information, the agency must publish details of the charge.
An agency must, in conjunction with the Information Commissioner, review the operation of the scheme in the agency every 5 years (if not earlier).
An agency must have regard to the objects of this Act, and guidelines issued by the Information Commissioner, in doing anything for the purposes of this Part.
If operational information is not published in accordance with this Part, a person must not be subjected to any prejudice as a result of not having access to the information.
Division 2—Information to be published
8 Information to be published—what information?
Agency plans
(1) An agency must prepare a plan showing the following:
Information that must be published
(2) The agency must publish the following information:
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
Note: If operational information is not published in accordance with this section, a person must not be subjected to any prejudice as a result (see section 10).
Other information Functions and powers
(5) This section applies to a function or power of an agency whether or not the agency has the function or power under an enactment.
Note 1: See section 8C for restrictions on the requirement to publish this information.
Note 2: The agency must have regard to the objects of this Act and guidelines issued by the Information Commissioner in performing functions, and exercising powers, under this section (see section 9A).
8A Information to be published—what is operational information?
(1) An agency’s operational information is information held by the agency to assist the agency to perform or exercise the agency’s functions or powers in making decisions or recommendations affecting members of the public (or any particular person or entity, or class of persons or entities).
Example: The agency’s rules, guidelines, practices and precedents relating to those decisions and recommendations.
(2) An agency’s operational information does not include information that is available to members of the public otherwise than by being published by (or on behalf of) the agency.
8B Information to be published—accuracy etc.
An agency must ensure that information published by the agency as required or permitted by this Part is accurate, up-to-date and complete.
8C Information to be published—restrictions
Exempt documents
(1) An agency is not required under this Part to publish exempt matter.
Publication prohibited or restricted by other legislation
(2) If an enactment restricts or prohibits the publication of particular information, an agency is not required under this Part to publish the information otherwise than as permitted or required by the enactment.
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
Operation of restrictions
(3) This section applies despite section 8.
8D Information to be published—how (and to whom) information is to be published
Scope
(1) An agency must publish information that is required or permitted to be published under this Part in accordance with this section.
How (and to whom) information is to be published
Charges
Note 1: The agency must have regard to the objects of this Act and guidelines issued by the Information Commissioner in performing functions, and exercising powers, under this section (see section 9A).
Note 2: After access is given to a document under Part III (access to documents) in accordance with a request, the agency must publish the accessed document to members of the public generally in the same way as described in this section (although certain exceptions apply) (see section 11C).
8E Information to be published—Information Commissioner to assist agencies
The Information Commissioner may provide appropriate assistance to an agency in:
Division 3—Review of information publication scheme
8F Review of scheme—Information Commissioner functions
The Information Commissioner has the following functions (as conferred by this Act and the Australian Information Commissioner Act 2010, but without limiting any provision of either Act):
9 Review of scheme—by agencies
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
Note 1: This section commences on the day after the end of the period of 6 months beginning on the day on which the Australian Information Commissioner Act 2010 commences.
Note 2: The agency must have regard to the objects of this Act and guidelines issued by the Information Commissioner in performing functions, and exercising powers, under this section (see section 9A).
Division 4—Guidelines
9A Functions and powers under this Part
In performing a function, or exercising a power, under this Part, an agency must have regard to:
Division 5—Miscellaneous
10 Unpublished operational information
Scope
(1) This section applies if:
Note: An agency’s operational information is required to be published by the agency (see sections 8 and 8A).
No prejudice from lack of awareness of unpublished information
(2) The person must not be subjected to any prejudice only because of the application to that conduct of any rule, guideline or practice in the unpublished information, if the person could lawfully have avoided that prejudice had he or she been aware of the unpublished information.
10A Who performs functions etc. given to agencies
4 Saving—unpublished information
Section 10 of the Freedom of Information Act 1982, as in force immediately before the commencement of item 3 (the commencement time), continues in force at and after the commencement time in relation to:
Note: Item 3 commences on the day after the end of the period of 6 months beginning on the day on which the Australian Information Commissioner Act 2010 commences.
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
Schedule 3—Exemptions Part 1—Open access period amendments
Archives Act 1983
1 Subsection 3(1)
Insert:
open access period, in relation to a record, has the meaning given by the following provisions:
2 Subsection 3(7)
Repeal the subsection (including the note), substitute:
(7) For the purposes of this Act, subject to sections 22A and 22B, work out when a record is in the open access period in accordance with the following table:
Open access period for records
Item If the record came into the record is in the open access period existence in any of the on and after the following day: following years (ending on 31 December):
1 a year (the creation year) 1 January in the year that is 31 years after before 1980 the creation year. Example: A record that came into existence in the year 1979 is in the open access period on and after 1 January 2010. 2 1980 or 1981 1 January 2011. 3 1982 or 1983 1 January 2012. 4 1984 or 1985 1 January 2013. 5 1986 or 1987 1 January 2014. 6 1988 or 1989 1 January 2015.
Open access period for records
Item If the record came into the record is in the open access period existence in any of the on and after the following day: following years (ending on 31 December):
7 1990 or 1991 1 January 2016. 8 1992 or 1993 1 January 2017. 9 1994 or 1995 1 January 2018. 10 1996 or 1997 1 January 2019. 11 1998 or 1999 1 January 2020. 12 2000 1 January 2021. 13 a year (the creation year) after 1 January in the year that is 21 years after
2000 the creation year. Example: A record that came into existence in the year 2001 is in the open access period on and after 1 January 2022.
Note: Cabinet notebooks and records containing Census information have different open access periods (see sections 22A and 22B).
3 Subsection 22A(1)
Repeal the subsection, substitute:
(1) For the purposes of this Act, work out when a Cabinet notebook is in the open access period in accordance with the following table:
Open access period for Cabinet notebooks
Item | If the Cabinet notebook came | the Cabinet notebook is in the open |
into existence in any of the | access period on and after the | |
following years (ending on | following day: | |
31 December): |
1 | a year (the creation year) | 1 January in the year that is 51 years after |
before 1960 | the creation year. | |
Example: A Cabinet notebook that came into existence in the year 1959 is in the open access period on and after 1 January 2010. |
2 | 1960, 1961 or 1962 | 1 January 2011. |
3 | 1963, 1964 or 1965 | 1 January 2012. |
4 | 1966, 1967 or 1968 | 1 January 2013. |
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
Open access period for Cabinet notebooks
Item If the Cabinet notebook came the Cabinet notebook is in the open into existence in any of the access period on and after the following years (ending on following day: 31 December):
5 1969, 1970 or 1971 1 January 2014. 6 1972, 1973 or 1974 1 January 2015. 7 1975, 1976 or 1977 1 January 2016. 8 1978, 1979 or 1980 1 January 2017. 9 1981, 1982 or 1983 1 January 2018. 10 1984, 1985 or 1986 1 January 2019. 11 1987, 1988 or 1989 1 January 2020. 12 1990 1 January 2021. 13 a year (the creation year) after 1 January in the year that is 31 years after
1990 the creation year. Example: A Cabinet notebook that came into existence in the year 1991 is in the open access period on and after 1 January 2022.
Note: Records that are not Cabinet notebooks have different open access periods (see subsection 3(7) (general records) and section 22B (records containing Census information)).
4 Paragraph 26(1)(a)
Omit “25 years”, substitute “15 years”.
5 Paragraph 27(3)(b)
Omit “25 years”, substitute “15 years”.
6 Subsection 30(2)
Omit “25 years”, substitute “15 years”.
Part 2—Main exemption amendments
Freedom of Information Act 1982
7 Subsection 4(1)
Insert: Cabinet includes a committee of the Cabinet.
8 Subsection 4(1) (definition of Cabinet notebook)
Omit “or of a committee of the Cabinet, being notes”, substitute “, if the notes were”.
9 Subsection 4(1)
Insert:
conditionally exempt: a document is conditionally exempt if Division 3 of Part IV (public interest conditional exemptions) applies to the document.
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).
10 Subsection 4(1) (definition of edited copy)
Repeal the definition, substitute:
edited copy has the meaning given by section 22 (access to edited
copies with exempt or irrelevant matter deleted).
11 Subsection 4(1) (paragraph (a) of the definition of exempt document)
Repeal the paragraph, substitute:
(a) a document that is exempt for the purposes of Part IV (exempt documents) (see section 31B); or
12 Subsection 4(1)
Insert:
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
run out: all of a person’s opportunities for review or appeal in relation to an access grant decision have run out when:
Note: The time for applying for a review of a decision may be extended in certain circumstances (see sections 54B and 54T).
13 At the end of section 4
Add:
(10) To avoid doubt, information or matter communicated in the way mentioned in paragraph 33(b) includes information or matter so communicated pursuant to any treaty or formal instrument on the reciprocal protection of classified information between the Government of the Commonwealth, or an authority of the Commonwealth, and:
Note: Section 33 deals with documents affecting national security, defence or international relations.
14 After section 11
Insert:
11A Access to documents on request
Scope
Note: Other provisions of this Act are relevant to decisions about access to documents, for example the following:
Mandatory access—general rule
(3) The agency or Minister must give the person access to the document in accordance with this Act, subject to this section.
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
Exemptions and conditional exemptions
(4) The agency or Minister is not required by this Act to give the person access to the document at a particular time if, at that time, the document is an exempt document.
Note: Access may be given to an exempt document apart from under this Act, whether or not in response to a request (see section 3A (objects— information or documents otherwise accessible)).
(5) The agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.
Note 1: Division 3 of Part IV provides for when a document is conditionally exempt.
Note 2: A conditionally exempt document is an exempt document if access to the document would, on balance, be contrary to the public interest (see section 31B (exempt documents for the purposes of Part IV)).
Note 3: Section 11B deals with when it is contrary to the public interest to give a person access to the document.
(6) Despite subsection (5), the agency or Minister is not required to give access to the document at a particular time if, at that time, the document is both:
11B Public interest exemptions—factors
Scope
Factors favouring access
(3) Factors favouring access to the document in the public interest include whether access to the document would do any of the following:
Irrelevant factors
(4) The following factors must not be taken into account in deciding whether access to the document would, on balance, be contrary to the public interest:
Guidelines
(5) In working out whether access to the document would, on balance, be contrary to the public interest, an agency or Minister must have regard to any guidelines issued by the Information Commissioner for the purposes of this subsection under section 93A.
15 Before section 12
Insert:
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
11C Publication of information in accessed documents
Scope
Publication
Time limit for publication
working day means a day that is not:
16 Section 18
Repeal the section.
17 Section 22
Repeal the section, substitute:
22 Access to edited copies with exempt or irrelevant matter deleted
Scope
(1) This section applies if:
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
Access to edited copy
(2) The agency or Minister must:
Notice to applicant
18 Subsections 25(1) and (2)
Omit “or 33A” (wherever occurring).
19 At the end of paragraph 26(1)(a)
Add “and”.
20 After paragraph 26(1)(a)
Insert:
(aa) in the case of a decision to refuse to give access to a conditionally exempt document—include in those reasons the public interest factors taken into account in making the decision; and
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).
21 Sections 26A, 27, 27A and 28
Repeal the sections, substitute:
26A Consultation—documents affecting Commonwealth-State relations
Scope
(1) This section applies if:
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
Consultation required
(2) The agency or Minister must not decide to give the applicant access to the document unless consultation has taken place between the Commonwealth and the State in accordance with the arrangements.
Decision to give access
(3) If, after such consultation has taken place, the agency or Minister decides to give the applicant access to the document, the agency or Minister must give written notice of the decision to both of the following:
Access not to be given until review or appeal opportunities have run out
(4) However, the agency or Minister must not give the applicant access to the document unless, after all the opportunities of the State for review or appeal in relation to the decision to give access to the document have run out, the decision still stands, or is confirmed.
Note 1: The decision to give access to the document is subject to internal review (see Part VI), review by the Information Commissioner (see Part VII) and review by the Tribunal (see Part VIIA).
Note 2: For when all opportunities for review or appeal in relation to the decision to give access to the document have run out, see subsection 4(1).
Edited copies and State-originated information
(5) This section applies:
27 Consultation—business documents
Scope
(1) This section applies if:
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
Opportunity to make submissions
(6) (time limits for processing requests)).
Notice of decision to give access
(6) If the agency or Minister decides to give access to the document, the agency or Minister must give written notice of the decision to both of the following:
Access not to be given until review or appeal opportunities have run out
(7) However, the agency or Minister must not give the applicant access to the document unless, after all the opportunities of the person or organisation concerned for review or appeal in relation to the decision to give access to the document have run out, the decision to give access still stands, or is confirmed.
Note 1: The decision to give access to the document is subject to internal review (see Part VI), review by the Information Commissioner (see Part VII) and review by the Tribunal (see Part VIIA).
Note 2: For when all opportunities for review or appeal in relation to the decision to give access to the document have run out, see subsection 4(1).
Notice and stay of decision not to apply unless submission made in support of exemption contention
(8) Subsections (6) and (7) do not apply unless the person or organisation concerned makes a submission in support of the exemption contention as allowed under paragraph (4)(a).
Edited copies and business information
(9) This section applies:
27A Consultation—documents affecting personal privacy
Scope
(1) This section applies if:
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).
(2) In determining, for the purposes of paragraph (1)(b), whether the person concerned might reasonably wish to make an exemption contention because of personal information in a document, the agency or Minister must have regard to the following matters:
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
Opportunity to make submissions
Decision to give access
(5) If the agency or Minister decides to give access to the document, the agency or Minister must give written notice of the decision to both of the following:
Access not to be given until review or appeal opportunities have run out
(6) However, the agency or Minister must not give the applicant access to the document unless, after all the opportunities of the person concerned for review or appeal in relation to the decision to give access to the document have run out, the decision to give access still stands, or is confirmed.
Note 1: The decision to give access to the document is subject to internal review (see Part VI), review by the Information Commissioner (see Part VII) and review by the Tribunal (see Part VIIA).
Note 2: For when all opportunities for review or appeal in relation to the decision to give access to the document have run out, see subsection 4(1).
Notice and stay of decision not to apply unless submission made in support of exemption contention
(7) Subsections (5) and (6) do not apply unless the person concerned makes a submission in support of the exemption contention as allowed under paragraph (3)(a).
Edited copies and personal information
(8) This section applies:
22 Before section 32
Insert:
Division 1—Preliminary
31A Access to exempt and conditionally exempt documents
The following table summarises how this Act applies to exempt documents and documents that are conditionally exempt:
How this Act applies to exempt and conditionally exempt documents Item If … then … because of …
a document is an access to the document subsection 11A(4). exempt document is not required to be under Division 2 given (exemptions) or under paragraph (b) or (c) of the definition of exempt document in
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
How this Act applies to exempt and conditionally exempt documents Item If … then … because of …
subsection 4(1) 2 a document is a access to the document subsection 11A(5) (see conditionally exempt is required to be given, also section 11B document under unless it would be (public interest Division 3 (public contrary to the public factors)). interest conditional interest exemptions) 3 a document is an access to the document subsections 11A(4) and exempt document as is not required to be (6), and section 32 mentioned in item 1, given (interpretation). and also a conditionally exempt document under Division 3
4 | access to a document is | (a) an edited copy | section 22. |
refused because it | deleting the exempt | ||
contains exempt matter, and the exempt matter can be deleted | matter must be prepared (if practicable); and | ||
(b) access to the edited | |||
copy must be given; | |||
5 | a document is an | access to the document | section 3A (objects— |
exempt document | may be given apart | information or | |
because of any | from under this Act | documents otherwise | |
provision of this Act | accessible). |
31B Exempt documents for the purposes of this Part
A document is exempt for the purposes of this Part if:
Note 1: A document is an exempt document for the purposes of this Act (see subsection 4(1)) if:
Note 2: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).
23 Section 32
After “exempt documents,” (wherever occurring), insert “, or are conditionally exempt”.
24 After section 32
Insert:
Division 2—Exemptions
25 At the end of section 33
Add:
Note: See also subsection 4(10).
26 Sections 33A to 36
Repeal the sections, substitute:
34 Cabinet documents
General rules
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
Exceptions
(4) A document is not an exempt document only because it is attached to a document to which subsection (1), (2) or (3) applies.
Note: However, the attachment itself may be an exempt document.
27 Sections 39, 40 and 41
Repeal the sections.
28 Subsection 42(2)
Repeal the subsection, substitute:
Note: For operational information, see section 8A.
29 Sections 43, 43A and 44
Repeal the sections.
30 Subsection 45(2)
Omit “any document to the disclosure of which paragraph 36(1)(a) applies or would apply, but for the operation of subsection 36(2), (5) or (6), being a document”, substitute “a document to which subsection 47C(1) (deliberative processes) applies (or would apply, but for subsection 47C(2) or (3)), that is”.
31 Subsection 45(2)
After “unless the disclosure”, insert “of the document”.
32 Section 47
Repeal the section, substitute:
47 Documents disclosing trade secrets or commercially valuable information
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
33 At the end of Part IV
Add:
Division 3—Public interest conditional exemptions
47B Public interest conditional exemptions—Commonwealth-State relations
A document is conditionally exempt if disclosure of the document under this Act:
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).
47C Public interest conditional exemptions—deliberative processes
General rule
(1) A document is conditionally exempt if its disclosure under this Act would disclose matter (deliberative matter) in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth.
Exceptions
(2) Deliberative matter does not include either of the following:
Note: An agency must publish its operational information (see section 8).
(3) This section does not apply to any of the following:
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).
47D Public interest conditional exemptions—financial or property interests of the Commonwealth
A document is conditionally exempt if its disclosure under this Act would have a substantial adverse effect on the financial or property interests of the Commonwealth or of an agency.
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).
47E Public interest conditional exemptions—certain operations of agencies
A document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to, do any of the following:
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).
47F Public interest conditional exemptions—personal privacy
General rule
Access given to qualified person instead
qualified person means a person who carries on, and is entitled to carry on, an occupation that involves the provision of care for the physical or mental health of people or for their well-being, and, without limiting the generality of the foregoing, includes any of the following:
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).
47G Public interest conditional exemptions—business
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).
47H Public interest conditional exemptions—research
A document is conditionally exempt if:
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).
47J Public interest conditional exemptions—the economy
(1) A document is conditionally exempt if its disclosure under this Act would, or could be reasonably expected to, have a substantial adverse effect on Australia’s economy by:
Note: A person includes a body corporate and a body politic (see section 22 of the Acts Interpretation Act 1901). Examples of a body politic include the government of the Commonwealth, a State, a Territory or a foreign country.
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).
34 Schedule 4
Omit “Section 43A”, substitute “Section 47H”.
Part 3—Other exemption amendments
Archives Act 1983
35 Paragraph 33(1)(b)
Repeal the paragraph, substitute:
(b) information or matter:
(iii) the confidentiality of which it would be reasonable to maintain;
36 Paragraph 50A(2)(b)
Repeal the paragraph, substitute:
(b) whether it would be reasonable to maintain the confidentiality of information or matter to which both of the following apply by not making the record available for public access:
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
37 Paragraph 50A(3)(b)
Repeal the paragraph, substitute:
(b) whether it would be reasonable to maintain the confidentiality of information or matter to which both of the following apply by not making that part, or a copy of that part, of the record available for public access:
Privacy Act 1988
38 Subsection 34(1)
Omit “or 33A,”.
Part 4—Application provisions
39 Application—Part 2
An amendment made by an item in Part 2 applies in relation to requests for access made under section 15 of the Freedom of Information Act 1982 that are received at or after the commencement of that item.
40 Application—items 35, 36 and 37
The amendments made by items 35, 36 and 37 apply for the purposes of determining whether access, or an extension of partial access, to a record referred to in section 31 of the Archives Act 1983 will be given in accordance with an application made under section 40 of that Act that is received by the Archives at or after the commencement of those items.
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
Part 1—Main amendments
Freedom of Information Act 1982
1 Subsection 4(1)
Insert: access grant decision has the meaning given by section 53B.
2 Subsection 4(1)
Insert: access refusal decision has the meaning given by section 53A.
3 Subsection 4(1)
Insert:
action, if the action is taken by a person or agency, has the same
meaning as in the Ombudsman Act 1976.
Note: See subsections 3(2) to (7) of the Ombudsman Act 1976.
4 Subsection 4(1)
Insert: affected third party has the meaning given by section 53C.
5 Subsection 4(1)
Insert: authorised person has the meaning given by section 77.
6 Subsection 4(1)
Insert: complainant has the meaning given by subsection 70(1).
7 Subsection 4(1)
Insert: engage in conduct means:
8 Subsection 4(1)
Insert: IC review has the meaning given by section 54G.
9 Subsection 4(1)
Insert: IC reviewable decision has the meaning given by section 54K.
10 Subsection 4(1)
Insert: IC review applicant has the meaning given by section 54J.
11 Subsection 4(1)
Insert: IC review application has the meaning given by section 54H.
12 Subsection 4(1)
Insert: implementation notice has the meaning given by section 89.
13 Subsection 4(1)
Insert:
Information Commissioner has the meaning given by the
Australian Information Commissioner Act 2010.
14 Subsection 4(1)
Insert: internal review has the meaning given by sections 54 and 54A.
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
15 Subsection 4(1)
Insert: internal review applicant has the meaning given by section 54B.
16 Subsection 4(1)
Insert:
investigation recommendations has the meaning given by section 88.
17 Subsection 4(1)
Insert: investigation results has the meaning given by section 87.
18 Subsection 4(1)
Insert:
respondent agency has the meaning given by subsections 69(2) and 70(2).
19 Subsection 4(1)
Insert: review parties has the meaning given by section 55A.
20 Subsection 4(1)
Insert:
vexatious applicant declaration has the meaning given by section 89K.
21 Subsection 12(1)
Omit “(1)”.
22 Subsections 12(2) to (4)
Repeal the subsections.
23 Subsection 21(3)
Repeal the subsection.
24 Subparagraph 26(1)(c)(ii)
Omit “Ombudsman”, substitute “Information Commissioner”.
25 Paragraph 26(1)(c)
Omit “review under section 54”, substitute “internal review (Part VI) and IC review (Part VII)”.
26 Paragraph 29(9)(b)
Omit “Ombudsman”, substitute “Information Commissioner”.
27 Subsection 29(9)
Omit “review under section 54”, substitute “internal review (Part VI) and IC review (Part VII)”.
28 Section 31
Repeal the section, substitute:
31 Decision to impose charge—extended period for processing request
Scope
(1) This section applies if:
Processing period to be calculated disregarding period when
charge unpaid
(2) In working out the length of the processing period (or that period as extended) for the purposes of paragraph 15(5)(b), disregard the number of days in the period starting on the charge notice day and ending on the earliest occurring of the following days:
(a) the day the applicant pays the amount of the charge (or a deposit on account of the charge prescribed by the
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
regulations), whether or not the decision to impose the charge has been considered under section 29, or is the subject of a review under this Act;
Note: A decision under section 29 relating to the imposition of a charge or the amount of a charge may be the subject of an internal review (see Part VI), an IC review (see Part VII) or review by the Tribunal (see Part VIIA).
29 After section 51D
Insert:
51DA Decision not made on request for amendment or annotation within time—deemed refusal
(1) This section applies if:
Deemed refusal
(2) Subject to this section:
Agency or Minister may apply for further time
No further time allowed
(8) If subsection (7) (deemed refusal after allowance of further time) applies, the Information Commissioner does not have the power to allow further time under this section in relation to the decision taken to be made under subsection (2) in its operation as affected by subsection (7).
30 Part VI (heading)
Repeal the heading, substitute:
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
Part VI—Internal review of decisions
31 Before section 53
Insert:
52 Internal review of decisions—guide
This Part provides for internal review of decisions by agencies, other than decisions made personally by the principal officer of an agency or the responsible Minister. Agencies are required to complete internal reviews within 30 days. However, this period may be extended.
Sections 53A, 53B and 53C define the terms access refusal decision, access grant decision and affected third party. These terms are used in this Part and in Parts VII and VIIA.
32 Section 53
Omit “Part”, substitute “Act”.
33 Section 53
Omit “, 33A, 34 or 35”, substitute “or 34”.
34 Sections 54 to 57
Repeal the sections, substitute:
53A What is an access refusal decision?
An access refusal decision is any of the following decisions:
Note: If a decision is not made on a request under section 15 within the time required by that section, a decision is taken to have been made to refuse to give access to a document in accordance with the request (see section 15AC).
53B What is an access grant decision?
An access grant decision is a decision covered by the following table:
Note: The table covers documents that may be conditionally exempt under section 47B (item 1), 47G (item 2) or 47F (items 3 and 4), or exempt under section 47 (item 2). Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).
Access grant decisions
Item If, in relation to a request for the access grant decision is ... access to a document ...
consultation with a State under section 26A (documents affecting Commonwealth-State relations) is required a decision of an agency or Minister to give the applicant access to the document (or an edited copy of the document) because:
section 27 (business a decision of an agency or Minister to give
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
Access grant decisions
Item If, in relation to a request for the access grant decision is ... access to a document ...
documents) applies in relation to business information in the document
access to the document (or an edited copy of the document) because:
Note: Section 47 deals with documents disclosing trade secrets or commercially valuable information. Section 47G deals with other business documents.
section 27A (documents affecting personal privacy) applies in relation to personal information in the document about a living person
section 27A (documents affecting personal privacy) applies in relation to personal information in the document about a deceased person a decision of an agency or Minister to give the applicant access to the document (or an edited copy of the document) because:
53C Internal review—who is an affected third party?
The following table has effect:
Who is an affected third party? Item If, in relation to a request for access to a the affected third document ... party for the document is ...
1 | consultation with a State under section 26A | the State. |
(documents affecting Commonwealth-State relations) | ||
is required | ||
2 | section 27 (business documents) applies in relation to | the person or |
business information in the document | organisation | |
concerned (within | ||
the meaning of | ||
section 27). | ||
3 | section 27A (documents affecting personal privacy) | the person. |
applies in relation to personal information in the | ||
document about a living person | ||
4 | section 27A (documents affecting personal privacy) | the legal personal |
applies in relation to personal information in the | representative of the | |
document about a deceased person | deceased person. |
54 Internal review—access refusal decision
54A Internal review—access grant decision
Note: For affected third party, see section 53C.
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
54B Internal review—application for review
54C Internal review—decision on internal review
Scope
(1) This section applies if an application for internal review of an access refusal decision or an access grant decision (the original decision) is made in accordance with this Part.
Decision
Notice of decision
(4) Section 26 extends to a decision made under this section.
54D Internal review—deemed affirmation of original decision
Agency may apply for further time
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
No further time allowed
(8) If subsection (7) (deemed affirmation after allowance of further time) applies, the Information Commissioner does not have the power to allow further time under this section in relation to the decision taken to be made under subsection (2) in its operation as affected by subsection (7).
54E Internal review—decisions to which this Part does not apply
This Part does not apply in relation to:
Part VII—Review by Information Commissioner
Division 1—Guide to this Part
54F Review by the Information Commissioner—guide
This Part sets up a system for review of decisions by the Information Commissioner. Division 2 sets out the key concepts for the Part. Division 3 sets out the types of decisions that are reviewable.
Division 4 provides for the making of applications for review by the Information Commissioner, including the time limits within which applications must be made.
The Information Commissioner may make preliminary inquiries before deciding whether or not to conduct a review. In certain circumstances, the Information Commissioner may decide not to review a decision (or a part of a decision) (see Division 5).
Division 6 provides for the procedure in an IC review, including the parties to the proceeding, circumstances in which a hearing may be held and who bears the onus of proof.
The Information Commissioner may refer questions of law to the Federal Court of Australia at any time during the review.
The Information Commissioner must make a decision on the review in accordance with Division 7.
The Information Commissioner has powers to gather information for the purposes of an IC review (see Division 8).
In certain circumstances, the Inspector-General of Intelligence and Security must be called to give evidence (see Division 9).
An application for review of a decision of the Information Commissioner may be made to the Administrative Appeals Tribunal. A review party may appeal to the Federal Court of Australia, on a question of law, from a decision of the Information Commissioner (see Division 10).
Division 2—Key concepts
54G Key concepts—what is an IC review? An IC review is a review of an IC reviewable decision undertaken by the Information Commissioner under this Part. Note: IC review is short for Information Commissioner review.
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
54H Key concepts—what is an IC review application?
An IC review application is an application made under Division 4 for the review of an IC reviewable decision.
Note: IC review application is short for Information Commissioner review application.
54J Key concepts—who is an IC review applicant?
An IC review applicant is a person who applies for an IC review under section 54L or 54M.
Note: IC review applicant is short for Information Commissioner review applicant.
54K Key concepts—what is an IC reviewable decision?
An IC reviewable decision is:
Note: IC reviewable decision is short for Information Commissioner reviewable decision.
Division 3—IC reviewable decisions
54L IC reviewable decisions—access refusal decisions
Note 1: An application for the review of an access refusal decision made for the purposes of paragraph (a) may be made regardless of whether the decision was the subject of internal review.
Note 2: If no decision is made on internal review within 30 days, a decision to affirm the original access refusal decision is taken to have been made (see section 54D).
(3) The IC review application may be made by, or on behalf of, the person who made the request to which the decision relates.
54M IC reviewable decisions—access grant decisions
Note: If no decision is made on internal review within 30 days, a decision to affirm the original access grant decision is taken to have been made (see section 54D).
(3) The IC review application may be made by, or on behalf of, the following:
Note: For affected third party, see section 53C.
Division 4—IC review applications
Subdivision A—Making an application
54N IC review applications—application
Content of application
(1) An IC review application must be in writing, and must:
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
Note: For who may make an IC review application, see sections 54L and 54M.
Delivery of application
(4) The IC review application must be sent to the Information Commissioner. The IC review application may be sent in any of the following ways:
54P IC review applications—requirement to notify affected third parties
Scope
(1) This section applies if:
Requirement to notify
(2) The agency or Minister must, as soon as practicable, take all reasonable steps to notify the affected third party for the document of the application.
Note 1: For affected third party, see section 53C.
Note 2: The agency or Minister is not required to give notice if the Information Commissioner orders that it is not appropriate to do so in the circumstances (see section 54Q).
(3) The agency or Minister must, as soon as practicable, give a copy of the notice to the Information Commissioner.
54Q IC review applications—circumstances in which not giving notice is appropriate
Note: For affected third party, see section 53C.
(3) The circumstances covered by this subsection are whether notifying the affected third party would, or could reasonably be expected to, do any of the following:
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
54R IC review applications—withdrawal
Subdivision B—Time limits
54S IC review applications—time limits
Access refusal decisions
(1) An IC review application in relation to a decision covered by subsection 54L(2) (access refusal decisions) must be made within 60 days after the day notice of the IC reviewable decision was given under section 26.
Access grant decisions
(2) An IC review application in relation to a decision covered by subsection 54M(2) (access grant decisions) must be made within 30 days after:
Note: For affected third party, see section 53C.
54T IC review applications—extension of time
Application for extension of time
Requirement to notify
(4) Before determining an application under subsection (1), the Information Commissioner may require the IC review applicant to give notice of the application to a specified person or persons that the Information Commissioner considers is affected by the application.
Person may oppose application
(5) A person to whom notice is given under subsection (4) may notify the Information Commissioner in writing that he or she opposes the application under subsection (1). The person must do so within the time required by the Information Commissioner.
Reasonable opportunity to be heard
(6) If notice is given under subsection (5), the Information Commissioner must give the IC review applicant and the person to whom notice has been given under subsection (4) a reasonable opportunity to present their cases before determining the application under subsection (1).
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
Division 5—Decision to review
54U Decision to review—interpretation
This Division applies to a part of an IC review application as if a reference to an IC review application were a reference to the part of the IC review application.
54V Decision to review—preliminary inquiries
The Information Commissioner may make inquiries of the review parties for the purpose of determining whether or not to undertake an IC review.
54W Decision to review—discretion not to review
The Information Commissioner may decide not to undertake an IC review, or not to continue to undertake an IC review, if:
Note 1: The Information Commissioner may make a decision under this section to review only part of an IC reviewable decision (see section 54U).
Note 2: If the Information Commissioner makes a decision under paragraph (b), an application for review may be made to the Tribunal for review of the IC reviewable decision (see section 57A).
Note 3: Division 1 of Part VIII sets out the circumstances in which a vexatious applicant declaration may be made in relation to a person. A declaration may permit the Information Commissioner to refuse to consider an IC review application if the person makes the IC review application under this section without the written permission of the Information Commissioner.
54X Decision to review—notice requirement if discretion not to review exercised
Note: See section 57A for the time within which the application for review must be made to the Tribunal.
(4) However, the notice must not include:
Note: Subsection 25(1) deals with information about the existence or otherwise of certain documents.
54Y Decision to review—actual decisions made after IC review has commenced
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
Note: When making the actual decision, a consultation requirement under section 26A (documents affecting Commonwealth-State relations), 27 (business documents) or 27A (documents affecting personal privacy) may apply.
Division 6—Procedure in IC review
54Z Procedure in IC review—general notice requirement
Before undertaking an IC review, the Information Commissioner must inform:
55 Procedure in IC review—general
Example 1: The Information Commissioner may allow a person under paragraph (2)(c) to participate in a hearing by telephone.
Example 2: The Information Commissioner may give written directions under subparagraph (2)(e)(ii) as to the procedure to be followed when dealing with confidential documents in a particular IC review.
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
55A Procedure in IC review—parties to proceeding
Who are the review parties?
(1) The parties to an IC review (the review parties) are as follows:
Note: For affected third party, see section 53C.
Application to become a review party
55B Procedure in IC review—application for hearing
55C Procedure in IC review—representation
At the hearing of a proceeding before the Information Commissioner, a review party may:
55D Procedure in IC review—onus
Note: For affected third party, see section 53C.
55DA Decision-maker must assist Information Commissioner
In an IC review, the agency or Minister who made the IC reviewable decision must use the agency’s or the Minister’s best endeavours to assist the Information Commissioner to make his or her decision in relation to the IC review.
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
55E Procedure in IC review—inadequate reasons from decision maker
55F Procedure in IC review—review parties reach agreement
55G Procedure in IC review—revocation or variation of access refusal decision
(1) An agency or Minister may vary (or set aside and substitute) an access refusal decision (the original decision) in relation to a request or an application under section 48 at any time during an IC review of the access refusal decision if the variation or substitution (the revised decision) would have an effect of:
Note: When making the revised decision, a consultation requirement under section 26A (documents affecting Commonwealth-State relations), 27 (business documents) or 27A (documents affecting personal privacy) may apply.
(2) If an agency or Minister varies (or sets aside and substitutes) an access refusal decision under subsection (1):
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
IC review application for the review of the varied or substituted decision, subject otherwise to this Part.
55H Procedure in IC review—reference of questions of law to Federal Court of Australia
55J Procedure in IC review—sending of documents to, and disclosure of documents by, the Federal Court of Australia
If a question of law is referred under section 55H:
Division 7—Decision on IC review
55K Decision on IC review—decision of Information Commissioner
Content of the decision
Note: Subsection 25(1) deals with information about the existence or otherwise of certain documents.
Providing copy of decision
(6) The Information Commissioner must give a copy of a decision on an IC review to each review party.
Copy of decision prima facie evidence
(7) A document is prima facie evidence of a decision on an IC review if:
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
Publication requirement
(8) The Information Commissioner must publish a decision on an IC review to members of the public generally.
55L Decision on IC review—no power to give access to exempt documents
55M Decision on IC review—limitation on amending records
55N Decision on IC review—obligation to comply with decision
A principal officer of an agency or a Minister must comply with a decision of the Information Commissioner under section 55K on an IC review.
55P Decision on IC review—enforcement of decision against agency
55Q Decision on IC review—correction of errors
(1) The Information Commissioner may correct an obvious error in a decision under section 55K of the Information Commissioner on an IC review.
Example: The following are examples of obvious errors:
(2) The Information Commissioner may correct an obvious error:
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Division 8—Information gathering powers
55R Information gathering powers—obliging production of information and documents
Scope
Notice to produce
Offence for failure to comply
(5) A person commits an offence if:
Penalty for a contravention of this subsection: Imprisonment for 6 months.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
55S Information gathering powers—dealings with documents
What the Information Commissioner may do with documents
(1) The Information Commissioner may do any of the following in relation to any documents produced in accordance with a notice under subsection 55R(3):
Information Commissioner must permit access by those entitled
55T Information gathering powers—production of exempt documents generally
Scope
(1) This section applies to an IC review of a decision in relation to a document if:
Note: Section 55U deals with the production of documents that are claimed to be exempt documents under section 33 (national security etc.) or 34 (Cabinet documents).
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
Exempt document produced under obligation
Production to determine whether access can be given to part of document
55U Information gathering powers—production of national security and cabinet documents
55V Information gathering powers—further searches for a document
55W Information gathering powers—obliging persons to appear
Notice to appear
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
Offence for failure to comply
(3) A person commits an offence if:
Penalty for a contravention of this subsection: 6 months imprisonment.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
55X Information gathering powers—administration of oath or affirmation
Penalty for a contravention of this subsection: 6 months imprisonment.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
55Y Information gathering powers—no loss of legal professional privilege
Information or a document does not cease to be the subject of legal professional privilege merely because it is given, provided, produced or referred to for the purposes of this Part.
55Z Information gathering powers—protection from liability
Division 9—Evidence by Inspector-General of Intelligence and Security
55ZA Evidence by Inspector-General of Intelligence and Security— scope
This Division applies in an IC review of a decision in relation to a document that is claimed to be an exempt document under section 33 (national security documents).
55ZB Evidence by Inspector-General of Intelligence and Security— request to give evidence
(1) Before determining that a document is not an exempt document under section 33, the Information Commissioner must request the
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
Inspector-General of Intelligence and Security to appear personally and give evidence on:
(a) the damage that would, or could reasonably be expected to, be caused to:
(iii) the international relations of the Commonwealth;
if access to the document were given in accordance with the request; or
(b) whether giving access to the document in accordance with the request would divulge any information or matter communicated in confidence by, or on behalf of, a foreign government, an authority of a foreign government or an international organisation to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth.
55ZC Evidence by Inspector-General of Intelligence and Security— compliance with request
The Inspector-General of Intelligence and Security must comply with a request under section 55ZB unless, in the opinion of the Inspector-General, the Inspector-General is not appropriately qualified to give evidence on the matters in relation to which the Inspector-General has been requested to give evidence.
55ZD Evidence by Inspector-General of Intelligence and Security— procedural matters
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Division 10—Appeals
56 Appeals—appeals to Federal Court of Australia on questions of law
56A Appeals—Federal Court of Australia may make findings of fact
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Part VIIA—Review by the Tribunal
Division 1—Guide to this Part
57 Review by the Tribunal—guide
An application may be made to the Administrative Appeals Tribunal for the review of certain decisions (see section 57A).
Division 3 sets out the powers of the Tribunal in a review.
Division 4 deals with the procedure to be followed in a review by the Tribunal.
Division 5 deals with ensuring that exempt matter that comes before the Tribunal is protected from disclosure.
Division 6 deals with the circumstances in which the Tribunal may make recommendations as to costs.
Division 7 deals with the stay of decisions pending appeal to the Federal Court of Australia.
Division 2—Tribunal reviewable decisions
57A Tribunal reviewable decisions—which decisions are reviewable?
(1) An application may be made to the Tribunal for review of the following decisions:
Note 1: | An application for the review of a decision may be made by a person whose interests are affected by the decision (see section 27 of the Administrative Appeals Tribunal Act 1975). |
Note 2: | Subsection 29(2) of the Administrative Appeals Tribunal Act 1975 sets out the time within which the application for review must be made. |
Time for applying to Tribunal if Information Commissioner declines to review decision
(2) Despite subsection 29(2) of the Administrative Appeals Tribunal Act 1975, for the purposes of paragraph 29(1)(d) of that Act, the prescribed time for a person to lodge an application for review of an IC reviewable decision mentioned in paragraph (1)(b) of this section is the period:
Division 3—Powers of Tribunal
35 Subsection 58(7)
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
Repeal the subsection.
36 After section 58
Insert:
58A Powers of Tribunal—requiring further searches
58AA Powers of Tribunal—limitation on amending records
37 Before section 58B
Insert:
Division 4—Procedure in Tribunal
38 Subsection 58B(1)
Omit “the review of a decision”, substitute “review in relation to a decision”.
39 Section 58D
After “of the majority”, insert: ; and (c) in a case where 3 of those members are Deputy Presidents— be decided according to the opinion of the majority.
40 Sections 58F, 59 and 59A
Repeal the sections.
41 Section 60
Repeal the section, substitute:
60 Procedure in Tribunal—parties
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
60AA Procedure in Tribunal—requirement to notify affected third parties
Scope
(1) This section applies if an application is made to the Tribunal under section 57A for the review of a decision not to give access to a document to which a consultation requirement applies under section 26A, 27 or 27A (whether the decision is made by the Information Commissioner, an agency or a Minister).
Requirement to notify
(2) The agency to which, or the Minister to whom, the request was made for access to the document must, as soon as practicable, take all reasonable steps to notify the affected third party for the document of the application to the Tribunal.
Note 1: For affected third party, see section 53C.
Note 2: Notice is not required to be given in certain circumstances (see section 60AB).
Note 3: The affected third party may apply to be made a party to the proceeding by the Tribunal under subsection 30(1A) of the Administrative Appeals Tribunal Act 1975.
60AB Procedure in Tribunal—circumstances in which not giving notice is appropriate
Note: For affected third party, see section 53C.
(3) The circumstances covered by this subsection are whether notifying the affected third party would, or could reasonably be expected to, do any of the following:
42 Section 61
Repeal the section, substitute:
61 Onus
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
Note: For affected third party, see section 53C.
61A Modification of the Administrative Appeals Tribunal Act 1975
(1) The Administrative Appeals Tribunal Act 1975 applies to proceedings under this Part in the way set out in the following table:
Modification of the Administrative Appeals Tribunal Act 1975 Modification of the Administrative Appeals Tribunal Act 1975
Item | A reference to ... | in the following | is taken to be a |
provision of the | reference to ... | ||
Administrative Appeals | |||
Tribunal Act 1975: |
1 2 3 | the person who made the decision the person who made the decision the person who made the decision that is the subject of the application for a review by the Tribunal | subsection 29(11) (notification of review application) (a) subsection 33(1AA) (requirement to assist Tribunan( � (b) paragraph 33(2A)(b) (procedural directions) subsection 37(1) or (1AF) (lodging material with Tribunal) | each of the review parties. the agency or Minister who made the IC reviewable decision. the agency or Minister who made the IC reviewable decision. |
4 5 6 7 | the person who made the decision the person who made the decision to which the relevant proceeding relates the person who made the decision the person who made | subsection 37(1A) or (1B) (deadlines for lodging documents) subsection 41(4) (stay of decisions being reviewed) subsection 41(5) (stay of decisions being reviewed) subsection 42A(2) | the agency or Minister who made the IC reviewable decision. each of the review parties. each of the review parties. the agency or Minister |
Item | A reference to ... | in the following | is taken to be a |
provision of the | reference to ... | ||
Administrative Appeals | |||
Tribunal Act 1975: |
the decision | (dismissal for failure to | who made the IC | |
---|---|---|---|
appear) | reviewable decision. | ||
8 | the person who made | section 67A (giving of | the person who made |
a decision | notices) | the decision or an | |
agency. |
43 Before section 63
Insert:
Division 5—Protection of information in Tribunal
44 Before section 66
Insert:
Division 6—Recommendations as to costs
45 Paragraph 66(1)(a)
Repeal the paragraph, substitute:
(a) a person applies, under section 57A, to the Tribunal for review of a decision of the Information Commissioner on an IC review; and
46 Subsections 66(1) and (3)
Omit “Attorney-General”, substitute “responsible Minister”.
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
47 Before section 67
Insert:
Division 7—Automatic stay of certain decisions
48 Paragraph 67(1)(a)
Omit “under section 55, to the Tribunal for review of a decision”, substitute “under section 57A, to the Tribunal for review in relation to a decision”.
49 Before Part VIII
Insert:
Part VIIB—Investigations and complaints Division 1—Guide to this Part
68 Investigations and complaints—guide
This Part is about investigations by the Information Commissioner and by the Ombudsman.
Division 2 sets up a system for investigations by the Information Commissioner.
The Information Commissioner may investigate an action taken by an agency in the performance of functions or the exercise of powers under this Act on a complaint from a person, or on the Information Commissioner’s initiative.
If a person disputes the merits of an access refusal decision or an access grant decision, this Act provides elsewhere for the review of that decision (see Parts VI, VII and VIIA).
However, this does not prevent a person from making a complaint to the Information Commissioner about the way in which the agency has handled the decision.
The Information Commissioner has powers to obtain documents, to question persons and to enter premises (see Subdivision D of Division 2).
At the conclusion of the investigation, the Information Commissioner must give a notice to the complainant and to the respondent agency about the Information Commissioner’s findings, with any recommendations that the Information Commissioner believes the agency ought to implement (see section 86).
If the Information Commissioner is not satisfied that the agency has taken adequate and appropriate action to implement the recommendations, the Information Commissioner may take further steps (see sections 89, 89A and 89B).
Division 3 deals with the investigation of complaints by the Ombudsman about action taken under this Act.
Division 2—Information Commissioner investigations Subdivision A—Power to investigate
69 Information Commissioner investigations—power to investigate
Obligation to investigate
(1) The Information Commissioner must, subject to this Division, investigate a complaint made under section 70.
Discretion to investigate
(2) The Information Commissioner may, at the Information Commissioner’s initiative, investigate an action taken by an agency (the respondent agency) in the performance of functions, or the exercise of powers, under this Act.
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
Subdivision B—Making complaints
70 Information Commissioner investigations—making complaints
Subdivision C—Decision to investigate
71 Information Commissioner investigations—interpretation
This Subdivision applies to a part of a complaint as if:
72 Information Commissioner investigations—preliminary inquiries
The Information Commissioner may make inquiries of the respondent agency for the purpose of determining whether or not to investigate a complaint made (or purported to be made) under section 70.
73 Information Commissioner investigations—discretion not to investigate
The Information Commissioner may decide not to investigate, or not to continue to investigate, a complaint about an action made under section 70 if the Information Commissioner is satisfied of any of the following:
Note: The Information Commissioner may make a decision under this section to investigate only part of a complaint (see section 71).
74 Information Commissioner investigations—transfer to Ombudsman
Scope
(1) This section applies if the Information Commissioner is satisfied that a complaint about an action could be more effectively or
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010
appropriately dealt with by the Ombudsman under the Ombudsman Act 1976.
Example 1: A complaint about the way in which the Information Commissioner has dealt with an IC review.
Example 2: A complaint relates to an action under this Act, but is part of a complaint that relates to other matters that can be more appropriately dealt with by the Ombudsman.
Transfer of complaints to Ombudsman
Note: The Information Commissioner may make a decision under this section to investigate only part of a complaint (see section 71).
75 Information Commissioner investigations—notice requirements
Notice to respondent agency before commencing investigation
(1) Before beginning an investigation, the Information Commissioner must notify the respondent agency in writing.
Notice of decision not to investigate, or not to continue to investigate
Subdivision D—Investigation procedure
76 Information Commissioner investigations—conduct of investigation
77 Information Commissioner investigations—general power to enter premises
(1) If a consenting person consents to entry under paragraph (2)(a), an authorised person may, at any reasonable time of day arranged with the consenting person:
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010 101
Note: For consenting person, see subsection (3).
Authority to enter premises
Who is an authorised person?
(6) An authorised person is:
78 Information Commissioner investigations—places for which approval required before entry
Specific places and areas
Places in respect of which Attorney-General makes declaration
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010 103
79 Information Commissioner investigations—obliging production of information and documents
Scope
Notice to produce
Offence for failure to comply
(5) A person commits an offence if:
Penalty for a contravention of this subsection: Imprisonment for 6 months.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
80 Information Commissioner investigations—dealings with documents
What the Information Commissioner may do with documents
(1) The Information Commissioner may do one or more of the following with respect to any documents produced in accordance with a notice under subsection 79(3):
Information Commissioner must permit access by those entitled
81 Information Commissioner investigations—exempt documents
Sections 55T and 55U apply to an investigation under this Part as if a reference in those sections to an IC review of a decision were a reference to an investigation of a complaint made under section 70.
Note: Sections 55T and 55U deal with access by the Information Commissioner to exempt documents.
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010 105
82 Information Commissioner investigations—obliging persons to appear
Notice to require person to appear
Offence for failure to comply
(3) A person commits an offence if:
Penalty for a contravention of this subsection: 6 months imprisonment.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
83 Information Commissioner investigations—administration of oath or affirmation
Penalty for a contravention of this subsection: 6 months imprisonment.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
84 Information Commissioner investigations—no loss of legal professional privilege
Information or a document does not cease to be the subject of legal professional privilege merely because it is given, provided, produced or referred to for the purposes of this Part.
85 Information Commissioner investigations—protection from liability
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010 107
Subdivision E—Outcome of investigation
86 Information Commissioner investigations—notice on completion
Requirement to notify respondent agency
Requirement to notify complainant (if any)
Note: Section 89D sets out further limitations on recommendations to amend records.
87 Information Commissioner investigations—what are the investigation results?
The investigation results, in relation to the investigation, are the following:
88 Information Commissioner investigations—what are the investigation recommendations?
The investigation recommendations, in relation to the investigation, are the formal recommendations to the respondent agency that the Information Commissioner believes that the respondent agency ought to implement.
89 Information Commissioner investigations—failure to implement investigation recommendation
Scope
(1) This section applies if:
Giving implementation notices
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010 109
89A Information Commissioner investigations—failure to take action in response to implementation notice
Scope
(1) This section applies if:
Report to responsible Minister
(2) The Information Commissioner may give a written report to the responsible Minister that contains the matters set out in section 89B.
Note: For responsible Minister, see subsection 4(1).
Report to Minister
Note: Section 89D sets out further limitations on recommendations to amend records.
89B Information Commissioner investigations—requirements for report
A report under subsection 89A(2) must:
89C Information Commissioner investigations—ensuring non-disclosure of certain matters
Note: Subsection 25(1) deals with information about the existence or otherwise of certain documents.
89D Information Commissioner investigations—limitation on amending records
Scope
(1) This section applies to the following documents:
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010 111
Restrictions on amendments
89E Information Commissioner investigations—protection from civil action
Division 3—Complaints to Ombudsman
89F Complaints to Ombudsman—powers not affected
This Part does not prevent the Ombudsman from exercising powers or performing functions under the Ombudsman Act 1976 in accordance with that Act.
89G Complaints to Ombudsman—report must not contain certain information
A report under subsection 12(3) or section 15 or 17 of the Ombudsman Act 1976 in relation to an action taken under this Act must not include:
Note: Subsection 25(1) deals with information about the existence or otherwise of certain documents.
89H Complaints to Ombudsman—certain rights not affected by certificates
89J Complaints to Ombudsman—limitation on amending records in reports under the Ombudsman Act 1976
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010 113
50 Before section 91
Insert:
Division 1—Vexatious applicants
89K Vexatious applicants—declaration
(1) The Information Commissioner may, by written instrument (a vexatious applicant declaration), declare a person to be a vexatious applicant.
Note 1: Section 89L sets out the grounds on which a declaration may be made.
Note 2: For variation and revocation of the instrument, see subsection 33(3) of the Acts Interpretation Act 1901.
89L Vexatious applicants—grounds for declaration
abuse of the process for an access action includes, but is not limited to, the following:
89M Vexatious applicants—effect of declaration
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010 115
89N Vexatious applicants—review by Tribunal
An application may be made to the Tribunal for a review of a decision under section 89K of the Information Commissioner to make a vexatious applicant declaration.
Note 1: An application for the review of a decision may be made by a person whose interests are affected by the decision (see section 27 of the Administrative Appeals Tribunal Act 1975).
Note 2: Subsection 29(2) of the Administrative Appeals Tribunal Act 1975 sets out the time within which the application for review must be made.
Note 3: Section 30 of the Administrative Appeals Tribunal Act 1975 sets out who the parties are to a proceeding before the Tribunal.
Division 2—General
89P Staff to hold appropriate security clearance
The Information Commissioner must take all reasonable steps to ensure that a member of the staff of the Office of the Australian Information Commissioner who performs functions or exercises powers for the purposes of this Act is given a security clearance at an appropriate level.
Note: Security clearances are given in accordance with the Australian Government Protective Security Manual.
90 Protection against civil liability—general
51 Subsection 91(1)
Repeal the subsection.
Note: The heading to section 91 is replaced by the heading “Protection against civil liability—particular situations”.
52 Subsection 91(1A)
Omit “Subsection (1)”, substitute “Section 90”.
53 Paragraph 91(1C)(a)
Omit “26A(1)”, substitute “26A(2)”.
54 Paragraph 91(1C)(b)
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010 117
Omit “27(1)”, substitute “27(4)”.
55 Paragraph 91(1C)(c)
Omit “27A(1)”, substitute “27A(3)”.
56 Section 92
Repeal the section, substitute:
92 Protection against criminal liability
57 Section 93
Repeal the section, substitute:
93 Agencies to provide information to Information Commissioner
93A Guidelines
(1) The Information Commissioner may, by instrument in writing, issue guidelines for the purposes of this Act.
Note: For variation and revocation of the instrument, see subsection 33(3) of the Acts Interpretation Act 1901.
93B Review of operation of Act
Note: This section commences immediately after the commencement of section 3 of the Australian Information Commissioner Act 2010.
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010 119
Part 2—Other amendments
Ombudsman Act 1976
59 Subsections 6(4A) to (4C)
Repeal the subsections.
60 After section 6B
Insert:
6C Transfer of complaints to Information Commissioner
Scope
(1) This section applies if the Ombudsman is satisfied of either of the following:
Requirement to consult with Information Commissioner
(2) The Ombudsman:
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010 121
Transfer to Information Commissioner
61 Subsection 19(4)
Omit “paragraph (1)(a) or under subsection (2)”, substitute “subsection (1) or (2)”.
62 Subparagraph 19R(3)(b)(iii)
Omit “(4A)”, substitute “(4D)”.
63 Subsection 19R(4) (table item 4, column 2)
Omit “6(4A)(e) or (4D)(e)”, substitute “6(4D)(e)”.
64 Subsection 35(6A)
Omit “6(4A)(e) or (4D)(e)”, substitute “6(4D)(e)”.
Part 3—Application and transitional provisions
65 Application—Part 1
Internal review and IC review
(1) An amendment made by an item in Part 1 (other than an amendment covered by subitem (2), (3) or (4)) applies in relation to the following:
Tribunal review
(2) The amendments made by items 44 and 46 apply in relation to applications to the Tribunal under section 57A of the Freedom of Information Act 1982 (as amended by this Act) made at or after the commencement of those items.
Investigation by the Information Commissioner
(3) The amendments made by item 49 to insert new Part VIIB of the Freedom of Information Act 1982 apply in relation to action taken by an agency (within the meaning of the Freedom of Information Act 1982, as amended by this Schedule) before, at or after the commencement of that item.
Indemnity amendments
(4) The following amendments apply in relation to the publication of, or the giving of access to, a document at or after the commencement of those amendments:
66 Application—Part 2
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010 123
The amendments made by Part 2 apply in relation to a complaint made to the Ombudsman under the Ombudsman Act 1976 at or after the commencement of that Part (whether or not the action to which the complaint relates was taken before, at or after that commencement).
67 Savings—complaints on foot continue under old law
Schedule 5—Amendments consequential on the establishment of the Office of the Australian Information Commissioner
Anti-Money Laundering and Counter-Terrorism Financing Act 2006
1 Subparagraph 212(2)(a)(vi)
Omit “Privacy Commissioner”, substitute “Information Commissioner in relation to matters that relate to the privacy functions (within the meaning of the Australian Information Commissioner Act 2010)”.
Australian Citizenship Act 2007
2 Paragraph 43(2)(g)
Omit “Privacy Commissioner”, substitute “Information Commissioner”.
Australian Human Rights Commission Act 1986
4 Subsection 3(1) (definition of Privacy Commissioner)
Repeal the definition.
5 Paragraphs 20(4A)(b), (c) and (e)
Omit “Privacy Commissioner”, substitute “Information Commissioner”.
6 Subsection 20(4B)
Omit “Privacy Commissioner”, substitute “Information Commissioner”.
7 Section 43A
Omit “Privacy Commissioner” (wherever occurring), substitute “Information Commissioner”.
Note: The heading to section 43A is altered by omitting “Privacy Commissioner” and substituting “Information Commissioner”.
8 Section 43A
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010 125
Omit “Privacy Act 1988”, substitute “Australian Information Commissioner Act 2010”.
Aviation Legislation Amendment (2008 Measures No. 2) Act 2009
9 Subsections 4(1), (2) and (4)
Omit “Privacy Commissioner”, substitute “Information Commissioner”.
Note: The heading to section 4 is altered by omitting “Privacy Commissioner” and substituting “Information Commissioner”.
10 Subsection 4(4)
Omit “, and may delegate any matter to a member of his or her staff as provided for by section 99 of that Act”.
Child Care Act 1972
11 Subsection 12P(3)
Omit “Privacy Commissioner”, substitute “Information Commissioner in relation to matters that relate to the privacy functions (within the meaning of the Australian Information Commissioner Act 2010)”.
Crimes Act 1914
12 Paragraph 3ZQJ(2)(c)
Omit “Privacy Commissioner”, substitute “Information Commissioner”.
13 Paragraph 23YDAE(2)(g)
Omit “Privacy Commissioner”, substitute “Information Commissioner”.
14 Paragraph 23YO(2)(g)
Omit “Privacy Commissioner”, substitute “Information Commissioner”.
15 Subsection 23YUK(4) (paragraph (b) of the definition of independent review)
Omit “nominee of the Privacy Commissioner”, substitute “a person nominated by the Information Commissioner in the performance of the privacy functions (within the meaning of the Australian Information Commissioner Act 2010)”.
16 Subsection 23YV(4) (paragraph (b) of the definition of independent review)
Omit “nominee of the Privacy Commissioner”, substitute “a person nominated by the Information Commissioner in the performance of the privacy functions (within the meaning of the Australian Information Commissioner Act 2010)”.
17 Division 5 of Part VIIC (heading)
Repeal the heading, substitute:
Division 5—Complaints to Information Commissioner
18 Subsection 85ZZ(1)
Omit “Privacy Commissioner”, substitute “Information Commissioner”.
Note: The heading to section 85ZZ is altered by omitting “Privacy Commissioner’s” and substituting “Information Commissioner’s”.
19 After subsection 85ZZ(1)
Insert:
(1A) The functions conferred by subsection (1) are privacy functions for the purposes of the Australian Information Commissioner Act 2010.
20 Subsection 85ZZ(2)
Omit “Privacy Commissioner”, substitute “Information Commissioner”.
21 Subsection 85ZZA(1)
Omit “Privacy Commissioner”, substitute “Information Commissioner”.
Note: The heading to section 85ZZA is altered by omitting “Privacy Commissioner” and substituting “Information Commissioner”.
22 Subsection 85ZZA(3)
Omit “Privacy Commissioner’s”, substitute “Information
Commissioner’s”.
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010 127
23 Subsections 85ZZC(1) and (2)
Omit “Privacy Commissioner”, substitute “Information Commissioner”.
24 Subsection 85ZZD(1)
Before “Commissioner”, insert “Information”.
Note: The heading to section 85ZZD is altered by omitting “Privacy Commissioner” and substituting “Information Commissioner”.
25 Subsections 85ZZD(2) to (4)
Omit “Privacy Commissioner”, substitute “Information Commissioner”.
26 Subsection 85ZZF(1)
Omit “Privacy Commissioner”, substitute “Information Commissioner”.
Data-matching Program (Assistance and Tax) Act 1990
27 Subsection 10(5) (definition of sampling procedures)
Omit “Privacy Commissioner”, substitute “Information Commissioner in relation to matters that relate to the privacy functions (within the meaning of the Australian Information Commissioner Act 2010)”.
28 Section 12
Repeal the section, substitute:
12 Guidelines relating to privacy
are specified for the purposes of this subsection in guidelines
issued under this section.
(5) After the 3-year period ending on 30 June 1998, and after each successive 3-year period, each agency must give the Minister responsible for the agency a report for presentation to the Parliament including all the details relating to the data-matching program carried out during the period that are specified for the purposes of this subsection in guidelines issued under this section.
Note: Section 34C of the Acts Interpretation Act 1901 sets time limits for giving reports to Ministers and for presentation of reports to the Parliament.
(6) Despite section 12 of the Legislative Instruments Act 2003, guidelines issued under this section take effect from:
29 Subsection 13(1) (definition of Commissioner)
Omit “Privacy Commissioner”, substitute “Information Commissioner acting in the performance of the privacy functions (within the meaning of the Australian Information Commissioner Act 2010)”.
30 Subsection 14(2)
Omit “Privacy Commissioner”, substitute “Information Commissioner”.
31 Schedule
Repeal the Schedule.
Environment Protection and Biodiversity Conservation Act 1999
32 Paragraph 42(2)(e) of Schedule 1
Omit “Privacy Commissioner”, substitute “Information Commissioner under the Privacy Act 1988”.
33 Paragraph 53(2)(g) of Schedule 1
Omit “Privacy Commissioner”, substitute “Information Commissioner”.
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010 129
Fair Work Act 2009
34 Paragraph 510(1)(c)
Omit “Privacy Commissioner”, substitute “Information Commissioner”.
Fisheries Management Act 1991
35 Paragraph 42(2)(e) of Schedule 1A
Omit “Privacy Commissioner”, substitute “Information Commissioner under the Privacy Act 1988”.
36 Paragraph 53(2)(g) of Schedule 1A
Omit “Privacy Commissioner”, substitute “Information Commissioner”.
Migration Act 1958
37 Paragraph 261AKD(2)(e)
Omit “Privacy Commissioner”, substitute “Information Commissioner under the Privacy Act 1988”.
38 Paragraph 336E(2)(g)
Omit “Privacy Commissioner”, substitute “Information Commissioner”.
National Health Act 1953
39 Subsection 135AA(3)
Omit “Privacy Commissioner”, substitute “Information Commissioner”.
40 Subsection 135AA(3)
Omit “written notice”, substitute “legislative instrument”.
41 After subsection 135AA(3)
Insert:
(3A) The issuing of guidelines under this section is a privacy function for the purposes of the Australian Information Commissioner Act 2010.
42 Subsection 135AA(4)
Omit “Privacy Commissioner”, substitute “Information Commissioner”.
43 Subsection 135AA(4)
Omit “written notice”, substitute “legislative instrument”.
44 Subsections 135AA(5A) and (6)
Omit “Privacy Commissioner”, substitute “Information Commissioner”.
45 Subsections 135AA(7) to (10)
Repeal the subsections, substitute:
When guidelines take effect
(8) Despite section 12 of the Legislative Instruments Act 2003, guidelines take effect from:
46 Subsection 135AB(2)
Omit “Privacy Commissioner”, substitute “Information Commissioner”.
National Health and Medical Research Council Act 1992
48 Section 4 (definition of Privacy Commissioner)
Repeal the definition.
49 Subparagraphs 61(4)(b)(i) and (ii)
Omit “Privacy Commissioner”, substitute “Information Commissioner”.
50 Paragraphs 61(5)(c) and (d)
Omit “Privacy Commissioner”, substitute “Information Commissioner”.
51 Subsection 61(6)
Omit “Privacy Commissioner”, substitute “Information Commissioner”.
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010 131
Privacy Act 1988
52 Subsection 6(1) (definition of Commissioner)
Repeal the definition, substitute:
Commissioner means the Information Commissioner within the meaning of the Australian Information Commissioner Act 2010.
53 Part IV (heading)
Repeal the heading, substitute:
Part IV—Functions of the Information Commissioner
54 Division 1 of Part IV
Repeal the Division.
55 Subsections 31(4), 32(2) and 36(1)
Omit “Privacy”.
56 Sections 96, 97 and 99
Repeal the sections.
57 Introduction to Schedule 2
Omit “Privacy Commissioner”, substitute “Information Commissioner”.
58 Clause 6.1 of Schedule 2
Omit “Privacy Commissioner”, substitute “Information Commissioner”.
Telecommunications Act 1997
59 Paragraphs 117(1)(j) and (k)
Omit “Privacy Commissioner”, substitute “Information Commissioner”.
60 Subsection 118(1) (note)
Omit “Privacy Commissioner”, substitute “Information Commissioner”.
61 Subsection 118(4A)
Omit “Privacy Commissioner”, substitute “Information Commissioner”.
62 Subsection 121(1A)
Omit “Privacy Commissioner”, substitute “Information Commissioner”.
63 Subsection 122(3)
Omit “Privacy Commissioner”, substitute “Information Commissioner”.
64 Subsection 130(1) (note)
Omit “Privacy Commissioner”, substitute “Information Commissioner”.
65 Subsections 134(2) and (3)
Omit “Privacy Commissioner”, substitute “Information Commissioner”.
Note: The heading to section 134 is altered by omitting “Privacy” and substituting “Information”.
66 Paragraph 295M(1)(a)
Omit “Privacy Commissioner” (first occurring), substitute “Information Commissioner in relation to matters that relate to the privacy functions (within the meaning of the Australian Information Commissioner Act 2010)”.
67 Paragraph 295M(1)(a)
Omit “Privacy Commissioner” (last occurring), substitute “Information Commissioner”.
68 Section 295ZC
Omit “Privacy Commissioner”, substitute “Information Commissioner”.
Note: The heading to section 295ZC is altered by omitting “Privacy Commissioner” and substituting “Information Commissioner”.
69 Subsection 309(1)
Omit “Privacy Commissioner” (wherever occurring), substitute “Information Commissioner”.
Note: The heading to section 309 is altered by omitting “Privacy Commissioner” and substituting “Information Commissioner”.
70 After subsection 309(1)
Insert:
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010 133
(1A) The function conferred on the Information Commissioner by subsection (1) is a privacy function for the purposes of the Australian Information Commissioner Act 2010.
71 Subsections 309(2) to (4)
Omit “Privacy Commissioner” (wherever occurring), substitute
“Information Commissioner”.
72 Subsection 309(5)
Repeal the subsection (including the note).
73 Paragraphs 515A(2)(a) and (b)
Omit “Privacy Commissioner”, substitute “Information Commissioner”.
Note: The heading to section 515A is altered by omitting “Privacy Commissioner” and substituting “Information Commissioner”.
74 Paragraphs 515A(3)(a) and (c)
Omit “Privacy Commissioner”, substitute “Information Commissioner”.
75 Subsection 515A(4)
Omit “Privacy Commissioner” (wherever occurring), substitute
“Information Commissioner”.
Telecommunications (Interception and Access) Act 1979
76 Subsection 183(3)
Omit “Privacy Commissioner”, substitute “Information Commissioner in relation to matters that relate to the privacy functions (within the meaning of the Australian Information Commissioner Act 2010)”.
Torres Strait Fisheries Act 1984
77 Paragraph 42(2)(e) of Schedule 2
Omit “Privacy Commissioner”, substitute “Information Commissioner under the Privacy Act 1988”.
78 Paragraph 53(2)(g) of Schedule 2
Omit “Privacy Commissioner”, substitute “Information Commissioner”.
Schedule 6—Other amendments
Part 1—Amendments to the Freedom of Information Act 1982
Freedom of Information Act 1982
1 Subsection 4(1) (definition of agency)
Omit “, a prescribed authority or an eligible case manager”, substitute “or a prescribed authority”.
2 Subsection 4(1)
Insert:
Commonwealth contract means a contract to which all of the
following apply:
3 Subsection 4(1)
Insert:
contracted service provider, for a Commonwealth contract, means an entity that is, or was:
4 Subsection 4(1)
Insert:
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010 135
defence intelligence document has the meaning given by paragraph 7(2C)(a).
5 Subsection 4(1) (definition of Department)
Omit all the words after “Commonwealth”.
6 Subsection 4(1) (paragraph (d) of the definition of document)
Repeal the paragraph, substitute:
(d) material maintained for reference purposes that is otherwise publicly available; or
7 Subsection 4(1) (definition of document of an agency)
Repeal the definition, substitute:
document of an agency: a document is a document of an agency if:
8 Subsection 4(1)
Insert:
electronic communication has the same meaning as in the Electronic Transactions Act 1999.
9 Subsection 4(1) (definition of eligible case manager)
Repeal the definition.
10 Subsection 4(1)
Insert:
intelligence agency document has the meaning given by paragraph 7(2A)(a).
11 Subsection 4(1)
Insert: practical refusal reason has the meaning given by section 24AA.
12 Subsection 4(1) (paragraphs (b) and (c) of the definition of principal officer)
Repeal the paragraphs, substitute:
(b) in relation to a prescribed authority:
(iii) if neither subparagraph (i) nor (ii) applies—the person responsible for the day-to-day management of the authority;
13 Subsection 4(1)
Insert:
request consultation process has the meaning given by section 24AB.
14 Subsection 4(1) (paragraph (d) of the definition of responsible Minister)
Omit “or”.
15 Subsection 4(1) (paragraph (e) of the definition of responsible Minister)
Repeal the paragraph.
16 Subsection 4(1)
Insert:
subcontractor, for a Commonwealth contract, means an entity:
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010 137
17 Subsection 4(8)
Repeal the subsection.
18 Section 6B
Repeal the section.
19 Before section 7
Insert:
6C Requirement for Commonwealth contracts
20 Subsection 7(2A)
Repeal the subsection, substitute:
(2A) An agency is exempt from the operation of this Act in relation to the following documents:
21 Subsection 7(2B)
Repeal the subsection, substitute:
(2B) A Minister is exempt from the operation of this Act in relation to the following documents:
(2C) An agency is exempt from the operation of this Act in relation to the following documents:
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010 139
extent that it contains such a summary, extract or information.
(2D) A Minister is exempt from the operation of this Act in relation to the following documents:
22 After paragraph 13(1)(d)
Insert: or (e) a program or related material (within the meaning of the National Film and Sound Archive Act 2008) in the collection of the National Film and Sound Archive;
23 After paragraph 15(2)(a)
Insert: (aa) state that the request is an application for the purposes of this Act; and
Note 1: The following heading to subsection 15(1) is inserted “Persons may request access”.
Note 2: The following heading to subsection 15(2) is inserted “Requirements for request”.
24 Paragraphs 15(2)(c) to (e)
Repeal the paragraphs, substitute:
(c) give details of how notices under this Act may be sent to the applicant (for example, by providing an electronic address to which notices may be sent by electronic communication).
25 After subsection 15(2)
Insert:
(2A) The request must be sent to the agency or Minister. The request may be sent in any of the following ways:
26 At the end of subsection 15(3)
Add:
Note: An agency or Minister may refuse to deal with a request if satisfied that a practical refusal reason exists, after undertaking the request consultation process (see section 24).
Note: The following heading to subsection 15(3) is inserted “Agency required to assist”.
27 After subsection 15(5)
Insert:
(5A) In making a decision on a request, the agency or Minister must have regard to any guidelines issued by the Information Commissioner for the purposes of section 93A.
Note: The following heading to subsection 15(5) is inserted “Timeframes for dealing with request”.
28 Paragraph 15(6)(a)
Omit “to be taken to be”.
Note: The following heading to subsection 15(6) is inserted “Extension of processing period to comply with requirements of section 26A, 27 or 27A”.
29 At the end of section 15
Add:
Extension of processing period to consult foreign entity
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010 141
30 After section 15
Insert:
15AA Extension of time with agreement
An agency or Minister may extend the period referred to in paragraph 15(5)(b) for dealing with a request, or that period as extended under subsection 15(6) or (8) (consultation), by a further period of no more than 30 days if:
15AB Extension of time for complex or voluminous requests
Note: For variation and revocation of the instrument, see subsection 33(3) of the Acts Interpretation Act 1901.
(3) The Information Commissioner must, as soon as practicable, inform the following persons of the period for which the extension has been given:
15AC Decision not made on request within time—deemed refusal
Scope
Deemed refusal
(3) Subject to this section:
Agency or Minister may apply for further time
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010 143
No further time allowed
(9) If subsection (8) (deemed refusal after allowance of further time) applies, the Information Commissioner does not have the power to allow further time under this section in relation to the decision taken to be made under subsection (3) in its operation as affected by subsection (8).
31 Paragraph 17(1)(a)
Omit “of the kind described in subsection 24(1)”, substitute “in relation to which a practical refusal reason exists”.
32 Section 24
Repeal the section, substitute:
24 Power to refuse request—diversion of resources etc.
24AA When does a practical refusal reason exist?
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010 145
24AB What is a request consultation process?
Scope
(1) This section sets out what is a request consultation process for the purposes of section 24.
Requirement to notify
(2) The agency or Minister must give the applicant a written notice stating the following:
Assistance to revise request
Extension of consultation period
(5) The contact person may, with the applicant’s agreement, extend the consultation period by written notice to the applicant.
Outcome of request consultation process
Consultation period to be disregarded in calculating processing period
(8) The period starting on the day an applicant is given a notice under subsection (2) and ending on the day the applicant does one of the things mentioned in paragraph (6)(b) or (c) is to be disregarded in working out the 30 day period mentioned in paragraph 15(5)(b).
Note: Paragraph 15(5)(b) requires that an agency or Minister take all reasonable steps to notify an applicant of a decision on the applicant’s request within 30 days after the request is made.
No more than one request consultation process required
(9) To avoid doubt, this section only obliges the agency or Minister to undertake a request consultation process once for any particular request.
33 Section 24A
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010 147
Repeal the section, substitute:
24A Requests may be refused if documents cannot be found, do not exist or have not been received
Document lost or non-existent
(1) An agency or Minister may refuse a request for access to a document if:
Document not received as required by contract
(2) An agency may refuse a request for access to a document if:
34 Subsection 29(1)
Omit “(not being an application fee)”.
35 Section 30A
Repeal the section.
36 Section 92A
Repeal the section.
37 Paragraph 94(2)(a)
Omit “the applicant is included in one class of applicant or another class of applicant or according to whether”.
38 Division 1 of Part II of Schedule 2 (after the item relating to the Commonwealth Scientific and Industrial Research Organisation)
Insert: Department of Defence, in relation to documents in respect of:
39 Division 1 of Part II of Schedule 2 (the item relating to the Federal Airports Corporation)
Repeal the item.
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010 149
Part 2—Application provisions
40 Application—items 2, 3, 7, 16, 19 and 33
The amendments made by items 2, 3, 7, 16, 19 and 33 apply in relation to contracts entered into at or after the commencement of those items.
41 Application—items 4, 6, 8, 10 to 13, 17, 20 to 32 and 34 to 39
The amendments made by items 4, 6, 8, 10 to 13, 17, 20 to 32 and 34 to 39 apply in apply in relation to the following:
Part 3—Amendment of other Acts
Administrative Appeals Tribunal Act 1975
41A After paragraph 49(1)(c)
Insert: (ca) the Australian Information Commissioner holding office under the Australian Information Commissioner Act 2010; and
41B Subsection 49(3)
Omit “or (c)”, substitute “, (c) or (ca)”.
Australian Crime Commission Act 2002
42 Schedule 1
Omit “Freedom of Information Act 1982, section 58”.
Environment Protection and Biodiversity Conservation Act 1999
43 Paragraph 93(3A)(a)
Repeal the paragraph, substitute:
(a) is:
44 Subparagraph 131AA(4)(a)(i)
Repeal the subparagraph, substitute:
(i) is an exempt document under subparagraph 33(a)(i) of the Freedom of Information Act 1982 (documents
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010 151
affecting national security, defence or international
relations); or
(ia) is a conditionally exempt document under section 47C of that Act (deliberative processes) to which access would, on balance, be contrary to the public interest for the purposes of subsection 11A(5) of that Act; or
45 Paragraph 133(4)(a)
Repeal the paragraph, substitute:
(a) is:
46 Paragraph 135A(4)(a)
Repeal the paragraph, substitute:
(a) is:
47 Paragraph 143(6)(a)
Repeal the paragraph, substitute:
(a) is:
48 Paragraph 146B(4)(a)
Repeal the paragraph, substitute:
(a) is:
Inspector-General of Intelligence and Security Act 1986
49 Subsection 34(1AA)
Before “section 60A”, insert “Division 9 of Part VII or”.
50 Paragraph 34(1AA)(a)
Before “section”, insert “Division or”.
51 Subsection 34(5)
Before “section 60A”, insert “Division 9 of Part VII or”.
52 After paragraph 34(5)(c)
Insert: (ca) if the information is obtained by the person because the person is performing functions or duties or exercising powers under Division 9 of Part VII of the Freedom of Information Act 1982—for the purposes of that Division; and
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010 153
Schedule 7—Privacy Commissioner transition
Part 1—Preliminary
1 Definitions
(1) In this Schedule:
commencement day means the day on which the new law commences.
Information Commissioner means the Australian Information Commissioner appointed under section 14 of the new law.
new law means the Australian Information Commissioner Act 2010.
old law means Division 1 of Part IV of the Privacy Act 1988 as in force immediately before the commencement day.
Privacy Commissioner means the Privacy Commissioner appointed under section 19A of the old law.
Part 2—Office holders, staff and consultants
2 Privacy Commissioner
3 Staff
Existing agreements to continue
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010 155
Regulations
(3) The regulations may provide for other matters of a transitional nature in relation to the transfer of employees from the Office of the Privacy Commissioner to the Office of the Australian Information Commissioner.
Definitions
(4) In this item:
AWA has the meaning given by clause 1 of Schedule 7A to the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
Note: AWA is short for Australian workplace agreement.
collective agreement has the meaning given by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
enterprise agreement has the meaning given by section 12 of the Fair Work Act 2009.
ITEA has the meaning given by section 326 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
Note: ITEA is short for individual transitional employment agreement.
pre-reform AWA has the meaning given by clause 1 of Schedule 7 to the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
pre-reform certified agreement has the meaning given by clause 1 of Schedule 7 to the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
4 Consultants
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010 157
Part 3—Things done by, or in relation to, the Privacy Commissioner
5 Things done by, or in relation to, Privacy Commissioner
6 Consultations by, and with, Privacy Commissioner
7 Comments sought, but not received, by Privacy Commissioner
8 Approval sought from, but not given by, Privacy Commissioner
9 Decisions made, but not implemented, by Privacy Commissioner
10 Privacy Advisory Committee giving advice to Privacy Commissioner
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010 159
Part 4—Investigations 11 Investigations
12 Requirement to give evidence or hold conference etc.
13 Applications on foot as part of investigation proceeding
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010 161
14 Conference convened, but not held
15 Submissions invited, but not received, by Privacy Commissioner
Part 5—Written instruments and reporting requirements
16 References in instruments
17 Reporting requirements
Reports for periods ending after the commencement day
Reports for periods ending before the commencement day
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010 163
Part 6—Legal and other proceedings
18 Substitution of Information Commissioner as a party to pending proceedings
If any proceedings to which the Privacy Commissioner was a party were pending in any court or tribunal immediately before the commencement day, the Information Commissioner is substituted for the Privacy Commissioner as a party to the proceedings on and after the commencement day.
19 Reviews, examinations etc. by Privacy Commissioner
20 Review of adjudicator’s decisions
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010 165
21 Conference convened, but not held
22 Conference held, but determination not made, by Privacy Commissioner
Part 7—Miscellaneous
23 Records etc. of Office of the Privacy Commissioner
All records or documents held, immediately before the commencement day, for the purposes of the performance of the functions, or the exercise of the powers, of the Privacy Commissioner, are, on and after the commencement day, taken to be held for the purposes of the performance of the functions, or the exercise of the powers, of the Information Commissioner.
24 Disclosure of private information
Despite the repeal of section 96 of the Privacy Act 1988 by this Act, that section (as in force immediately before the commencement day) continues to apply, in relation to conduct engaged in before the commencement day, as if that section had not been repealed.
25 Failure to appear before, or give information to, the Privacy Commissioner
26 Saving of existing delegations
A delegation in force under section 99 of the Privacy Act 1988 immediately before the commencement day continues to have effect, subject to the new law, as if it were a delegation under section 25 of the new law on and after the commencement day.
27 Regulations
Freedom of Information Amendment (Reform) Act 2010 No. 51, 2010 167
[Minister’s second reading speech made in— House of Representatives on 26 November 2009 Senate on 13 May 2010]
(253/09)