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This is a Bill, not an Act. For current law, see the Acts databases.
2013-2014
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Freedom of Information Amendment
(New Arrangements) Bill 2014
No. , 2014
(Attorney-General)
A Bill for an Act to amend the law relating to
freedom of information and privacy, and for other
purposes
No. , 2014
Freedom of Information Amendment (New Arrangements) Bill 2014
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Amendments relating to freedom of information
3
Freedom of Information Act 1982
3
Inspector-General of Intelligence and Security Act 1986
11
Ombudsman Act 1976
11
Schedule 2--Australian Privacy Commissioner
12
Australian Human Rights Commission Act 1986
12
Privacy Act 1988
13
Schedule 3--Abolishing the Office of Australian Information
Commissioner
21
Part 1--Repeals
21
Australian Information Commissioner Act 2010
21
Part 2--Consequential amendments
22
Administrative Appeals Tribunal Act 1975
22
Anti-Money Laundering and Counter-Terrorism Financing Act 2006
22
Australian Citizenship Act 2007
22
Australian Human Rights Commission Act 1986
22
Child Care Act 1972
22
Crimes Act 1914
23
Data-matching Program (Assistance and Tax) Act 1990
25
Environment Protection and Biodiversity Conservation Act 1999
26
Fair Work Act 2009
26
Fisheries Management Act 1991
26
Healthcare Identifiers Act 2010
26
Migration Act 1958
27
National Health Act 1953
27
National Health and Medical Research Council Act 1992
28
National Health Reform Act 2011
28
ii
Freedom of Information Amendment (New Arrangements) Bill 2014
No. , 2014
Ombudsman Act 1976
28
Personally Controlled Electronic Health Records Act 2012
29
Student Identifiers Act 2014
31
Telecommunications Act 1997
32
Telecommunications (Interception and Access) Act 1979
34
Torres Strait Fisheries Act 1984
34
Schedule 4--Application, saving and transitional provisions
35
Part 1--Definitions
35
Part 2--Transition to the new review and complaints
arrangements
37
Part 3--Transition to the Australian Privacy Commissioner
40
Part 4--Other matters
48
No. , 2014
Freedom of Information Amendment (New Arrangements) Bill 2014
1
A Bill for an Act to amend the law relating to
1
freedom of information and privacy, and for other
2
purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act may be cited as the Freedom of Information Amendment
6
(New Arrangements) Act 2014.
7
2 Commencement
8
(1) Each provision of this Act specified in column 1 of the table
9
commences, or is taken to have commenced, in accordance with
10
column 2 of the table. Any other statement in column 2 has effect
11
according to its terms.
12
13
2
Freedom of Information Amendment (New Arrangements) Bill 2014
No. , 2014
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedules 1 to
4
1 January 2015.
1 January 2015
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Amendments relating to freedom of information Schedule 1
No. , 2014
Freedom of Information Amendment (New Arrangements) Bill 2014
3
Schedule 1
--Amendments relating to freedom
1
of information
2
3
Freedom of Information Act 1982
4
1 Subsection 4(1)
5
Repeal the following definitions:
6
(a) definition of authorised person;
7
(b) definition of complainant;
8
(c) definition of IC review;
9
(d) definition of IC reviewable decision;
10
(e) definition of IC review applicant;
11
(f) definition of IC review application;
12
(g) definition of implementation notice;
13
(h) definition of Information Commissioner;
14
(i) definition of investigation recommendations;
15
(j) definition of investigation results;
16
(k) definition of respondent agency;
17
(l) definition of review parties.
18
2 Subsection 4(1) (paragraph (a) of the definition of run out)
19
Omit "or an IC review".
20
3 Subsection 4(1) (paragraph (a) of the definition of run out)
21
Omit "either review", substitute "the internal review".
22
4 Subsection 4(1) (subparagraph (b)(ii) of the definition of run
23
out)
24
Repeal the subparagraph, substitute:
25
(ii) the time for applying to the Tribunal for review of the
26
decision on internal review has ended, if the person has
27
not applied for review by the Tribunal; or
28
5 Subsection 4(1) (paragraph (c) of the definition of run out)
29
Repeal the paragraph.
30
Schedule 1 Amendments relating to freedom of information
4
Freedom of Information Amendment (New Arrangements) Bill 2014
No. , 2014
6 Subsection 4(1) (note at the end of the definition of run out)
1
Omit "a review", substitute "an internal review".
2
7 Subsection 4(1) (note at the end of the definition of run out)
3
Omit "sections 54B and 54T", substitute "section 54B".
4
8 Subsection 4(1) (definition of vexatious applicant
5
declaration)
6
Repeal the definition.
7
9 Section 7A
8
Omit:
9
An agency must, in conjunction with the Information
10
Commissioner, review the operation of the scheme in the agency
11
every 5 years (if not earlier).
12
An agency must have regard to the objects of this Act, and
13
guidelines issued by the Information Commissioner, in doing
14
anything for the purposes of this Part.
15
substitute:
16
An agency must have regard to the objects of this Act, and
17
guidelines issued under section 93A, in doing anything for the
18
purposes of this Part.
19
10 Subparagraph 8(2)(g)(iii)
20
Omit "Information Commissioner", substitute "Attorney-General".
21
11 Subsection 8(3)
22
Omit "Information Commissioner", substitute "Attorney-General".
23
12 Section 8 (note 2)
24
Omit "by the Information Commissioner", substitute "under
25
section 93A".
26
Amendments relating to freedom of information Schedule 1
No. , 2014
Freedom of Information Amendment (New Arrangements) Bill 2014
5
13 Section 8D (note 1)
1
Omit "by the Information Commissioner", substitute "under
2
section 93A".
3
14 Section 8E
4
Repeal the section.
5
15 Division 3 of Part II
6
Repeal the Division.
7
16 Paragraph 9A(b)
8
Omit "by the Information Commissioner".
9
17 Subsection 11B(5)
10
Omit "by the Information Commissioner".
11
18 Paragraph 11C(1)(c)
12
Omit "Information Commissioner", substitute "Attorney-General".
13
19 Subsection 11C(2)
14
Omit "Information Commissioner", substitute "Attorney-General".
15
20 Subsection 15(5A)
16
Omit "by the Information Commissioner".
17
21 Section 15AA
18
Omit all the words after "30 days", substitute "if the applicant agrees in
19
writing to the extension".
20
22 Section 15AB
21
Repeal the section.
22
23 Paragraph 15AC(1)(a)
23
After "request", insert "for access to a document".
24
24 Subsection 15AC(2)
25
Omit ", otherwise than under this section".
26
Schedule 1 Amendments relating to freedom of information
6
Freedom of Information Amendment (New Arrangements) Bill 2014
No. , 2014
25 Subsections 15AC(3) to (9)
1
Repeal the subsections, substitute:
2
Deemed refusal
3
(3) The principal officer of the agency or the Minister is taken to have
4
made a decision personally refusing to give access to the document
5
on the last day of the initial decision period.
6
(4) Notice of that decision is taken to have been given under section 26
7
to the applicant on that day.
8
26 Subparagraph 26(1)(c)(ii)
9
Omit "Information Commissioner", substitute "Ombudsman".
10
27 Paragraph 26(1)(c)
11
Omit "and IC review (Part VII)".
12
28 Subsections 26A(4), 26AA(4), 27(7) and 27A(6) (note 1)
13
Omit ", review by the Information Commissioner (see Part VII)".
14
29 Paragraph 29(9)(b)
15
Omit "Information Commissioner", substitute "Ombudsman".
16
30 Subsection 29(9)
17
Omit "and IC review (Part VII)".
18
31 Subsection 31(2) (note)
19
Omit ", an IC review (see Part VII)".
20
32 Subsections 51DA(2) to (8)
21
Repeal the subsections, substitute:
22
(2) The principal officer of the agency or the Minister is taken to have
23
made a decision personally refusing to amend or annotate the
24
record of personal information to which the application relates on
25
the last day of the initial decision period.
26
(3) Notice of that decision is taken to have been given under section 26
27
to the applicant on that day.
28
Amendments relating to freedom of information Schedule 1
No. , 2014
Freedom of Information Amendment (New Arrangements) Bill 2014
7
33 Section 52
1
Omit:
2
These terms are used in this Part and in Parts VII and VIIA.
3
substitute:
4
These terms are used in this Part and in Part VIIA.
5
34 Subsections 54D(2) to (8)
6
Repeal the subsections, substitute:
7
(2) The principal officer of the agency or the Minister is taken to have
8
made a decision personally affirming the original decision on the
9
last day of the initial decision period.
10
(3) Notice of that decision is taken to have been given under section 26
11
to the internal review applicant on that day.
12
35 Part VII
13
Repeal the Part.
14
36 Section 57A
15
Repeal the section, substitute:
16
57A Applications for review by the Tribunal
17
Applications may be made to the Tribunal for review of the
18
following decisions:
19
(a) an access refusal decision made personally by the principal
20
officer of an agency or the Minister;
21
(b) an access grant decision made personally by the principal
22
officer of an agency or the Minister;
23
(c) a decision under section 54B made by an agency refusing to
24
allow a further period for making an application for internal
25
review of an access refusal decision or access grant decision;
26
(d) a decision under section 54C made by an agency on internal
27
review of an access refusal decision or access grant decision;
28
Schedule 1 Amendments relating to freedom of information
8
Freedom of Information Amendment (New Arrangements) Bill 2014
No. , 2014
(e) a decision that is taken to have been made under section 54D
1
by the principal officer of an agency.
2
Note 1:
An application for review of a decision may be made by, or on behalf
3
of, a person whose interests are affected by the decision (see
4
section 27 of the Administrative Appeals Tribunal Act 1975).
5
Note 2:
Subsection 29(2) of that Act sets out the time within which the
6
application for review must be made.
7
37 Paragraph 58AA(2)(b)
8
Omit "the Information Commissioner,".
9
38 Subsection 60AA(1)
10
Omit "the Information Commissioner,".
11
39 Subsection 61(1)
12
Repeal the subsection, substitute:
13
(1) In proceedings under this Part for review of a decision in relation
14
to a request or an application made under section 48, the agency to
15
which, or the Minister to whom, the request or application was
16
made has the onus of establishing:
17
(a) that the decision is justified; or
18
(b) that the Tribunal should give a decision adverse to the
19
applicant who made the request or application.
20
40 Section 61A
21
Repeal the section.
22
41 Paragraph 66(1)(a)
23
Omit "of the Information Commissioner on an IC review".
24
42 Part VIIB (heading)
25
Repeal the heading, substitute:
26
Part VIIB--Complaints to the Ombudsman
27
43 Divisions 1 and 2 of Part VIIB
28
Repeal the Divisions.
29
Amendments relating to freedom of information Schedule 1
No. , 2014
Freedom of Information Amendment (New Arrangements) Bill 2014
9
44 Division 3 of Part VIIB (heading)
1
Repeal the heading.
2
45 Section 89F
3
Repeal the section.
4
46 Paragraph 89J(2)(b)
5
Omit "the Information Commissioner,".
6
47 Division 1 of Part VIII
7
Repeal the Division.
8
48 Division 2 of Part VIII (heading)
9
Repeal the heading.
10
49 Section 89P
11
Repeal the section.
12
50 After section 92
13
Insert:
14
92A Annual report about the operation of this Act
15
(1) The Attorney-General must, as soon as practicable after the end of
16
each financial year, cause to be prepared a written report about the
17
operation of this Act during the year.
18
(2) Without limiting subsection (1), the report must set out the
19
following:
20
(a) the number of requests (the access requests) that were made
21
under section 15 during the year;
22
(b) the number of access requests (other than access requests to
23
which paragraph (d) applies) that were granted during the
24
year;
25
(c) the number of access requests (other than access requests to
26
which paragraph (d) applies) that were refused during the
27
year;
28
Schedule 1 Amendments relating to freedom of information
10
Freedom of Information Amendment (New Arrangements) Bill 2014
No. , 2014
(d) the number of access requests made during the year in
1
relation to which either or both of the following conditions
2
are satisfied:
3
(i) access was granted to an edited copy of the document
4
(or any of the documents) requested;
5
(ii) the request related to 2 or more documents and access
6
was refused to one or more of the documents;
7
(e) the number of applications that were made under section 48
8
during the year and particulars of the results of each such
9
application;
10
(f) particulars of the total charges collected during the year in
11
dealing with access requests and applications under
12
section 48 (whenever those requests and applications were
13
made);
14
(g) the number of applications for internal review that were made
15
during the year and particulars of the results of each such
16
review;
17
(h) the number of applications for review by the Tribunal that
18
were made under section 57A during the year and particulars
19
of the results of each such review;
20
(i) information about any guidelines issued under section 93A
21
during the year and the matters to which those guidelines
22
relate;
23
(j) a description of any efforts made by the Department to assist
24
agencies to comply with their obligations under this Act.
25
(3) The Attorney-General must cause copies of the report to be tabled
26
in each House of the Parliament within 15 sitting days of that
27
House after the completion of the preparation of the report.
28
51 Section 93 (heading)
29
Repeal the heading, substitute:
30
93 Agencies and Ministers to provide information to the
31
Attorney-General
32
52 Subsection 93(2)
33
Repeal the subsection, substitute:
34
Amendments relating to freedom of information Schedule 1
No. , 2014
Freedom of Information Amendment (New Arrangements) Bill 2014
11
(2) The agency or Minister must give the Attorney-General
1
information that is required to prepare a report under section 92A.
2
53 Subsections 93A(1) and (2)
3
Omit "Information Commissioner", substitute "Attorney-General".
4
Inspector-General of Intelligence and Security Act 1986
5
54 Subsection 34(1AA)
6
Omit "Division 9 of Part VII or".
7
55 Paragraph 34(5)(a)
8
Omit "Division 9 of Part VII or".
9
56 Paragraphs 34(5)(bb) and (ca)
10
Repeal the paragraphs.
11
Ombudsman Act 1976
12
57 Subparagraph 6C(1)(a)(i)
13
Omit "or Part VIIB of the Freedom of Information Act 1982".
14
58 Paragraph 6C(1)(b)
15
Omit "or Part VIIB of the Freedom of Information Act 1982".
16
59 Subsection 6C(4)
17
Omit "or Part VIIB of the Freedom of Information Act 1982, as the case
18
requires".
19
Schedule 2 Australian Privacy Commissioner
12
Freedom of Information Amendment (New Arrangements) Bill 2014
No. , 2014
Schedule 2
--Australian Privacy
1
Commissioner
2
3
Australian Human Rights Commission Act 1986
4
1 Subsection 43(1)
5
Omit "necessary to assist", substitute "of".
6
2 Paragraph 43(2)(a)
7
Omit "assisting the President", substitute "of the Commission".
8
3 Section 43A
9
Repeal the section, substitute:
10
43A Commission must provide assistance to the Australian Privacy
11
Commissioner
12
(1) The Commission must provide such assistance to the Australian
13
Privacy Commissioner as is necessary to enable the Commissioner
14
to perform the functions conferred on the Commissioner by
15
section 27 of the Privacy Act 1988.
16
(2) Without limiting subsection (1), the Commission may do either or
17
both of the following:
18
(a) make members of the staff of the Commission available to
19
the Australian Privacy Commissioner;
20
(b) make administrative services available to the Australian
21
Privacy Commissioner.
22
(3) A member of the staff of the Commission who is made available to
23
the Australian Privacy Commissioner under this section is subject
24
to the directions of the Commissioner (and not the Commission) in
25
relation to matters relating to the performance of the
26
Commissioner's functions.
27
4 Subsection 44A(4)
28
Insert:
29
Australian Privacy Commissioner Schedule 2
No. , 2014
Freedom of Information Amendment (New Arrangements) Bill 2014
13
purposes of the Commission includes the functions of the
1
Australian Privacy Commissioner conferred by section 27 of the
2
Privacy Act 1988.
3
5 After paragraph 44B(1)(a)
4
Insert:
5
(aa) in payment or discharge of the costs, expenses and other
6
obligations incurred by the Australian Privacy Commissioner
7
in connection with the performance of the Commissioner's
8
functions conferred by section 27 of the Privacy Act 1988;
9
and
10
6 At the end of paragraph 44B(1)(b)
11
Add "or the Privacy Act 1988".
12
7 After section 45
13
Add:
14
45A Application of finance law
15
For the purposes of the finance law (within the meaning of the
16
Public Governance, Performance and Accountability Act 2013),
17
the purposes of the Commission include the functions of the
18
Australian Privacy Commissioner conferred by section 27 of the
19
Privacy Act 1988.
20
Privacy Act 1988
21
8 Subsection 6(1)
22
Insert:
23
AHRC staff member means a person:
24
(a) who is a member of the staff of the Australian Human Rights
25
Commission; and
26
(b) who is made available to the Commissioner under
27
section 43A of the Australian Human Rights Commission Act
28
1986.
29
9 Subsection 6(1) (definition of Commissioner)
30
Repeal the definition, substitute:
31
Schedule 2 Australian Privacy Commissioner
14
Freedom of Information Amendment (New Arrangements) Bill 2014
No. , 2014
Commissioner means the Australian Privacy Commissioner
1
appointed under section 26XA.
2
10 Subsection 6(1)
3
Insert:
4
paid work means work for financial gain or reward (whether as an
5
employee, a self-employed person or otherwise).
6
11 Part IV (heading)
7
Repeal the heading, substitute:
8
Part IV--Australian Privacy Commissioner
9
Division 1--Australian Privacy Commissioner
10
26X Australian Privacy Commissioner
11
There is to be an Australian Privacy Commissioner.
12
26XA Appointment of Commissioner
13
(1) The Commissioner is to be appointed by the Governor-General by
14
written instrument, on a full-time basis.
15
(2) The Commissioner holds office for the period specified in the
16
instrument of appointment. The period must not exceed 5 years.
17
Note:
The Commissioner may be reappointed: see section 33AA of the Acts
18
Interpretation Act 1901.
19
26XB Acting appointment
20
The Minister may, by written instrument, appoint a person to act as
21
the Commissioner:
22
(a) during a vacancy in the office of Commissioner, whether or
23
not an appointment has previously been made to the office;
24
or
25
(b) during any period, or during all periods, when the
26
Commissioner:
27
(i) is absent from duty or from Australia; or
28
Australian Privacy Commissioner Schedule 2
No. , 2014
Freedom of Information Amendment (New Arrangements) Bill 2014
15
(ii) is, for any other reason, unable to perform the duties of
1
the office.
2
Note:
See sections 33AB and 33A of the Acts Interpretation Act 1901 for
3
rules that apply to acting appointments.
4
26XC Remuneration and allowances
5
(1) The Commissioner is to be paid the remuneration that is
6
determined by the Remuneration Tribunal. If no determination of
7
that remuneration by the Tribunal is in operation, the
8
Commissioner is to be paid the remuneration that is prescribed by
9
the regulations.
10
(2) The Commissioner is to be paid the allowances that are prescribed
11
by the regulations.
12
(3) This section has effect subject to the Remuneration Tribunal Act
13
1973.
14
26XD Leave of absence
15
(1) The Commissioner has the recreation leave entitlements that are
16
determined by the Remuneration Tribunal.
17
(2) The Minister may grant the Commissioner leave of absence, other
18
than recreation leave, on the terms and conditions as to
19
remuneration or otherwise that the Minister determines.
20
26XE Outside work
21
The Commissioner must not engage in paid work outside the duties
22
of his or her office without the Minister's approval.
23
26XF Disclosure of interests
24
Disclosure under this Act
25
(1) The Commissioner must give written notice to the Minister of all
26
interests, pecuniary or otherwise, that the Commissioner has or
27
acquires and that conflict or could conflict with the proper
28
performance of the Commissioner's functions.
29
Schedule 2 Australian Privacy Commissioner
16
Freedom of Information Amendment (New Arrangements) Bill 2014
No. , 2014
(2) Subsection (1) applies in addition to section 29 of the Public
1
Governance, Performance and Accountability Act 2013 (which
2
deals with the duty to disclose interests).
3
Disclosure under the Public Governance, Performance and
4
Accountability Act 2013
5
(3) A disclosure by the Commissioner under section 29 of the Public
6
Governance, Performance and Accountability Act 2013 (which
7
deals with the duty to disclose interests) must be made to the
8
Minister.
9
(4) Subsection (3) applies in addition to any rules made for the
10
purposes of that section.
11
(5) For the purposes of this Act and the Public Governance,
12
Performance and Accountability Act 2013, the Commissioner is
13
taken not to have complied with section 29 of that Act if he or she
14
does not comply with subsection (3) of this section.
15
26XG Other terms and conditions
16
The Commissioner holds office on the terms and conditions (if
17
any) in relation to matters not covered by this Act that are
18
determined by the Governor-General.
19
26XH Resignation
20
(1) The Commissioner may resign his or her appointment by giving
21
the Governor-General a written resignation.
22
(2) The resignation takes effect on the day it is received by the
23
Governor-General or, if a later day is specified in the resignation,
24
on that later day.
25
26XI Termination of appointment
26
(1) The Governor-General may terminate the appointment of the
27
Commissioner:
28
(a) for misbehaviour; or
29
(b) if the Commissioner is unable to perform the duties of his or
30
her office because of physical or mental incapacity.
31
Australian Privacy Commissioner Schedule 2
No. , 2014
Freedom of Information Amendment (New Arrangements) Bill 2014
17
(2) The Governor-General must terminate the appointment of the
1
Commissioner if:
2
(a) the Commissioner:
3
(i) becomes bankrupt; or
4
(ii) takes steps to take the benefit of any law for the relief of
5
bankrupt or insolvent debtors; or
6
(iii) compounds with one or more of his or her creditors; or
7
(iv) makes an assignment of his or her remuneration for the
8
benefit of one or more of his or her creditors; or
9
(b) the Commissioner is absent, except on leave of absence, for
10
14 consecutive days or for 28 days in any 12 months; or
11
(c) the Commissioner engages, except with the Minister's
12
approval, in paid work outside the duties of his or her office
13
(see section 26XE); or
14
(d) the Commissioner fails, without reasonable excuse, to
15
comply with:
16
(i) subsection 26XF(1) (which deals with the disclosure of
17
interests under this Act); and
18
(ii) section 29 of the Public Governance, Performance and
19
Accountability Act 2013 (which deals with the duty to
20
disclose interests under that Act) or rules made for the
21
purposes of that Act.
22
26XJ Commissioner may engage consultants
23
(1) The Commissioner may engage consultants to assist in the
24
performance of the Commissioner's functions, other than:
25
(a) the issuing of rules under section 17; or
26
(b) the making of determinations for the purposes of section 52.
27
(2) The consultants are to be engaged on the terms and conditions that
28
the Commissioner determines in writing.
29
26XK Delegation by Commissioner
30
Delegation to AHRC staff member
31
(1) The Commissioner may, in writing, delegate all or any of the
32
Commissioner's functions or powers to an AHRC staff member,
33
other than:
34
Schedule 2 Australian Privacy Commissioner
18
Freedom of Information Amendment (New Arrangements) Bill 2014
No. , 2014
(a) the issuing of rules under section 17; or
1
(b) the making of determinations for the purposes of section 52.
2
Delegation to staff of the Ombudsman
3
(2) The Commissioner may, in writing, delegate all or any of the
4
Commissioner's functions or powers conferred by Part V (other
5
than section 52) to a person who is a member of the staff of the
6
Ombudsman.
7
Directions to delegates
8
(3) In exercising any powers or performing any functions under the
9
delegation, the delegate must comply with any directions of the
10
Commissioner.
11
26XL Annual report
12
(1) The Commissioner must, as soon as practicable after the end of
13
each financial year, prepare and give to the Minister a report on the
14
performance, during the year, of the functions conferred on the
15
Commissioner by section 27.
16
(2) The report must also include information about the operation,
17
during the financial year, of registered APP codes that contain
18
procedures for making and dealing with complaints in relation to
19
acts or practices that may be an interference with the privacy of an
20
individual, including:
21
(a) details about the number of complaints made under those
22
codes during the year; and
23
(b) the nature and outcome of those complaints.
24
(3) The Minister must cause copies of the report to be tabled in each
25
House of the Parliament within 15 sittings days of that House after
26
receiving the report.
27
26XM Application of finance law
28
For the purposes of the finance law (within the meaning of the
29
Public Governance, Performance and Accountability Act 2013),
30
the Commissioner is an official of the Australian Human Rights
31
Commission.
32
Australian Privacy Commissioner Schedule 2
No. , 2014
Freedom of Information Amendment (New Arrangements) Bill 2014
19
12 Paragraph 36(4)(a)
1
Repeal the paragraph, substitute:
2
(a) AHRC staff members; and
3
13 Paragraph 36(4)(b)
4
Omit "section 99", substitute "subsection 26XK(2)".
5
14 Part VII
6
Repeal the Part.
7
15 After section 95C
8
Insert:
9
95D Offence of unauthorised dealing with information
10
(1) A person commits an offence if:
11
(a) the person makes a record of, discloses or otherwise uses
12
information; and
13
(b) the information was acquired by the person in the course of
14
performing a function, or exercising a power, referred to in
15
section 27.
16
Penalty: Imprisonment for 2 years.
17
(2) Subsection (1) does not apply if:
18
(a) the person records, discloses or otherwise uses the
19
information in the course of performing a function, or
20
exercising a power, referred to in section 27; or
21
(b) the person records, discloses or otherwise uses the
22
information for any other lawful purpose; or
23
(c) the person to whom the information relates consents to the
24
recording, disclosure or use of the information.
25
Note:
A defendant bears an evidential burden in relation to the matters in
26
subsection (2) (see subsection 13.3(3) of the Criminal Code).
27
95E Limit on disclosure of information to court etc.
28
A person must not, except if it is necessary to do so for the
29
purposes of this Act, be required:
30
Schedule 2 Australian Privacy Commissioner
20
Freedom of Information Amendment (New Arrangements) Bill 2014
No. , 2014
(a) to disclose information that the person acquired in the course
1
of performing a function, or exercising a power, referred to in
2
section 27; or
3
(b) to produce any document that contains such information;
4
to a court, tribunal, authority or person that has power to require
5
the production of documents or the answering of questions.
6
Abolishing the Office of Australian Information Commissioner Schedule 3
Repeals Part 1
No. , 2014
Freedom of Information Amendment (New Arrangements) Bill 2014
21
Schedule 3
--Abolishing the Office of
1
Australian Information Commissioner
2
Part 1
--Repeals
3
Australian Information Commissioner Act 2010
4
1 The whole of the Act
5
Repeal the Act.
6
Schedule 3 Abolishing the Office of Australian Information Commissioner
Part 2 Consequential amendments
22
Freedom of Information Amendment (New Arrangements) Bill 2014
No. , 2014
Part 2
--Consequential amendments
1
Administrative Appeals Tribunal Act 1975
2
2 Paragraph 49(1)(ca)
3
Repeal the paragraph.
4
Anti-Money Laundering and Counter-Terrorism Financing
5
Act 2006
6
3 Subparagraph 212(2)(a)(vi)
7
Repeal the subparagraph, substitute:
8
(vi) the Australian Privacy Commissioner; and
9
Australian Citizenship Act 2007
10
4 Paragraph 43(2)(g)
11
Omit "Information Commissioner", substitute "Australian Privacy
12
Commissioner".
13
Australian Human Rights Commission Act 1986
14
5 Subsections 20(4A) and (4B)
15
Omit "Information Commissioner" (wherever occurring), substitute
16
"Australian Privacy Commissioner".
17
Child Care Act 1972
18
6 Subsection 12P(3)
19
Omit "Information Commissioner in relation to matters that relate to the
20
privacy functions (within the meaning of the Australian Information
21
Commissioner Act 2010)", substitute "Australian Privacy
22
Commissioner".
23
Abolishing the Office of Australian Information Commissioner Schedule 3
Consequential amendments Part 2
No. , 2014
Freedom of Information Amendment (New Arrangements) Bill 2014
23
Crimes Act 1914
1
7 Paragraph 3ZQJ(2)(c)
2
Omit "Information Commissioner", substitute "Australian Privacy
3
Commissioner".
4
8 Paragraph 23YDAE(2)(g)
5
Omit "Information Commissioner", substitute "Australian Privacy
6
Commissioner".
7
9 Paragraph 23YO(2)(g)
8
Omit "Information Commissioner", substitute "Australian Privacy
9
Commissioner".
10
10 Subsection 23YUK(4) (paragraph (b) of the definition of
11
independent review)
12
Omit "a person nominated by the Information Commissioner in the
13
performance of the privacy functions (within the meaning of the
14
Australian Information Commissioner Act 2010)", substitute "a
15
nominee of the Australian Privacy Commissioner".
16
11 Division 5 of Part VIIC (heading)
17
Repeal the heading, substitute:
18
Division 5--Complaints to Australian Privacy
19
Commissioner
20
12 Section 85ZZ (heading)
21
Repeal the heading, substitute:
22
85ZZ Australian Privacy Commissioner's functions
23
13 Subsection 85ZZ(1)
24
Omit "Information Commissioner", substitute "Australian Privacy
25
Commissioner".
26
14 Subsection 85ZZ(1A)
27
Repeal the subsection.
28
Schedule 3 Abolishing the Office of Australian Information Commissioner
Part 2 Consequential amendments
24
Freedom of Information Amendment (New Arrangements) Bill 2014
No. , 2014
15 Subsection 85ZZ(2)
1
Omit "Information Commissioner", substitute "Australian Privacy
2
Commissioner".
3
16 Section 85ZZA (heading)
4
Repeal the heading, substitute:
5
85ZZA Complaints to the Australian Privacy Commissioner
6
17 Subsection 85ZZA(1)
7
Omit "Information Commissioner", substitute "Australian Privacy
8
Commissioner".
9
18 Subsection 85ZZA(3)
10
Omit "Information Commissioner's", substitute "Australian Privacy
11
Commissioner's".
12
19 Subsections 85ZZC(1) and (2)
13
Omit "Information Commissioner", substitute "Australian Privacy
14
Commissioner".
15
20 Section 85ZZD (heading)
16
Repeal the heading, substitute:
17
85ZZD Determinations of Australian Privacy Commissioner
18
21 Subsections 85ZZD(1), (2), (3) and (4)
19
Omit "Information Commissioner", substitute "Australian Privacy
20
Commissioner".
21
22 Subsection 85ZZF(1)
22
Omit "Information Commissioner", substitute "Australian Privacy
23
Commissioner".
24
23 Subsection 85ZZG(1)
25
After "64 to 68 (inclusive)", insert ", 95D, 95E".
26
Abolishing the Office of Australian Information Commissioner Schedule 3
Consequential amendments Part 2
No. , 2014
Freedom of Information Amendment (New Arrangements) Bill 2014
25
Data-matching Program (Assistance and Tax) Act 1990
1
24 Subsection 10(5) (definition of sampling procedures)
2
Omit "Information Commissioner in relation to matters that relate to the
3
privacy functions (within the meaning of the Australian Information
4
Commissioner Act 2010)", substitute "Australian Privacy
5
Commissioner".
6
25 Subsection 12(2)
7
Omit "Information Commissioner", substitute "Australian Privacy
8
Commissioner".
9
26 Subsection 12(3)
10
Repeal the subsection.
11
27 Subsection 12(4)
12
Omit "Information Commissioner", substitute "Australian Privacy
13
Commissioner".
14
28 Subsection 13(1)
15
Repeal the subsection.
16
29 Subsections 13(2), (3), (4), (5), (7) and (8)
17
Omit "Commissioner" (wherever occurring), substitute "Australian
18
Privacy Commissioner".
19
30 Paragraph 13(4)(b)
20
Omit "Commissioner's", substitute "Australian Privacy
21
Commissioner's".
22
31 Subsection 14(2)
23
Omit "Information Commissioner", substitute "Australian Privacy
24
Commissioner".
25
Schedule 3 Abolishing the Office of Australian Information Commissioner
Part 2 Consequential amendments
26
Freedom of Information Amendment (New Arrangements) Bill 2014
No. , 2014
Environment Protection and Biodiversity Conservation Act
1
1999
2
32 Paragraph 42(2)(e) of Schedule 1
3
Omit "Information Commissioner", substitute "Australian Privacy
4
Commissioner".
5
33 Paragraph 53(2)(g) of Schedule 1
6
Omit "Information Commissioner", substitute "Australian Privacy
7
Commissioner".
8
Fair Work Act 2009
9
34 Paragraph 510(1)(c)
10
Omit "Information Commissioner", substitute "Australian Privacy
11
Commissioner".
12
Fisheries Management Act 1991
13
35 Paragraph 42(2)(e) of Schedule 1A
14
Omit "Information Commissioner", substitute "Australian Privacy
15
Commissioner".
16
36 Paragraph 53(2)(g) of Schedule 1A
17
Omit "Information Commissioner", substitute "Australian Privacy
18
Commissioner".
19
Healthcare Identifiers Act 2010
20
37 Section 29 (heading)
21
Repeal the heading, substitute:
22
29 Functions of Australian Privacy Commissioner
23
38 Subsection 29(3) (heading)
24
Repeal the heading, substitute:
25
Abolishing the Office of Australian Information Commissioner Schedule 3
Consequential amendments Part 2
No. , 2014
Freedom of Information Amendment (New Arrangements) Bill 2014
27
Assessment by Australian Privacy Commissioner
1
39 Section 30 (heading)
2
Repeal the heading, substitute:
3
30 Annual reports by Australian Privacy Commissioner
4
40 Subsection 30(1)
5
Omit "Information Commissioner", substitute "Australian Privacy
6
Commissioner".
7
41 Subsection 30(1)
8
Omit "Information Commissioner's", substitute "Australian Privacy
9
Commissioner's".
10
42 Subsections 30(2) and (3)
11
Omit "Information Commissioner", substitute "Australian Privacy
12
Commissioner".
13
Migration Act 1958
14
43 Paragraph 261AKD(2)(e)
15
Omit "Information Commissioner", substitute "Australian Privacy
16
Commissioner".
17
44 Paragraph 336E(2)(g)
18
Omit "Information Commissioner", substitute "Australian Privacy
19
Commissioner".
20
National Health Act 1953
21
45 Subsection 135AA(3)
22
Omit "Information Commissioner", substitute "Australian Privacy
23
Commissioner".
24
46 Subsection 135AA(3A)
25
Repeal the subsection.
26
Schedule 3 Abolishing the Office of Australian Information Commissioner
Part 2 Consequential amendments
28
Freedom of Information Amendment (New Arrangements) Bill 2014
No. , 2014
47 Subsections 135AA(4), (5A), (5AA), (5B) and (6)
1
Omit "Information Commissioner", substitute "Australian Privacy
2
Commissioner".
3
48 Subsection 135AB(2)
4
Omit "Information Commissioner", substitute "Australian Privacy
5
Commissioner".
6
National Health and Medical Research Council Act 1992
7
49 Subparagraphs 61(4)(b)(i) and (ii)
8
Omit "Information Commissioner", substitute "Australian Privacy
9
Commissioner".
10
50 Paragraphs 61(5)(c) and (d)
11
Omit "Information Commissioner", substitute "Australian Privacy
12
Commissioner".
13
51 Subsection 61(6)
14
Omit "Information Commissioner", substitute "Australian Privacy
15
Commissioner".
16
National Health Reform Act 2011
17
52 Paragraph 282(2)(b)
18
Repeal the paragraph.
19
Ombudsman Act 1976
20
53 Section 6C (heading)
21
Repeal the heading, substitute:
22
6C Transfer of complaints to Australian Privacy Commissioner
23
54 Subparagraphs 6C(1)(a)(i) and (ii)
24
Omit "Information Commissioner", substitute "Australian Privacy
25
Commissioner".
26
Abolishing the Office of Australian Information Commissioner Schedule 3
Consequential amendments Part 2
No. , 2014
Freedom of Information Amendment (New Arrangements) Bill 2014
29
55 Paragraph 6C(1)(b)
1
Omit "Information Commissioner", substitute "Australian Privacy
2
Commissioner".
3
56 Subsection 6C(2) (heading)
4
Repeal the heading, substitute:
5
Requirement to consult with Australian Privacy Commissioner
6
57 Paragraph 6C(2)(a)
7
Omit "Information Commissioner" (wherever occurring), substitute
8
"Australian Privacy Commissioner".
9
58 Subsection 6C(3) (heading)
10
Repeal the heading, substitute:
11
Transfer to Australian Privacy Commissioner
12
59 Paragraphs 6C(3)(a) and (c)
13
Omit "Information Commissioner", substitute "Australian Privacy
14
Commissioner".
15
60 Subsection 6C(4)
16
Omit "Information Commissioner", substitute "Australian Privacy
17
Commissioner".
18
Personally Controlled Electronic Health Records Act 2012
19
61 Paragraph 4(10)(b)
20
Omit "Information Commissioner", substitute "Australian Privacy
21
Commissioner".
22
62 Subsection 73(3)
23
Omit "Information Commissioner's", substitute "Australian Privacy
24
Commissioner's".
25
63 Subsections 73(3) and (4)
26
Omit "Information Commissioner" (wherever occurring), substitute
27
"Australian Privacy Commissioner".
28
Schedule 3 Abolishing the Office of Australian Information Commissioner
Part 2 Consequential amendments
30
Freedom of Information Amendment (New Arrangements) Bill 2014
No. , 2014
64 Section 73A (heading)
1
Repeal the heading, substitute:
2
73A Australian Privacy Commissioner may disclose details of
3
investigations to System Operator
4
65 Section 73A
5
Omit "Information Commissioner" (wherever occurring), substitute
6
"Australian Privacy Commissioner".
7
66 Paragraph 75(2)(b)
8
Omit "Information Commissioner", substitute "Australian Privacy
9
Commissioner".
10
67 Subsection 75(3)
11
Omit "Information Commissioner", substitute "Australian Privacy
12
Commissioner".
13
68 Subsections 79(1) and (2)
14
Omit "Information Commissioner", substitute "Australian Privacy
15
Commissioner".
16
69 Subsections 94(1) and (2)
17
Omit "Information Commissioner", substitute "Australian Privacy
18
Commissioner".
19
70 Subsections 96(1), (2) and (7)
20
Omit "Information Commissioner" (wherever occurring), substitute
21
"Australian Privacy Commissioner".
22
71 Section 106 (heading)
23
Repeal the heading, substitute:
24
106 Annual reports by Australian Privacy Commissioner
25
72 Subsections 106(1), (3) and (4)
26
Omit "Information Commissioner", substitute "Australian Privacy
27
Commissioner".
28
Abolishing the Office of Australian Information Commissioner Schedule 3
Consequential amendments Part 2
No. , 2014
Freedom of Information Amendment (New Arrangements) Bill 2014
31
73 Section 111 (heading)
1
Repeal the heading, substitute:
2
111 Guidelines relating to the Australian Privacy Commissioner's
3
enforcement powers etc.
4
74 Subsections 111(1) and (2)
5
Omit "Information Commissioner" (wherever occurring), substitute
6
"Australian Privacy Commissioner".
7
Student Identifiers Act 2014
8
75 Section 3
9
Omit "Information Commissioner", substitute "Australian Privacy
10
Commissioner".
11
76 Section 8
12
Omit "Information Commissioner", substitute "Australian Privacy
13
Commissioner".
14
77 Subsection 23(1) (note)
15
Omit "Information Commissioner", substitute "Australian Privacy
16
Commissioner".
17
78 Paragraph 23(2)(a)
18
Omit "Information Commissioner", substitute "Australian Privacy
19
Commissioner".
20
79 Section 24 (heading)
21
Repeal the heading, substitute:
22
24 Additional functions of the Australian Privacy Commissioner
23
80 Subsection 24(1)
24
Omit "Information Commissioner's", substitute "Australian Privacy
25
Commissioner's".
26
Schedule 3 Abolishing the Office of Australian Information Commissioner
Part 2 Consequential amendments
32
Freedom of Information Amendment (New Arrangements) Bill 2014
No. , 2014
81 Subsections 24(1), (2) and (3)
1
Omit "Information Commissioner" (wherever occurring), substitute
2
"Australian Privacy Commissioner".
3
Telecommunications Act 1997
4
82 Paragraphs 117(1)(j) and (k)
5
Omit "Information Commissioner", substitute "Australian Privacy
6
Commissioner".
7
83 Subsection 118(1) (note)
8
Omit "Information Commissioner (exercising functions under the
9
Privacy Act 1988)", substitute "Australian Privacy Commissioner".
10
84 Subsection 118(4A)
11
Omit "Information Commissioner", substitute "Australian Privacy
12
Commissioner".
13
85 Paragraphs 119A(1)(j) and (k)
14
Omit "Information Commissioner", substitute "Australian Privacy
15
Commissioner".
16
86 Subsection 121(1A)
17
Omit "Information Commissioner", substitute "Australian Privacy
18
Commissioner".
19
87 Subsection 122(3)
20
Omit "Information Commissioner", substitute "Australian Privacy
21
Commissioner".
22
88 Section 130 (note)
23
Omit "Information Commissioner", substitute "Australian Privacy
24
Commissioner".
25
89 Section 134 (heading)
26
Repeal the heading, substitute:
27
Abolishing the Office of Australian Information Commissioner Schedule 3
Consequential amendments Part 2
No. , 2014
Freedom of Information Amendment (New Arrangements) Bill 2014
33
134 Consultation with the Australian Privacy Commissioner
1
90 Subsections 134(2) and (3)
2
Omit "Information Commissioner", substitute "Australian Privacy
3
Commissioner".
4
91 Paragraph 295M(1)(a)
5
Repeal the paragraph, substitute:
6
(a) must consult the Australian Privacy Commissioner and have
7
regard to any submissions made by the Australian Privacy
8
Commissioner because of that consultation; and
9
92 Section 295ZC (heading)
10
Repeal the heading, substitute:
11
295ZC Annual reports to the ACMA and Australian Privacy
12
Commissioner
13
93 Section 295ZC
14
Omit "Information Commissioner", substitute "Australian Privacy
15
Commissioner".
16
94 Section 309 (heading)
17
Repeal the heading, substitute:
18
309 Monitoring by the Australian Privacy Commissioner
19
95 Subsection 309(1)
20
Omit "Information Commissioner" (wherever occurring), substitute
21
"Australian Privacy Commissioner".
22
96 Subsection 309(1A)
23
Repeal the subsection.
24
97 Subsections 309(2), (3) and (4)
25
Omit "Information Commissioner" (wherever occurring), substitute
26
"Australian Privacy Commissioner".
27
Schedule 3 Abolishing the Office of Australian Information Commissioner
Part 2 Consequential amendments
34
Freedom of Information Amendment (New Arrangements) Bill 2014
No. , 2014
98 Section 515A (heading)
1
Repeal the heading, substitute:
2
515A Reference of matters to Australian Privacy Commissioner
3
99 Paragraphs 515A(2)(a) and (b)
4
Omit "Information Commissioner", substitute "Australian Privacy
5
Commissioner".
6
100 Paragraphs 515A(3)(a) and (c)
7
Omit "Information Commissioner", substitute "Australian Privacy
8
Commissioner".
9
101 Subsection 515A(4)
10
Omit "Information Commissioner" (wherever occurring), substitute
11
"Australian Privacy Commissioner".
12
Telecommunications (Interception and Access) Act 1979
13
102 Subsection 183(3)
14
Omit "Information Commissioner in relation to matters that relate to
15
privacy functions (within the meaning of the Australian Information
16
Commissioner Act 2010)", substitute "Australian Privacy
17
Commissioner".
18
Torres Strait Fisheries Act 1984
19
103 Paragraph 42(2)(e) of Schedule 2
20
Omit "Information Commissioner", substitute "Australian Privacy
21
Commissioner".
22
104 Paragraph 53(2)(g) of Schedule 2
23
Omit "Information Commissioner", substitute "Australian Privacy
24
Commissioner".
25
Application, saving and transitional provisions Schedule 4
Definitions Part 1
No. , 2014
Freedom of Information Amendment (New Arrangements) Bill 2014
35
Schedule 4
--Application, saving and
1
transitional provisions
2
Part 1
--Definitions
3
1 Definitions
4
In this Schedule:
5
AIC Act means the Australian Information Commissioner Act 2010, as
6
in force immediately before the commencement day.
7
asset means:
8
(a) any legal or equitable estate or interest in real or personal
9
property, whether actual, contingent or prospective; and
10
(b) any right, power, privilege or immunity, whether actual,
11
contingent or prospective.
12
commence, in relation to an enterprise agreement, means begin to
13
operate.
14
commencement day means the day on which this item commences.
15
covers has the same meaning as in the Fair Work Act 2009.
16
designated agreement means the agreement known as the Office of the
17
Australian Information Commissioner Enterprise Agreement 2011-
18
2014.
19
enterprise agreement has the same meaning as in the Fair Work Act
20
2009.
21
FOI Act means the Freedom of Information Act 1982.
22
IC review has the meaning given by section 54G of the FOI Act, as in
23
force immediately before the commencement day.
24
IC reviewable decision has the meaning given by section 54K of the
25
FOI Act, as in force immediately before the commencement day.
26
IC review application has the meaning given by section 54H of the FOI
27
Act, as in force immediately before the commencement day.
28
Information Commissioner means the Australian Information
29
Commissioner appointed under section 14 of the AIC Act.
30
instrument includes:
31
(a) a contract, deed, undertaking, arrangement or agreement; and
32
(b) a notice, authority, order or instruction; and
33
Schedule 4 Application, saving and transitional provisions
Part 1 Definitions
36
Freedom of Information Amendment (New Arrangements) Bill 2014
No. , 2014
(c) an instrument made under an Act or regulation;
1
but does not include an Act, a contract of employment or an enterprise
2
agreement.
3
liability means any liability, duty or obligation, whether actual,
4
contingent or prospective.
5
Office of the AIC means the Office of the Australian Information
6
Commissioner established under section 5 of the AIC Act.
7
Privacy Commissioner means the Privacy Commissioner appointed
8
under section 14 of the AIC Act.
9
Note:
A person may be taken to have been appointed as the Privacy
10
Commissioner under that section (see item 2 of Schedule 7 to the
11
Freedom of Information Amendment (Reform) Act 2010).
12
privacy purpose means a purpose relating to the privacy functions
13
(within the meaning of the AIC Act).
14
Application, saving and transitional provisions Schedule 4
Transition to the new review and complaints arrangements Part 2
No. , 2014
Freedom of Information Amendment (New Arrangements) Bill 2014
37
Part 2
--Transition to the new review and complaints
1
arrangements
2
2 Pending IC review applications
3
(1)
This item applies if:
4
(a) an IC review application in relation to an IC reviewable
5
decision was made before the commencement day; and
6
(b) immediately before that day, no decision has been made
7
under section 54W or 55K of the FOI Act in relation to the
8
application.
9
Deemed application for review by the Tribunal
10
(2)
On the commencement day, an application (the deemed application) is
11
taken to have been made to the Tribunal for review of the IC reviewable
12
decision.
13
(3)
The following apply in relation to the deemed application in the same
14
way as they apply in relation to an application for review by the
15
Tribunal made under section 57A of the FOI Act:
16
(a) Divisions 3 to 7 of Part VIIA of the FOI Act, as amended by
17
Schedule 1 to this Act;
18
(b) the Administrative Appeals Tribunal Act 1975 and the
19
regulations made under that Act (other than the provisions
20
relating to the payment of fees of a kind mentioned in
21
subsection 70(2) or (3) of that Act), as they are in force on
22
and after the commencement day.
23
Transfer of records or documents
24
(4)
Any records or documents relating to the IC review application that,
25
immediately before the commencement day, were in the possession of
26
the Information Commissioner are to be transferred to the Tribunal on
27
or after that day.
28
3 Review by the Tribunal of certain pre-commencement
29
decisions
30
(1)
This item applies if:
31
Schedule 4 Application, saving and transitional provisions
Part 2 Transition to the new review and complaints arrangements
38
Freedom of Information Amendment (New Arrangements) Bill 2014
No. , 2014
(a) before the commencement day, the Information
1
Commissioner made:
2
(i) a decision (the IC decision) under section 55K of the
3
FOI Act on an IC review; or
4
(ii) a decision under paragraph 54W(b) of that Act not to
5
undertake an IC review, or not to continue to undertake
6
an IC review, of an IC reviewable decision; and
7
(b) immediately before that day, an application has not been
8
made under section 57A of that Act for review by the
9
Tribunal of:
10
(i) if subparagraph (a)(i) of this subitem applies--the IC
11
decision; or
12
(ii) if subparagraph (a)(ii) of this subitem applies--the IC
13
reviewable decision; and
14
(c) immediately before that day, the time for a person to make
15
such an application has not ended (including any extensions
16
of that time under section 29 of the Administrative Appeals
17
Tribunal Act 1975).
18
(2)
Despite the repeal of section 57A of the FOI Act by Schedule 1 to this
19
Act, that section, as in force immediately before the commencement
20
day, continues to apply in relation to the IC decision or IC reviewable
21
decision (as the case may be) as if that repeal had not happened.
22
(3)
If an application for review is made to the Tribunal as a result of the
23
continued application of section 57A of the FOI Act by subitem (2) of
24
this item then the following apply in relation to the application:
25
(a) Divisions 3 to 7 of Part VIIA of the FOI Act, as amended by
26
Schedule 1 to this Act;
27
(b) the Administrative Appeals Tribunal Act 1975 and the
28
regulations made under that Act, as they are in force on and
29
after the commencement day.
30
4 Appeals to the Federal Court of Australia on questions of
31
law from certain pre-commencement decisions
32
(1)
This item applies if:
33
(a) before the commencement day, the Information
34
Commissioner made a decision under section 55K of the FOI
35
Act on an IC review; and
36
Application, saving and transitional provisions Schedule 4
Transition to the new review and complaints arrangements Part 2
No. , 2014
Freedom of Information Amendment (New Arrangements) Bill 2014
39
(b) immediately before that day, a party to the IC review has not
1
appealed to the Federal Court of Australia under section 56
2
of that Act on a question of law from the decision; and
3
(c) immediately before that day, the time for a party to the IC
4
review to institute such an appeal has not ended (including
5
any further time allowed by the Court).
6
(2)
Despite the repeal of Division 10 of Part VII of the FOI Act by
7
Schedule 1 to this Act, that Division, as in force immediately before the
8
commencement day, continues to apply in relation to the Information
9
Commissioner's decision as if that repeal had not happened.
10
5 Incomplete investigations of complaints by the Information
11
Commissioner
12
(1)
This item applies if:
13
(a) before the commencement day, a person made a complaint to
14
the Information Commissioner under section 70 of the FOI
15
Act; and
16
(b) immediately before that day, both of the following apply:
17
(i) the Information Commissioner has not transferred the
18
complaint to the Ombudsman under section 74 of that
19
Act;
20
(ii) the Information Commissioner has not given a notice
21
under subsection 75(3) or 86(1) of that Act in relation to
22
the complaint.
23
(2)
On the commencement day, the complaint is taken to be a complaint
24
made to the Ombudsman under the Ombudsman Act 1976.
25
6 Saving of protection from civil proceedings etc. provisions
26
Despite the repeal of sections 55Z, 85 and 89E of the FOI Act by
27
Schedule 1 to this Act, those sections, as in force immediately before
28
the commencement day, continue to apply in relation to a person as if
29
the repeal had not happened.
30
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40
Freedom of Information Amendment (New Arrangements) Bill 2014
No. , 2014
Part 3
--Transition to the Australian Privacy
1
Commissioner
2
7 Appointment of the Australian Privacy Commissioner
3
(1)
The person holding office as the Privacy Commissioner immediately
4
before the commencement day is taken, at the start of that day, to have
5
been duly appointed as the Australian Privacy Commissioner under
6
section 26XA of the Privacy Act 1988:
7
(a) for the balance of the person's term of appointment that
8
remained immediately before that day; and
9
(b) on the same terms and conditions as applied to the person
10
immediately before that day.
11
(2)
This item does not prevent those terms being varied on or after the
12
commencement day.
13
8 Things done by, or in relation to, the Information
14
Commissioner
15
(1)
If, before the commencement day, a thing was done by, or in relation to,
16
the Information Commissioner for a privacy purpose, then the thing is
17
taken, on and after that day, to have been done by, or in relation to, the
18
Australian Privacy Commissioner for the privacy purpose.
19
(2)
The Minister may, by writing, determine that subitem (1) does not apply
20
in relation to a specified thing done by, or in relation to, the Information
21
Commissioner.
22
(3)
A determination made under subitem (2) is not a legislative instrument.
23
9 Things started but not finished by the Information
24
Commissioner
25
(1)
This item applies if:
26
(a) before the commencement day, the Information
27
Commissioner started doing a thing for a privacy purpose in
28
accordance with a provision of an Act or instrument; and
29
(b) immediately before that day, the Information Commissioner
30
had not finished doing that thing.
31
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Freedom of Information Amendment (New Arrangements) Bill 2014
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(2)
The Australian Privacy Commissioner may, on and after the
1
commencement day, finish doing the thing for the privacy purpose in
2
accordance with the provision of the Act or instrument.
3
(3)
The Minister may, by writing, determine that subitem (2) does not apply
4
in relation to a specified thing started by the Information Commissioner.
5
(4)
A determination made under subitem (3) is not a legislative instrument.
6
10 References to the Information Commissioner etc. in
7
instruments
8
(1)
This item applies to an instrument if:
9
(a) the instrument was in force immediately before the
10
commencement day; and
11
(b) the instrument was made for a privacy purpose; and
12
(c) the instrument contains a reference to the Information
13
Commissioner, the Privacy Commissioner or the Office of
14
the AIC.
15
(2)
The instrument has effect, on and after the commencement day, as if a
16
reference to the Information Commissioner, the Privacy Commissioner
17
or the Office of the AIC were a reference to the Australian Privacy
18
Commissioner.
19
(3)
The Minister may, by writing, determine that subitem (2) does not apply
20
in relation to a specified instrument.
21
(4)
A determination made under subitem (3) is not a legislative instrument.
22
(5)
This item does not prevent the instrument from being varied, amended,
23
revoked or terminated on or after the commencement day.
24
11 Substitution of Information Commissioner as a party to
25
pending proceedings
26
(1)
This item applies to any proceedings pending in any court or tribunal
27
immediately before the commencement day if:
28
(a) the Information Commissioner was a party to the
29
proceedings; and
30
(b) the proceedings related to a privacy purpose.
31
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Part 3 Transition to the Australian Privacy Commissioner
42
Freedom of Information Amendment (New Arrangements) Bill 2014
No. , 2014
(2)
On and after the commencement day, the Australian Privacy
1
Commissioner is substituted for the Information Commissioner as a
2
party to the proceedings.
3
12 Employees of the Australian Human Rights Commission
4
Transferring employees
5
(1)
For the purposes of this item, a person is a transferring employee if:
6
(a) the person was an APS employee in the Office of the AIC
7
immediately before the commencement day; and
8
(b) the person is covered by a determination that:
9
(i) is made under section 72 of the Public Service Act 1999;
10
and
11
(ii) causes the person, on the commencement day, to
12
become an APS employee in the Australian Human
13
Rights Commission.
14
(2)
If:
15
(a) a person is a transferring employee; and
16
(b) immediately before the commencement day, the designated
17
agreement applied to the person's employment in the Office
18
of the AIC;
19
then:
20
(c) the designated agreement (as in force immediately before the
21
commencement day) covers the Commonwealth and the
22
transferring employee in relation to the transferring
23
employee's employment in the Australian Human Rights
24
Commission; and
25
(d) the designated agreement has effect on and after the
26
commencement day, in relation to the transferring
27
employee's employment in the Australian Human Rights
28
Commission, as if it had been made by the President of the
29
Australian Human Rights Commission on behalf of the
30
Commonwealth; and
31
(e) if:
32
(i) an enterprise agreement commences after the
33
commencement day; and
34
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Freedom of Information Amendment (New Arrangements) Bill 2014
43
(ii) the enterprise agreement was made by the President of
1
the Australian Human Rights Commission on behalf of
2
the Commonwealth; and
3
(iii) the enterprise agreement covers the Commonwealth and
4
the transferring employee in relation to the transferring
5
employee's employment in the Australian Human
6
Rights Commission;
7
paragraphs (c) and (d) cease to apply in relation to the
8
transferring employee when the enterprise agreement
9
commences.
10
(3)
If:
11
(a) a person is a transferring employee; and
12
(b) immediately before the commencement day, a determination
13
under subsection 24(1) of the Public Service Act 1999
14
applied to the person's employment in the Office of the AIC;
15
then:
16
(c) the determination (to the extent to which it relates to the
17
transferring employee) has effect on and after the
18
commencement day, in relation to the transferring
19
employee's employment in the Australian Human Rights
20
Commission, as if:
21
(i) the determination had been made by the President of the
22
Australian Human Rights Commission; and
23
(ii) the determination were applicable to the person's
24
employment in the Australian Human Rights
25
Commission; and
26
(d) paragraph (c) does not prevent the variation or revocation of
27
the determination.
28
New employees
29
(4)
For the purposes of this item, a person is a new employee if:
30
(a) the person is an APS employee in the Australian Human
31
Rights Commission; and
32
(b) the person is not a transferring employee.
33
(5)
If:
34
(a) the designated agreement covers the Commonwealth because
35
of subitem (2); and
36
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Part 3 Transition to the Australian Privacy Commissioner
44
Freedom of Information Amendment (New Arrangements) Bill 2014
No. , 2014
(b) after the commencement day, a person becomes a new
1
employee; and
2
(c) the designated agreement would have covered the
3
Commonwealth and the new employee in relation to the new
4
employee's employment in the Office of the AIC if the new
5
employee had been an APS employee at the same level in the
6
Office of the AIC immediately before the commencement
7
day; and
8
(d) the President of the Australian Human Rights Commission,
9
by written notice given to the new employee before or within
10
14 days after the person becomes a new employee,
11
determines that the designated agreement is applicable to the
12
new employee for the purposes of this subitem from the time
13
when the person becomes a new employee;
14
then:
15
(e) the designated agreement (as in force immediately before the
16
commencement day) covers the Commonwealth and the new
17
employee in relation to the new employee's employment in
18
the Australian Human Rights Commission; and
19
(f) the designated agreement has effect on and after the
20
commencement day, in relation to the new employee's
21
employment in the Australian Human Rights Commission, as
22
if it had been made by the President of the Australian Human
23
Rights Commission; and
24
(g) if:
25
(i) an enterprise agreement commences after the
26
commencement day; and
27
(ii) the enterprise agreement was made by the President of
28
the Australian Human Rights Commission on behalf of
29
the Commonwealth; and
30
(iii) the enterprise agreement covers the Commonwealth and
31
the new employee in relation to the new employee's
32
employment in the Australian Human Rights
33
Commission;
34
paragraphs (e) and (f) cease to apply in relation to the new
35
employee when the enterprise agreement commences.
36
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Freedom of Information Amendment (New Arrangements) Bill 2014
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Delegation
1
(6)
The President of the Australian Human Rights Commission may, in
2
writing, delegate the power conferred by paragraph (5)(d) to:
3
(a) the Australian Privacy Commissioner; or
4
(b) a person who is:
5
(i) a member of the staff of the Australian Human Rights
6
Commission; and
7
(ii) an SES employee or acting SES employee; or
8
(c) a person who is:
9
(i) a member of the staff of the Australian Human Rights
10
Commission; and
11
(ii) an APS employee who holds or performs the duties of
12
an Executive Level 2 position or an equivalent position.
13
Determination is not a legislative instrument
14
(7)
A determination made under paragraph (5)(d) is not a legislative
15
instrument.
16
13 Separate agreements relating to employment
17
If, under either or both of subitems 12(2) and (5), the designated
18
agreement covers the Commonwealth and one or more employees in
19
relation to their employment in the Australian Human Rights
20
Commission, the Fair Work Act 2009 and the Fair Work (Transitional
21
Provisions and Consequential Amendments) Act 2009 have effect as if
22
the following were separate agreements:
23
(a) the designated agreement, so far as it has the coverage
24
mentioned in this item;
25
(b) the designated agreement, so far as it does not have the
26
coverage mentioned in this item.
27
14 Application of the Safety, Rehabilitation and
28
Compensation Act 1988
29
(1)
This item applies if, before the commencement day, an employee of the
30
Office of the AIC suffered an injury resulting in an incapacity for work
31
or an impairment.
32
(2)
Sections 36, 37, 38, 39, 41 and 41A of the Safety, Rehabilitation and
33
Compensation Act 1988 apply on and after the commencement day, in
34
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Part 3 Transition to the Australian Privacy Commissioner
46
Freedom of Information Amendment (New Arrangements) Bill 2014
No. , 2014
relation to the injury, as if the employee were employed by the
1
Australian Human Rights Commission.
2
Note:
The main effect of subitem (2) is that sections 36, 37, 38, 39, 41 and 41A of the Safety,
3
Rehabilitation and Compensation Act 1988 apply in relation to the employee's injury as
4
if the President of the Australian Human Rights Commission were the rehabilitation
5
authority.
6
(3)
On and after the commencement day, the Australian Human Rights
7
Commission is, for the purposes of section 40 of the Safety,
8
Rehabilitation and Compensation Act 1988, taken to be the relevant
9
employer of the employee.
10
(4)
For the purposes of this item, employee of the Office of the AIC means
11
a member of the staff of the Office of the AIC.
12
15 Engagement of consultants
13
(1)
This item applies to a person if:
14
(a) before the commencement day, the person was engaged as a
15
consultant under section 24 of the AIC Act; and
16
(b) the engagement was in effect immediately before that day.
17
(2)
The person is taken, on and after the commencement day, to be engaged
18
as a consultant under section 26XJ of the Privacy Act 1988 on the same
19
terms and conditions that applied to the person's engagement
20
immediately before that day.
21
(3)
This item does not prevent those terms and conditions being varied after
22
the commencement day.
23
16 Transfer of records to the Australian Privacy
24
Commissioner
25
(1)
This item applies to any records or documents:
26
(a) that, immediately before the commencement day, were in the
27
possession of the Information Commissioner or a member of
28
the staff of the Office of AIC; and
29
(b) that relate to a privacy purpose.
30
(2)
The records and documents are to be transferred to the Australian
31
Privacy Commissioner on or after the commencement day.
32
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Freedom of Information Amendment (New Arrangements) Bill 2014
47
17 Unauthorised dealing with information
1
(1)
This item applies to information acquired, before the commencement
2
day, by a person in the course of performing functions or exercising
3
powers conferred for the purposes of:
4
(a) the information commissioner functions (within the meaning
5
of the AIC Act); or
6
(b) the freedom of information functions (within the meaning of
7
the AIC Act); or
8
(c) the privacy functions (within the meaning of the AIC Act).
9
(2)
Despite the repeal of section 29 of the AIC Act, that section (as in force
10
immediately before the commencement day) continues to apply in
11
relation to the information as if that repeal had not happened.
12
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Part 4 Other matters
48
Freedom of Information Amendment (New Arrangements) Bill 2014
No. , 2014
Part 4
--Other matters
1
18 Extension of time under section 15AA of the FOI Act
2
(1)
This item applies if:
3
(a) before the commencement day, a person who made a request
4
under section 15 of the FOI Act agreed in writing to an
5
extension of a period referred to in section 15AA of that Act;
6
and
7
(b) immediately before that day, the notice referred to in
8
paragraph 15AA(b) of that Act had not been given.
9
(2)
On the commencement day, section 15AA as amended by Schedule 1 to
10
this Act is taken to apply in relation to the agreement.
11
19 Saving of extensions of time under section 15AB of the
12
FOI Act
13
(1)
This item applies if:
14
(a) before the commencement day, the Information
15
Commissioner extended the period referred to in
16
paragraph 15(5)(b) of the FOI Act by a further period under
17
subsection 15AB(2) of that Act; and
18
(b) immediately before that day, the further period has not ended.
19
(2)
Despite the repeal of section 15AB of the FOI Act by Schedule 1 to this
20
Act, the extension continues to have effect on and after the
21
commencement day as if the repeal had not happened.
22
20 Saving of further time allowed under section 15AC or
23
51DA of the FOI Act
24
(1)
This item applies if:
25
(a) before the commencement day, the Information
26
Commissioner allowed further time under
27
subsection 15AC(5) or 51DA(4) of the FOI Act; and
28
(b) immediately before that day, that further time had not ended.
29
(2)
Despite the repeal of subsections 15AC(5) to (9) of the FOI Act by
30
Schedule 1 to this Act, the allowance of further time under
31
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No. , 2014
Freedom of Information Amendment (New Arrangements) Bill 2014
49
subsection 15AC(5) of the FOI Act continues to have effect on and after
1
the commencement day as if the repeal had not happened.
2
(3)
Despite the repeal of subsections 51DA(4) to (8) of the FOI Act by
3
Schedule 1 to this Act, the allowance of further time under
4
subsection 51DA(4) of the FOI Act continues to have effect on and after
5
the commencement day as if the repeal had not happened.
6
21 Saving of determination
7
A determination that:
8
(a) was made under subsection 11C(2) of the FOI Act; and
9
(b) was in force immediately before the commencement day;
10
continues in force (and may be dealt with) on and after that day as if it
11
had been made under that subsection as amended by Schedule 1 to this
12
Act.
13
22 Rules may prescribe matters of a transitional nature
14
(1)
The Attorney-General may, by legislative instrument, make rules
15
prescribing matters of a transitional nature (including prescribing any
16
saving or application provisions) relating to the amendments or repeals
17
made by this Act.
18
(2)
Without limiting subitem (1), the rules may:
19
(a) provide for matters of a transitional nature in relation to the
20
transfer of APS employees from the Office of the AIC to the
21
Australian Human Rights Commission; or
22
(b) make provision for the transfer of the assets or liabilities of
23
the Commonwealth that relate to the Office of the AIC.
24