Commonwealth Numbered Acts Commonwealth Numbered ActsPart 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:
(a) the Commonwealth or an agency is, or was, a party to the contract;
(b) under the contract, services are, or were, to be provided:
(i) by another party; and
(ii) for or on behalf of an agency; and
(iii) to a person who is not the Commonwealth or an agency;
(c) the services are in connection with the performance of the functions, or the exercise of the powers, of an agency.
3 Subsection 4(1)
Insert:
"contracted service provider" , for a Commonwealth contract, means an entity that is, or was:
(a) a party to the Commonwealth contract; and
(b) responsible for the provision of services under the Commonwealth contract.
4 Subsection 4(1)
Insert:
"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:
(a) the document is in the possession of the agency, whether created in the agency or received in the agency; or
(b) in order to comply with section 6C, the agency has taken contractual measures to ensure that it receives the document.
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:
(i) if the regulations declare an office to be the principal office of the authority--the person holding, or performing the duties of, that office;
(ii) if the authority is an Agency (within the meaning of the Public Service Act 1999 ) other than a Department and subparagraph (i) does not apply--the Agency Head (within the meaning of the Public Service Act 1999 ) of the authority;
(iii) if neither subparagraph (i) nor (ii) applies--the person responsible for the day‑to‑day management of the authority;
(iv) if the authority is constituted by one person and none of subparagraphs (i) to (iii) applies--that person;
(v) if the authority is constituted by 2 or more persons and none of subparagraphs (i) to (iv) applies--the person who is entitled to preside at any meeting of the authority at which he or she is present.
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:
(a) that is, or was, a party to a contract (the subcontract ):
(i) with a contracted service provider for the Commonwealth contract; or
(ii) with another subcontractor for the Commonwealth contract (under a previous application of this definition); and
(b) that is, or was, responsible under the subcontract for the provision of services for the purposes (whether direct or indirect) of the Commonwealth contract.
17 Subsection 4(8)
Repeal the subsection.
18 Section 6B
Repeal the section.
19 Before section 7
Insert:
6C Requirement for Commonwealth contracts
(1) This section applies to an agency if a service is, or is to be, provided under a Commonwealth contract in connection with the performance of the functions or the exercise of the powers of the agency.
(2) The agency must take contractual measures to ensure that the agency receives a document if:
(a) the document is created by, or is in the possession of:
(i) a contracted service provider for the Commonwealth contract; or
(ii) a subcontractor for the Commonwealth contract; and
(b) the document relates to the performance of the Commonwealth contract (and not to the entry into that contract); and
(c) the agency receives a request for access to the document.
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:
(a) a document (an intelligence agency document ) that has originated with, or has been received from, any of the following:
(i) the Australian Secret Intelligence Service;
(ii) the Australian Security Intelligence Organisation;
(iii) the Inspector‑General of Intelligence and Security;
(iv) the Office of National Assessments;
(v) the Defence Imagery and Geospatial Organisation;
(vi) the Defence Intelligence Organisation;
(vii) the Defence Signals Directorate;
(b) a document that contains a summary of, or an extract or information from, an intelligence agency document, to the extent that it contains such a summary, extract or information.
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:
(a) an intelligence agency document;
(b) a document that contains a summary of, or an extract or information from, an intelligence agency document, to the extent that it contains such a summary, extract or information.
(2C) An agency is exempt from the operation of this Act in relation to the following documents:
(a) a document (a defence intelligence document ) that has originated with, or has been received from, the Department of Defence and that is in respect of:
(i) the collection, reporting or analysis of operational intelligence; or
(ii) special access programs, under which a foreign government provides restricted access to technologies;
(b) a document that contains a summary of, or an extract or information from, a defence intelligence document, to the 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:
(a) a defence intelligence document;
(b) a document that contains a summary of, or an extract or information from, a defence intelligence document, to the extent that it contains such a summary, extract or information.
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:
(a) delivery to an officer of the agency, or a member of the staff of the Minister, at the address of any central or regional office of the agency or Minister specified in a current telephone directory;
(b) postage by pre‑paid post to an address mentioned in paragraph (a);
(c) sending by electronic communication to an electronic address specified by the agency or Minister.
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
(7) Subsection (8) applies if, in relation to a request, the agency or Minister determines in writing that it is appropriate to extend the period referred to in paragraph (5)(b) so that the agency or Minister can:
(a) consult one of the following:
(i) a foreign government;
(ii) an authority of a foreign government;
(iii) an international organisation; and
(b) determine whether the document that is the subject of the request is an exempt document under subparagraph 33(a)(iii) or paragraph 33(b).
(8) If this subsection applies:
(a) the period referred to in paragraph (5)(b) is extended by a period of 30 days; and
(b) the agency or Minister must, as soon as practicable, inform the applicant that the period has been extended.
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:
(a) the applicant agrees in writing to the extension; and
(b) the agency or Minister gives written notice of the extension to the Information Commissioner as soon as practicable after the agreement is made.
15AB Extension of time for complex or voluminous requests
(1) An agency or Minister may apply to the Information Commissioner for an extension of the period referred to in paragraph 15(5)(b) for dealing with a request if the agency or Minister considers that the period is insufficient to deal adequately with a request because the request is complex or voluminous.
(2) If the Information Commissioner is satisfied that the application is justified, the Information Commissioner may, by written instrument, extend the period by a further period of 30 days, or such other period as the Information Commissioner considers appropriate.
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:
(a) the applicant;
(b) the agency or Minister.
15AC Decision not made on request within time--deemed refusal
Scope
(1) This section applies if:
(a) a request has been made to an agency or Minister; and
(b) the period (the initial decision period ) covered by subsection (2) has ended since the day the request was received by, or on behalf of, the agency or Minister; and
(c) notice of a decision on the request has not been received by the applicant.
(2) The initial decision period covered by this subsection is the period of 30 days mentioned in paragraph 15(5)(b) (or that period as extended, otherwise than under this section).
Deemed refusal
(3) Subject to this section:
(a) the principal officer of the agency or the Minister is taken to have made a decision personally refusing to give access to the document on the last day of the initial decision period; and
(b) notice of the decision is taken to have been given under section 26 to the applicant on the same day.
Agency or Minister may apply for further time
(4) However, the agency or Minister concerned may apply, in writing, to the Information Commissioner for further time to deal with the request.
(5) The Information Commissioner may allow further time considered appropriate by the Information Commissioner for the agency or Minister to deal with the request.
(6) If the Information Commissioner allows further time, the Information Commissioner may impose any condition that he or she considers appropriate.
(7) Subsection (3) (deemed refusal) does not apply, and is taken never to have applied, if the agency or Minister:
(a) makes a decision on the request within the further time allowed; and
(b) complies with any condition imposed under subsection (6).
(8) However, subsection (3) (deemed refusal) applies as if the initial decision period were extended by the time allowed by the Information Commissioner under subsection (5) if the agency or Minister:
(a) does not make a decision on the request within the further time allowed; or
(b) does not comply with any condition imposed under subsection (6).
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.
(1) If an agency or Minister is satisfied, when dealing with a request for a document, that a practical refusal reason exists in relation to the request (see section 24AA), the agency or Minister:
(a) must undertake a request consultation process (see section 24AB); and
(b) if, after the request consultation process, the agency or Minister is satisfied that the practical refusal reason still exists--the agency or Minister may refuse to give access to the document in accordance with the request.
(2) For the purposes of this section, the agency or Minister may treat 2 or more requests as a single request if the agency or Minister is satisfied that:
(a) the requests relate to the same document or documents; or
(b) the requests relate to documents, the subject matter of which is substantially the same.
24AA When does a practical refusal reason exist?
(1) For the purposes of section 24, a practical refusal reason exists in relation to a request for a document if either (or both) of the following applies:
(a) the work involved in processing the request:
(i) in the case of an agency--would substantially and unreasonably divert the resources of the agency from its other operations; or
(ii) in the case of a Minister--would substantially and unreasonably interfere with the performance of the Minister's functions;
(b) the request does not satisfy the requirement in paragraph 15(2)(b) (identification of documents).
(2) Subject to subsection (3), but without limiting the matters to which the agency or Minister may have regard, in deciding whether a practical refusal reason exists, the agency or Minister must have regard to the resources that would have to be used for the following:
(a) identifying, locating or collating the documents within the filing system of the agency, or the office of the Minister;
(b) deciding whether to grant, refuse or defer access to a document to which the request relates, or to grant access to an edited copy of such a document, including resources that would have to be used for:
(i) examining the document; or
(ii) consulting with any person or body in relation to the request;
(c) making a copy, or an edited copy, of the document;
(d) notifying any interim or final decision on the request.
(3) In deciding whether a practical refusal reason exists, an agency or Minister must not have regard to:
(a) any reasons that the applicant gives for requesting access; or
(b) the agency's or Minister's belief as to what the applicant's reasons are for requesting access; or
(c) any maximum amount, specified in the regulations, payable as a charge for processing a request of that kind.
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:
(a) an intention to refuse access to a document in accordance with a request;
(b) the practical refusal reason;
(c) the name of an officer of the agency or member of staff of the Minister (the contact person ) with whom the applicant may consult during a period;
(d) details of how the applicant may contact the contact person;
(e) that the period (the consultation period ) during which the applicant may consult with the contact person is 14 days after the day the applicant is given the notice.
Assistance to revise request
(3) If the applicant contacts the contact person during the consultation period in accordance with the notice, the agency or Minister must take reasonable steps to assist the applicant to revise the request so that the practical refusal reason no longer exists.
(4) For the purposes of subsection (3), reasonable steps includes the following:
(a) giving the applicant a reasonable opportunity to consult with the contact person;
(b) providing the applicant with any information that would assist the applicant to revise the 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
(6) The applicant must, before the end of the consultation period, do one of the following, by written notice to the agency or Minister:
(a) withdraw the request;
(b) make a revised request;
(c) indicate that the applicant does not wish to revise the request.
(7) The request is taken to have been withdrawn under subsection (6) at the end of the consultation period if:
(a) the applicant does not consult the contact person during the consultation period in accordance with the notice; or
(b) the applicant does not do one of the things mentioned in subsection (6) before the end of the consultation period.
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
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:
(a) all reasonable steps have been taken to find the document; and
(b) the agency or Minister is satisfied that the document:
(i) is in the agency's or Minister's possession but cannot be found; or
(ii) does not exist.
Document not received as required by contract
(2) An agency may refuse a request for access to a document if:
(a) in order to comply with section 6C, the agency has taken contractual measures to ensure that it receives the document; and
(b) the agency has not received the document; and
(c) the agency has taken all reasonable steps to receive the document in accordance with those contractual measures.
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: (a) the collection, reporting or analysis of operational intelligence; or (b) special access programs, under which a foreign government provides restricted access to technologies. |
39 Division 1 of Part II of Schedule 2 (the item relating to the Federal Airports Corporation)
Repeal the item.
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:
(a) requests for access made under section 15 of the Freedom of Information 1982 that are received at or after the commencement of those items;
(b) applications under section 48 of that Act that are received at or after the commencement of those items.
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:
(i) an exempt document under subparagraph 33(a)(i) of the Freedom of Information Act 1982 (documents affecting national security, defence or international relations); or
(ii) 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
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 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:
(i) an exempt document under section 47 of the Freedom of Information Act 1982 (trade secrets etc.); or
(ii) a conditionally exempt document under section 47G of that Act (business documents) to which access would, on balance, be contrary to the public interest for the purposes of subsection 11A(5) of that Act; or
46 Paragraph 135A(4)(a)
Repeal the paragraph, substitute:
(a) is:
(i) an exempt document under subparagraph 33(a)(i) of the Freedom of Information Act 1982 (documents affecting national security, defence or international relations); or
(ii) 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
47 Paragraph 143(6)(a)
Repeal the paragraph, substitute:
(a) is:
(i) an exempt document under section 47 of the Freedom of Information Act 1982 (trade secrets etc.); or
(ii) a conditionally exempt document under section 47G of that Act (business documents) to which access would, on balance, be contrary to the public interest for the purposes of subsection 11A(5) of that Act; or
48 Paragraph 146B(4)(a)
Repeal the paragraph, substitute:
(a) is:
(i) an exempt document under section 47 of the Freedom of Information Act 1982 (trade secrets); or
(ii) a conditionally exempt document under section 47G of that Act (business documents) to which access would, on balance, be contrary to the public interest for the purposes of subsection 11A(5) of that Act; or
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