FREEDOM OF INFORMATION AMENDMENT (REFORM) BILL 2009

This is a Bill, not an Act. For current law, see the Acts databases.

FREEDOM OF INFORMATION AMENDMENT (REFORM) BILL 2009

2008-2009

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Freedom of Information Amendment

(Reform) Bill 2009

No. , 2009

(Cabinet Secretary)

A Bill for an Act to amend the law relating to access

to information, and for related purposes

i Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

Contents

1 Short

title

...........................................................................................

2 Commencement

.................................................................................

3 Schedule(s)

........................................................................................

Schedule 1--Objects

Freedom of Information Act 1982

Schedule 2--Publication of information

Freedom of Information Act 1982

Schedule 3--Exemptions

Part 1--Open access period amendments

Archives Act 1983

Part 2--Main exemption amendments

Freedom of Information Act 1982

Part 3--Other exemption amendments

Archives Act 1983

Privacy Act 1988

Part 4--Application provisions

Schedule 4--Information Commissioner amendments

Part 1--Main amendments

Freedom of Information Act 1982

Part 2--Other amendments

119

Ombudsman Act 1976

119

Part 3--Application and transitional provisions

121

Schedule 5--Amendments consequential on the establishment

of the Office of the Information Commissioner

123

Anti-Money Laundering and Counter-Terrorism Financing Act 2006

123

Australian Citizenship Act 2007

123

Australian Human Rights Commission Act 1986

123

Aviation Legislation Amendment (2008 Measures No. 2) Act 2009

124

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 ii

Child Care Act 1972

124

Crimes Act 1914

124

Data-matching Program (Assistance and Tax) Act 1990

126

Environment Protection and Biodiversity Conservation Act 1999

127

Fair Work Act 2009

128

Fisheries Management Act 1991

128

Migration Act 1958

128

National Health Act 1953

128

National Health and Medical Research Council Act 1992

129

Privacy Act 1988

130

Telecommunications Act 1997

130

Telecommunications (Interception and Access) Act 1979

132

Torres Strait Fisheries Act 1984

132

Schedule 6--Other amendments

134

Part 1--Amendments to the Freedom of Information Act 1982

134

Freedom of Information Act 1982

134

Part 2--Application provisions

149

Part 3--Amendment of other Acts

150

Australian Crime Commission Act 2002

150

Environment Protection and Biodiversity Conservation Act 1999

150

Inspector-General of Intelligence and Security Act 1986

151

Schedule 7--Privacy Commissioner transition

153

Part 1--Preliminary

153

Part 2--Office holders, staff and consultants

154

Part 3--Things done by, or in relation to, the Privacy

Commissioner

157

Part 4--Investigations

160

Part 5--Written instruments and reporting requirements

162

Part 6--Legal and other proceedings

163

iii Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

Part 7--Miscellaneous

165

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 1

A Bill for an Act to amend the law relating to access

to information, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Freedom of Information Amendment

(Reform) Act 2009.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

2 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

Commencement information

Column 1

Column 2

Column 3

Provision(s)

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. Schedule 1

Immediately after the commencement of

section 3 of the Information Commissioner

Act 2009.

However, if section 3 of the Information

Commissioner Act 2009 does not commence,

the provision(s) do not commence at all.

3. Schedule 2

The day after the end of the period of 6

months beginning on the day section 3 of the

Information Commissioner Act 2009

commences.

However, if section 3 of the Information

Commissioner Act 2009 does not commence,

the provision(s) do not commence at all.

4. Schedule 3,

items 1 to 14

Immediately after the commencement of

section 3 of the Information Commissioner

Act 2009.

However, if section 3 of the Information

Commissioner Act 2009 does not commence,

the provision(s) do not commence at all.

5. Schedule 3,

item 15

The day after the end of the period of 6

months beginning on the day section 3 of the

Information Commissioner Act 2009

commences.

However, if section 3 of the Information

Commissioner Act 2009 does not commence,

the provision(s) do not commence at all.

6. Schedule 3,

items 16 to 40

Immediately after the commencement of

section 3 of the Information Commissioner

Act 2009.

However, if section 3 of the Information

Commissioner Act 2009 does not commence,

the provision(s) do not commence at all.

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 3

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

7. Schedules 4 to

Immediately after the commencement of

section 3 of the Information Commissioner

Act 2009.

However, if section 3 of the Information

Commissioner Act 2009 does not commence,

the provision(s) do not commence at all.

Note:

This table relates only to the provisions of this Act as originally

passed by both Houses of the Parliament and assented to. It will not be

expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not

part of this Act. Information in this column may be added to or

edited in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Schedule 1 Objects

4 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

Schedule 1--Objects

Freedom of Information Act 1982

1 Section 3

Repeal the section, substitute:

3 Objects--general

(1) The objects of this Act are to give the Australian community

access to information held by the Government of the

Commonwealth, by:

(a) requiring agencies to publish the information; and

(b) providing for a right of access to documents.

(2) The Parliament intends, by these objects, to promote Australia's

representative democracy by contributing towards the following:

(a) increasing public participation in Government processes,

with a view to promoting better-informed decision-making;

(b) increasing scrutiny, discussion, comment and review of the

Government's activities.

(3) The Parliament also intends, by these objects, to increase

recognition that information held by the Government is to be

managed for public purposes, and is a national resource.

(4) The Parliament also intends that functions and powers given by

this Act are to be performed and exercised, as far as possible, to

facilitate and promote public access to information, promptly and

at the lowest reasonable cost.

3A Objects--information or documents otherwise accessible

Scope

(1) This section applies if a Minister, or an officer of an agency, has

the power to publish, or give access to, information or a document

(including an exempt document) apart from under this Act.

Objects Schedule 1

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 5

Publication and access powers not limited

(2) The Parliament does not intend, by this Act, to limit that power, or

to prevent or discourage the exercise of that power:

(a) in the case of the power to publish the information or

document--despite any restriction on the publication of the

information or document under this Act; and

(b) in the case of the power to give access to the information or

document--whether or not access to the information or

document has been requested under section 15.

2 Section 14

Repeal the section.

Schedule 2 Publication of information

6 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

Schedule 2--Publication of information

Freedom of Information Act 1982

1 Subsection 4(1)

Insert:

operational information has the meaning given by section 8A.

2 Subsection 4(9)

Omit "of this Act (other than sections 8 and 93)".

3 Part II

Repeal the Part, substitute:

Part II--Information publication scheme

Division 1--Guide to this Part

7A Information publication scheme--guide

This Part establishes an information publication scheme for

agencies.

Each agency must publish a plan showing how it proposes to

implement this Part.

An agency must publish a range of information including

information about what the agency does and the way it does it, as

well as information dealt with or used in the course of its

operations, some of which is called operational information.

In addition, an agency may publish other information held by the

agency.

Information published by an agency must be kept accurate,

up-to-date and complete.

Publication of information Schedule 2

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 7

An agency is not required to publish exempt matter. An agency is

also not required to publish information if prohibited by another

enactment.

The information (or details of how to access the information) must

be published on a website. If there is a charge for accessing the

information, the agency must publish details of the charge.

An agency must, in conjunction with the Information

Commissioner, review the operation of the scheme in the agency

every 5 years (if not earlier).

An agency must have regard to the objects of this Act, and

guidelines issued by the Information Commissioner, in doing

anything for the purposes of this Part.

If operational information is not published in accordance with this

Part, a person must not be subjected to any prejudice as a result of

not having access to the information.

Division 2--Information to be published

8 Information to be published--what information?

Agency plans

(1) An agency must prepare a plan showing the following:

(a) what information the agency proposes to publish for the

purposes of this Part;

(b) how, and to whom, the agency proposes to publish

information for the purposes of this Part;

Information that must be published

(2) The agency must publish the following information:

(a) the plan prepared under subsection (1);

(b) details of the structure of the agency's organisation (for

example, in the form of an organisation chart);

Schedule 2 Publication of information

8 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

including its decision-making powers and other powers

affecting members of the public (or any particular person or

entity, or class of persons or entities);

(d) details of appointments of officers of the agency that are

made under Acts (other than APS employees within the

meaning of the Public Service Act 1999);

(e) the information in annual reports prepared by the agency that

are laid before the Parliament;

(f) details of arrangements for members of the public to

comment on specific policy proposals for which the agency is

responsible, including how (and to whom) those comments

may be made;

(g) information in documents to which the agency routinely

gives access in response to requests under Part III (access to

documents), except information of the following kinds:

(i) personal information about any individual, if it would

be unreasonable to publish the information;

(ii) information about the business, commercial, financial or

professional affairs of any person, if it would be

unreasonable to publish the information;

(iii) other information of a kind determined by the

Information Commissioner under subsection (3), if it

would be unreasonable to publish the information;

(h) information held by the agency that is routinely provided to

the Parliament in response to requests and orders from the

Parliament;

(i) contact details for an officer (or officers) who can be

contacted about access to the agency's information or

documents under this Act;

(j) the agency's operational information (see section 8A).

Note:

If operational information is not published in accordance with this

section, a person must not be subjected to any prejudice as a result

(see section 10).

(3) The Information Commissioner may, by legislative instrument,

make a determination for the purposes of subparagraph (2)(g)(iii).

Other information

(4) The agency may publish other information held by the agency.

Publication of information Schedule 2

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 9

Functions and powers

(5) This section applies to a function or power of an agency whether or

not the agency has the function or power under an enactment.

Note 1:

See section 8C for restrictions on the requirement to publish this

information.

Note 2:

The agency must have regard to the objects of this Act and guidelines

issued by the Information Commissioner in performing functions, and

exercising powers, under this section (see section 9A).

8A Information to be published--what is operational information?

(1)

agency's

operational information is information held by the

agency to assist the agency to perform or exercise the agency's

functions or powers in making decisions or recommendations

affecting members of the public (or any particular person or entity,

or class of persons or entities).

Example: The agency's rules, guidelines, practices and precedents relating to

those decisions and recommendations.

(2)

agency's

operational information does not include information

that is available to members of the public otherwise than by being

published by (or on behalf of) the agency.

8B Information to be published--accuracy etc.

An agency must ensure that information published by the agency

as required or permitted by this Part is accurate, up-to-date and

complete.

8C Information to be published--restrictions

Exempt documents

(1) An agency is not required under this Part to publish exempt matter.

Publication prohibited or restricted by other legislation

(2) If an enactment restricts or prohibits the publication of particular

information, an agency is not required under this Part to publish the

information otherwise than as permitted or required by the

enactment.

Schedule 2 Publication of information

10 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

Operation of restrictions

(3) This section applies despite section 8.

8D Information to be published--how (and to whom) information is

to be published

Scope

(1) An agency must publish information that is required or permitted

to be published under this Part in accordance with this section.

How (and to whom) information is to be published

(2) The agency must publish the information:

(a) to members of the public generally; and

(b) if the agency considers that it is appropriate to do so--to

particular classes of persons or entities.

(3) The agency must publish the information on a website by:

(a) making the information available for downloading from the

website; or

(b) publishing on the website a link to another website, from

which the information can be downloaded; or

information may be obtained.

Charges

(4) The agency may impose a charge on a person for accessing the

information only if:

(a) the person does not directly access the information by

downloading it from the website (or another website); and

(b) the charge is to reimburse the agency for specific

reproduction costs, or other specific incidental costs, incurred

in giving the person access to that particular information.

(5) If there is a charge for accessing the information, the agency must

publish details of the charge in the same way as the information is

published under this section.

Note 1:

The agency must have regard to the objects of this Act and guidelines

issued by the Information Commissioner in performing functions, and

exercising powers, under this section (see section 9A).

Publication of information Schedule 2

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 11

Note 2:

After access is given to a document under Part III (access to

documents) in accordance with a request, the agency must publish the

accessed document to members of the public generally in the same

way as described in this section (although certain exceptions apply)

(see section 11C).

8E Information to be published--Information Commissioner to

assist agencies

The Information Commissioner may provide appropriate assistance

to an agency in:

(a) identifying and preparing information which is required or

permitted to be published under this Part; and

(b) determining how (and to whom) the information is required

or permitted to be published under section 8D.

Division 3--Review of information publication scheme

8F Review of scheme--Information Commissioner functions

The Information Commissioner has the following functions (as

conferred by this Act and the Information Commissioner Act 2009,

but without limiting any provision of either Act):

(a) reviewing the operation in each agency of the information

publication scheme established by this Part, in conjunction

with the agency;

(b) investigating an agency's compliance with this Part under

Division 2 of Part VIIB (Information Commissioner

investigations);

operation of the scheme.

9 Review of scheme--by agencies

(1) An agency must, in conjunction with the Information

Commissioner, complete a review of the operation, in the agency,

of the information publication scheme established by this Part:

(a) as appropriate from time to time; and

(b) in any case--within 5 years after the last time a review under

this section was completed.

Schedule 2 Publication of information

12 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

(2) The first review under subsection (1) must be completed within 5

years after the day this section commences.

Note 1:

This section commences on the day after the end of the period of 6

months beginning on the day on which the Information Commissioner

Act 2009 commences.

Note 2:

The agency must have regard to the objects of this Act and guidelines

issued by the Information Commissioner in performing functions, and

exercising powers, under this section (see section 9A).

Division 4--Guidelines

9A Functions and powers under this Part

In performing a function, or exercising a power, under this Part, an

agency must have regard to:

(a) the objects of this Act (including all the matters set out in

sections 3 and 3A); and

(b) guidelines issued by the Information Commissioner for the

purposes of this paragraph under section 93A.

Division 5--Miscellaneous

10 Unpublished operational information

Scope

(1) This section applies if:

(a) part (or all) of an agency's operational information (the

unpublished information), in relation to a function or power

of the agency, is not published by the agency in accordance

with this Part; and

(b) a person engages in conduct relevant to the performance of

the function or the exercise of the power; and

(i) the person was not aware of the unpublished

information; and

(ii) the agency had been in existence for more than 12

months.

Note:

An agency's operational information is required to be published by the

agency (see sections 8 and 8A).

Publication of information Schedule 2

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 13

No prejudice from lack of awareness of unpublished information

(2) The person must not be subjected to any prejudice only because of

the application to that conduct of any rule, guideline or practice in

the unpublished information, if the person could lawfully have

avoided that prejudice had he or she been aware of the unpublished

information.

10A Who performs functions etc. given to agencies

(1) A function or power given to an agency under this Part may be

performed or exercised, on behalf of the agency, by:

(a) the principal officer of the agency; or

(b) an officer of the agency acting within the scope of his or her

authority in accordance with arrangements approved by the

principal officer of the agency.

(2) The performance or exercise of a function or power under

paragraph (1)(b) is subject to the regulations.

4 Saving--unpublished information

Section 10 of the Freedom of Information Act 1982, as in force

immediately before the commencement of item 3 (the commencement

time), continues in force at and after the commencement time in relation

to:

(a) a document relating to a function of an agency, required to be

made available in accordance with section 9 of that Act

before the commencement time; and

(b) conduct engaged in by a person before the commencement

time that is relevant to the performance of that function.

Note: Item

3 commences on the day after the end of the period of 6 months

beginning on the day on which the Information Commissioner Act

2009 commences.

Schedule 3 Exemptions

Part 1 Open access period amendments

14 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

Schedule 3--Exemptions

Part 1--Open access period amendments

Archives Act 1983

1 Subsection 3(1)

Insert:

open access period, in relation to a record, has the meaning given

by the following provisions:

(a) for a Cabinet notebook--section 22A;

(b) for a record containing Census information--section 22B;

2 Subsection 3(7)

Repeal the subsection (including the note), substitute:

(7) For the purposes of this Act, subject to sections 22A and 22B,

work out when a record is in the open access period in accordance

with the following table:

Open access period for records

Item

If the record came into

existence in any of the

following years (ending on

31 December):

the record is in the open access period

on and after the following day:

1 a

year

(the

creation year)

before 1980

1 January in the year that is 31 years after

the creation year.

Example: A record that came into existence in

the year 1979 is in the open access

period on and after 1 January 2010.

1980 or 1981

1 January 2011.

1982 or 1983

1 January 2012.

1984 or 1985

1 January 2013.

1986 or 1987

1 January 2014.

1988 or 1989

1 January 2015.

1990 or 1991

1 January 2016.

Exemptions Schedule 3

Open access period amendments Part 1

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 15

Open access period for records

Item

If the record came into

existence in any of the

following years (ending on

31 December):

the record is in the open access period

on and after the following day:

1992 or 1993

1 January 2017.

1994 or 1995

1 January 2018.

1996 or 1997

1 January 2019.

1998 or 1999

1 January 2020.

2000

1 January 2021.

13 a

year

(the

creation year) after

2000

1 January in the year that is 21 years after

the creation year.

Example: A record that came into existence in

the year 2001 is in the open access

period on and after 1 January 2022.

Note:

Cabinet notebooks and records containing Census information have

different open access periods (see sections 22A and 22B).

3 Subsection 22A(1)

Repeal the subsection, substitute:

(1) For the purposes of this Act, work out when a Cabinet notebook is

in the open access period in accordance with the following table:

Open access period for Cabinet notebooks

Item

If the Cabinet notebook came

into existence in any of the

following years (ending on

31 December):

the Cabinet notebook is in the open

access period on and after the

following day:

1 a

year

(the

creation year)

before 1960

1 January in the year that is 51 years after

the creation year.

Example: A Cabinet notebook that came into

existence in the year 1959 is in the

open access period on and after

1 January 2010.

1960, 1961 or 1962

1 January 2011.

1963, 1964 or 1965

1 January 2012.

1966, 1967 or 1968

1 January 2013.

1969, 1970 or 1971

1 January 2014.

Schedule 3 Exemptions

Part 1 Open access period amendments

16 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

Open access period for Cabinet notebooks

Item

If the Cabinet notebook came

into existence in any of the

following years (ending on

31 December):

the Cabinet notebook is in the open

access period on and after the

following day:

1972, 1973 or 1974

1 January 2015.

1975, 1976 or 1977

1 January 2016.

1978, 1979 or 1980

1 January 2017.

1981, 1982 or 1983

1 January 2018.

1984, 1985 or 1986

1 January 2019.

1987, 1988 or 1989

1 January 2020.

1990

1 January 2021.

13 a

year

(the

creation year) after

1990

1 January in the year that is 31 years after

the creation year.

Example: A Cabinet notebook that came into

existence in the year 1991 is in the

open access period on and after

1 January 2022.

Note:

Records that are not Cabinet notebooks have different open access

periods (see subsection 3(7) (general records) and section 22B

(records containing Census information)).

4 Paragraph 26(1)(a)

Omit "25 years", substitute "15 years".

5 Paragraph 27(3)(b)

Omit "25 years", substitute "15 years".

6 Subsection 30(2)

Omit "25 years", substitute "15 years".

Exemptions Schedule 3

Main exemption amendments Part 2

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 17

Part 2--Main exemption amendments

Freedom of Information Act 1982

7 Subsection 4(1)

Insert:

Cabinet includes a committee of the Cabinet.

8 Subsection 4(1) (definition of Cabinet notebook)

Omit "or of a committee of the Cabinet, being notes", substitute ", if the

notes were".

9 Subsection 4(1)

Insert:

conditionally exempt: a document is conditionally exempt if

Division 3 of Part IV (public interest conditional exemptions)

applies to the document.

Note:

Access must generally be given to a conditionally exempt document

unless it would be contrary to the public interest (see section 11A).

10 Subsection 4(1) (definition of edited copy)

Repeal the definition, substitute:

edited copy has the meaning given by section 22 (access to edited

copies with exempt or irrelevant matter deleted).

11 Subsection 4(1) (paragraph (a) of the definition of exempt

document)

Repeal the paragraph, substitute:

(a) a document that is exempt for the purposes of Part IV

(exempt documents) (see section 31B); or

12 Subsection 4(1)

Insert:

run out: all of a person's opportunities for review or appeal in

relation to an access grant decision have run out when:

Schedule 3 Exemptions

Part 2 Main exemption amendments

18 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

(a) the latest time for applying for an internal review or an IC

review in relation to the decision has ended, if the person has

not applied for either review; or

(b) if the person has applied for an internal review in relation to

the decision:

(i) the internal review is concluded; and

(ii) the time for applying for an IC review of the decision on

internal review has ended, if the person has not applied

for the IC review; or

decision:

(i) proceedings in relation to the IC review are concluded;

and

(ii) the time for applying to the Tribunal for a review in

relation to the decision has ended, if the person has not

applied for such a review; and

(iii) the time for instituting an appeal to the Federal Court in

relation to the IC review has ended (with no appeal

instituted), or, if an appeal has been instituted, all

proceedings in relation to the appeal have been

concluded; or

(d) if the person has applied to the Tribunal for a review in

relation to the decision:

(i) proceedings in relation to the review are concluded; and

(ii) the time for instituting an appeal to the Federal Court in

relation to the review by the Tribunal has ended (with

no appeal instituted), or, if an appeal has been instituted,

all proceedings in relation to the appeal have been

concluded.

Note:

The time for applying for a review of a decision may be extended in

certain circumstances (see sections 54B and 54T).

13 At the end of section 4

Add:

(10) To avoid doubt, information or matter communicated in the way

mentioned in paragraph 33(b) includes information or matter so

communicated pursuant to any treaty or formal instrument on the

reciprocal protection of classified information between the

Exemptions Schedule 3

Main exemption amendments Part 2

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 19

Government of the Commonwealth, or an authority of the

Commonwealth, and:

(a) a foreign government or an authority of a foreign

government; or

(b) an international organisation.

Note:

Section 33 deals with documents affecting national security, defence

or international relations.

14 After section 11

Insert:

11A Access to documents on request

Scope

(1) This section applies if:

(a) a request is made by a person, in accordance with subsection

15(2), to an agency or Minister for access to:

(i) a document of the agency; or

(ii) an official document of the Minister; and

(b) any charge that, under the regulations, is required to be paid

before access is given has been paid.

(2) This section applies subject to this Act.

Note:

Other provisions of this Act are relevant to decisions about access to

documents, for example the following:

(a) section 12 (documents otherwise available);

(b) section 13 (documents in national institutions);

(d) section 22 (access to edited copies with exempt or irrelevant

matter deleted).

Mandatory access--general rule

(3) The agency or Minister must give the person access to the

document in accordance with this Act, subject to this section.

Exemptions and conditional exemptions

(4) The agency or Minister is not required by this Act to give the

person access to the document at a particular time if, at that time,

the document is an exempt document.

Schedule 3 Exemptions

Part 2 Main exemption amendments

20 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

Note:

Access may be given to an exempt document apart from under this

Act, whether or not in response to a request (see section 3A (objects--

information or documents otherwise accessible)).

(5) The agency or Minister must give the person access to the

document if it is conditionally exempt at a particular time unless

(in the circumstances) access to the document at that time would,

on balance, be contrary to the public interest.

Note 1:

Division 3 of Part IV provides for when a document is conditionally

exempt.

Note 2:

A conditionally exempt document is an exempt document if access to

the document would, on balance, be contrary to the public interest (see

section 31B (exempt documents for the purposes of Part IV)).

Note 3:

Section 11B deals with when it is contrary to the public interest to

give a person access to the document.

(6) Despite subsection (5), the agency or Minister is not required to

give access to the document at a particular time if, at that time, the

document is both:

(a) a conditionally exempt document; and

(b) an exempt document:

(i) under Division 2 of Part IV (exemptions); or

(ii) within the meaning of paragraph (b) or (c) of the

definition of exempt document in subsection 4(1).

11B Public interest exemptions--factors

Scope

(1) This section applies for the purposes of working out whether

access to a conditionally exempt document would, on balance, be

contrary to the public interest under subsection 11A(5).

(2) This section does not limit subsection 11A(5).

Factors favouring access

(3) Factors favouring access to the document in the public interest

include whether access to the document would do any of the

following:

(a) promote the objects of this Act (including all the matters set

out in sections 3 and 3A);

(b) inform debate on a matter of public importance;

Exemptions Schedule 3

Main exemption amendments Part 2

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 21

(d) allow a person to access his or her own personal information.

Irrelevant factors

(4) The following factors must not be taken into account in deciding

whether access to the document would, on balance, be contrary to

the public interest:

(a) access to the document could result in embarrassment to the

Commonwealth Government, or cause a loss of confidence in

the Commonwealth Government;

(b) access to the document could result in any person

misinterpreting or misunderstanding the document;

agency to which the request for access to the document was

made;

(d) access to the document could result in confusion or

unnecessary debate.

Guidelines

(5) In working out whether access to the document would, on balance,

be contrary to the public interest, an agency or Minister must have

regard to any guidelines issued by the Information Commissioner

for the purposes of this subsection under section 93A.

15 Before section 12

Insert:

11C Publication of information in accessed documents

Scope

(1) This section applies to information if an agency or Minister gives a

person access to a document under section 11A containing the

information, except in the case of any of the following:

(a) personal information about any person, if it would be

unreasonable to publish the information;

(b) information about the business, commercial, financial or

professional affairs of any person, if it would be

unreasonable to publish the information;

Schedule 3 Exemptions

Part 2 Main exemption amendments

22 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

Commissioner under subsection (2), if it would be

unreasonable to publish the information;

(d) any information, if it is not reasonably practicable to publish

the information under this section because of the extent of

any modifications to a document (or documents) necessary to

delete information mentioned in paragraphs (a) to (c).

(2) The Information Commissioner may, by legislative instrument,

make a determination for the purposes of paragraph (1)(c).

Publication

(3) The agency, or the Minister, must publish the information to

members of the public generally on a website by:

(a) making the information available for downloading from the

website; or

(b) publishing on the website a link to another website, from

which the information can be downloaded; or

information may be obtained.

(4) The agency may impose a charge on a person for accessing the

information only if:

(a) the person does not directly access the information by

downloading it from the website (or another website); and

(b) the charge is to reimburse the agency for a specific

reproduction cost, or other specific incidental costs, incurred

in giving the person access to that particular information.

(5) If there is a charge for accessing the information, the agency or

Minister must publish details of the charge in the same way as the

information is published under this section.

Time limit for publication

(6) The agency or Minister must comply with this section within 10

working days after the day the person is given access to the

document.

(7) In this section:

working day means a day that is not:

Exemptions Schedule 3

Main exemption amendments Part 2

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 23

(a) a Saturday; or

(b) a Sunday; or

the information under this section is to be performed.

16 Section 18

Repeal the section.

17 Section 22

Repeal the section, substitute:

22 Access to edited copies with exempt or irrelevant matter deleted

Scope

(1) This section applies if:

(a) an agency or Minister decides:

(i) to refuse to give access to an exempt document; or

(ii) that to give access to a document would disclose

information that would reasonably be regarded as

irrelevant to the request for access; and

(b) it is possible for the agency or Minister to prepare a copy (an

edited copy) of the document, modified by deletions,

ensuring that:

(i) access to the edited copy would be required to be given

under section 11A (access to documents on request);

and

(ii) the edited copy would not disclose any information that

would reasonably be regarded as irrelevant to the

request; and

prepare the edited copy, having regard to:

(i) the nature and extent of the modification; and

(ii) the resources available to modify the document; and

(d) it is not apparent (from the request or from consultation with

the applicant) that the applicant would decline access to the

edited copy.

Schedule 3 Exemptions

Part 2 Main exemption amendments

24 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

Access to edited copy

(2) The agency or Minister must:

(a) prepare the edited copy as mentioned in paragraph (1)(b); and

(b) give the applicant access to the edited copy.

Notice to applicant

(3) The agency or Minister must give the applicant notice in writing:

(a) that the edited copy has been prepared; and

(b) of the grounds for the deletions; and

deleted is exempt matter because of a specified provision of

this Act.

(4) Section 26 (reasons for decision) does not apply to the decision to

refuse access to the whole document unless the applicant requests

the agency or Minister to give the applicant a notice in writing in

accordance with that section.

18 Subsections 25(1) and (2)

Omit "or 33A" (wherever occurring).

19 At the end of paragraph 26(1)(a)

Add "and".

20 After paragraph 26(1)(a)

Insert:

(aa) in the case of a decision to refuse to give access to a

conditionally exempt document--include in those reasons the

public interest factors taken into account in making the

decision; and

Note:

Access must generally be given to a conditionally exempt

document unless it would be contrary to the public interest (see

section 11A).

21 Sections 26A, 27, 27A and 28

Repeal the sections, substitute:

Exemptions Schedule 3

Main exemption amendments Part 2

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 25

26A Consultation--documents affecting Commonwealth-State

relations

Scope

(1) This section applies if:

(a) arrangements have been entered into between the

Commonwealth and a State about consultation under this

section; and

(b) a request is made to an agency or Minister for access to a

document that:

(i) originated with, or was received from, the State or an

authority of the State; or

(ii) contains information (State-originated information)

that originated with, or was received from, the State or

an authority of the State; and

reasonably wish to contend that:

(i) the document is conditionally exempt under section 47B

(Commonwealth-State relations); and

(ii) access to the document would, on balance, be contrary

to the public interest for the purposes of subsection

11A(5).

Note:

Access must generally be given to a conditionally exempt

document unless it would be contrary to the public interest (see

section 11A).

Consultation required

(2) The agency or Minister must not decide to give the applicant

access to the document unless consultation has taken place

between the Commonwealth and the State in accordance with the

arrangements.

Decision to give access

(3) If, after such consultation has taken place, the agency or Minister

decides to give the applicant access to the document, the agency or

Minister must give written notice of the decision to both of the

following:

(a)

the

State;

Schedule 3 Exemptions

Part 2 Main exemption amendments

26 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

(b)

the

applicant.

Access not to be given until review or appeal opportunities have

run out

(4) However, the agency or Minister must not give the applicant

access to the document unless, after all the opportunities of the

State for review or appeal in relation to the decision to give access

to the document have run out, the decision still stands, or is

confirmed.

Note 1:

The decision to give access to the document is subject to internal

review (see Part VI), review by the Information Commissioner (see

Part VII) and review by the Tribunal (see Part VIIA).

Note 2:

For when all opportunities for review or appeal in relation to the

decision to give access to the document have run out, see subsection

4(1).

Edited copies and State-originated information

(5) This section applies:

(a) in relation to an edited copy of a document--in the same way

as it applies to the document; and

(b) in relation to a document containing State-originated

information--to the extent to which the document contains

such information.

27 Consultation--business documents

Scope

(1) This section applies if:

(a) a request is made to an agency or Minister for access to a

document containing information (business information)

covered by subsection (2) in respect of a person, organisation

or undertaking; and

(b) it appears to the agency or Minister that the person,

organisation or proprietor of the undertaking (the person or

organisation concerned) might reasonably wish to make a

contention (the exemption contention) that:

(i) the document is exempt under section 47 (trade secrets

etc.); or

Exemptions Schedule 3

Main exemption amendments Part 2

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 27

(ii) the document is conditionally exempt under section 47G

(business information) and access to the document

would, on balance, be contrary to the public interest for

the purposes of subsection 11A(5).

Note:

Access must generally be given to a conditionally exempt

document unless it would be contrary to the public interest (see

section 11A).

(2) This subsection covers the following information:

(a) in relation to a person--information about the person's

business or professional affairs;

(b) in relation to an organisation or undertaking--information

about the business, commercial or financial affairs of the

organisation or undertaking.

(3) In determining, for the purposes of paragraph (1)(b), whether the

person or organisation concerned might reasonably wish to make

an exemption contention because of business information in a

document, the agency or Minister must have regard to the

following matters:

(a) the extent to which the information is well known;

(b) whether the person, organisation or undertaking is known to

be associated with the matters dealt with in the information;

sources;

(d) any other matters that the agency or Minister considers

relevant.

Opportunity to make submissions

(4) The agency or Minister must not decide to give access to the

document unless:

(a) the person or organisation concerned is given a reasonable

opportunity to make submissions in support of the exemption

contention; and

(b) the agency or the Minister has regard to any submissions so

made.

(5) However, subsection (4) only applies if it is reasonably practicable

for the agency or Minister to give the person or organisation

concerned a reasonable opportunity to make submissions in

support of the exemption contention, having regard to all the

Schedule 3 Exemptions

Part 2 Main exemption amendments

28 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

circumstances (including the application of subsections 15(5) and

(6) (time limits for processing requests)).

Notice of decision to give access

(6) If the agency or Minister decides to give access to the document,

the agency or Minister must give written notice of the decision to

both of the following:

(a) the person or organisation concerned;

(b)

the

applicant.

Access not to be given until review or appeal opportunities have

run out

(7) However, the agency or Minister must not give the applicant

access to the document unless, after all the opportunities of the

person or organisation concerned for review or appeal in relation to

the decision to give access to the document have run out, the

decision to give access still stands, or is confirmed.

Note 1:

The decision to give access to the document is subject to internal

review (see Part VI), review by the Information Commissioner (see

Part VII) and review by the Tribunal (see Part VIIA).

Note 2:

For when all opportunities for review or appeal in relation to the

decision to give access to the document have run out, see subsection

4(1).

Notice and stay of decision not to apply unless submission made in

support of exemption contention

(8) Subsections (6) and (7) do not apply unless the person or

organisation concerned makes a submission in support of the

exemption contention as allowed under paragraph (4)(a).

Edited copies and business information

(9) This section applies:

(a) in relation to an edited copy of a document--in the same way

as it applies to the document; and

(b) in relation to a document containing business information--

to the extent to which the document contains such

information.

Exemptions Schedule 3

Main exemption amendments Part 2

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 29

27A Consultation--documents affecting personal privacy

Scope

(1) This section applies if:

(a) a request is made to an agency or Minister for access to a

document containing personal information about a person

(including a person who has died); and

(b) it appears to the agency or Minister that the person or the

person's legal personal representative (the person

concerned) might reasonably wish to make a contention (the

exemption contention) that:

(i) the document is conditionally exempt under

section 47F; and

(ii) access to the document would, on balance, be contrary

to the public interest for the purposes of subsection

11A(5).

Note:

Access must generally be given to a conditionally exempt

document unless it would be contrary to the public interest (see

section 11A).

(2) In determining, for the purposes of paragraph (1)(b), whether the

person concerned might reasonably wish to make an exemption

contention because of personal information in a document, the

agency or Minister must have regard to the following matters:

(a) the extent to which the information is well known;

(b) whether the person to whom the information relates is known

to be (or to have been) associated with the matters dealt with

in the information;

sources;

(d) any other matters that the agency or Minister considers

relevant.

Opportunity to make submissions

(3) The agency or Minister must not decide to give the applicant

access to the document unless:

(a) the person concerned is given a reasonable opportunity to

make submissions in support of the exemption contention;

and

Schedule 3 Exemptions

Part 2 Main exemption amendments

30 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

(b) the agency or the Minister has regard to any submissions so

made.

(4) However, subsection (3) only applies if it is reasonably practicable

for the agency or Minister to give the person concerned a

reasonable opportunity to make submissions in support of the

exemption contention, having regard to all the circumstances

(including the application of subsections 15(5) and (6) (time limits

for processing requests)).

Decision to give access

(5) If the agency or Minister decides to give access to the document,

the agency or Minister must give written notice of the decision to

both of the following:

(a) the person concerned;

(b)

the

applicant.

Access not to be given until review or appeal opportunities have

run out

(6) However, the agency or Minister must not give the applicant

access to the document unless, after all the opportunities of the

person concerned for review or appeal in relation to the decision to

give access to the document have run out, the decision to give

access still stands, or is confirmed.

Note 1:

The decision to give access to the document is subject to internal

review (see Part VI), review by the Information Commissioner (see

Part VII) and review by the Tribunal (see Part VIIA).

Note 2:

For when all opportunities for review or appeal in relation to the

decision to give access to the document have run out, see subsection

4(1).

Notice and stay of decision not to apply unless submission made in

support of exemption contention

(7) Subsections (5) and (6) do not apply unless the person concerned

makes a submission in support of the exemption contention as

allowed under paragraph (3)(a).

Edited copies and personal information

(8) This section applies:

Exemptions Schedule 3

Main exemption amendments Part 2

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 31

(a) in relation to an edited copy of a document--in the same way

as it applies to the document; and

(b) in relation to a document containing personal information--

to the extent to which the document contains such

information.

22 Before section 32

Insert:

Division 1--Preliminary

31A Access to exempt and conditionally exempt documents

The following table summarises how this Act applies to exempt

documents and documents that are conditionally exempt:

How this Act applies to exempt and conditionally exempt documents

Item

If ...

then ...

because of ...

a document is an

exempt document

under Division 2

(exemptions) or under

paragraph (b) or (c) of

the definition of

exempt document in

subsection 4(1)

access to the document

is not required to be

given

subsection 11A(4).

a document is a

conditionally exempt

document under

Division 3 (public

interest conditional

exemptions)

access to the document

is required to be given,

unless it would be

contrary to the public

interest

subsection 11A(5) (see

also section 11B

(public interest

factors)).

a document is an

exempt document as

mentioned in item 1,

and also a conditionally

exempt document

under Division 3

access to the document

is not required to be

given

subsections 11A(4) and

(6), and section 32

(interpretation).

access to a document is

refused because it

contains exempt

(a) an edited copy

deleting the exempt

matter must be

section 22.

Schedule 3 Exemptions

Part 2 Main exemption amendments

32 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

How this Act applies to exempt and conditionally exempt documents

Item

If ...

then ...

because of ...

matter, and the exempt

matter can be deleted

prepared (if

practicable); and

(b) access to the edited

copy must be given;

a document is an

exempt document

because of any

provision of this Act

access to the document

may be given apart

from under this Act

section 3A (objects--

information or

documents otherwise

accessible).

31B Exempt documents for the purposes of this Part

A document is exempt for the purposes of this Part if:

(a) it is an exempt document under Division 2; or

(b) it is conditionally exempt under Division 3, and access to the

document would, on balance, be contrary to the public

interest for the purposes of subsection 11A(5).

Note 1:

A document is an exempt document for the purposes of this Act (see

subsection 4(1)) if:

(a) it is exempt under this section; or

(b) it is exempt because of section 7 (exemption of certain persons

and bodies); or

relating to the affairs of an agency or a Department of State.

Note 2:

Access must generally be given to a conditionally exempt document

unless it would be contrary to the public interest (see section 11A).

23 Section 32

After "exempt documents," (wherever occurring), insert ", or are

conditionally exempt".

24 After section 32

Insert:

Division 2--Exemptions

25 At the end of section 33

Add:

Note:

See also subsection 4(10).

Exemptions Schedule 3

Main exemption amendments Part 2

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 33

26 Sections 33A to 36

Repeal the sections, substitute:

34 Cabinet documents

General rules

(1) A document is an exempt document if:

(a) both of the following are satisfied:

(i) it has been submitted to the Cabinet for its

consideration, or is or was proposed by a Minister to be

so submitted;

(ii) it was brought into existence for the dominant purpose

of submission for consideration by the Cabinet; or

(b) it is an official record of the Cabinet; or

briefing a Minister on a document to which paragraph (a)

applies; or

(d) it is a draft of a document to which paragraph (a), (b) or (c)

applies.

(2) A document is an exempt document to the extent that it is a copy or

part of, or contains an extract from, a document to which

subsection (1) applies.

(3) A document is an exempt document to the extent that it contains

information the disclosure of which would reveal a Cabinet

deliberation or decision, unless the existence of the deliberation or

decision has been officially disclosed.

Exceptions

(4) A document is not an exempt document only because it is attached

to a document to which subsection (1), (2) or (3) applies.

Note:

However, the attachment itself may be an exempt document.

(5) A document by which a decision of the Cabinet is officially

published is not an exempt document.

(6) Information in a document to which subsection (1), (2) or (3)

applies is not exempt matter because of this section if the

information consists of purely factual material, unless:

Schedule 3 Exemptions

Part 2 Main exemption amendments

34 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

(a) the disclosure of the information would reveal a Cabinet

deliberation or decision; and

(b) the existence of the deliberation or decision has not been

officially disclosed.

27 Sections 39, 40 and 41

Repeal the sections.

28 Subsection 42(2)

Repeal the subsection, substitute:

(2) A document is not an exempt document because of subsection (1)

if the person entitled to claim legal professional privilege in

relation to the production of the document in legal proceedings

waives that claim.

(3) A document is not an exempt document under subsection (1) by

reason only that:

(a) the document contains information that would (apart from

this subsection) cause the document to be exempt under

subsection (1); and

(b) the information is operational information of an agency.

Note: For

operational information, see section 8A.

29 Sections 43, 43A and 44

Repeal the sections.

30 Subsection 45(2)

Omit "any document to the disclosure of which paragraph 36(1)(a)

applies or would apply, but for the operation of subsection 36(2), (5) or

(6), being a document", substitute "a document to which subsection

47C(1) (deliberative processes) applies (or would apply, but for

subsection 47C(2) or (3)), that is".

31 Subsection 45(2)

After "unless the disclosure", insert "of the document".

32 Section 47

Repeal the section, substitute:

Exemptions Schedule 3

Main exemption amendments Part 2

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 35

47 Documents disclosing trade secrets or commercially valuable

information

(1) A document is an exempt document if its disclosure under this Act

would disclose:

(a)

trade

secrets;

(b) any other information having a commercial value that would

be, or could reasonably be expected to be, destroyed or

diminished if the information were disclosed.

(2) Subsection (1) does not have effect in relation to a request by a

person for access to a document:

(a) by reason only of the inclusion in the document of

information concerning that person in respect of his or her

business or professional affairs; or

(b) by reason only of the inclusion in the document of

information concerning the business, commercial or financial

affairs of an undertaking where the person making the

request is the proprietor of the undertaking or a person acting

on behalf of the proprietor; or

information concerning the business, commercial or financial

affairs of an organisation where the person making the

request is the organisation or a person acting on behalf of the

organisation.

(3) A reference in this section to an undertaking includes a reference to

an undertaking that is carried on by, or by an authority of, the

Commonwealth or a State or by a local government authority.

33 At the end of Part IV

Add:

Division 3--Public interest conditional exemptions

47B Public interest conditional exemptions--Commonwealth-State

relations

A document is conditionally exempt if disclosure of the document

under this Act:

Schedule 3 Exemptions

Part 2 Main exemption amendments

36 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

(a) would, or could reasonably be expected to, cause damage to

relations between the Commonwealth and a State; or

(b) would divulge information or matter communicated in

confidence by or on behalf of the Government of a State or

an authority of a State, to the Government of the

Commonwealth, to an authority of the Commonwealth or to a

person receiving the communication on behalf of the

Commonwealth or of an authority of the Commonwealth.

Note:

Access must generally be given to a conditionally exempt document

unless it would be contrary to the public interest (see section 11A).

47C Public interest conditional exemptions--deliberative processes

General rule

(1) A document is conditionally exempt if its disclosure under this Act

would disclose matter (deliberative matter) in the nature of, or

relating to, opinion, advice or recommendation obtained, prepared

or recorded, or consultation or deliberation that has taken place, in

the course of, or for the purposes of, the deliberative processes

involved in the functions of an agency or Minister or of the

Government of the Commonwealth.

Exceptions

(2) Deliberative matter does not include either of the following:

(a) operational information (see section 8A);

(b) purely factual material.

Note:

An agency must publish its operational information (see section 8).

(3) This section does not apply to any of the following:

(a) reports (including reports concerning the results of studies,

surveys or tests) of scientific or technical experts, whether

employed within an agency or not, including reports

expressing the opinions of such experts on scientific or

technical matters;

(b) reports of a body or organisation, prescribed by the

regulations, that is established within an agency;

decision given in the exercise of a power or of an

adjudicative function.

Exemptions Schedule 3

Main exemption amendments Part 2

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 37

Note:

Access must generally be given to a conditionally exempt document

unless it would be contrary to the public interest (see section 11A).

47D Public interest conditional exemptions--financial or property

interests of the Commonwealth

A document is conditionally exempt if its disclosure under this Act

would have a substantial adverse effect on the financial or property

interests of the Commonwealth or of an agency.

Note:

Access must generally be given to a conditionally exempt document

unless it would be contrary to the public interest (see section 11A).

47E Public interest conditional exemptions--certain operations of

agencies

A document is conditionally exempt if its disclosure under this Act

would, or could reasonably be expected to, do any of the

following:

(a) prejudice the effectiveness of procedures or methods for the

conduct of tests, examinations or audits by an agency;

(b) prejudice the attainment of the objects of particular tests,

examinations or audits conducted or to be conducted by an

agency;

assessment of personnel by the Commonwealth or by an

agency;

(d) have a substantial adverse effect on the proper and efficient

conduct of the operations of an agency.

Note:

Access must generally be given to a conditionally exempt document

unless it would be contrary to the public interest (see section 11A).

47F Public interest conditional exemptions--personal privacy

General rule

(1) A document is conditionally exempt if its disclosure under this Act

would involve the unreasonable disclosure of personal information

about any person (including a deceased person).

(2) In determining whether the disclosure of the document would

involve the unreasonable disclosure of personal information, an

agency or Minister must have regard to the following matters:

Schedule 3 Exemptions

Part 2 Main exemption amendments

38 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

(a) the extent to which the information is well known;

(b) whether the person to whom the information relates is known

to be (or to have been) associated with the matters dealt with

in the document;

sources;

(d) any other matters that the agency or Minister considers

relevant.

(3) Subject to subsection (5), subsection (1) does not have effect in

relation to a request by a person for access to a document by reason

only of the inclusion in the document of matter relating to that

person.

Access given to qualified person instead

(4) Subsection (5) applies if:

(a) a request is made to an agency or Minister for access to a

document of the agency, or an official document of the

Minister, that contains information concerning the applicant,

being information that was provided by a qualified person

acting in his or her capacity as a qualified person; and

(b) it appears to the principal officer of the agency or to the

Minister (as the case may be) that the disclosure of the

information to the applicant might be detrimental to the

applicant's physical or mental health, or well-being.

(5) The principal officer or Minister may, if access to the document

would otherwise be given to the applicant, direct that access to the

document, so far as it contains that information, is not to be given

to the applicant but is to be given instead to a qualified person

who:

(a) carries on the same occupation, of a kind mentioned in the

definition of qualified person in subsection (7), as the

first-mentioned qualified person; and

(b) is to be nominated by the applicant.

(6) The powers and functions of the principal officer of an agency

under this section may be exercised by an officer of the agency

acting within his or her scope of authority in accordance with

arrangements referred to in section 23.

Exemptions Schedule 3

Main exemption amendments Part 2

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 39

(7) In this section:

qualified person means a person who carries on, and is entitled to

carry on, an occupation that involves the provision of care for the

physical or mental health of people or for their well-being, and,

without limiting the generality of the foregoing, includes any of the

following:

(a) a medical practitioner;

(b)

psychiatrist;

(c)

psychologist;

(d)

counsellor;

(e) a social worker.

Note:

Access must generally be given to a conditionally exempt document

unless it would be contrary to the public interest (see section 11A).

47G Public interest conditional exemptions--business

(1) A document is conditionally exempt if its disclosure under this Act

would disclose information concerning a person in respect of his or

her business or professional affairs or concerning the business,

commercial or financial affairs of an organisation or undertaking,

in a case in which the disclosure of the information:

(a) would, or could reasonably be expected to, unreasonably

affect that person adversely in respect of his or her lawful

business or professional affairs or that organisation or

undertaking in respect of its lawful business, commercial or

financial affairs; or

(b) could reasonably be expected to prejudice the future supply

of information to the Commonwealth or an agency for the

purpose of the administration of a law of the Commonwealth

or of a Territory or the administration of matters administered

by an agency.

(2) Subsection (1) does not apply to trade secrets or other information

to which section 47 applies.

(3) Subsection (1) does not have effect in relation to a request by a

person for access to a document:

(a) by reason only of the inclusion in the document of

information concerning that person in respect of his or her

business or professional affairs; or

Schedule 3 Exemptions

Part 2 Main exemption amendments

40 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

(b) by reason only of the inclusion in the document of

information concerning the business, commercial or financial

affairs of an undertaking where the person making the

request is the proprietor of the undertaking or a person acting

on behalf of the proprietor; or

information concerning the business, commercial or financial

affairs of an organisation where the person making the

request is the organisation or a person acting on behalf of the

organisation.

(4) A reference in this section to an undertaking includes a reference to

an undertaking that is carried on by, or by an authority of, the

Commonwealth or a State or by a local government authority.

(5) For the purposes of subsection (1), information is not taken to

concern a person in respect of the person's professional affairs

merely because it is information concerning the person's status as a

member of a profession.

Note:

Access must generally be given to a conditionally exempt document

unless it would be contrary to the public interest (see section 11A).

47H Public interest conditional exemptions--research

A document is conditionally exempt if:

(a) it contains information relating to research that is being, or is

to be, undertaken by an officer of an agency specified in

Schedule 4; and

(b) disclosure of the information before the completion of the

research would be likely unreasonably to expose the agency

or officer to disadvantage.

Note:

Access must generally be given to a conditionally exempt document

unless it would be contrary to the public interest (see section 11A).

47J Public interest conditional exemptions--the economy

(1) A document is conditionally exempt if its disclosure under this Act

would, or could be reasonably expected to, have a substantial

adverse effect on Australia's economy by:

(a) influencing a decision or action of a person or entity; or

(b) giving a person (or class of persons) an undue benefit or

detriment, in relation to business carried on by the person (or

Exemptions Schedule 3

Main exemption amendments Part 2

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 41

class), by providing premature knowledge of proposed or

possible action or inaction of a person or entity.

Note:

A person includes a body corporate and a body politic (see section 22

of the Acts Interpretation Act 1901). Examples of a body politic

include the government of the Commonwealth, a State, a Territory or

a foreign country.

(2) For the purposes of subsection (1), a substantial adverse effect on

Australia's economy includes a substantial adverse effect on:

(a) a particular sector of the economy; or

(b) the economy of a particular region of Australia.

(3) The documents to which subsection (1) applies include, but are not

limited to, documents containing matter relating to any of the

following:

(a) currency or exchange rates;

(b)

interest

rates;

(d) the regulation or supervision of banking, insurance and other

financial institutions;

(e) proposals for expenditure;

(f) foreign investment in Australia;

(g) borrowings by the Commonwealth, a State or an authority of

the Commonwealth or of a State.

Note:

Access must generally be given to a conditionally exempt document

unless it would be contrary to the public interest (see section 11A).

34 Schedule 4

Omit "Section 43A", substitute "Section 47H".

Schedule 3 Exemptions

Part 3 Other exemption amendments

42 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

Part 3--Other exemption amendments

Archives Act 1983

35 Paragraph 33(1)(b)

Repeal the paragraph, substitute:

(b) information or matter:

(i) that was communicated in confidence by, or on behalf

of, a foreign government, an authority of a foreign

government or an international organisation (the foreign

entity) to the Government of the Commonwealth, to an

authority of the Commonwealth or to a person who

received the communication on behalf of the

Commonwealth or an authority of the Commonwealth

(the Commonwealth entity); and

(ii) which the foreign entity advises the Commonwealth

entity is still confidential; and

(iii) the confidentiality of which it would be reasonable to

maintain;

36 Paragraph 50A(2)(b)

Repeal the paragraph, substitute:

(b) whether it would be reasonable to maintain the

confidentiality of information or matter to which both of the

following apply by not making the record available for public

access:

(i) the information or matter was communicated in

confidence by, or on behalf of, a foreign government, an

authority of a foreign government or an international

organisation (the foreign entity) to the Government of

the Commonwealth, to an authority of the

Commonwealth or to a person who received the

communication on behalf of the Commonwealth or an

authority of the Commonwealth (the Commonwealth

entity);

(ii) the foreign entity advises the Commonwealth entity that

the information or matter is still confidential.

37 Paragraph 50A(3)(b)

Exemptions Schedule 3

Other exemption amendments Part 3

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 43

Repeal the paragraph, substitute:

(b) whether it would be reasonable to maintain the

confidentiality of information or matter to which both of the

following apply by not making that part, or a copy of that

part, of the record available for public access:

(i) the information or matter was communicated in

confidence by, or on behalf of, a foreign government, an

authority of a foreign government or an international

organisation (the foreign entity) to the Government of

the Commonwealth, to an authority of the

Commonwealth or to a person who received the

communication on behalf of the Commonwealth or an

authority of the Commonwealth (the Commonwealth

entity);

(ii) the foreign entity advises the Commonwealth entity that

the information or matter is still confidential.

Privacy Act 1988

38 Subsection 34(1)

Omit "or 33A,".

Schedule 3 Exemptions

Part 4 Application provisions

44 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

Part 4--Application provisions

39 Application--Part 2

An amendment made by an item in Part 2 applies in relation to requests

for access made under section 15 of the Freedom of Information Act

1982 that are received at or after the commencement of that item.

40 Application--items 35, 36 and 37

The amendments made by items 35, 36 and 37 apply for the purposes of

determining whether access, or an extension of partial access, to a

record referred to in section 31 of the Archives Act 1983 will be given in

accordance with an application made under section 40 of that Act that is

received by the Archives at or after the commencement of those items.

Information Commissioner amendments Schedule 4

Main amendments Part 1

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 45

Schedule 4--Information Commissioner

amendments

Part 1--Main amendments

Freedom of Information Act 1982

1 Subsection 4(1)

Insert:

access grant decision has the meaning given by section 53B.

2 Subsection 4(1)

Insert:

access refusal decision has the meaning given by section 53A.

3 Subsection 4(1)

Insert:

action, if the action is taken by a person or agency, has the same

meaning as in the Ombudsman Act 1976.

Note:

See subsections 3(2) to (7) of the Ombudsman Act 1976.

4 Subsection 4(1)

Insert:

affected third party has the meaning given by section 53C.

5 Subsection 4(1)

Insert:

authorised person has the meaning given by section 77.

6 Subsection 4(1)

Insert:

complainant has the meaning given by subsection 70(1).

7 Subsection 4(1)

Schedule 4 Information Commissioner amendments

Part 1 Main amendments

46 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

Insert:

engage in conduct means:

(a) do an act; or

(b) omit to do an act.

8 Subsection 4(1)

Insert:

IC review has the meaning given by section 54G.

9 Subsection 4(1)

Insert:

IC reviewable decision has the meaning given by section 54K.

10 Subsection 4(1)

Insert:

IC review applicant has the meaning given by section 54J.

11 Subsection 4(1)

Insert:

IC review application has the meaning given by section 54H.

12 Subsection 4(1)

Insert:

implementation notice has the meaning given by section 89.

13 Subsection 4(1)

Insert:

Information Commissioner has the meaning given by the

Information Commissioner Act 2009.

14 Subsection 4(1)

Insert:

internal review has the meaning given by sections 54 and 54A.

Information Commissioner amendments Schedule 4

Main amendments Part 1

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 47

15 Subsection 4(1)

Insert:

internal review applicant has the meaning given by section 54B.

16 Subsection 4(1)

Insert:

investigation recommendations has the meaning given by

section 88.

17 Subsection 4(1)

Insert:

investigation results has the meaning given by section 87.

18 Subsection 4(1)

Insert:

respondent agency has the meaning given by subsections 69(2)

and 70(2).

19 Subsection 4(1)

Insert:

review parties has the meaning given by section 55A.

20 Subsection 4(1)

Insert:

vexatious applicant declaration has the meaning given by

section 89K.

21 Subsection 12(1)

Omit "(1)".

22 Subsections 12(2) to (4)

Repeal the subsections.

23 Subsection 21(3)

Repeal the subsection.

Schedule 4 Information Commissioner amendments

Part 1 Main amendments

48 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

24 Subparagraph 26(1)(c)(ii)

Omit "Ombudsman", substitute "Information Commissioner".

25 Paragraph 26(1)(c)

Omit "review under section 54", substitute "internal review (Part VI)

and IC review (Part VII)".

26 Paragraph 29(9)(b)

Omit "Ombudsman", substitute "Information Commissioner".

27 Subsection 29(9)

Omit "review under section 54", substitute "internal review (Part VI)

and IC review (Part VII)".

28 Section 31

Repeal the section, substitute:

31 Decision to impose charge--extended period for processing

request

Scope

(1) This section applies if:

(a) on a particular day (the charge notice day) an applicant in

relation to a request receives a notice under subsection 29(1)

or (6) to the effect that the applicant is liable to pay a charge

in respect of the request; and

(b) the notice is received before the end of the period (the

processing period) applicable under paragraph 15(5)(b) in

relation to the request (or that period as extended).

Processing period to be calculated disregarding period when

charge unpaid

(2) In working out the length of the processing period (or that period

as extended) for the purposes of paragraph 15(5)(b), disregard the

number of days in the period starting on the charge notice day and

ending on the earliest occurring of the following days:

(a) the day the applicant pays the amount of the charge (or a

deposit on account of the charge prescribed by the

Information Commissioner amendments Schedule 4

Main amendments Part 1

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 49

regulations), whether or not the decision to impose the charge

has been considered under section 29, or is the subject of a

review under this Act;

(b) if the amount of the charge is changed under section 29, or

following a review under this Act--the day the applicant

pays the amount of the charge (or a deposit on account of the

charge prescribed by the regulations) as changed following

the review;

decision is made with the effect that the charge is not

imposed--the day the applicant is notified of the decision.

Note:

A decision under section 29 relating to the imposition of a charge or

the amount of a charge may be the subject of an internal review (see

Part VI), an IC review (see Part VII) or review by the Tribunal (see

Part VIIA).

29 After section 51D

Insert:

51DA Decision not made on request for amendment or annotation

within time--deemed refusal

(1) This section applies if:

(a) an application has been made to an agency or Minister under

section 48; and

(b) the period of 30 days mentioned in section 51D (the initial

decision period) has ended since the day the application was

received by, or on behalf of, the agency or Minister; and

by the applicant.

Deemed refusal

(2) Subject to this section:

(a) the principal officer of the agency or the Minister is taken to

have made a decision personally refusing to amend or

annotate the record of personal information to which the

application relates 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.

Schedule 4 Information Commissioner amendments

Part 1 Main amendments

50 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

Agency or Minister may apply for further time

(3) However, the agency or Minister concerned may apply, in writing,

to the Information Commissioner for further time to deal with the

application.

(4) The Information Commissioner may allow further time considered

appropriate by the Information Commissioner for the agency or

Minister to deal with the application.

(5) If the Information Commissioner allows further time, the

Information Commissioner may impose any condition that he or

she considers appropriate.

(6) Subsection (2) (deemed refusal) does not apply, and is taken never

to have applied, if the agency or Minister:

(a) makes a decision on the application within the further time

allowed; and

(b) complies with any condition imposed under subsection (5).

(7) However, subsection (2) (deemed refusal) applies as if the initial

decision period were extended by the time allowed by the

Information Commissioner under subsection (4) 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 (5).

No further time allowed

(8) If subsection (7) (deemed refusal after allowance of further time)

applies, the Information Commissioner does not have the power to

allow further time under this section in relation to the decision

taken to be made under subsection (2) in its operation as affected

by subsection (7).

30 Part VI (heading)

Repeal the heading, substitute:

Information Commissioner amendments Schedule 4

Main amendments Part 1

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 51

Part VI--Internal review of decisions

31 Before section 53

Insert:

52 Internal review of decisions--guide

This Part provides for internal review of decisions by agencies,

other than decisions made personally by the principal officer of an

agency or the responsible Minister. Agencies are required to

complete internal reviews within 30 days. However, this period

may be extended.

Sections 53A, 53B and 53C define the terms access refusal

decision, access grant decision and affected third party. These

terms are used in this Part and in Parts VII and VIIA.

32 Section 53

Omit "Part", substitute "Act".

33 Section 53

Omit ", 33A, 34 or 35", substitute "or 34".

34 Sections 54 to 57

Repeal the sections, substitute:

53A What is an access refusal decision?

access refusal decision is any of the following decisions:

(a) a decision refusing to give access to a document in

accordance with a request;

(b) a decision giving access to a document but not giving, in

accordance with the request, access to all documents to

which the request relates;

access to all documents to which the request relates, but not

actually giving that access;

Schedule 4 Information Commissioner amendments

Part 1 Main amendments

52 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

(d) a decision to defer the provision of access to a document

(other than a document covered by paragraph 21(1)(d)

(Parliament should be informed of contents));

(e) a decision under section 29 relating to imposition of a charge

or the amount of a charge;

(f) a decision to give access to a document to a qualified person

under subsection 47F(5);

(g) a decision refusing to amend a record of personal information

in accordance with an application made under section 48;

(h) a decision refusing to annotate a record of personal

information in accordance with an application made under

section 48.

Note:

If a decision is not made on a request under section 15 within the time

required by that section, a decision is taken to have been made to

refuse to give access to a document in accordance with the request

(see section 15AC).

53B What is an access grant decision?

access grant decision is a decision covered by the following

table:

Note:

The table covers documents that may be conditionally exempt under

section 47B (item 1), 47G (item 2) or 47F (items 3 and 4). Access

must generally be given to a conditionally exempt document unless it

would be contrary to the public interest (see section 11A).

Access grant decisions

Item

If, in relation to a request for

access to a document ...

the access grant decision is ...

consultation with a State under

section 26A (documents

affecting Commonwealth-State

relations) is required

a decision of an agency or Minister to give

the applicant access to the document (or an

edited copy of the document) because:

(a) the document is not conditionally

exempt under section 47B

(Commonwealth-State relations); or

(b) access to the document would not, on

balance, be contrary to the public

interest for the purposes of subsection

11A(5).

section 27 (business

documents) applies in relation

a decision of an agency or Minister to give

access to the document (or an edited copy

Information Commissioner amendments Schedule 4

Main amendments Part 1

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 53

Access grant decisions

Item

If, in relation to a request for

access to a document ...

the access grant decision is ...

to business information in the

document

of the document) because:

(a) the document is not conditionally

exempt under section 47G (business

documents); or

(b) access to the document would not, on

balance, be contrary to the public

interest for the purposes of subsection

11A(5).

3 section

27A

(documents

affecting personal privacy)

applies in relation to personal

information in the document

about a living person

a decision of an agency or Minister to give

the applicant access to the document (or an

edited copy of the document) because:

(a) the document is not conditionally

exempt under section 47F (personal

privacy); or

(b) access to the document would not, on

balance, be contrary to the public

interest for the purposes of subsection

11A(5).

4 section

27A

(documents

affecting personal privacy)

applies in relation to personal

information in the document

about a deceased person

a decision of an agency or Minister to give

the applicant access to the document (or an

edited copy of the document) because:

(a) the document is not conditionally

exempt under section 47F (personal

privacy); or

(b) access to the document would not, on

balance, be contrary to the public

interest for the purposes of subsection

11A(5).

53C Internal review--who is an affected third party?

The following table has effect:

Who is an affected third party?

Item

If, in relation to a request for access to a

document ...

the affected third

party for the

document is ...

consultation with a State under section 26A

the State.

Schedule 4 Information Commissioner amendments

Part 1 Main amendments

54 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

Who is an affected third party?

Item

If, in relation to a request for access to a

document ...

the affected third

party for the

document is ...

(documents affecting Commonwealth-State relations)

is required

section 27 (business documents) applies in relation to

business information in the document

the person or

organisation

concerned (within

the meaning of

section 27).

section 27A (documents affecting personal privacy)

applies in relation to personal information in the

document about a living person

the person.

section 27A (documents affecting personal privacy)

applies in relation to personal information in the

document about a deceased person

the legal personal

representative of the

deceased person.

54 Internal review--access refusal decision

(1) This section applies if an access refusal decision is made in relation

to a request to an agency for access to a document, other than a

decision made personally by the principal officer of the agency or

the responsible Minister.

(2) The applicant in relation to the request may apply under this Part

for the review (the internal review) of the access refusal decision.

54A Internal review--access grant decision

(1) This section applies if an access grant decision is made in relation

to a request to an agency for access to a document, other than a

decision made personally by the principal officer of the agency or

the responsible Minister.

(2) The affected third party for the document may apply under this

Part for the review (the internal review) of the access grant

decision.

Note: For

affected third party, see section 53C.

Information Commissioner amendments Schedule 4

Main amendments Part 1

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 55

54B Internal review--application for review

(1) An application for internal review must be in writing and must be

made:

(a) within 30 days, or such further period as the agency allows,

after the day the decision is notified to the applicant for

internal review (the internal review applicant); or

(b) in the case of an access refusal decision of a kind mentioned

in paragraph 53A(b), (c) or (f), within whichever of the

following is the longer period:

(i) 30 days, or such further period as the agency allows,

after the day the decision is notified to the internal

review applicant;

(ii) 15 days after the day the access referred to in that

paragraph was given (or purported to be given).

(2) A decision by an agency to allow a further period for making an

application may be made whether or not the time for making such

an application has already expired.

(3) The agency's power to allow a further period for making an

application may be exercised by an officer of the agency who is:

(a) acting within the scope of authority exercisable by him or

her; and

(b) acting in accordance with arrangements approved by the

responsible Minister or principal officer of the agency.

54C Internal review--decision on internal review

Scope

(1) This section applies if an application for internal review of an

access refusal decision or an access grant decision (the original

decision) is made in accordance with this Part.

Decision

(2) The agency must, as soon as practicable, arrange for a person

(other than the person who made the original decision) to review

the decision.

Schedule 4 Information Commissioner amendments

Part 1 Main amendments

56 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

(3) The person must make a fresh decision on behalf of the agency

within 30 days after the day on which the application was received

by, or on behalf of, the agency.

Notice of decision

(4) Section 26 extends to a decision made under this section.

54D Internal review--deemed affirmation of original decision

(1) This section applies if:

(a) an application for internal review has been made to an

agency; and

(b) the period (the initial decision period) of 30 days (as

mentioned in subsection 54C(3)) has ended since the day the

application for internal review was received by the agency;

and

by the internal review applicant.

(2) Subject to this section:

(a) the principal officer of the agency is taken to have made a

decision personally affirming the original decision 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 internal review applicant on the same day.

Agency may apply for further time

(3) However, the agency may apply, in writing, to the Information

Commissioner for further time to deal with the application.

(4) The Information Commissioner may allow further time considered

appropriate by the Information Commissioner for the agency to

deal with the application.

(5) If the Information Commissioner allows further time the

Information Commissioner may impose any condition that he or

she considers appropriate.

(6) Subsection (2) (deemed affirmation) does not apply, and is taken

never to have applied, if the agency:

Information Commissioner amendments Schedule 4

Main amendments Part 1

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 57

(a) makes a decision on the application within the further time

allowed; and

(b) complies with any condition imposed under subsection (5).

(7) However, subsection (2) (deemed affirmation) applies as if the

initial decision period were extended by the time allowed by the

Information Commissioner under subsection (4) if the agency:

(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 (5).

No further time allowed

(8) If subsection (7) (deemed affirmation after allowance of further

time) applies, the Information Commissioner does not have the

power to allow further time under this section in relation to the

decision taken to be made under subsection (2) in its operation as

affected by subsection (7).

54E Internal review--decisions to which this Part does not apply

This Part does not apply in relation to:

(a) a decision on internal review; or

(b) a decision in relation to the provision of access to a document

upon a request that is taken to have been made under

section 15AC or 51DA.

Part VII--Review by Information Commissioner

Division 1--Guide to this Part

54F Review by the Information Commissioner--guide

This Part sets up a system for review of decisions by the

Information Commissioner.

Division 2 sets out the key concepts for the Part.

Division 3 sets out the types of decisions that are reviewable.

Schedule 4 Information Commissioner amendments

Part 1 Main amendments

58 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

Division 4 provides for the making of applications for review by

the Information Commissioner, including the time limits within

which applications must be made.

The Information Commissioner may make preliminary inquiries

before deciding whether or not to conduct a review. In certain

circumstances, the Information Commissioner may decide not to

review a decision (or a part of a decision) (see Division 5).

Division 6 provides for the procedure in an IC review, including

the parties to the proceeding, circumstances in which a hearing

may be held and who bears the onus of proof.

The Information Commissioner may refer questions of law to the

Federal Court of Australia at any time during the review.

The Information Commissioner must make a decision on the

review in accordance with Division 7.

The Information Commissioner has powers to gather information

for the purposes of an IC review (see Division 8).

In certain circumstances, the Inspector-General of Intelligence and

Security must be called to give evidence (see Division 9).

An application for review of a decision of the Information

Commissioner may be made to the Administrative Appeals

Tribunal. A review party may appeal to the Federal Court of

Australia, on a question of law, from a decision of the Information

Commissioner (see Division 10).

Division 2--Key concepts

54G Key concepts--what is an IC review?

IC review is a review of an IC reviewable decision undertaken

by the Information Commissioner under this Part.

Note:

IC review is short for Information Commissioner review.

Information Commissioner amendments Schedule 4

Main amendments Part 1

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 59

54H Key concepts--what is an IC review application?

IC review application is an application made under Division 4

for the review of an IC reviewable decision.

Note:

IC review application is short for Information Commissioner review

application.

54J Key concepts--who is an IC review applicant?

IC review applicant is a person who applies for an IC review

under section 54L or 54M.

Note:

IC review applicant is short for Information Commissioner review

applicant.

54K Key concepts--what is an IC reviewable decision?

IC reviewable decision is:

(a) a decision covered by subsection 54L(2) (access refusal

decisions); or

(b) a decision covered by subsection 54M(2) (access grant

decisions).

Note:

IC reviewable decision is short for Information Commissioner

reviewable decision.

Division 3--IC reviewable decisions

54L IC reviewable decisions--access refusal decisions

(1) An application may be made to the Information Commissioner for

a review of a decision covered by subsection (2).

(2) This subsection covers the following decisions:

(a) an access refusal decision;

(b) a decision made by an agency on internal review of an access

refusal decision (see section 54C);

application for internal review of an access refusal decision

(under section 54B).

Note 1:

An application for the review of an access refusal decision made for

the purposes of paragraph (a) may be made regardless of whether the

decision was the subject of internal review.

Schedule 4 Information Commissioner amendments

Part 1 Main amendments

60 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

Note 2:

If no decision is made on internal review within 30 days, a decision to

affirm the original access refusal decision is taken to have been made

(see section 54D).

(3) The IC review application may be made by, or on behalf of, the

person who made the request to which the decision relates.

54M IC reviewable decisions--access grant decisions

(1) An application may be made to the Information Commissioner for

a review of a decision covered by subsection (2).

(2) This subsection covers the following decisions:

(a) an access grant decision;

(b) a decision made by an agency on internal review of an access

grant decision (see section 54C).

Note:

If no decision is made on internal review within 30 days, a decision to

affirm the original access grant decision is taken to have been made

(see section 54D).

(3) The IC review application may be made by, or on behalf of, the

following:

(a) in any case--an affected third party for the document in

relation to which the decision covered by subsection (2) was

made;

(b) in a case covered by paragraph (2)(b)--the person who made

the request to which the decision relates.

Note: For

affected third party, see section 53C.

Division 4--IC review applications

Subdivision A--Making an application

54N IC review applications--application

Content of application

(1) An IC review application must be in writing, and must:

(a) give details of how notices under this Part may be sent to the

IC review applicant (for example, by providing an electronic

address to which notices may be sent by electronic

communication); and

Information Commissioner amendments Schedule 4

Main amendments Part 1

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 61

(b) include a copy of the notice given under section 26 of the IC

reviewable decision for which an IC review is sought.

Note:

For who may make an IC review application, see sections 54L and

54M.

(2) The IC review application may contain particulars of the basis on

which the IC review applicant disputes the IC reviewable decision.

(3) The Office of the Information Commissioner must provide

appropriate assistance to a person who:

(a) wishes to make an IC review application; and

(b) requires assistance to prepare the IC review application.

Delivery of application

(4) The IC review application must be sent to the Information

Commissioner. The IC review application may be sent in any of

the following ways:

(a) delivery to the Information Commissioner at the address of

the Information Commissioner specified in a current

telephone directory;

(b) postage by pre-paid post to an address mentioned in

paragraph (a);

specified by the Information Commissioner.

54P IC review applications--requirement to notify affected third

parties

Scope

(1) This section applies if:

(a) an agency or Minister decides not to give access to a

document to which a consultation requirement applies under

section 26A, 27 or 27A; and

(b) an IC review application is made for an IC review of that

decision.

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Requirement to notify

(2) The agency or Minister must, as soon as practicable, take all

reasonable steps to notify the affected third party for the document

of the application.

Note 1:

For affected third party, see section 53C.

Note 2:

The agency or Minister is not required to give notice if the

Information Commissioner orders that it is not appropriate to do so in

the circumstances (see section 54Q).

(3) The agency or Minister must, as soon as practicable, give a copy of

the notice to the Information Commissioner.

54Q IC review applications--circumstances in which not giving

notice is appropriate

(1) This section applies in relation to a document to which a

consultation requirement applies under section 27 or 27A.

(2) An agency or Minister is not required to notify an affected third

party for the document under subsection 54P(2) if:

(a) the agency or the Minister applies to the Information

Commissioner for an order that it would not be appropriate to

notify the affected third party in the circumstances covered

by subsection (3); and

(b) the Information Commissioner makes the order.

Note: For

affected third party, see section 53C.

(3) The circumstances covered by this subsection are whether

notifying the affected third party would, or could reasonably be

expected to, do any of the following:

(a) prejudice the conduct of an investigation of a breach, or

possible breach, of the law, or a failure, or possible failure, to

comply with a law relating to taxation;

(b) prejudice the enforcement or proper administration of the law

in a particular instance;

identity of a confidential source of information, or the

non-existence of a confidential source of information, in

relation to the enforcement or administration of the law;

(d) endanger the life or physical safety of any person;

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(e) cause damage to the security, defence or international

relations of the Commonwealth.

54R IC review applications--withdrawal

(1) An IC review applicant may, in writing, withdraw the IC review

application at any time before the Information Commissioner

makes a decision under section 55K.

(2) If the IC review application is withdrawn, it is taken never to have

been made.

Subdivision B--Time limits

54S IC review applications--time limits

Access refusal decisions

(1) An IC review application in relation to a decision covered by

subsection 54L(2) (access refusal decisions) must be made within

60 days after the day notice of the IC reviewable decision was

given under section 26.

Access grant decisions

(2) An IC review application in relation to a decision covered by

subsection 54M(2) (access grant decisions) must be made within

30 days after:

(a) if a decision is made on internal review of the decision--the

day notice of the decision under section 54C was given to the

affected third party for the document in relation to which the

decision is made; or

(b) otherwise--the day notice under section 26A, 27 or 27A was

given to the affected third party for the document in relation

to which the decision was made.

Note: For

affected third party, see section 53C.

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54T IC review applications--extension of time

Application for extension of time

(1) A person may apply to the Information Commissioner for an

extension of time for making an IC review application.

(2) The Information Commissioner may extend the time if the

Information Commissioner is satisfied that it is reasonable in all

the circumstances to do so.

(3) The time for making an IC review application may be extended

under this section although the period mentioned in section 54S has

ended.

Requirement to notify

(4) Before determining an application under subsection (1), the

Information Commissioner may require the IC review applicant to

give notice of the application to a specified person or persons that

the Information Commissioner considers is affected by the

application.

Person may oppose application

(5) A person to whom notice is given under subsection (4) may notify

the Information Commissioner in writing that he or she opposes the

application under subsection (1). The person must do so within the

time required by the Information Commissioner.

Reasonable opportunity to be heard

(6) If notice is given under subsection (5), the Information

Commissioner must give the IC review applicant and the person to

whom notice has been given under subsection (4) a reasonable

opportunity to present their cases before determining the

application under subsection (1).

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Division 5--Decision to review

54U Decision to review--interpretation

This Division applies to a part of an IC review application as if a

reference to an IC review application were a reference to the part

of the IC review application.

54V Decision to review--preliminary inquiries

The Information Commissioner may make inquiries of the review

parties for the purpose of determining whether or not to undertake

an IC review.

54W Decision to review--discretion not to review

The Information Commissioner may decide not to undertake an IC

review, or not to continue to undertake an IC review, if:

(a) the Information Commissioner is satisfied of any of the

following:

(i) the IC review application is frivolous, vexatious,

misconceived, lacking in substance or not made in good

faith;

(ii) the IC review applicant has failed to cooperate in

progressing the IC review application, or the IC review,

without reasonable excuse;

(iii) the Information Commissioner cannot contact the IC

review applicant after making reasonable attempts; or

(b) the Information Commissioner is satisfied that the interests of

the administration of this Act make it desirable that the IC

reviewable decision be considered by the Tribunal; or

Information Commissioner.

Note 1:

The Information Commissioner may make a decision under this

section to review only part of an IC reviewable decision (see

section 54U).

Note 2:

If the Information Commissioner makes a decision under

paragraph (b), an application for review may be made to the Tribunal

for review of the IC reviewable decision (see section 57A).

Note 3:

Division 1 of Part VIII sets out the circumstances in which a vexatious

applicant declaration may be made in relation to a person. A

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declaration may permit the Information Commissioner to refuse to

consider an IC review application if the person makes the IC review

application under this section without the written permission of the

Information Commissioner.

54X Decision to review--notice requirement if discretion not to

review exercised

(1) This section applies if the Information Commissioner decides not

to undertake an IC review, or not to continue to undertake an IC

review.

(2) The Information Commissioner must, as soon as practicable, notify

the review parties of the decision in writing.

(3) The notice must:

(a) state the reasons for the Information Commissioner's

decision; and

(b) if the Information Commissioner makes a decision under

paragraph 54W(b)--state that an application for review of

the relevant IC reviewable decision may be made to the

Tribunal under section 57A.

Note:

Subsection 29(2) of the Administrative Appeals Tribunal Act 1975 sets

out the time within which the application for review must be made.

(4) However, the notice must not include:

(a) exempt matter; or

(b) information of the kind referred to in subsection 25(1).

Note:

Subsection 25(1) deals with information about the existence or

otherwise of certain documents.

54Y Decision to review--actual decisions made after IC review has

commenced

(1) This section applies if:

(a) an agency or Minister has been taken to have made a decision

(the deemed decision) under subsection 15AC(3), 51DA(2)

or 54D(2); and

(b) a person makes an IC review application for review of the

deemed decision; and

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section 54W (decision not to review) or 55K (decision on

review) in relation to the deemed decision; and

(d) subsection 15AC(7), 51DA(6) or 54D(6) applies in relation

to a decision (the actual decision) made by the agency or

Minister.

(2) The Information Commissioner must deal with the IC review

application for review of the deemed decision as if it were an IC

review application for the review of the actual decision, subject

otherwise to this Part.

Note:

When making the actual decision, a consultation requirement under

section 26A (documents affecting Commonwealth-State relations), 27

(business documents) or 27A (documents affecting personal privacy)

may apply.

Division 6--Procedure in IC review

54Z Procedure in IC review--general notice requirement

Before undertaking an IC review, the Information Commissioner

must inform:

(a) the person, agency or Minister who made the decision; or

(b) if the IC review application is made under section 54M

(access grant decisions)--the person who made the request.

55 Procedure in IC review--general

(1) The Information Commissioner may, for the purposes of an IC

review, review an IC reviewable decision by considering the

documents or other material lodged with or provided to the

Information Commissioner, and without holding a hearing, if:

(a) it appears to the Information Commissioner that the issues for

determination on the IC review can be adequately determined

in the absence of the review parties; and

(b) the Information Commissioner is satisfied that there are no

unusual circumstances that would warrant the Information

Commissioner holding a hearing; and

section 55B.

(2) The Information Commissioner may otherwise:

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(a) conduct an IC review in whatever way he or she considers

appropriate; and

(b) use any technique that the Information Commissioner

considers appropriate to facilitate an agreed resolution of

matters at issue in the IC review (for example by using

techniques that are used in alternative dispute resolution

processes); and

communication; and

(d) obtain any information from any person, and make any

inquiries, that he or she considers appropriate; and

(e) give written directions as to the procedure to be followed in

relation to:

(i) IC reviews generally; or

(ii) a particular IC review.

Example 1: The Information Commissioner may allow a person under

paragraph (2)(c) to participate in a hearing by telephone.

Example 2: The Information Commissioner may give written directions under

subparagraph (2)(e)(ii) as to the procedure to be followed when

dealing with confidential documents in a particular IC review.

(3) A direction given under paragraph (2)(e) is not a legislative

instrument.

(4) Without limiting subsection (2), the Information Commissioner

must, in relation to an IC review:

(a) conduct the IC review with as little formality and as little

technicality as is possible given:

(i) the requirements of this Act; and

(ii) the requirements of any other law; and

(iii) a proper consideration of the matters before the

Information Commissioner; and

(b) ensure that each review party is given a reasonable

opportunity to present his or her case; and

given the matters mentioned in subparagraphs (a)(i) to (iii).

(5) If the Information Commissioner holds a hearing, the Information

Commissioner:

(a) must hold the hearing in public, unless the Information

Commissioner is satisfied that it is not desirable to do so:

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(i) because of the confidential nature of any evidence or

matter relating to the proceeding; or

(ii) for any other reason; and

(b) is not bound by the rules of evidence; and

party (or a review party's representative) if it is necessary to

do so to prevent disclosure to the review party (or the review

party's representative) of any evidence or matter relating to

the proceeding that is of a confidential nature.

55A Procedure in IC review--parties to proceeding

Who are the review parties?

(1) The parties to an IC review (the review parties) are as follows:

(a) the IC review applicant;

(b) the principal officer of the agency, or the Minister, to whom

the request was made;

IC review application under section 54P (requirement to

notify affected third parties);

(d) a party to the proceeding under subsection (3).

Note: For

affected third party, see section 53C.

Application to become a review party

(2) If an IC review application is made in relation to an IC reviewable

decision, a person whose interests are affected by the IC

reviewable decision may apply, in writing, to the Information

Commissioner to be a review party.

(3) The Information Commissioner may, by notice in writing, make a

person who applies under subsection (2) an IC review party.

55B Procedure in IC review--application for hearing

(1) At any time during an IC review, a review party may apply to the

Information Commissioner requesting that the Information

Commissioner hold a hearing for the purposes of the IC review.

(2) The Information Commissioner must notify the other review

parties of the application.

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(3) The Information Commissioner must:

(a) give all review parties a reasonable opportunity to make

submissions on the application; and

(b) decide whether or not to hold a hearing.

55C Procedure in IC review--representation

At the hearing of a proceeding before the Information

Commissioner, a review party may:

(a) appear in person; or

(b) be represented by another person.

55D Procedure in IC review--onus

(1) Subject to subsection (2), in an IC review in relation to a request or

an application under section 48, the agency or Minister concerned

has the onus of establishing that:

(a) a decision given in respect of the request or application is

justified; or

(b) the Information Commissioner should give a decision

adverse to the IC review applicant.

(2) In an IC review of a decision for which an IC review application is

made under section 54M (access grant decisions), the affected third

party for the document in relation to which the decision was made

has the onus of establishing that:

(a) a decision refusing the request is justified; or

(b) the Information Commissioner should give a decision

adverse to the person who made the request.

Note: For

affected third party, see section 53C.

55E Procedure in IC review--inadequate reasons from decision

maker

(1) This section applies if:

(a) an IC review application is made in relation to an IC

reviewable decision made by an agency or a Minister; and

(b) the agency or Minister was required to provide a statement of

reasons under section 26 for the decision to the person who

made the request; and

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(i) no statement has been provided; or

(ii) the statement that has been provided is inadequate.

(2) The Information Commissioner may, by notice in writing, require

the agency or Minister to provide an adequate statement of reasons

as mentioned in subsection 26(1).

(3) If the Information Commissioner gives notice under subsection (2),

the agency or Minister must provide the adequate statement of

reasons to the IC review applicant and the Information

Commissioner within:

(a) the period specified in the notice; or

(b) if no period is specified in the notice--28 days after the day

the notice was given to the agency or Minister.

55F Procedure in IC review--review parties reach agreement

(1) This section applies if, at any stage of an IC review:

(a) the review parties reach agreement as to the terms of a

decision on an IC review:

(i) on the IC review application; or

(ii) in relation to a part of the IC review application; or

(iii) in relation to a matter arising out of the IC review

application; and

(b) the agreement is acceptable to all of the review parties; and

or on behalf of, the review parties and given to the

Information Commissioner; and

(d) the Information Commissioner is satisfied that a decision in

those terms or consistent with those terms would be within

the powers of the Information Commissioner.

(2) The Information Commissioner may, if satisfied that it is

appropriate:

(a) in the case of an agreement as to the terms of a decision of

the Information Commissioner on the IC review--make a

decision in accordance with those terms without completing

the IC review; or

(b) in the case of an agreement that relates to a part of the

proceeding or a matter arising out of the proceeding--in the

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Information Commissioner's decision on the IC review, give

effect to the terms of the agreement without completing the

IC review with respect to the part.

55G Procedure in IC review--revocation or variation of access

refusal decision

(1) An agency or Minister may vary (or set aside and substitute) an

access refusal decision (the original decision) in relation to a

request or an application under section 48 at any time during an IC

review of the access refusal decision if the variation or substitution

(the revised decision) would have an effect of:

(a) giving access to a document in accordance with the request;

(b) relieving the IC review applicant from liability to pay a

charge; or

annotated in accordance with the application.

Note:

When making the revised decision, a consultation requirement under

section 26A (documents affecting Commonwealth-State relations), 27

(business documents) or 27A (documents affecting personal privacy)

may apply.

(2) If an agency or Minister varies (or sets aside and substitutes) an

access refusal decision under subsection (1):

(a) the agency or Minister must, in writing, notify the

Information Commissioner as soon as practicable after the

agency or Minister makes the variation or substitution; and

(b) the Information Commissioner must deal with the IC review

application for review of the original decision as if it were an

IC review application for the review of the varied or

substituted decision, subject otherwise to this Part.

55H Procedure in IC review--reference of questions of law to

Federal Court of Australia

(1) The Information Commissioner may, at any time during an IC

review, refer a question of law arising in an IC review to the

Federal Court of Australia for decision.

(2) The Information Commissioner may refer the question of law:

(a) on the application of a review party; or

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(b) on the Information Commissioner's initiative.

(3) The Federal Court of Australia has jurisdiction to hear and

determine a question of law referred to it.

(4) The jurisdiction of the Federal Court of Australia may be exercised

by a single judge of the Court.

(5) If a question of law is referred, the Information Commissioner

must not, for the purposes of the IC review:

(a) give a decision to which the question is relevant before the

Federal Court of Australia makes a decision in relation to the

reference; or

(b) proceed in a manner, or make a decision, that is inconsistent

with the opinion of the Federal Court of Australia on the

question.

55J Procedure in IC review--sending of documents to, and

disclosure of documents by, the Federal Court of

Australia

If a question of law is referred under section 55H:

(a) the Information Commissioner must cause all documents and

information in the possession of the Information

Commissioner that relate to the IC review and to the

reference to be sent to the Federal Court of Australia; and

(b) at the conclusion of the proceeding before the Federal Court

of Australia, the Court must cause the documents to be

returned to the Information Commissioner.

Division 7--Decision on IC review

55K Decision on IC review--decision of Information Commissioner

(1) After undertaking an IC review, the Information Commissioner

must make a decision in writing:

(a) affirming the IC reviewable decision; or

(b) varying the IC reviewable decision; or

decision in substitution for that decision.

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(2) For the purposes of implementing a decision on an IC review, the

Information Commissioner may perform the functions, and

exercise the powers, of the person who made the IC reviewable

decision.

(3) A decision of the Information Commissioner on an IC review has

the same effect as a decision of the agency or Minister who made

the IC reviewable decision.

Content of the decision

(4) A decision on an IC review must include the following:

(a) a statement of reasons for the decision;

(b) a statement of the rights of the review parties to apply to the

Tribunal for review of the decision under section 57A.

(5) However, a decision on an IC review must not include:

(a) information of the kind referred to in subsection 25(1); or

(b)

exempt

matter.

Note:

Subsection 25(1) deals with information about the existence or

otherwise of certain documents.

Providing copy of decision

(6) The Information Commissioner must give a copy of a decision on

an IC review to each review party.

Copy of decision prima facie evidence

(7) A document is prima facie evidence of a decision on an IC review

if:

(a) the document purports to be a copy of the decision; and

(b) the document purports to be certified by, or on behalf of, the

Information Commissioner to be a true copy of the decision.

Publication requirement

(8) The Information Commissioner must publish a decision on an IC

review to members of the public generally.

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55L Decision on IC review--no power to give access to exempt

documents

(1) This section applies if it is established in proceedings on an IC

review that a document is an exempt document.

(2) The Information Commissioner does not have power to decide that

access to the document is to be given, so far as it contains exempt

matter.

55M Decision on IC review--limitation on amending records

(1) The Information Commissioner may, in a decision under

section 55K, make a decision that requires, or has the effect of

requiring, that an amendment be made to a record that relates to a

record of an opinion only if he or she is satisfied of either (or both)

of the following:

(a) the opinion was based on a mistake of fact;

(b) the author of the opinion was biased, unqualified to form the

opinion or acted improperly in conducting the factual

inquiries that led to the formation of the opinion.

(2) The Information Commissioner must not, in a decision under

section 55K, make a decision that requires, or has the effect of

requiring, that an amendment be made to a record if he or she is

satisfied of either of the following:

(a) the record is a record of a decision, under an enactment, by a

court, tribunal, authority or person;

(b) the decision whether to amend the record involves the

determination of a question that the person seeking

amendment of the record is, or has been, entitled to have

determined by the agency (on internal review), the

Information Commissioner, a court or tribunal.

55N Decision on IC review--obligation to comply with decision

A principal officer of an agency or a Minister must comply with a

decision of the Information Commissioner under section 55K on an

IC review.

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55P Decision on IC review--enforcement of decision against agency

(1) If the principal officer of an agency or a Minister fails to comply

with section 55N, an application may be made to the Federal Court

of Australia for an order directing the principal officer or Minister

to comply.

(2) The application may be made by:

(a) the Information Commissioner; or

(b) the IC review applicant.

(3) The court may make any other orders that it thinks fit to secure

compliance by the principal officer or the Minister.

(4) An application under subsection (1) may only be made if:

(a) the time has ended for making an application to the Tribunal

under section 57A for review of the Information

Commissioner's decision; and

(b) such an application is not made before the end of the time.

55Q Decision on IC review--correction of errors

(1) The Information Commissioner may correct an obvious error in a

decision under section 55K of the Information Commissioner on an

IC review.

Example: The following are examples of obvious errors:

(a) an obvious clerical or typographical error in the text of the

decision or statement of reasons;

(b) an inconsistency between the decision and the statement of

reasons.

(2) The Information Commissioner may correct an obvious error:

(a) on an application by a review party; or

(b) on the Information Commissioner's initiative.

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Division 8--Information gathering powers

55R Information gathering powers--obliging production of

information and documents

Scope

(1) This section applies if the Information Commissioner has reason to

believe that a person has information, or a document, relevant to an

IC review.

(2) This section applies subject to sections 55T (exempt documents

generally) and 55U (particular exempt documents).

Notice to produce

(3) The Information Commissioner may, by written notice, require a

person to, for the purposes of an IC review:

(a) give the Information Commissioner information of a kind

specified by the notice; or

(b) produce to the Information Commissioner a document

specified by the notice.

(4) The notice must:

(a) be in writing; and

(b) specify the place at which the person must comply with the

notice; and

(i) within a specified period that is not less than 14 days

after the day on which the person is given the notice; or

(ii) at a specified time that is not less than 14 days after the

time at which the person is given the notice.

Offence for failure to comply

(5) A person commits an offence if:

(a) the person is subject to a requirement specified in a notice

under subsection (3); and

(b) the person engages in conduct; and

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Penalty for a contravention of this subsection: Imprisonment for 6

months.

Note:

Chapter 2 of the Criminal Code sets out the general principles of

criminal responsibility.

55S Information gathering powers--dealings with documents

What the Information Commissioner may do with documents

(1) The Information Commissioner may do any of the following in

relation to any documents produced in accordance with a notice

under subsection 55R(3):

(a) take possession of the documents;

(b) make copies of the documents;

(d) hold the documents for a period that is necessary for the

purposes of the IC review.

Information Commissioner must permit access by those entitled

(2) For the purposes of an IC review, the Information Commissioner

must permit a person to inspect a document that the person would

be entitled to inspect if the document were not held by the

Information Commissioner.

(3) The Information Commissioner must permit the person to inspect

the document at any reasonable time.

55T Information gathering powers--production of exempt

documents generally

Scope

(1) This section applies to an IC review of a decision in relation to a

document if:

(a) the principal officer of an agency or a Minister claims that

the document is an exempt document; and

(b) section 55U does not apply to the document.

Note:

Section 55U deals with the production of documents that are claimed

to be exempt documents under section 33 (national security etc.) or 34

(Cabinet documents).

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Exempt document produced under obligation

(2) The Information Commissioner may, for the purposes of deciding

whether the document is an exempt document, require the

document to be produced.

(3) If the Information Commissioner is satisfied that the document is

an exempt document, the Information Commissioner must return

the document to the person by whom it was produced.

Production to determine whether access can be given to part of

document

(4) The Information Commissioner may require the production of an

exempt document for the purpose of determining whether it is

practicable for an agency or a Minister to give access to an edited

copy of the document.

(5) If the document is produced to the Information Commissioner

(whether under this section or voluntarily), only the following

persons may have access to the document, or to the contents of the

document:

(a) the Information Commissioner;

(b) a member of the staff of the Information Commissioner in the

course of the performance of his or her duties as a member of

that staff.

55U Information gathering powers--production of national security

and cabinet documents

(1) This section applies to an IC review of a decision in relation to a

document that is claimed to be an exempt document under

section 33 (national security documents) or 34 (cabinet

documents).

(2) The Information Commissioner may only require the production of

the document in accordance with this section.

(3) If the Information Commissioner is not satisfied by evidence on

affidavit or otherwise that the document is an exempt document

under section 33 or 34, the Information Commissioner may require

the document to be produced for inspection by the Information

Commissioner.

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(4) If the Information Commissioner is satisfied that the document is

an exempt document, the Information Commissioner must return

the document to the person by whom it was produced without

permitting a person to have access to the document or disclosing

the contents of the document to a person, unless the person is:

(a) the Information Commissioner; or

(b) a member of the staff of the Information Commissioner in the

course of the performance of his or her duties as a member of

that staff; or

55ZD(3)(a)--the Inspector-General of Intelligence and

Security.

55V Information gathering powers--further searches for a

document

(1) This section applies to an IC review in relation to a request for

access to a document if:

(a) access to the document is refused under section 24A

(document cannot be found etc.); or

(b) access is purportedly given to the document (amongst others

to which the request relates), but is not actually given.

(2) The Information Commissioner may require the agency or Minister

concerned to conduct further searches for the document.

55W Information gathering powers--obliging persons to appear

Notice to appear

(1) The Information Commissioner may, by written notice, require a

person to appear before the Information Commissioner to answer

questions for the purposes of an IC review.

(2) The notice must:

(a) be in writing; and

(b) state that the person must comply with the notice at a

specified time that is not less than 14 days after the time at

which the person is given the notice; and

notice.

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Offence for failure to comply

(3) A person commits an offence if:

(a) the person is subject to a requirement specified in a notice

under subsection (1); and

(b) the person engages in conduct; and

Penalty for a contravention of this subsection: 6 months

imprisonment.

Note:

Chapter 2 of the Criminal Code sets out the general principles of

criminal responsibility.

55X Information gathering powers--administration of oath or

affirmation

(1) If, by a notice under subsection 55W(1), the Information

Commissioner requires a person to appear before him or her, the

Information Commissioner may:

(a) administer an oath or affirmation to the person; and

(b) examine the person on oath or affirmation.

(2) The oath or affirmation to be taken or made by a person for the

purposes of this section is an oath or affirmation that the answers

the person will give will be true.

(3) A person commits an offence if:

(a) the person is required under this section to be examined on

oath or affirmation; and

(b) the person engages in conduct; and

Penalty for a contravention of this subsection: 6 months

imprisonment.

Note:

Chapter 2 of the Criminal Code sets out the general principles of

criminal responsibility.

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55Y Information gathering powers--no loss of legal professional

privilege

Information or a document does not cease to be the subject of legal

professional privilege merely because it is given, provided,

produced or referred to for the purposes of this Part.

55Z Information gathering powers--protection from liability

(1) This section applies if a person does any of the following in good

faith for the purposes of an IC review:

(a)

gives

information;

(b)

produces

document;

(2) If this section applies, then:

(a) civil proceedings do not lie against a person because the

person does any of the matters mentioned in

paragraphs (1)(a) to (c); and

(b) the person is not liable for a penalty under a provision of any

law because the person does any of those matters.

(3) This section applies whether or not the person is required to do a

thing mentioned in subsection (1) in accordance with this Division.

Division 9--Evidence by Inspector-General of Intelligence

and Security

55ZA Evidence by Inspector-General of Intelligence and Security--

scope

This Division applies in an IC review of a decision in relation to a

document that is claimed to be an exempt document under

section 33 (national security documents).

55ZB Evidence by Inspector-General of Intelligence and Security--

request to give evidence

(1) Before determining that a document is not an exempt document

under section 33, the Information Commissioner must request the

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Inspector-General of Intelligence and Security to appear personally

and give evidence on:

(a) the damage that would, or could reasonably be expected to,

be caused to:

(i) the security of the Commonwealth; or

(ii) the defence of the Commonwealth; or

(iii) the international relations of the Commonwealth;

if access to the document were given in accordance with the

request; or

(b) whether giving access to the document in accordance with

the request would divulge any information or matter

communicated in confidence by, or on behalf of, a foreign

government, an authority of a foreign government or an

international organisation to the Government of the

Commonwealth, to an authority of the Commonwealth or to a

person receiving the communication on behalf of the

Commonwealth or of an authority of the Commonwealth.

(2) Before determining that an agency or Minister must grant access to

a copy of the document with deletions, the Information

Commissioner must request the Inspector-General to appear

personally and give evidence on:

(a) the damage that would, or could reasonably be expected to,

be caused to:

(i) the security of the Commonwealth; or

(ii) the defence of the Commonwealth; or

(iii) the international relations of the Commonwealth;

if the proposed deletions were not made; or

(b) whether giving access to the document without the proposed

deletions would divulge any information or matter

communicated in confidence by, or on behalf of, a foreign

government, an authority of a foreign government or an

international organisation to the Government of the

Commonwealth, to an authority of the Commonwealth or to a

person receiving the communication on behalf of the

Commonwealth or of an authority of the Commonwealth.

(3) Before hearing the evidence of the Inspector-General, the

Information Commissioner must hear any evidence to be given or

submissions to be made by, or on behalf of, the agency to which, or

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the Minister to whom, the request was made for access to the

document.

(4) The Information Commissioner is not bound by any opinion of the

Inspector-General expressed while giving evidence under this

Division.

55ZC Evidence by Inspector-General of Intelligence and Security--

compliance with request

The Inspector-General of Intelligence and Security must comply

with a request under section 55ZB unless, in the opinion of the

Inspector-General, the Inspector-General is not appropriately

qualified to give evidence on the matters in relation to which the

Inspector-General has been requested to give evidence.

55ZD Evidence by Inspector-General of Intelligence and Security--

procedural matters

(1) This section applies for the purposes of enabling the

Inspector-General of Intelligence and Security to comply with a

request under section 55ZB.

(2) The Information Commissioner must allow the Inspector-General

to take possession of, and make copies of or take extracts from, any

document given to the Information Commissioner for the purposes

of the proceeding.

(3) The Inspector-General may require the production of the

following:

(a) the document that is claimed to be an exempt document

under section 33 by the agency to which or the Minister to

whom the request was made for access to the document;

(b) any document of an agency or official document of a

Minister that relates to the document mentioned in

subsection (2) by the agency or Minister.

(4) The Inspector-General may make copies of, or take extracts from,

the documents mentioned in subsection (3).

(5) After the period that is reasonably necessary for the purposes of

giving evidence to the Information Commissioner, the

Inspector-General must:

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(a) return the original of any document to the Information

Commissioner or to the agency or Minister; and

(b) destroy any copies of or extracts taken from any document.

(6) The Inspector-General must permit a person to inspect a document

that the person would be entitled to inspect if the document were

not held by the Inspector-General.

(7) The Inspector-General must permit the person to inspect the

document at all reasonable times.

(8) The Information Commissioner must allow the Inspector-General a

period within which to consider the documents mentioned in

subsections (2) to (4) that is reasonable having regard to:

(a) the nature of the evidence that the Inspector-General has been

requested to give; and

(b) the time required by the Inspector-General to perform the

Inspector-General's other functions.

Division 10--Appeals

56 Appeals--appeals to Federal Court of Australia on questions of

law

(1) A review party may appeal to the Federal Court of Australia, on a

question of law, from a decision of the Information Commissioner

on an IC review.

(2) An appeal under this section must be instituted:

(a)

either:

(i) not later than 28 days after the day a decision under

section 55K of the Information Commissioner on an IC

review is given to the review party; or

(ii) within the further time that the Federal Court of

Australia allows; and

(b) in any way that is prescribed by rules of court made under the

Federal Court of Australia Act 1976.

(3) The Federal Court of Australia has jurisdiction to hear and

determine appeals instituted under this section.

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(4) The jurisdiction of the Federal Court of Australia under

subsection (3) includes jurisdiction to make findings of fact under

section 56A.

(5) The Federal Court of Australia:

(a) must hear and determine the appeal; and

(b) may make any order or orders that it thinks appropriate by

reason of its decision.

(6) Without limiting subsection (5), the orders that the Federal Court

of Australia may make include the following:

(a) an order affirming the decision of the Information

Commissioner;

(b) an order setting aside the decision of the Information

Commissioner and making a decision in substitution for the

decision;

again by the Information Commissioner in accordance with

the directions of the Court:

(i) with or without the holding of a hearing; and

(ii) with or without the hearing of further evidence.

56A Appeals--Federal Court of Australia may make findings of fact

(1) If a review party appeals to the Federal Court of Australia under

section 56, the Court may make findings of fact if:

(a) the findings of fact are not inconsistent with findings of fact

made by the Information Commissioner (other than findings

made by the Information Commissioner as the result of an

error of law); and

(b) it appears to the Court that it is convenient for the Court to

make the findings of fact, having regard to all of the

following:

(i) the extent (if any) to which it is necessary for facts to be

found;

(ii) the means by which those facts might be established;

(iii) the expeditious and efficient resolution of the whole of

the matter to which the IC review relates;

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(iv) the relative expense to the parties of the Court, rather

than the Information Commissioner, making the

findings of fact;

(v) the relative delay to the parties of the Court, rather than

the Information Commissioner, making the findings of

fact;

(vi) whether any of the parties considers that it is

appropriate for the Court, rather than the Information

Commissioner, to make the findings of fact;

(vii) such other matters (if any) as the Court considers

relevant.

(2) For the purposes of making findings of fact under subsection (1),

the Federal Court of Australia may:

(a) have regard to the evidence given in the IC review; and

(b) receive further evidence.

(3) Subsection (2) does not limit the Federal Court of Australia's

power under subsection 56(6) to make an order remitting the case

to be heard and decided again by the Information Commissioner.

Part VIIA--Review by the Tribunal

Division 1--Guide to this Part

57 Review by the Tribunal--guide

An application may be made to the Administrative Appeals

Tribunal for the review of certain decisions (see section 57A).

Division 3 sets out the powers of the Tribunal in a review.

Division 4 deals with the procedure to be followed in a review by

the Tribunal.

Division 5 deals with ensuring that exempt matter that comes

before the Tribunal is protected from disclosure.

Division 6 deals with the circumstances in which the Tribunal may

make recommendations as to costs.

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Division 7 deals with the stay of decisions pending appeal to the

Federal Court of Australia.

Division 2--Tribunal reviewable decisions

57A Tribunal reviewable decisions--which decisions are

reviewable?

An application may be made to the Tribunal for review of the

following decisions:

(a) a decision of the Information Commissioner under

section 55K on an IC review;

(b) if the Information Commissioner makes a decision under

paragraph 54W(b) (matters inappropriate for IC review)--the

IC reviewable decision in relation to which the Information

Commissioner makes the decision.

Note 1:

An application for the review of a decision may be made by a person

whose interests are affected by the decision (see section 27 of the

Administrative Appeals Tribunal Act 1975).

Note 2:

Subsection 29(2) of the Administrative Appeals Tribunal Act 1975 sets

out the time within which the application for review must be made.

Division 3--Powers of Tribunal

35 Subsection 58(7)

Repeal the subsection.

36 After section 58

Insert:

58A Powers of Tribunal--requiring further searches

(1) This section applies to a review on an application to the Tribunal

under section 57A if:

(a) access to the document is refused under section 24A

(document cannot be found etc.); or

(b) access is purportedly given to the document (amongst others

to which the request relates), but is not actually given.

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(2) For the purposes of the review, the Tribunal may require the

agency or Minister concerned to conduct further searches for the

document.

58AA Powers of Tribunal--limitation on amending records

(1) The Tribunal may, in a decision on an application to the Tribunal

under section 57A, make a decision that requires, or that has the

effect of requiring, that an amendment be made to a record that

relates to a record of an opinion only if the Tribunal is satisfied of

either (or both) of the following:

(a) the opinion was based on a mistake of fact;

(b) the author of the opinion was biased, unqualified to form the

opinion or acted improperly in conducting the factual

inquiries that led to the formation of the opinion.

(2) The Tribunal must not, in a decision on an application under

section 57A, make a decision that requires, or that has the effect of

requiring, that an amendment be made to a record if it is satisfied

of either of the following:

(a) the record is a record of a decision, under an enactment, by a

court, tribunal, authority or person;

(b) the decision whether to amend the record involves the

determination of a question that the person seeking

amendment of the record is, or has been, entitled to have

determined by the agency (on internal review), the

Information Commissioner, a court or tribunal.

37 Before section 58B

Insert:

Division 4--Procedure in Tribunal

38 Subsection 58B(1)

Omit "the review of a decision", substitute "review in relation to a

decision".

39 Section 58D

After "of the majority", insert:

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; and (c) in a case where 3 of those members are Deputy Presidents--

be decided according to the opinion of the majority.

40 Sections 58F, 59 and 59A

Repeal the sections.

41 Section 60

Repeal the section, substitute:

60 Procedure in Tribunal--parties

(1) This section applies for the purposes of this Part and of the

application of the Administrative Appeals Tribunal Act 1975 in

relation to proceedings under this Part.

(2) A decision given by a person on behalf of an agency is taken to

have been given by the agency.

(3) The parties to a proceeding before the Tribunal for a review of a

decision are as follows:

(a) the person who applied to the Tribunal for a review of the

decision under section 57A;

(b) the person who made the request or application in respect of

which the decision was made;

the request or application was made;

(d) any other person who is made a party to the proceeding by

the Tribunal under subsection 30(1A) of the Administrative

Appeals Tribunal Act 1975.

60AA Procedure in Tribunal--requirement to notify affected third

parties

Scope

(1) This section applies if an application is made to the Tribunal under

section 57A for the review of a decision not to give access to a

document to which a consultation requirement applies under

section 26A, 27 or 27A (whether the decision is made by the

Information Commissioner, an agency or a Minister).

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Requirement to notify

(2) The agency to which, or the Minister to whom, the request was

made for access to the document must, as soon as practicable, take

all reasonable steps to notify the affected third party for the

document of the application to the Tribunal.

Note 1:

For affected third party, see section 53C.

Note 2:

Notice is not required to be given in certain circumstances (see

section 60AB).

Note 3:

The affected third party may apply to be made a party to the

proceeding by the Tribunal under subsection 30(1A) of the

Administrative Appeals Tribunal Act 1975.

60AB Procedure in Tribunal--circumstances in which not giving

notice is appropriate

(1) This section applies in relation to a document to which a

consultation requirement applies under section 27 or 27A.

(2) An agency or Minister is not required to notify an affected third

party for the document under subsection 60AA(2) if:

(a) the agency or the Minister applies to the Tribunal for an order

that it would not be appropriate to notify the affected third

party in the circumstances covered by subsection (3); and

(b) the Tribunal makes the order.

Note: For

affected third party, see section 53C.

(3) The circumstances covered by this subsection are whether

notifying the affected third party would, or could reasonably be

expected to, do any of the following:

(a) prejudice the conduct of an investigation of a breach, or

possible breach, of the law, or a failure, or possible failure, to

comply with a law relating to taxation;

(b) prejudice the enforcement or proper administration of the law

in a particular instance;

identity of a confidential source of information, or the

non-existence of a confidential source of information, in

relation to the enforcement or administration of the law;

(d) endanger the life or physical safety of any person;

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(e) cause damage to the security, defence or international

relations of the Commonwealth.

42 Section 61

Repeal the section, substitute:

61 Onus

(1) In proceedings under this Part, the person who applied to the

Tribunal has the onus of establishing that:

(a) a decision given in respect of the relevant request or

application is not justified; or

(b) the Tribunal should give a decision adverse to a party to the

proceeding.

(2) However, in proceedings under this Part that relate to a decision to

give access to a document to which a consultation requirement

applies under section 26A, 27 or 27A, an affected third party for

the document in relation to which the decision was made has, if the

affected third party is a party to the proceeding, the onus of

establishing that:

(a) a decision refusing to give access to the document is

justified; or

(b) the Tribunal should give a decision adverse to the person

who made the relevant request.

Note: For

affected third party, see section 53C.

61A Modification of the Administrative Appeals Tribunal Act 1975

(1)

The

Administrative Appeals Tribunal Act 1975 applies to

proceedings under this Part in the way set out in the following

table:

Modification of the Administrative Appeals Tribunal Act 1975

Item

A reference to ...

in the following

provision of the

Administrative Appeals

Tribunal Act 1975:

is taken to be a

reference to ...

the person who made

the decision

subsection 29(11)

(notification of review

each of the review

parties.

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Modification of the Administrative Appeals Tribunal Act 1975

Item

A reference to ...

in the following

provision of the

Administrative Appeals

Tribunal Act 1975:

is taken to be a

reference to ...

application)

the person who made

the decision

(a) subsection 33(1AA)

(requirement to assist

Tribunal);

(b) paragraph 33(2A)(b)

(procedural

directions)

the agency or Minister

who made the IC

reviewable decision.

the person who made

the decision that is

the subject of the

application for a

review by the

Tribunal

subsection 37(1) or

(1AF) (lodging material

with Tribunal)

the agency or Minister

who made the IC

reviewable decision.

the person who made

the decision

subsection 37(1A) or

(1B) (deadlines for

lodging documents)

the agency or Minister

who made the IC

reviewable decision.

the person who made

the decision to which

the relevant

proceeding relates

subsection 41(4) (stay of

decisions being

reviewed)

each of the review

parties.

the person who made

the decision

subsection 41(5) (stay of

decisions being

reviewed)

each of the review

parties.

the person who made

the decision

subsection 42A(2)

(dismissal for failure to

appear)

the agency or Minister

who made the IC

reviewable decision.

the person who made

a decision

section 67A (giving of

notices)

the person who made

the decision or an

agency.

(2) The agency or Minister who made the IC reviewable decision is

taken to have complied with the obligation under paragraph

37(1)(a) of the Administrative Appeals Tribunal Act 1975 if the

agency or Minister gives the AAT the number of copies prescribed

by the regulations of the decision under section 55K in relation to

which an application has been made to the Tribunal.

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(3) Subsection (2) does not limit the powers of the Tribunal under

section 38 of the Administrative Appeals Tribunal Act 1975.

43 Before section 63

Insert:

Division 5--Protection of information in Tribunal

44 Before section 66

Insert:

Division 6--Recommendations as to costs

45 Paragraph 66(1)(a)

Repeal the paragraph, substitute:

(a) a person applies, under section 57A, to the Tribunal for

review of a decision of the Information Commissioner on an

IC review; and

46 Subsections 66(1) and (3)

Omit "Attorney-General", substitute "responsible Minister".

47 Before section 67

Insert:

Division 7--Automatic stay of certain decisions

48 Paragraph 67(1)(a)

Omit "under section 55, to the Tribunal for review of a decision",

substitute "under section 57A, to the Tribunal for review in relation to a

decision".

49 Before Part VIII

Insert:

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Part VIIB--Investigations and complaints

Division 1--Guide to this Part

68 Investigations and complaints--guide

This Part is about investigations by the Information Commissioner

and by the Ombudsman.

Division 2 sets up a system for investigations by the Information

Commissioner.

The Information Commissioner may investigate an action taken by

an agency in the performance of functions or the exercise of

powers under this Act on a complaint from a person, or on the

Information Commissioner's initiative.

If a person disputes the merits of an access refusal decision or an

access grant decision, this Act provides elsewhere for the review of

that decision (see Parts VI, VII and VIIA).

However, this does not prevent a person from making a complaint

to the Information Commissioner about the way in which the

agency has handled the decision.

The Information Commissioner has powers to obtain documents, to

question persons and to enter premises (see Subdivision D of

Division 2).

At the conclusion of the investigation, the Information

Commissioner must give a notice to the complainant and to the

respondent agency about the Information Commissioner's findings,

with any recommendations that the Information Commissioner

believes the agency ought to implement (see section 86).

If the Information Commissioner is not satisfied that the agency

has taken adequate and appropriate action to implement the

recommendations, the Information Commissioner may take further

steps (see sections 89, 89A and 89B).

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Division 3 deals with the investigation of complaints by the

Ombudsman about action taken under this Act.

Division 2--Information Commissioner investigations

Subdivision A--Power to investigate

69 Information Commissioner investigations--power to investigate

Obligation to investigate

(1) The Information Commissioner must, subject to this Division,

investigate a complaint made under section 70.

Discretion to investigate

(2) The Information Commissioner may, at the Information

Commissioner's initiative, investigate an action taken by an agency

(the respondent agency) in the performance of functions, or the

exercise of powers, under this Act.

Subdivision B--Making complaints

70 Information Commissioner investigations--making complaints

(1) A person (the complainant) may complain to the Information

Commissioner about an action taken by an agency in the

performance of functions, or the exercise of powers, under this

Act.

(2) A complaint must:

(a) be in writing; and

(b) identify the agency (also the respondent agency) in respect

of which the complaint is made.

(3) The Office of the Information Commissioner must provide

appropriate assistance to a person who:

(a) wishes to make a complaint; and

(b) requires assistance to formulate the complaint.

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Subdivision C--Decision to investigate

71 Information Commissioner investigations--interpretation

This Subdivision applies to a part of a complaint as if:

(a) a reference to a complaint were a reference to the part of the

complaint; and

(b) a reference to an action were a reference to an action to

which the part of the complaint relates.

72 Information Commissioner investigations--preliminary inquiries

The Information Commissioner may make inquiries of the

respondent agency for the purpose of determining whether or not to

investigate a complaint made (or purported to be made) under

section 70.

73 Information Commissioner investigations--discretion not to

investigate

The Information Commissioner may decide not to investigate, or

not to continue to investigate, a complaint about an action made

under section 70 if the Information Commissioner is satisfied of

any of the following:

(a) that the action is not taken by an agency in the performance

of the agency's functions or the exercise of the agency's

powers under this Act;

(b)

that:

(i) the complainant has or had a right to cause the action to

be reviewed by the respondent agency, the Information

Commissioner, a court or a tribunal; and

(ii) the complainant has not exercised, or did not exercise,

the right; and

(iii) it would be, or would have been, reasonable for the

complainant to exercise the right;

(c)

that:

(i) the complainant has or had a right to complain about the

action to another body; and

(ii) the complainant has not exercised, or did not exercise

the right; and

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(iii) it would be, or would have been, reasonable for the

complainant to exercise the right;

(d) that the complainant has complained to the respondent

agency, and the respondent agency:

(i) has dealt, or is dealing, adequately with the complaint;

(ii) has not yet had an adequate opportunity to deal with the

complaint;

(e) that the complaint is frivolous, vexatious, misconceived,

lacking in substance or not made in good faith;

(f) that the complainant does not have a sufficient interest in the

subject matter of the complaint.

Note:

The Information Commissioner may make a decision under this

section to investigate only part of a complaint (see section 71).

74 Information Commissioner investigations--transfer to

Ombudsman

Scope

(1) This section applies if the Information Commissioner is satisfied

that a complaint about an action could be more effectively or

appropriately dealt with by the Ombudsman under the Ombudsman

Act 1976.

Example 1: A complaint about the way in which the Information Commissioner

has dealt with an IC review.

Example 2: A complaint relates to an action under this Act, but is part of a

complaint that relates to other matters that can be more appropriately

dealt with by the Ombudsman.

Transfer of complaints to Ombudsman

(2) The Information Commissioner:

(a) must consult the Ombudsman about the complaint with a

view to avoiding inquiries being conducted into that matter

by both the Information Commissioner and the Ombudsman;

and

(b) may decide not to investigate the action, or not to continue to

investigate the action.

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(3) If the Information Commissioner decides not to investigate, or not

to continue to investigate, the action under paragraph (2)(b), the

Information Commissioner must:

(a) transfer the complaint to the Ombudsman; and

(b) give the Ombudsman any information or documents that

relate to the complaint in the possession, or under the control,

of the Information Commissioner; and

transferred.

(4) A notice under paragraph (3)(c) must state the reasons for the

Information Commissioner's decision.

(5) A complaint transferred under subsection (3) is taken to be a

complaint made to the Ombudsman under the Ombudsman Act

1976.

Note:

The Information Commissioner may make a decision under this

section to investigate only part of a complaint (see section 71).

75 Information Commissioner investigations--notice requirements

Notice to respondent agency before commencing investigation

(1) Before beginning an investigation, the Information Commissioner

must notify the respondent agency in writing.

Notice of decision not to investigate, or not to continue to

investigate

(2) Subsection (3) applies if the Information Commissioner decides:

(a) not to investigate, or not to continue to investigate, a

complaint made under section 70; or

(b) not to continue an investigation commenced at the

Information Commissioner's initiative.

(3) The Information Commissioner must, as soon as practicable, notify

the complainant (if any) and the respondent agency of the decision

in writing.

(4) A notice under subsection (3) must state the reasons for the

Information Commissioner's decision.

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Subdivision D--Investigation procedure

76 Information Commissioner investigations--conduct of

investigation

(1) An investigation must be conducted in private and in a way the

Information Commissioner thinks fit.

(2) For the purposes of an investigation, the Information

Commissioner may obtain information from any officer of an

agency, and make any inquiry, that he or she thinks is relevant to

the investigation.

77 Information Commissioner investigations--general power to

enter premises

(1) If a consenting person consents to entry under paragraph (2)(a), an

authorised person may, at any reasonable time of day arranged

with the consenting person:

(a) enter and remain at the place; or

(b) carry on the investigation at that place; or

the place.

Note: For

consenting person, see subsection (3).

Authority to enter premises

(2) The authorised person may enter a place that:

(a) is occupied by an agency; or

(b) is occupied by a contracted service provider and used by the

contracted service provider predominantly for the purposes of

a Commonwealth contract.

(3) The authorised person may enter a place only if:

(a) consent to the entry has been given by the person (the

consenting person) who is:

(i) in the case of an agency--the principal officer of the

agency; or

(ii) in the case of a contracted service provider--the person

in charge (however described) of the contracted service

provider; and

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(b) before giving the consent, the authorised person informed the

consenting person that he or she may refuse consent.

(4) The authorised person must leave the premises if the consenting

person asks the authorised person to do so.

(5) This section is subject to section 78.

Who is an authorised person?

(6)

authorised person is:

(a) an information officer (within the meaning of the Information

Commissioner Act 2009); or

(b) an APS employee who:

(i) is performing the duties of an Executive Level 2, or

equivalent, position (or a higher position) in the Office

of the Information Commissioner; and

(ii) is authorised by the Information Commissioner for the

purposes of this section.

78 Information Commissioner investigations--places for which

approval required before entry

Specific places and areas

(1) Subsection (2) applies if an authorised person proposes to enter, or

carry on an investigation, at any of the following:

(a) a place referred to in paragraph 80(c) of the Crimes Act 1914;

(b) a place that is a prohibited area for the purposes of the

Defence (Special Undertakings) Act 1952 because of

section 7 of that Act;

declared under section 14 of the Defence (Special

Undertakings) Act 1952 to be a restricted area for the

purposes of that Act.

(2) If this subsection applies, the authorised person must not enter, or

carry on an investigation, unless:

(a) the Minister administering that Act, or another Minister

acting for and on behalf of the Minister, has, in writing,

approved the entry or carrying on of the investigation; and

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(b) the authorised person complies with any conditions specified

in the approval.

Places in respect of which Attorney-General makes declaration

(3) The Attorney-General may, by notice in writing to the Information

Commissioner, declare a place to be a prohibited place if the

Attorney-General is satisfied that the carrying on of an

investigation at the place might prejudice the security or defence of

the Commonwealth.

(4) If a declaration under subsection (3) is in force, an authorised

person must not enter, or carry on an investigation at, the

prohibited place unless:

(a) a Minister specified in the declaration, or another Minister

acting for and on behalf of the Minister, has, in writing,

approved the entry or carrying on of the investigation; and

(b) the authorised person complies with any conditions specified

in the approval.

79 Information Commissioner investigations--obliging production

of information and documents

Scope

(1) This section applies if the Information Commissioner has reason to

believe that a person has information, or a document, relevant to an

investigation under this Part.

(2) This section applies subject to section 81 (production of exempt

documents).

Notice to produce

(3) The Information Commissioner may, by written notice, require a

person, for the purposes of the investigation:

(a) to give the Information Commissioner information of the

kind referred to in the notice; or

(b) to produce to the Information Commissioner the document

referred to in the notice.

(4) The notice must:

(a) be in writing; and

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(b) specify the place at which the person must comply with the

notice; and

(i) within a specified period that is not less than 14 days

after the day on which the person is given the notice; or

(ii) at a specified time that is not less than 14 days after the

time at which the person is given the notice.

Offence for failure to comply

(5) A person commits an offence if:

(a) the person is subject to a requirement specified in a notice

under subsection (3); and

(b) the person engages in conduct; and

Penalty for a contravention of this subsection: Imprisonment for 6

months.

Note:

Chapter 2 of the Criminal Code sets out the general principles of

criminal responsibility.

80 Information Commissioner investigations--dealings with

documents

What the Information Commissioner may do with documents

(1) The Information Commissioner may do one or more of the

following with respect to any documents produced in accordance

with a notice under subsection 79(3):

(a) take possession of the documents;

(b) make copies of the documents;

(d) hold the documents for a period that is necessary for the

purposes of the investigation.

Information Commissioner must permit access by those entitled

(2) During an investigation the Information Commissioner must

permit a person to inspect a document that the person would be

entitled to inspect if the document were not held by the

Information Commissioner.

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(3) The Information Commissioner must permit the person to inspect

the document at any reasonable time.

81 Information Commissioner investigations--exempt documents

Sections 55T and 55U apply to an investigation under this Part as if

a reference in those sections to an IC review of a decision were a

reference to an investigation of a complaint made under section 70.

Note:

Sections 55T and 55U deal with access by the Information

Commissioner to exempt documents.

82 Information Commissioner investigations--obliging persons to

appear

Notice to require person to appear

(1) The Information Commissioner may, by written notice, require a

person to appear before the Information Commissioner to answer

questions for the purposes of an investigation.

(2) The notice must:

(a) be in writing; and

(b) state that the person must comply with the notice at a

specified time that is not less than 14 days after the time at

which the person is given the notice; and

notice.

Offence for failure to comply

(3) A person commits an offence if:

(a) the person is subject to a requirement specified in a notice

under subsection (1); and

(b) the person engages in conduct; and

Penalty for a contravention of this subsection: 6 months

imprisonment.

Note:

Chapter 2 of the Criminal Code sets out the general principles of

criminal responsibility.

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83 Information Commissioner investigations--administration of

oath or affirmation

(1) If, by a notice under subsection 82(1), the Information

Commissioner requires a person to appear before him or her, the

Information Commissioner may:

(a) administer an oath or affirmation to the person; and

(b) examine the person on oath or affirmation.

(2) The oath or affirmation to be taken or made by a person for the

purposes of this section is an oath or affirmation that the answers

the person will give will be true.

(3) A person commits an offence if:

(a) the person is required under this section to be examined on

oath or affirmation; and

(b) the person engages in conduct; and

Penalty for a contravention of this subsection: 6 months

imprisonment.

Note:

Chapter 2 of the Criminal Code sets out the general principles of

criminal responsibility.

84 Information Commissioner investigations--no loss of legal

professional privilege

Information or a document does not cease to be the subject of legal

professional privilege merely because it is given, provided,

produced or referred to for the purposes of this Part.

85 Information Commissioner investigations--protection from

liability

(1) This section applies if a person does any of the following in good

faith for the purposes of an investigation:

(a)

gives

information;

(b)

produces

document;

(2) If this section applies, then:

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(a) civil proceedings do not lie against a person because the

person does any of the matters mentioned in

paragraphs (1)(a) to (c); and

(b) the person is not liable for a penalty under a provision of any

law because the person does any of those matters.

(3) This section applies whether or not the person is required to do a

thing mentioned in subsection (1) in accordance with this Division.

Subdivision E--Outcome of investigation

86 Information Commissioner investigations--notice on completion

Requirement to notify respondent agency

(1) If the Information Commissioner completes an investigation, the

Information Commissioner must, as soon as practicable, notify the

respondent agency.

(2) The notice must state the following:

(a) the investigation results (see section 87);

(b) the investigation recommendations (if any) (see section 88);

investigation recommendations.

(3) The respondent agency may give to the Information Commissioner

any comments about the notice that the agency wishes to make.

Requirement to notify complainant (if any)

(4) The Information Commissioner must give a copy (or a copy

prepared in accordance with subsection (5)) of the notice to the

complainant (if any).

(5) However, if the copy of the notice would contain matters of the

kind mentioned in subsection 89C(2), the Information

Commissioner must prepare a copy of the report to give to the

complainant that excludes those matters.

Note:

Section 89D sets out further limitations on recommendations to amend

records.

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87 Information Commissioner investigations--what are the

investigation results?

The

investigation results, in relation to the investigation, are the

following:

(a) the matters that the Information Commissioner has

investigated;

(b) any opinions that the Information Commissioner has formed

in relation to those matters;

reached in relation to those matters;

(d) any suggestions to the respondent agency the implementation

of which the Information Commissioner believes might

improve the processes of the agency;

(e) any other information of which the Information

Commissioner believes the respondent agency ought to be

aware.

88 Information Commissioner investigations--what are the

investigation recommendations?

The

investigation recommendations, in relation to the

investigation, are the formal recommendations to the respondent

agency that the Information Commissioner believes that the

respondent agency ought to implement.

89 Information Commissioner investigations--failure to implement

investigation recommendation

Scope

(1) This section applies if:

(a) the Information Commissioner completes an investigation;

and

(b) the Information Commissioner gives an agency a notice

under section 86; and

has taken action that is adequate and appropriate in the

circumstances to implement the investigation

recommendations for the investigation.

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Giving implementation notices

(2) The Information Commissioner may, by notice in writing (an

implementation notice), require the respondent agency to:

(a) give to the Information Commissioner particulars of any

action that the agency proposes to take to implement the

investigation recommendations for the investigation; and

(b) give the particulars within the time specified in the notice.

(3) The respondent agency must comply with the implementation

notice.

89A Information Commissioner investigations--failure to take

action in response to implementation notice

Scope

(1) This section applies if:

(a) the Information Commissioner gives an implementation

notice to a respondent agency; and

(b) the Information Commissioner is satisfied that:

(i) the agency has not responded to the implementation

notice within the time specified in the notice; or

(ii) the agency has not taken action that is adequate and

appropriate in the circumstances to implement the

investigation recommendations for the investigation.

Report to responsible Minister

(2) The Information Commissioner may give a written report to the

responsible Minister that contains the matters set out in

section 89B.

Note: For

responsible Minister, see subsection 4(1).

Report to Minister

(3) If the Information Commissioner gives a report to the responsible

Minister under subsection (2), the Information Commissioner must

give a copy (or a copy prepared in accordance with subsection (4))

of the report to the Minister (the FOI Minister) responsible for the

administration of this Act.

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(4) However, if the copy of the report would contain matters of the

kind mentioned in subsection 89C(2), the Information

Commissioner must prepare a copy of the report to give to the FOI

Minister that excludes those matters.

(5) The FOI Minister must cause the copy of the report to be laid

before each House of the Parliament.

Note:

Section 89D sets out further limitations on recommendations to amend

records.

89B Information Commissioner investigations--requirements for

report

A report under subsection 89A(2) must:

(a) include a copy of the notice given to the respondent agency

under subsection 86(2) (notice on completion) and the

implementation notice; and

(b) give details of the respondent agency's response (if any) to

the implementation notice; and

the agency has taken action that is adequate and appropriate

in the circumstances to implement the investigation

recommendations for the investigation; and

(d) state the action that the Information Commissioner believes,

if taken by the agency, would be adequate and appropriate in

the circumstances to implement the investigation

recommendations for the investigation.

89C Information Commissioner investigations--ensuring

non-disclosure of certain matters

(1) This section applies to the following documents:

(a) a notice to a complainant under section 86 (notice on

completion);

(b) a report to the FOI Minister under subsection 89A(3) (failure

to take action).

(2) The Information Commissioner must not include in the document:

(a) exempt matter; or

(b) information of the kind referred to in subsection 25(1).

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Note:

Subsection 25(1) deals with information about the existence or

otherwise of certain documents.

89D Information Commissioner investigations--limitation on

amending records

Scope

(1) This section applies to the following documents:

(a) a notice to a complainant under section 86 (notice on

completion);

(b) a report to the FOI Minister under subsection 89A(3) (failure

to take action).

Restrictions on amendments

(2) The Information Commissioner may, in the document, recommend

that an amendment be made to a record that relates to a record of

an opinion only if he or she is satisfied of either (or both) of the

following:

(a) the opinion was based on a mistake of fact;

(b) the author of the opinion was biased, unqualified to form the

opinion or acted improperly in conducting the factual

inquiries that led to the formation of the opinion.

(3) The Information Commissioner must not, in the document,

recommend that an amendment be made to a record if he or she is

satisfied of either of the following:

(a) the record is a record of a decision, under an enactment, by a

court, tribunal, authority or person;

(b) the decision whether to amend the record involves the

determination of a question that the person seeking

amendment of the record is, or has been, entitled to have

determined by the agency (on internal review), the

Information Commissioner, a court or tribunal.

89E Information Commissioner investigations--protection from

civil action

(1) Civil proceedings do not lie against a person in respect of loss,

damage or injury of any kind suffered by another person because

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the first-mentioned person complains about an action under

section 70.

(2) Subsection (1) only applies if the complaint is made in good faith.

Division 3--Complaints to Ombudsman

89F Complaints to Ombudsman--powers not affected

This Part does not prevent the Ombudsman from exercising powers

or performing functions under the Ombudsman Act 1976 in

accordance with that Act.

89G Complaints to Ombudsman--report must not contain certain

information

A report under subsection 12(3) or section 15 or 17 of the

Ombudsman Act 1976 in relation to an action taken under this Act

must not include:

(a) exempt matter; or

(b) information of the kind referred to in subsection 25(1).

Note:

Subsection 25(1) deals with information about the existence or

otherwise of certain documents.

89H Complaints to Ombudsman--certain rights not affected by

certificates

(1) This section applies if:

(a) the Ombudsman has commenced an investigation of a

decision made under this Act not to grant a request for access

to a document; and

(b) the Attorney-General furnishes a certificate to the

Ombudsman under paragraph 9(3)(a), (c) or (d) of the

Ombudsman Act 1976 in relation to that investigation.

(2) The certificate does not affect the Ombudsman's right to:

(a) seek from any person the reasons for a decision made under

this Act not to give access to an exempt document; or

(b) require any person to give any information or to answer any

questions concerning the decision.

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89J Complaints to Ombudsman--limitation on amending records in

reports under the Ombudsman Act 1976

(1) The Ombudsman may, in a report under section 15 of the

Ombudsman Act 1976, recommend that an amendment be made to

a record that relates to a record of an opinion only if he or she is

satisfied of either (or both) of the following:

(a) the opinion was based on a mistake of fact;

(b) the author of the opinion was biased, unqualified to form the

opinion or acted improperly in conducting the factual

inquiries that led to the formation of the opinion.

(2) The Ombudsman must not, in a report under section 15 of the

Ombudsman Act 1976, recommend that an amendment be made to

a record if he or she is satisfied of either of the following:

(a) the record is a record of a decision, under an enactment, by a

court, tribunal, authority or person;

(b) the decision whether to amend the record involves

determination of a question that the person seeking

amendment of the record is, or has been, entitled to have

determined by the agency (on internal review), the

Information Commissioner, a court or tribunal.

50 Before section 91

Insert:

Division 1--Vexatious applicants

89K Vexatious applicants--declaration

(1) The Information Commissioner may, by written instrument (a

vexatious applicant declaration), declare a person to be a

vexatious applicant.

Note 1:

Section 89L sets out the grounds on which a declaration may be made.

Note 2:

For variation and revocation of the instrument, see subsection 33(3) of

the Acts Interpretation Act 1901.

(2) The Information Commissioner may make a declaration:

(a) on the application of an agency or Minister; or

(b) on the Information Commissioner's initiative.

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(3) If an agency or Minister has applied for a declaration, the agency

or Minister has the onus of establishing that the Information

Commissioner should make the declaration.

(4) The Information Commissioner must, as soon as practicable, given

written notice to the person in relation to whom the vexatious

applicant declaration is made.

89L Vexatious applicants--grounds for declaration

(1) The Information Commissioner may make a vexatious applicant

declaration in relation to a person only if the Information

Commissioner is satisfied of any of the following:

(a)

that:

(i) the person has repeatedly engaged in access actions; and

(ii) the repeated engagement involves an abuse of the

process for the access action;

(b) a particular access action in which the person engages

involves, or would involve, an abuse of the process for that

access action;

be manifestly unreasonable.

(2) A person engages in an access action if the person does any of the

following:

(a) makes a request;

(b) makes an application under section 48;

(d) makes an IC review application.

(3) The Information Commissioner must not make a declaration in

relation to a person without giving the person an opportunity to

make written or oral submissions.

(4) In this section:

abuse of the process for an access action includes, but is not

limited to, the following:

(a) harassing or intimidating an individual or an employee of an

agency;

(b) unreasonably interfering with the operations of an agency;

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restrictions on access to a document (or documents) imposed

by a court.

89M Vexatious applicants--effect of declaration

(1) A vexatious applicant declaration has effect in accordance with the

terms and conditions stated in the declaration.

(2) Without limiting subsection (1), a vexatious applicant declaration

in relation to a person may provide that:

(a) an agency or Minister may refuse to consider any of the

following if made by the person without the written

permission of the Information Commissioner:

(i)

request;

(ii) an application under section 48 (amendment of records);

(iii) an application for internal review; and

(b) the Information Commissioner may refuse to consider an IC

review application made by the person.

(3) If a decision is made as mentioned in subsection (2), the agency,

Minister or the Information Commissioner (as the case requires)

must, as soon as practicable, notify the vexatious applicant of the

decision.

89N Vexatious applicants--review by Tribunal

An application may be made to the Tribunal for a review of a

decision under section 89K of the Information Commissioner to

make a vexatious applicant declaration.

Note 1:

An application for the review of a decision may be made by a person

whose interests are affected by the decision (see section 27 of the

Administrative Appeals Tribunal Act 1975).

Note 2:

Subsection 29(2) of the Administrative Appeals Tribunal Act 1975 sets

out the time within which the application for review must be made.

Note 3:

Section 30 of the Administrative Appeals Tribunal Act 1975 sets out

who the parties are to a proceeding before the Tribunal.

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Division 2--General

89P Staff to hold appropriate security clearance

The Information Commissioner must take all reasonable steps to

ensure that a member of the staff of the Office of the Information

Commissioner who performs functions or exercises powers for the

purposes of this Act is given a security clearance at an appropriate

level.

Note:

Security clearances are given in accordance with the Australian

Government Protective Security Manual.

90 Protection against civil liability--general

(1) No action for defamation, breach of confidence or infringement of

an officer of an agency because the Minister, or an officer of the

agency:

(a) publishes a document in good faith, in the belief that the

publication is required or permitted under Part II

(information publication scheme) or section 11C (publication

of information in accessed documents); or

(b) gives access to a document in good faith, in the belief that the

access is required or permitted to be given in response to a

request; or

belief that the publication or access is required or permitted

otherwise than under this Act (whether or not under an

express legislative power).

(2) No action for defamation, or breach of confidence, in respect of the

publication of a document covered by subsection (3), lies against a

person (including the author of the document) because the person

supplied the document to a Minister or an agency.

(3) The publication of a document is covered by this subsection if:

(a) it is published as mentioned in paragraph (1)(a) or (c); or

(b) its publication is involved in, or results from, the giving of

access to the document (or another document) as mentioned

in paragraph (1)(b) or (c).

51 Subsection 91(1)

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Repeal the subsection.

Note:

The heading to section 91 is replaced by the heading "Protection against civil

liability--particular situations".

52 Subsection 91(1A)

Omit "Subsection (1)", substitute "Section 90".

53 Paragraph 91(1C)(a)

Omit "26A(1)", substitute "26A(2)".

54 Paragraph 91(1C)(b)

Omit "27(1)", substitute "27(4)".

55 Paragraph 91(1C)(c)

Omit "27A(1)", substitute "27A(3)".

56 Section 92

Repeal the section, substitute:

92 Protection against criminal liability

(1) A Minister, or an officer of an agency, is not guilty of a criminal

offence only because the Minister or officer:

(a) publishes a document in good faith, in the belief that the

publication is required or permitted under Part II

(information publication scheme) or section 11C (publication

of information in accessed documents); or

(b) gives access to a document in good faith, in the belief that the

access is required or permitted to be given in response to a

request; or

belief that the publication or access is required or permitted

otherwise than under this Act (whether or not under an

express legislative power).

(2) A person is not guilty of a criminal offence only because the

person shows a document, or is concerned in the showing of a

document, to another person or organisation for any of the

following purposes:

(a) consultation with a State under subsection 26A(2);

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(b) enabling the other person or the organisation to make a

submission under subsection 27(4);

subsection 27A(3).

57 Section 93

Repeal the section, substitute:

93 Agencies to provide information to Information Commissioner

(1) This section applies to:

(a) an agency, in relation to documents of the agency; and

(b) each Minister, in relation to his or her official documents.

(2) The agency or Minister must give to the Information

Commissioner the information that the Information Commissioner

requires to prepare reports under section 30 of the Information

Commissioner Act 2009.

(3) The agency or Minister must comply with any requirements

prescribed by the regulations regarding:

(a) the giving of the information; and

(b) the keeping of records for the purposes of this section.

93A Guidelines

(1) The Information Commissioner may, by instrument in writing,

issue guidelines for the purposes of this Act.

Note:

For variation and revocation of the instrument, see subsection 33(3) of

the Acts Interpretation Act 1901.

(2) For the purposes of the performance of a function, or the exercise

of a power, under this Act, regard must be had to any guidelines

issued by the Information Commissioner under this section

including, but not limited to, guidelines issued for the purposes of

the following provisions:

(a) paragraph 9A(b) (information publication scheme);

(b) subsection 11B(5) (public interest factors);

(3) Guidelines are not legislative instruments.

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93B Review of operation of Act

(1) The Minister must cause a review of the operation of this Act to be

undertaken.

(2) The review must:

(a) start 2 years after the commencement of this section; and

(b) be completed within 6 months.

Note:

This section commences immediately after the commencement of

section 3 of the Information Commissioner Act 2009.

(3) The Minister must cause a written report about the review to be

prepared.

(4) The Minister must cause a copy of the report to be laid before each

House of the Parliament within 15 sitting days of that House after

the Minister receives the report.

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Part 2--Other amendments

Ombudsman Act 1976

58 Subsection 3(1)

Insert:

Information Commissioner has the meaning given by the

Information Commissioner Act 2009.

59 Subsections 6(4A) to (4C)

Repeal the subsections.

60 After section 6B

Insert:

6C Transfer of complaints to Information Commissioner

Scope

(1) This section applies if the Ombudsman is satisfied of either of the

following:

(a)

that:

(i) a complainant has complained, or could complain, to the

Information Commissioner about an action taken by a

Department or prescribed authority under Part V of the

Privacy Act 1988 or Part VIIB of the Freedom of

Information Act 1982; and

(ii) the action could be more appropriately or effectively

dealt with by the Information Commissioner;

(b) a complaint about an action taken by a Department or

prescribed authority has been the subject of a completed

investigation by the Information Commissioner under Part V

of the Privacy Act 1988 or Part VIIB of the Freedom of

Information Act 1982.

Requirement to consult with Information Commissioner

(2)

The

Ombudsman:

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120 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

(a) must consult the Information Commissioner about the

complaint with a view to avoid inquiries being conducted

into that matter by both the Information Commissioner and

the Ombudsman; and

(b) may decide not to investigate the action, or not to continue to

investigate the action.

Transfer to Information Commissioner

(3) If the Ombudsman decides not to investigate, or not to continue to

investigate, an action under paragraph (2)(b), the Ombudsman

must:

(a) transfer the complaint to the Information Commissioner; and

(b) notify the complainant in writing that the complaint has been

transferred; and

documents that relate to the complaint in the possession, or

under the control of, the Ombudsman.

(4) A complaint transferred under subsection (3) is taken to be a

complaint made to the Information Commissioner under Part V of

the Privacy Act 1988 or Part VIIB of the Freedom of Information

Act 1982, as the case requires.

61 Subsection 19(4)

Omit "paragraph (1)(a) or under subsection (2)", substitute

"subsection (1) or (2)".

62 Subparagraph 19R(3)(b)(iii)

Omit "(4A)", substitute "(4D)".

63 Subsection 19R(4) (table item 4, column 2)

Omit "6(4A)(e) or (4D)(e)", substitute "6(4D)(e)".

64 Subsection 35(6A)

Omit "6(4A)(e) or (4D)(e)", substitute "6(4D)(e)".

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Part 3--Application and transitional provisions

65 Application--Part 1

Internal review and IC review

(1)

An amendment made by an item in Part 1 (other than an amendment

covered by subitem (2), (3) or (4)) applies in relation to the following:

(a) requests for access made under section 15 of the Freedom of

Information 1982 that are received at or after the

commencement of that item;

(b) applications under section 48 of that Act that are received at

or after the commencement of that item.

Tribunal review

(2)

The amendments made by items 44 and 46 apply in relation to

applications to the Tribunal under section 57A of the Freedom of

Information Act 1982 (as amended by this Act) made at or after the

commencement of those items.

Investigation by the Information Commissioner

(3)

The amendments made by item 49 to insert new Part VIIB of the

Freedom of Information Act 1982 apply in relation to action taken by an

agency (within the meaning of the Freedom of Information Act 1982, as

amended by this Schedule) before, at or after the commencement of that

item.

Indemnity amendments

(4)

The following amendments apply in relation to the publication of, or the

giving of access to, a document at or after the commencement of those

amendments:

(a) the amendment made by item 50 to insert new section 90 of

the Freedom of Information Act 1982;

(b) the amendments made by items 51, 52 and 56.

66 Application--Part 2

Schedule 4 Information Commissioner amendments

Part 3 Application and transitional provisions

122 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

The amendments made by Part 2 apply in relation to a complaint made

to the Ombudsman under the Ombudsman Act 1976 at or after the

commencement of that Part (whether or not the action to which the

complaint relates was taken before, at or after that commencement).

67 Savings--complaints on foot continue under old law

(1)

This item applies if:

(a) before the commencement of Part 2, a complaint is made to

the Ombudsman under the Ombudsman Act 1976; and

(b) at the commencement of that Part, the Ombudsman has not

informed the complainant of the result of the complaint under

section 12 of that Act.

(2)

Despite the amendments made to the Ombudsman Act 1976 by Part 2,

the Ombudsman must continue to deal with the complaint under the

Ombudsman Act 1976 as if those amendments had not been made.

Amendments consequential on the establishment of the Office of the Information

Commissioner Schedule 5

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 123

Schedule 5--Amendments consequential on

the establishment of the Office of the

Information Commissioner

Anti-Money Laundering and Counter-Terrorism Financing

Act 2006

1 Subparagraph 212(2)(a)(vi)

Omit "Privacy Commissioner", substitute "Information Commissioner

in relation to matters that relate to the privacy functions (within the

meaning of the Information Commissioner Act 2009)".

Australian Citizenship Act 2007

2 Paragraph 43(2)(g)

Omit "Privacy Commissioner", substitute "Information Commissioner".

Australian Human Rights Commission Act 1986

3 Subsection 3(1)

Insert:

Information Commissioner means the Information Commissioner

appointed under the Information Commissioner Act 2009.

4 Subsection 3(1) (definition of Privacy Commissioner)

Repeal the definition.

5 Paragraphs 20(4A)(b), (c) and (e)

Omit "Privacy Commissioner", substitute "Information Commissioner".

6 Subsection 20(4B)

Omit "Privacy Commissioner", substitute "Information Commissioner".

7 Section 43A

Omit "Privacy Commissioner" (wherever occurring), substitute

"Information Commissioner".

Schedule 5 Amendments consequential on the establishment of the Office of the

Information Commissioner

124 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

Note:

The heading to section 43A is altered by omitting "Privacy Commissioner" and

substituting "Information Commissioner".

8 Section 43A

Omit "Privacy Act 1988", substitute "Information Commissioner Act

2009".

Aviation Legislation Amendment (2008 Measures No. 2) Act

2009

9 Subsections 4(1), (2) and (4)

Omit "Privacy Commissioner", substitute "Information Commissioner".

Note:

The heading to section 4 is altered by omitting "Privacy Commissioner" and

substituting "Information Commissioner".

10 Subsection 4(4)

Omit ", and may delegate any matter to a member of his or her staff as

provided for by section 99 of that Act".

Child Care Act 1972

11 Subsection 12P(3)

Omit "Privacy Commissioner", substitute "Information Commissioner

in relation to matters that relate to the privacy functions (within the

meaning of the Information Commissioner Act 2009)".

Crimes Act 1914

12 Paragraph 3ZQJ(2)(c)

Omit "Privacy Commissioner", substitute "Information Commissioner".

13 Paragraph 23YDAE(2)(g)

Omit "Privacy Commissioner", substitute "Information Commissioner".

14 Paragraph 23YO(2)(g)

Omit "Privacy Commissioner", substitute "Information Commissioner".

15 Subsection 23YUK(4) (paragraph (b) of the definition of

independent review)

Amendments consequential on the establishment of the Office of the Information

Commissioner Schedule 5

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 125

Omit "nominee of the Privacy Commissioner", substitute "a person

nominated by the Information Commissioner in the performance of the

privacy functions (within the meaning of the Information Commissioner

Act 2009)".

16 Subsection 23YV(4) (paragraph (b) of the definition of

independent review)

Omit "nominee of the Privacy Commissioner", substitute "a person

nominated by the Information Commissioner in the performance of the

privacy functions (within the meaning of the Information Commissioner

Act 2009)".

17 Division 5 of Part VIIC (heading)

Repeal the heading, substitute:

Division 5--Complaints to Information Commissioner

18 Subsection 85ZZ(1)

Omit "Privacy Commissioner", substitute "Information Commissioner".

Note:

The heading to section 85ZZ is altered by omitting "Privacy Commissioner's" and

substituting "Information Commissioner's".

19 After subsection 85ZZ(1)

Insert:

(1A) The functions conferred by subsection (1) are privacy functions for

the purposes of the Information Commissioner Act 2009.

20 Subsection 85ZZ(2)

Omit "Privacy Commissioner", substitute "Information Commissioner".

21 Subsection 85ZZA(1)

Omit "Privacy Commissioner", substitute "Information Commissioner".

Note:

The heading to section 85ZZA is altered by omitting "Privacy Commissioner" and

substituting "Information Commissioner".

22 Subsection 85ZZA(3)

Omit "Privacy Commissioner's", substitute "Information

Commissioner's".

Schedule 5 Amendments consequential on the establishment of the Office of the

Information Commissioner

126 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

23 Subsections 85ZZC(1) and (2)

Omit "Privacy Commissioner", substitute "Information Commissioner".

24 Subsection 85ZZD(1)

Before "Commissioner", insert "Information".

Note:

The heading to section 85ZZD is altered by omitting "Privacy Commissioner" and

substituting "Information Commissioner".

25 Subsections 85ZZD(2) to (4)

Omit "Privacy Commissioner", substitute "Information Commissioner".

26 Subsection 85ZZF(1)

Omit "Privacy Commissioner", substitute "Information Commissioner".

Data-matching Program (Assistance and Tax) Act 1990

27 Subsection 10(5) (definition of sampling procedures)

Omit "Privacy Commissioner", substitute "Information Commissioner

in relation to matters that relate to the privacy functions (within the

meaning of the Information Commissioner Act 2009)".

28 Section 12

Repeal the section, substitute:

12 Guidelines relating to privacy

(1) The matching agency and the source agencies must comply with

guidelines issued under this section.

(2) The Information Commissioner may, by legislative instrument,

issue guidelines relating to the matching of data under this Act.

(3) The function conferred by subsection (2) is a privacy function for

the purposes of the Information Commissioner Act 2009.

(4) After the end of each financial year, each agency must give the

Information Commissioner, and cause to be laid before each House

of the Parliament, a report including the matters relating to the

data-matching program carried out during the financial year that

are specified for the purposes of this subsection in guidelines

issued under this section.

Amendments consequential on the establishment of the Office of the Information

Commissioner Schedule 5

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 127

(5) After the 3-year period ending on 30 June 1998, and after each

successive 3-year period, each agency must give the Minister

responsible for the agency a report for presentation to the

Parliament including all the details relating to the data-matching

program carried out during the period that are specified for the

purposes of this subsection in guidelines issued under this section.

Note:

Section 34C of the Acts Interpretation Act 1901 sets time limits for

giving reports to Ministers and for presentation of reports to the

Parliament.

(6) Despite section 12 of the Legislative Instruments Act 2003,

guidelines issued under this section take effect from:

(a) the first day on which the guidelines are no longer subject to

disallowance; or

(b) if the guidelines make provision for their commencement

after that day--in accordance with that provision.

29 Subsection 13(1) (definition of Commissioner)

Omit "Privacy Commissioner", substitute "Information Commissioner

acting in the performance of the privacy functions (within the meaning

of the Information Commissioner Act 2009)".

30 Subsection 14(2)

Omit "Privacy Commissioner", substitute "Information Commissioner".

31 Schedule

Repeal the Schedule.

Environment Protection and Biodiversity Conservation Act

1999

32 Paragraph 42(2)(e) of Schedule 1

Omit "Privacy Commissioner", substitute "Information Commissioner

under the Privacy Act 1988".

33 Paragraph 53(2)(g) of Schedule 1

Omit "Privacy Commissioner", substitute "Information Commissioner".

Schedule 5 Amendments consequential on the establishment of the Office of the

Information Commissioner

128 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

Fair Work Act 2009

34 Paragraph 510(1)(c)

Omit "Privacy Commissioner", substitute "Information Commissioner".

Fisheries Management Act 1991

35 Paragraph 42(2)(e) of Schedule 1A

Omit "Privacy Commissioner", substitute "Information Commissioner

under the Privacy Act 1988".

36 Paragraph 53(2)(g) of Schedule 1A

Omit "Privacy Commissioner", substitute "Information Commissioner".

Migration Act 1958

37 Paragraph 261AKD(2)(e)

Omit "Privacy Commissioner", substitute "Information Commissioner

under the Privacy Act 1988".

38 Paragraph 336E(2)(g)

Omit "Privacy Commissioner", substitute "Information Commissioner".

National Health Act 1953

39 Subsection 135AA(3)

Omit "Privacy Commissioner", substitute "Information Commissioner".

40 Subsection 135AA(3)

Omit "written notice", substitute "legislative instrument".

41 After subsection 135AA(3)

Insert:

(3A) The issuing of guidelines under this section is a privacy function

for the purposes of the Information Commissioner Act 2009.

42 Subsection 135AA(4)

Amendments consequential on the establishment of the Office of the Information

Commissioner Schedule 5

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 129

Omit "Privacy Commissioner", substitute "Information Commissioner".

43 Subsection 135AA(4)

Omit "written notice", substitute "legislative instrument".

44 Subsections 135AA(5A) and (6)

Omit "Privacy Commissioner", substitute "Information Commissioner".

45 Subsections 135AA(7) to (10)

Repeal the subsections, substitute:

When guidelines take effect

(8) Despite section 12 of the Legislative Instruments Act 2003,

guidelines take effect from:

(a) the first day on which they are no longer liable to be

disallowed; or

(b) if the guidelines provide for their commencement after that

day--in accordance with that provision.

46 Subsection 135AB(2)

Omit "Privacy Commissioner", substitute "Information Commissioner".

National Health and Medical Research Council Act 1992

47 Section 4

Insert:

Information Commissioner means the Information Commissioner

within the meaning of the Information Commissioner Act 2009.

48 Section 4 (definition of Privacy Commissioner)

Repeal the definition.

49 Subparagraphs 61(4)(b)(i) and (ii)

Omit "Privacy Commissioner", substitute "Information Commissioner".

50 Paragraphs 61(5)(c) and (d)

Omit "Privacy Commissioner", substitute "Information Commissioner".

Schedule 5 Amendments consequential on the establishment of the Office of the

Information Commissioner

130 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

51 Subsection 61(6)

Omit "Privacy Commissioner", substitute "Information Commissioner".

Privacy Act 1988

52 Subsection 6(1) (definition of Commissioner)

Repeal the definition, substitute:

Commissioner means the Information Commissioner within the

meaning of the Information Commissioner Act 2009.

53 Part IV (heading)

Repeal the heading, substitute:

Part IV--Functions of the Information

Commissioner

54 Division 1 of Part IV

Repeal the Division.

55 Subsections 31(4), 32(2) and 36(1)

Omit "Privacy".

56 Sections 96, 97 and 99

Repeal the sections.

57 Introduction to Schedule 2

Omit "Privacy Commissioner", substitute "Information Commissioner".

58 Clause 6.1 of Schedule 2

Omit "Privacy Commissioner", substitute "Information Commissioner".

Telecommunications Act 1997

59 Paragraphs 117(1)(j) and (k)

Omit "Privacy Commissioner", substitute "Information Commissioner".

60 Subsection 118(1) (note)

Amendments consequential on the establishment of the Office of the Information

Commissioner Schedule 5

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 131

Omit "Privacy Commissioner", substitute "Information Commissioner".

61 Subsection 118(4A)

Omit "Privacy Commissioner", substitute "Information Commissioner".

62 Subsection 121(1A)

Omit "Privacy Commissioner", substitute "Information Commissioner".

63 Subsection 122(3)

Omit "Privacy Commissioner", substitute "Information Commissioner".

64 Subsection 130(1) (note)

Omit "Privacy Commissioner", substitute "Information Commissioner".

65 Subsections 134(2) and (3)

Omit "Privacy Commissioner", substitute "Information Commissioner".

Note:

The heading to section 134 is altered by omitting "Privacy" and substituting

"Information".

66 Paragraph 295M(1)(a)

Omit "Privacy Commissioner" (first occurring), substitute "Information

Commissioner in relation to matters that relate to the privacy functions

(within the meaning of the Information Commissioner Act 2009)".

67 Paragraph 295M(1)(a)

Omit "Privacy Commissioner" (last occurring), substitute "Information

Commissioner".

68 Section 295ZC

Omit "Privacy Commissioner", substitute "Information Commissioner".

Note:

The heading to section 295ZC is altered by omitting "Privacy Commissioner" and

substituting "Information Commissioner".

69 Subsection 309(1)

Omit "Privacy Commissioner" (wherever occurring), substitute

"Information Commissioner".

Note:

The heading to section 309 is altered by omitting "Privacy Commissioner" and

substituting "Information Commissioner".

Schedule 5 Amendments consequential on the establishment of the Office of the

Information Commissioner

132 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

70 After subsection 309(1)

Insert:

(1A) The function conferred on the Information Commissioner by

subsection (1) is a privacy function for the purposes of the

Information Commissioner Act 2009.

71 Subsections 309(2) to (4)

Omit "Privacy Commissioner" (wherever occurring), substitute

"Information Commissioner".

72 Subsection 309(5)

Repeal the subsection (including the note).

73 Paragraphs 515A(2)(a) and (b)

Omit "Privacy Commissioner", substitute "Information Commissioner".

Note:

The heading to section 515A is altered by omitting "Privacy Commissioner" and

substituting "Information Commissioner".

74 Paragraphs 515A(3)(a) and (c)

Omit "Privacy Commissioner", substitute "Information Commissioner".

75 Subsection 515A(4)

Omit "Privacy Commissioner" (wherever occurring), substitute

"Information Commissioner".

Telecommunications (Interception and Access) Act 1979

76 Subsection 183(3)

Omit "Privacy Commissioner", substitute "Information Commissioner

in relation to matters that relate to the privacy functions (within the

meaning of the Information Commissioner Act 2009)".

Torres Strait Fisheries Act 1984

77 Paragraph 42(2)(e) of Schedule 2

Omit "Privacy Commissioner", substitute "Information Commissioner

under the Privacy Act 1988".

Amendments consequential on the establishment of the Office of the Information

Commissioner Schedule 5

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 133

78 Paragraph 53(2)(g) of Schedule 2

Omit "Privacy Commissioner", substitute "Information Commissioner".

Schedule 6 Other amendments

Part 1 Amendments to the Freedom of Information Act 1982

134 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

Schedule 6--Other amendments

Part 1--Amendments to the Freedom of Information

Act 1982

Freedom of Information Act 1982

1 Subsection 4(1) (definition of agency)

Omit ", a prescribed authority or an eligible case manager", substitute

"or a prescribed authority".

2 Subsection 4(1)

Insert:

Commonwealth contract means a contract to which all of the

following apply:

(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;

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).

Other amendments Schedule 6

Amendments to the Freedom of Information Act 1982 Part 1

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 135

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.

Schedule 6 Other amendments

Part 1 Amendments to the Freedom of Information Act 1982

136 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

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:

Other amendments Schedule 6

Amendments to the Freedom of Information Act 1982 Part 1

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 137

(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

20 Subsection 7(2A)

Repeal the subsection, substitute:

Schedule 6 Other amendments

Part 1 Amendments to the Freedom of Information Act 1982

138 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

(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

Other amendments Schedule 6

Amendments to the Freedom of Information Act 1982 Part 1

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 139

extent that it contains such a summary, extract or

information.

(2D) A Minister is exempt from the operation of this Act in relation to

the following documents:

(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:

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;

Schedule 6 Other amendments

Part 1 Amendments to the Freedom of Information Act 1982

140 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

(b) postage by pre-paid post to an address mentioned in

paragraph (a);

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

Other amendments Schedule 6

Amendments to the Freedom of Information Act 1982 Part 1

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 141

(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.

Schedule 6 Other amendments

Part 1 Amendments to the Freedom of Information Act 1982

142 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

(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

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.

Other amendments Schedule 6

Amendments to the Freedom of Information Act 1982 Part 1

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 143

(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

Schedule 6 Other amendments

Part 1 Amendments to the Freedom of Information Act 1982

144 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

(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;

Other amendments Schedule 6

Amendments to the Freedom of Information Act 1982 Part 1

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 145

(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

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;

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:

Schedule 6 Other amendments

Part 1 Amendments to the Freedom of Information Act 1982

146 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

(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;

(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

Other amendments Schedule 6

Amendments to the Freedom of Information Act 1982 Part 1

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 147

Repeal the section, substitute:

24A Requests may be refused if documents cannot be found, do not

exist or have not been received

Document lost or non-existent

(1) An agency or Minister may refuse a request for access to a

document if:

(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

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".

Schedule 6 Other amendments

Part 1 Amendments to the Freedom of Information Act 1982

148 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

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.

Other amendments Schedule 6

Application provisions Part 2

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 149

Part 2--Application provisions

40 Application--items 2, 3, 7, 16, 19 and 33

The amendments made by items 2, 3, 7, 16, 19 and 33 apply in relation

to contracts entered into at or after the commencement of those items.

41 Application--items 4, 6, 8, 10 to 13, 17, 20 to 32 and 34 to

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.

Schedule 6 Other amendments

Part 3 Amendment of other Acts

150 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

Part 3--Amendment of other Acts

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

Other amendments Schedule 6

Amendment of other Acts Part 3

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 151

(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)

Schedule 6 Other amendments

Part 3 Amendment of other Acts

152 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

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

Privacy Commissioner transition Schedule 7

Preliminary Part 1

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 153

Schedule 7--Privacy Commissioner transition

Part 1--Preliminary

1 Definitions

(1)

In this Schedule:

commencement day means the day on which the new law commences.

Information Commissioner means the Information Commissioner

appointed under section 14 of the new law.

new law means the Information Commissioner Act 2009.

old law means Division 1 of Part IV of the Privacy Act 1988 as in force

immediately before the commencement day.

Privacy Commissioner means the Privacy Commissioner appointed

under section 19A of the old law.

(2)

An expression used in this Schedule that is also used in the new law has

the same meaning in this Schedule as it has in the new law.

(3)

Subject to subitem (2), an expression used in this Schedule that is also

used in the Privacy Act 1988 has the same meaning in this Schedule as

it has in that Act.

(4)

Subject to subitems (2) and (3), an expression used in this Schedule that

is also used in the Freedom of Information Act 1982 has the same

meaning in this Schedule as it has in that Act.

(5)

To avoid doubt, a reference in this Schedule to an Act, or a provision of

an Act, that is amended by this Act is, in relation to a time on or after

the commencement day, taken to be a reference to the provision as so

amended.

Schedule 7 Privacy Commissioner transition

Part 2 Office holders, staff and consultants

154 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

Part 2--Office holders, staff and consultants

2 Privacy Commissioner

(1)

The person holding office as the Privacy Commissioner under

section 19A of the old law immediately before the commencement day

is taken to have been appointed as the Privacy Commissioner by the

Governor-General under subsection 14(4) of the new law for the

balance of the person's term of appointment that remained immediately

before the commencement day.

(2)

The Privacy Commissioner is taken to have been appointed on the same

terms and conditions as applied immediately before the commencement

day.

(3)

This item does not prevent those terms and conditions being varied after

the commencement day.

3 Staff

Existing agreements to continue

(1)

Subitem (2) applies if:

(a) on or after the commencement day, an APS employee is

moved, because of a determination under section 72 of the

Public Service Act 1999, from the Office of the Privacy

Commissioner to the Office of the Information

Commissioner; and

(b) the employee's employment in the Office of the Privacy

Commissioner was subject to any of the following

agreements:

(i) a collective agreement;

(ii) an enterprise agreement;

(iii)

ITEA;

(iv) an AWA or pre-reform AWA (and therefore also a

collective agreement which had no effect while the

AWA or pre-reform AWA operated in relation to the

employee);

(v) a pre-reform certified agreement.

Privacy Commissioner transition Schedule 7

Office holders, staff and consultants Part 2

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 155

(2)

The agreement concerned has effect after the move, in relation to the

employee's employment, as if it had been made with the Information

Commissioner.

Regulations

(3)

The regulations may provide for other matters of a transitional nature in

relation to the transfer of employees from the Office of the Privacy

Commissioner to the Office of the Information Commissioner.

Definitions

(4)

In this item:

AWA has the meaning given by clause 1 of Schedule 7A to the

Workplace Relations Act 1996 as in force immediately before the

commencement of Schedule 1 to the Fair Work (Transitional

Provisions and Consequential Amendments) Act 2009.

Note:

AWA is short for Australian workplace agreement.

collective agreement has the meaning given by section 4 of the

Workplace Relations Act 1996 as in force immediately before the

commencement of Schedule 1 to the Fair Work (Transitional

Provisions and Consequential Amendments) Act 2009.

enterprise agreement has the meaning given by section 12 of the Fair

Work Act 2009.

ITEA has the meaning given by section 326 of the Workplace Relations

Act 1996 as in force immediately before the commencement of

Schedule 1 to the Fair Work (Transitional Provisions and

Consequential Amendments) Act 2009.

Note:

ITEA is short for individual transitional employment agreement.

pre-reform AWA has the meaning given by clause 1 of Schedule 7 to

the Workplace Relations Act 1996 as in force immediately before the

commencement of Schedule 1 to the Fair Work (Transitional

Provisions and Consequential Amendments) Act 2009.

pre-reform certified agreement has the meaning given by clause 1 of

Schedule 7 to the Workplace Relations Act 1996 as in force

immediately before the commencement of Schedule 1 to the Fair Work

(Transitional Provisions and Consequential Amendments) Act 2009.

4 Consultants

Schedule 7 Privacy Commissioner transition

Part 2 Office holders, staff and consultants

156 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

(1)

A person engaged as a consultant under subsection 26A(3) of the old

law immediately before the commencement day is taken, on and after

the commencement day, to have been engaged by the Information

Commissioner as a consultant under section 24 of the new law.

(2)

The person is taken to have been engaged on the same terms and

conditions as applied to the person immediately before the

commencement day.

(3)

This item does not prevent those terms and conditions being varied after

the commencement day.

Privacy Commissioner transition Schedule 7

Things done by, or in relation to, the Privacy Commissioner Part 3

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 157

Part 3--Things done by, or in relation to, the Privacy

Commissioner

5 Things done by, or in relation to, Privacy Commissioner

(1)

If a thing was done by, or in relation to, the Privacy Commissioner

before the commencement day, for a purpose, then the thing is taken, on

and after the commencement day, to have been done by, or in relation

to, the Information Commissioner for the same purpose.

(2)

In this item, doing a thing includes making an instrument.

(3)

The Minister may, by written instrument, determine that subitem (1)

does not apply in relation to a specified thing done by, or in relation to,

the Privacy Commissioner.

(4)

A determination under subitem (3) is not a legislative instrument.

6 Consultations by, and with, Privacy Commissioner

(1)

A consultation being undertaken for the purposes of a provision of an

Act (or an instrument under an Act) that was started by the Privacy

Commissioner before the commencement day may be continued by the

Information Commissioner in accordance with that provision on or after

the commencement day.

(2)

If, after undertaking consultation in accordance with a provision

covered by subitem (1), the Privacy Commissioner would have been

required or permitted to make a decision (or take another specified

action), the Information Commissioner may make the decision (or take

the specified action) after completing the consultation.

7 Comments sought, but not received, by Privacy

Commissioner

(1)

This item applies if:

(a) the Privacy Commissioner gave a notice in accordance with a

provision of an Act to a person for the purpose of:

(i) seeking the person's views before making a decision; or

(ii) giving the person an opportunity to be heard before

making a decision; and

(b) the person did not respond to the Privacy Commissioner

before the commencement day.

Schedule 7 Privacy Commissioner transition

Part 3 Things done by, or in relation to, the Privacy Commissioner

158 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

(2)

The person may respond to the Information Commissioner in

accordance with the provision of the Act on or after the commencement

day.

8 Approval sought from, but not given by, Privacy

Commissioner

(1)

This item applies if:

(a) the approval of the Privacy Commissioner was sought under

a provision of an Act (or an instrument under an Act) for a

program protocol, guidelines, code or other instrument, or for

the variation or revocation of such a protocol, guidelines,

code or instrument; and

(b) the Privacy Commissioner did not give approval before the

commencement day.

(2)

On or after the commencement day, the Information Commissioner may

give approval in accordance with the provision in accordance with

which the approval was sought.

9 Decisions made, but not implemented, by Privacy

Commissioner

(1)

This item applies if:

(a) the Privacy Commissioner made a decision in accordance

with a provision of the Privacy Act 1988; and

(b) having made the decision, the Privacy Commissioner was

required to take a step to implement it; and

commencement day.

(2)

The Information Commissioner may take the step in accordance with

the provision to implement the decision on or after the commencement

day.

(3)

In this item, make a decision includes forming a view or being satisfied

of a matter.

10 Privacy Advisory Committee giving advice to Privacy

Commissioner

(1)

This item applies if:

Privacy Commissioner transition Schedule 7

Things done by, or in relation to, the Privacy Commissioner Part 3

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 159

(a) the Privacy Advisory Committee was requested to advise the

Privacy Commissioner in accordance with the functions

conferred on the Committee by section 83 of the Privacy Act

1988; and

(b) the Committee did not advise the Privacy Commissioner

before the commencement day.

(2)

The Committee may advise the Information Commissioner in

accordance with the functions conferred by section 83 of the Privacy

Act 1988 on or after the commencement day.

Schedule 7 Privacy Commissioner transition

Part 4 Investigations

160 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

Part 4--Investigations

11 Investigations

(1)

An investigation for the purposes of a provision of an Act (or an

instrument under an Act) that was started by the Privacy Commissioner

before the commencement day may be completed by the Information

Commissioner in accordance with that provision on or after the

commencement day.

(2)

Subitem (1) applies whether the investigation was initiated by a

complaint or at the initiative of the Privacy Commissioner.

12 Requirement to give evidence or hold conference etc.

(1)

Subitem (2) applies if:

(a) the Privacy Commissioner required a person to provide

evidence, information or any document; and

(b) the evidence, information or document was not provided to

the Privacy Commissioner before the commencement day.

(2)

The person must provide the evidence, information or document to the

Information Commissioner, on the same basis on which it was required

to be provided to the Privacy Commissioner.

(3)

Subitem (4) applies if:

(a) the Privacy Commissioner directed a person to attend a

conference under section 46 of the Privacy Act 1988; and

(b) the conference was not held before the commencement day.

(4)

The person must attend the conference if the conference is:

(a) presided over by the Information Commissioner; and

(b) held on or after the commencement day; and

13 Applications on foot as part of investigation proceeding

(1)

This item applies if:

(a) an application was made to the Privacy Commissioner as part

of an investigation under section 38A or 38B of the Privacy

Act 1988 (as in force before the commencement day); and

Privacy Commissioner transition Schedule 7

Investigations Part 4

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 161

(b) the Privacy Commissioner did not determine the application

before the commencement day.

(2)

The Information Commissioner may determine the application in

accordance with the provision in accordance with which the application

was made on or after the commencement day.

14 Conference convened, but not held

(1)

This item applies if:

(a) the Privacy Commissioner convened a conference in

accordance with section 47 of the Privacy Act 1988; and

(b) the conference was not held before the commencement day.

(2)

The Information Commissioner may hold the conference in accordance

with section 47 of the Privacy Act 1988 on or after the commencement

day.

15 Submissions invited, but not received, by Privacy

Commissioner

(1)

This item applies if:

(a) the Privacy Commissioner, under subsection 43(5) or 53B(3)

of the Privacy Act 1988, afforded a complainant or

respondent an opportunity to appear before the

Commissioner and make submissions, orally, in writing or

both, in relation to a matter to which an investigation relates;

and

(b) the submissions were not made before the commencement

day.

(2)

The Information Commissioner may, in accordance with the subsection,

receive the submissions on or after the commencement day.

Schedule 7 Privacy Commissioner transition

Part 5 Written instruments and reporting requirements

162 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

Part 5--Written instruments and reporting

requirements

16 References in instruments

(1)

This item applies if:

(a) an instrument is in force immediately before the

commencement day; and

(b) the instrument contains a reference to the Privacy

Commissioner.

(2)

The instrument has effect on and after the commencement day as if the

reference to the Privacy Commissioner were a reference to the

Information Commissioner.

(3)

The Minister may, by written instrument, determine that subitem (1)

does not apply in relation to a specified reference.

(4)

A determination under subitem (3) is not a legislative instrument.

17 Reporting requirements

Reports for periods ending after the commencement day

(1)

Subitem (2) applies if:

(a) immediately before the commencement day, a law required

the Privacy Commissioner to provide a report in relation to a

period; and

(b) the period ends on or after the commencement day.

(2)

The Information Commissioner must provide the report, as required, in

relation to so much of the period as occurs before the commencement

day.

Reports for periods ending before the commencement day

(3)

Subitem (4) applies if:

(a) a law required the Privacy Commissioner to provide a report

in relation to a period that ended before the commencement

day; and

(b) the report was not provided before the commencement day.

(4)

The Information Commissioner must provide the report as required.

Privacy Commissioner transition Schedule 7

Legal and other proceedings Part 6

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 163

Part 6--Legal and other proceedings

18 Substitution of Information Commissioner as a party to

pending proceedings

If any proceedings to which the Privacy Commissioner was a party

were pending in any court or tribunal immediately before the

commencement day, the Information Commissioner is substituted for

the Privacy Commissioner as a party to the proceedings on and after the

commencement day.

19 Reviews, examinations etc. by Privacy Commissioner

(1)

This item applies if the Privacy Commissioner was doing any of the

following things under the Privacy Act 1988 (but had not finished doing

that thing) before the commencement day:

(a) conducting a review of an approved privacy code under

section 18BH;

(b) examining proposed enactments in accordance with the

function set out in paragraph 27(1)(b);

paragraph 28A(1)(b);

(d) undertaking research and monitoring developments in

accordance with the function set out in paragraph 27(1)(c);

(e) examining records for the purposes of subsection 27(3);

(f) examining records for the purposes of paragraph 28(1)(d).

(2)

The Information Commissioner may finish doing the thing in

accordance with the provision on and after the commencement day.

20 Review of adjudicator's decisions

(1)

This item applies if:

(a) a person applied under section 18BI of the Privacy Act 1988

to the Privacy Commissioner for review of a determination

made by an adjudicator; and

(b) the Privacy Commissioner did not complete the review

before the commencement day.

(2)

The Information Commissioner may complete the review in accordance

with section 18BI of the Privacy Act 1988 on and after the

commencement day.

Schedule 7 Privacy Commissioner transition

Part 6 Legal and other proceedings

164 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

21 Conference convened, but not held

(1)

This item applies if:

(a) the Privacy Commissioner convened a conference in

accordance with section 76 of the Privacy Act 1988; and

(b) the conference was not held before the commencement day.

(2)

The Information Commissioner may hold the conference in accordance

with sections 76 and 77 of the Privacy Act 1988 on or after the

commencement day.

22 Conference held, but determination not made, by Privacy

Commissioner

(1)

This item applies if:

(a) the Privacy Commissioner held a conference in accordance

with section 76 of the Privacy Act 1988; and

(b) before the commencement day, the Privacy Commissioner

did not make a determination in accordance with section 79

of that Act in relation to the matters raised at the conference.

(2)

The Information Commissioner may make a determination in relation to

those matters in accordance with section 79 of the Privacy Act 1988 on

or after the commencement day.

Privacy Commissioner transition Schedule 7

Miscellaneous Part 7

Freedom of Information Amendment (Reform) Bill 2009 No. , 2009 165

Part 7--Miscellaneous

23 Records etc. of Office of the Privacy Commissioner

All records or documents held, immediately before the commencement

day, for the purposes of the performance of the functions, or the

exercise of the powers, of the Privacy Commissioner, are, on and after

the commencement day, taken to be held for the purposes of the

performance of the functions, or the exercise of the powers, of the

Information Commissioner.

24 Disclosure of private information

Despite the repeal of section 96 of the Privacy Act 1988 by this Act,

that section (as in force immediately before the commencement day)

continues to apply, in relation to conduct engaged in before the

commencement day, as if that section had not been repealed.

25 Failure to appear before, or give information to, the

Privacy Commissioner

(1)

Subitem (2) applies if:

(a) section 65 or 66 of the Privacy Act 1988 applied to a person

before the commencement day in relation to conduct engaged

in by the person; and

(b) that provision would not (but for this item) apply to the

person on or after the commencement day.

(2)

That section applies to the person in relation to the conduct on and after

the commencement day.

26 Saving of existing delegations

A delegation in force under section 99 of the Privacy Act 1988

immediately before the commencement day continues to have effect,

subject to the new law, as if it were a delegation under section 25 of the

new law on and after the commencement day.

27 Regulations

(1)

The Governor-General may make regulations prescribing matters:

(a) required or permitted by this Schedule to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or

giving effect to this Schedule.

Schedule 7 Privacy Commissioner transition

Part 7 Miscellaneous

166 Freedom of Information Amendment (Reform) Bill 2009 No. , 2009

(2)

The Governor-General may make regulations prescribing matters of a

transitional nature (including prescribing any saving or application

provisions) relating to the amendments or repeals made by this Act.

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