Commonwealth Numbered Regulations - Explanatory Statements

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FREEDOM OF INFORMATION AMENDMENT (REFORM) REGULATIONS 2010 (SLI NO 268 OF 2010)

 

EXPLANATORY STATEMENT

 

Select Legislative Instrument 2010 No. 268

 

Issued by the authority of the Minister for Privacy and Freedom of Information

 

Freedom of Information Amendment (Reform) Act 2010

 

Freedom of Information Amendment (Reform) Regulations 2010

 

Clause 27 of Schedule 7 to Freedom of Information Amendment (Reform) Act 2010 (the FOIA(R) Act) provides that the Governor‑General may make regulations, prescribing matters required or permitted by the Schedule to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Schedule and, in particular, prescribing matters of a transitional nature relating to the amendments or repeals made by the FOIA(R) Act.

 

The FOIA(R) Act makes major reforms to the Freedom of Information Act 1982 and complements the structural reforms in the Australian Information Commissioner Act 2010 (the AIC Act).

 

Subsection 2(1) of the FOIA(R) Act provides that most of provisions of the FOIA(R) Act commence immediately after section 3 of the AIC Act commences. The operative provisions of the AIC Act, including section 3, have been proclaimed to commence on 1 November 2010. However, Schedule 2 and item 15 of Schedule 3 to the FOIA(R) Act will commence six months after the commencement of the AIC Act.

 

Section 5 of the AIC Act establishes the Office of the Australian Information Commissioner (OAIC), consisting of the Australian Information Commissioner (AIC), the Freedom of Information Commissioner, the Privacy Commissioner and the staff of the OAIC. The existing Office of the Privacy Commissioner will be incorporated into the OAIC.

 

The purpose of the Regulations is to ensure that actions taken by the Privacy Commissioner in relation to ACT Government agencies, including consultations and investigations, can be continued by the AIC and to ensure that any other things done or instruments made by the Privacy Commissioner in relation to the ACT will continue to operate as things done, or instruments made, by the AIC.

 

Schedule 7 to the FOIA(R) Act contains transitional provisions dealing with the incorporation of the Office of the Privacy Commissioner into the OAIC to ensure that things commenced by the Privacy Commissioner, including consultations and investigations, before 1 November 2010 can be continued by the AIC. Schedule 7 also provides that things done or instruments made before 1 November 2010 by the Privacy Commissioner are taken to be have been done or made by the AIC.

 

The Privacy Act 1998 operates in the ACT pursuant to section 23 of the Australian Capital Territory Government Service (Consequential Provisions) Act 1994. Unless expressly applied, an amendment to the Commonwealth Privacy Act does not automatically apply to the ACT.

 

This means that the changes to the governance arrangements effected by clauses 52 to 58 to Schedule 5 of the FOIA(R) Act will not apply in relation to the ACT. These items primarily substitute references in the Privacy Act to the ‘Privacy Commissioner’ to the ‘Information Commissioner’ as all the privacy functions, formerly vested in the Privacy Commissioner under the Privacy Act, are vested in the AIC under the AIC Act.

 

Relevant Commonwealth authorities and the ACT Department of Justice and Community Safety have been consulted on the regulations.

 

Details of the Regulations are set out in the Attachment.

 

The FOIA(R) Act specifies no conditions that need to be satisfied before the power to make the Regulations may be exercised.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The Regulations commence on 1 November 2010. The Acts Interpretation Act 1901 provides for the exercise of certain powers between the passing and commencement of an Act. Subsection 4(1) provides that where an Act does not come into operation immediately upon its enactment and it confers power to make regulations, the power may be exercised before the Act comes into operation.

 

 


ATTACHMENT

 

Details of the Freedom of Information Amendment (Reform) Regulations 2010

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Freedom of Information Amendment (Reform) Regulations 2010.

 

Regulation 2 – Commencement

 

This regulation provides for the Regulations to commence on 1 November 2010. This is the same time that the Freedom of Information Amendment (Reform) Act 2010 and the Australian Information Commissioner Act 2010 substantially commence.

 

Regulation 3 – Privacy Commissioner transition ‑ Australian Capital Territory

 

Subregulation 3(1) provides that a reference to the Privacy Commissioner in the Privacy Act 1988 as applied by Australian Capital Territory Government Service (Consequential Provisions) Act 1994 is taken to be a reference to the Australian Information Commissioner within the meaning of the Australian Information Commissioner Act 2010.

 

Subregulation 3(2) provides that to the extent they are capable of applying the transitional arrangements in Parts 3 to 7 of Schedule 7 to the Freedom of Information Amendment (Reform) Act 2010 are taken to apply in relation to the exercise of functions under the Privacy Act 1988 as applied by Australian Capital Territory Government Service (Consequential Provisions) Act 1994.

 

 

 


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